Unpopular Constitutionalism

Constitutions are commonly thought to express nations' highest values. They are near-universally proclaimed in the name of “We the People” and regarded — by scholars and the general public alike — as an expression of the people's views and values. This Article shows empirically that this widely held image of constitutions does not correspond with the reality of constitution-making around the world. The Article contrasts the constitutional-rights choices of ninety countries between 1981 and 2010 with data from nearly one-half million survey responses on cultural, religious, and social values conducted over the same period. It finds, surprisingly, that in this period, the link between nations' specific constitutional choices and their citizens' values has generally been weak or non-existent. The Article presents additional evidence from an original survey that reveals that, overwhelmingly, people want to enshrine their values in their constitution. Together, these findings suggest that the world's constitutions are not meaningfully supported by the people they represent, and that the global practice of constitution-making can be characterized as an exercise in “unpopular constitutionalism.” The Article attributes this finding to a dilemma that lies at the heart of constitutional design. When constitutions serve as unique and defining statements of national ideals and popular values, they may flout universal human rights norms or well-established principles of constitutional design. On the other hand, when constitutional rules merely reflect sound constitutional design and universal right norms, they may be remote from the people's values and traditions and therefore fail in practice. The findings suggest that constitution-makers have largely resolved this dilemma in favor of universal rights and ready-made constitutional models, which explains the disconnect from popular values