When to Overthrow Your Government: The Right to Resist in the World’s Constitutions

Tom Ginsburg, Mila Versteeg and myself have just posted the preliminary version our upcoming article on the Right to Rebel within the world’s written constitutions unto SSRN. The article, which is available for download here, may well be of interest to our fellow scholars, bloggers and constitutional enthusiasts.  We would certainly welcome any comments, perspectives or opinions on the subject or the piece from the Comparative Constitutions community at large.

Over the past year we have at various times posted some of our findings on this fascinating and oft overlooked phenomenon, in countries as diverse as Venezuela, Cuba, Ghana, Central America and the greater Middle East. This little understood phenomenon, involves provisions within constitutions that empower the population to ignore, frustrate or even openly attack the governmental order or regime, often set up elsewhere within the same constitution, under certain predefined circumstances.

To give a few examples from current constitutions:  

Venezuela: “Art. 350 The people of Venezuela, true to their republican tradition and their struggle for independence, peace and freedom, shall disown any regime, legislation or authority that violates democratic values, principles and guarantees or encroaches upon human rights.” 

Portugal: “Art. 21 Everyone shall have the right to resist any order that infringes his rights, freedoms or safeguards and to repel by force any form of aggression when recourse to public authority is impossible.” 

Germany: “Art. 20 All Germans shall have the right to resist any persons seeking to abolish this constitutional order, if no other remedy is available.” 

Benin: “Art. 66: In case of a coup d’état, or a putsch, of aggression by mercenaries or of any action by force whatsoever, any member of a constitutional agency shall have the right and the duty to make an appeal by any means in order to re-establish the constitutional legitimacy, including recourse to existing agreements of military or defense co-operation. In these circumstances for any Beninese to disobey and organize himself to put a check to the illegitimate authority shall constitute the most sacred of rights and the most imperative of duties.”

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Here is the abstract: 

WHEN TO OVERTHROW YOUR GOVERNMENT: THE RIGHT TO RESIST IN THE WORLD’S CONSTITUTIONS Tom Ginsburg, Daniel Lansberg-Rodriguez, and Mila Versteeg

On December 17 2010, a young Tunisian street vendor protesting an abusive police official set off a wave of democratic uprisings throughout the Arab world. In rising up against their governments, the peoples of the Arab Spring were confronting an age-old problem in political theory: when is it acceptable to rise up against an unjust authority? This question is not only of great importance to the peoples of the Middle East today, but was also of profound interest to the American founders and, through them, has informed the very basis of modern constitutionalism. It is perhaps unsurprising then that many constitutions themselves provide an answer to this question, allowing the people to challenge or overthrow their governments under certain circumstances. But to date, little systematic and empirical analysis has been done on the prevalence of this so-called “right to resist” in national constitutions, or on what motivates constitution-makers to adopt such a right.

This Article takes up the task. It presents a unique and original dataset on right to resist provisions in all national constitutions written since 1781, tracing its historical trajectory and demonstrating how it has proliferated in recent decades. The Article moreover provides the first-ever empirical exploration of why it is, exactly, that constitution-makers give their people a constitutional mandate to overthrow or contradict their governing authorities – likely those very authorities elsewhere empowered by the same constitution. Drawing on a range of real-world examples as well as regression analysis, we show that right to resist provisions are most likely to be first established following a disruption of the previous constitutional order, either through popular democratic transition or through a violent political break such as coup d’état.

These findings suggest that the constitutional right to resist serves a dual function, depending on its context. On the one hand, the constitutional right to resist can represent a fundamentally democratic and forward-looking tool that constrains future government abuse, empowers national citizenry, and acts as an insurance policy against undemocratic backsliding. On the other hand, the right can serve as a backward-looking justification for coup-makers who seek retroactive legitimacy for whatever political crimes placed them in a position to be making a new constitution in the first place. For coup-makers, the right to resist is a device to legitimize their actions ex post. Which of these two functions prevails may be in large part regionally determined. Latin American constitution-makers primarily adopted the right to resist in the aftermath of coup d’états, while in other parts of the world the right to resist functions as a pre-commitment device against undemocratic backsliding.

Our findings have significant implications for our broader understanding of constitutionalism. At the heart of any constitution, it is thought, lies a wish to bind the future on behalf of the present. Yet our findings suggest that, at least in some cases, constitutional provisions may also serve the function of reinterpreting and justifying the past. At least where the right to resist is concerned, constitutions are as much about yesterday as they are about tomorrow.