—Adam Chilton, Assistant Professor of Law, University of Chicago Law School, and Mila Versteeg, Professor of Law, University of Virginia School of Law
We are asking ICONect readers to please take our survey on small-c constitutions! The survey asks a number of questions about the nature and sources of constitutional law in your country and will take about 10-30 minutes of your time. We will acknowledge your expertise in our forthcoming book manuscript. We are also planning to publish our findings online on a designated website, along with the list of experts (name and biographical information) that participated in the survey. We are providing some more information on the survey below, but we want to thank you in advance for your time.
Please click here to take our survey.
Let us explain why we are fielding this survey. A recent wave of comparative constitutional law scholarship, which includes work of our own, has relied on the coding of written constitutions to make claims about the social and political origins of constitutional text, their historical trajectory and the effectiveness of particular constitutional provisions. The data for these studies are commonly drawn from the Comparative Constitutions Project, but also from other datasets, such as the Versteeg dataset, which focuses on constitutional rights and a number of smaller-scale efforts by Linda Keith and Oona Hathaway.
This new wave of scholarship is not without its critics. The primary critique is that it relies on constitutional text alone and does not capture the broader body of constitutional law comprising judicial interpretations, legislation with quasi-constitutional status, unwritten conventions, and a range of other constitutional materials. In other words, it relies only on the “large-C” constitution—that is, the text of the written constitution—and not the “small-c” constitution—that is, the larger set of interpretations, conventions, and laws that surround the constitutional text and that can also be part of constitutional law. The criticism rings true especially with American constitutional scholars, as the U.S. Constitution consists of a mere 7,632 words and most of the constitutional law action is found in federal court interpretations of the text. The critique is also salient to the U.K., which famously lacks a written constitution entirely, and Israel, where almost all of the Supreme Court’s rights jurisprudence derives from a single human dignity provision in the Basic Law on Human Dignity. These experiences suggest that the coding of constitutional texts alone captures only a small part of the constitutional realities in a country.
While the criticism is less salient as applied to countries where the written constitution is more specific and more frequently amended, it does reveal an important potential shortcoming in this recent wave of scholarship. These critiques therefore raise the question: is it possible to identify and quantify the larger body of constitutional law, or the so-called “small-c” constitution, and to extend empirical constitutional studies from constitutional texts alone to constitutional law as a whole?
Through this survey, we seek to do just that. We are asking experts to answer whether a number of constitutional rights are constitutionally protected, either in the written constitution or in some other form. We further ask what the main constitutional sources for constitutional rights are; judicial interpretations, legislation with quasi-constitutional status, constitutional conventions, or some other source. We also have a few questions on whether the constitutional rights protections are actually respected in practice.
While large-C constitutions can be captured without in-depth country knowledge, we believe that systematically capturing and comparing small-c constitutions cannot be done without the help of country experts. It is our hope that, in collaboration with constitutional law experts globally, we can start answering a new set of questions; how is it that most countries protect constitutional rights; how well does the large-C Constitution capture the extent to which rights are protected; and what are the main sources of constitutional law in different countries. We thank you in advance for your participation, and cannot wait to share our findings on this forum!