37 countries give their citizens a constitutional right to rebel

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Red Shirt protests in Thailand. The nation’s constitutional right to rebel has arguably been one of the factors feeding into the tendency for democratically elected governments to be overthrown.

There’s an interesting article in the Atlantic by a Venezuelan academic who has studied constitutional ‘rights to rebel.’ I had never heard of these before but according to Daniel Lansberg-Rodriguez they are actually pretty common. According to a study of which he is an author 37 countries, which between them have a fifth of the world’s population, have written a right for citizens to rebel written into their constitutions. And in some countries that don’t (including the US) there have been attempts to infer them.

They take a range of forms. Some are as simple as giving citizens the right to disobey laws which manifestly breach fundamental human rights. Others state that such rebellions should be peaceful. But there are also some which which explicitly allow for armed rebellions.

These seem to enter constitutions either: 1) in the aftermath of atrocities which it is felt the populace should have resisted (e.g. Germany), 2) to provide an after the fact legitimation of the actions of a new government which has taken power by force or made previous efforts to do so (e.g. Venezuala), or both (e.g. Rwanda).

While acknowledging the appeal of the notion that “the final say on matters of governance should lie with the people”, he nonetheless concludes that are a bad idea because they create a dynamic of political instability:

Step 1: A government with questionable democratic credentials takes administrative control following a coup or revolution, or else is democratically elected after previously failing to seize power through one of the above. Soon afterward, these rulers consolidate their power by drafting a new constitution—one which includes a “right to resist,” ostensibly meant to serve as ex-post-facto validation of their past attempts to overthrow their predecessors.

Step 2: In Faustian fashion, the proviso becomes a thorn in the side of the administrations that govern under the new constitution, as agitators and enemies wield it to foment instability. When that instability grows great enough, it produces a crisis that topples the very system it was supposed to be legitimizing. And yet, the provision—or one like it—often sticks around in the next constitutional revision, since taking it out might signal weakness or fear on the part of the country’s new rulers.

Step 3: Rinse and repeat.

……

One could argue that the Venezuelan people are better off if a right to resist helps them destabilize the likes of Chávez. And it is likewise possible that since unstable countries tend to write more constitutions than stable ones do—Thailand had 19, Venezuela 26—troubled nations simply have more opportunities to adopt the clause. But the fact remains that constitutions are nearly always written with an eye toward ensuring the survival of the system being created—and the constitutional right to resist can undermine that goal and generate greater political instability.

If politics is the “art of the possible,” a constitution is its canvas—with set parameters limiting the scope of those possibilities. Right-to-resist provisions explode these constraints, potentially providing carte blanche to those who might someday seek to upend the system, and leaving those in power with a constitutional Clause of Damocles hanging over their heads.

I agree. I’m enough of a Hobbesian to find the entire notion of civil disobediance in a constitutional democracy problematic. Furthermore, I’d wonder about the value of a constitutional right which only becomes applicable if the constitutional order has already broken down.

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