—Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity
[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]
Those of us who study constitutions (especially in a comparative approach) are bound to wonder about the extent to which constitutional law might relate to the relative success that states have experienced in confronting the ongoing COVID-19 pandemic. Perhaps the matter is worthy of a deeper engagement, but I can provide at least a shallow investigation of it here. In the paragraphs that follow, I explore the extent to which giving constitutional standing to rights relating to health and science are connected to success in combating the pandemic.
I would argue that the responses to the pandemic implicate at least three rights that are found in many constitutions. The first and most obvious is the right to health or the right to healthcare. This is a very common feature of constitutions, and is included in 102 of the 192 constitutions for which we have data for 2020 from the Comparative Constitutions Project (CCP). The extent to which the inclusion of this right in a constitution impacts the lived reality of citizens has received significant attention from scholars, including in legal, economic, and medical journals, and most recently in a forthcoming book by Adam Chilton and Mila Versteeg. At a more practical level, a number of constitutions also provide for the right to healthcare that is provided by the government free of charge (41/192). One would expect this constitutional provision in particular to be associated with better outcomes in combatting the virus.
However, the varying responses to the pandemic also bring new relevance to a less-commonly studied right found in many constitutions: the right to enjoy the benefits of science. The history and functions of the right to enjoy the benefits of science is explored in a forthcoming article in the Max Planck Encyclopaedia of Comparative Constitutional Law by Cesare Romano and Andrea Boggio. They highlight the fact that this is one of the oldest international human rights, as it was protected in the American Declaration of Rights and Duties of Man (1948, Article XIII) and the Universal Declaration of Human Rights (1948, Article 27.1). Romano and Boggio suggest that the formulation that has been most linguistically influential is from the International Covenant on Economic, Social and Cultural Rights (1966, Article 15.1, b), which protects the rights of individuals “To enjoy the benefits of scientific progress and its applications.” As of 2020, the CCP finds this right in 21 constitutions, while a full 133 make some kind of mention of science or research.Read the rest of this entry…