Globalization and the Future of Constitutional Rights

Abstract:     
Globalization - the drastic reduction of barriers to trans-border movement and exchange - is a phenomenon of obvious practical significance that has received little attention from American constitutional scholars. To the extent that it has received such attention at all, that attention has been largely confined to a handful of conspicuous changes in judicial behavior, such as the growth of transnational judicial dialogue and the citation of foreign law in recent Supreme Court decisions. Yet the potential impact of globalization is not limited to its effect on the travel and citation habits of judges. On a larger scale, globalization entails intensifying international competition for investment capital and human talent that may have much greater implications for the worldwide development of constitutional law.

This paper aims to place globalization on the agenda of constitutional scholarship by proposing a provocative hypothesis about the impact of global investment and migration patterns on the extent to which countries uphold basic rights. One way in which countries can and do compete for financial capital and human talent is by offering bundles of rights and freedoms that are attractive to investors and elite workers. This paper argues that such competition has the potential to result in a race to the top in the areas of civil liberties and property rights. It draws upon scholarship and data from a range of disciplines - but most heavily political science and economics - to show that this race to the top hypothesis is both logically and empirically plausible.

The paper also employs the concept of a world market in human rights, in which states bid for elite workers by offering both pecuniary and non-pecuniary inducements that include more or less generous bundles of rights and freedoms. Countries that do not boast an attractive bundle of this kind must compensate by offering what this article calls a freedom premium, which amounts to a competitive disadvantage in the global market for human talent.

Keywords: globalization, constitutional law, constitutional rights, civil liberties, property rights, race to the top, migration, human capital, freedom premium, constitutional competition

Accepted Paper Series