Ozan Varol

Constitutional theory commonly casts individual-rights provisions and structural provisions as conceptual opposites.  Conventional wisdom suggests that structural provisions establish and empower government institutions, and rights provisions protect individual freedoms.  Although scholars have long explored how government structure can affect individual liberty, its mirror image has been neglected.  Scholars have largely assumed that individual rights have little resemblance to constitutional structure.  The result is an imbalanced discourse that misses the structural implications of individual-rights provisions and their consequences for constitutional theory.

This Article fills a scholarly gap by identifying and elucidating structural rights, which straddle the right-structure dichotomy and complicate contemporary constitutional theory.  Although rights are commonly assumed to restrict government institutions, this Article argues that rights can generate and distribute power, similar to structural provisions.  Specifically, the Article analyzes how rights can aggrandize legislative and executive power, expand judicial review, give rise to complementary political institutions, and promote or facilitate the democratic political empowerment of the citizenry.  In so doing, the Article probes the place of rights in constitutional theory and challenges the standard narrative of rights as restrictions on government power. 

This descriptive theoretical account suggests several normative conclusions that go against the grain of prevailing constitutional theory.  First, individual rights with structural consequences are far more important and the label attached to constitutional provisions far less material than assumed.  By pigeonholing provisions into “structure” and “rights” categories, constitutional theory misses opportunities to examine how they fit into a coherent, harmonious whole.  Second, this analysis also has important consequences for judicial doctrine, which erroneously attaches undue significance to the rights-structure distinction.  Finally, the Article’s descriptive account challenges the Madisonian skepticism of individual rights.  A long line of constitutional thinkers dating back to James Madison have dismissed individual rights as parchment barriers and argued that structural provisions are self-reinforcing in a way that individual-rights provisions are not.  In showing how individual rights can exhibit structure-like characteristics, the Article suggests that the inefficacy of individual rights has been greatly exaggerated and explains why structural rights can achieve some level of stability and self-reinforcement.

As Egypt underwent a tumultuous military-led transition from autocracy to democracy beginning in 2011, a chorus of commentators advocated a " Turkish model " for civil– military relations in Egypt's nascent democracy. That term is frequently invoked in both popular and academic discourse, but rarely defined. This article takes up the task of giving content to that elusive phrase. It begins by analyzing the composition, structure, and objectives of the Turkish military beginning with the Ottoman Empire. It then turns to May 1960, when the Turkish military staged its first direct intervention in republican politics by toppling an authoritarian government and installing democratically elected leaders after seventeen months of interim military rule.The article shows that the military played a crucial role in Turkish modernization and democratization during the coup and in its immediate aftermath—a role that has been largely obscured by the current portrayal of the Turkish military as a hegemonic and repressive institution. The article then explores why, following its initial democratization role after the 1960 coup, the military failed to retreat to the barracks and began to present impediments to democracy. It argues that the plethora of counter-majoritarian institutions established in the 1961 Constitution, drafted under military supervision following the 1960 coup, sparked frequent power vacuums in Turkey, prompting the military to stage political interventions to ensure stability. It further argues that the military's focus on domestic policy matters with its institutionalization in the National Security Council in the 1961 Constitution ensnared the military in domestic disputes , providing an impetus for the military to stage further interventions. The article then explains the recent exodus of the Turkish military from politics with the ascension to power of stable civilian governments and Turkey's accession process to the European Union. It concludes by offering observations and lessons for other nations seeking to normalize their civil–military relations.

The prevailing conceptions of constitutions ordinarily characterize them as rigid and long-enduring, if not permanent, documents. This Article challenges that prevailing wisdom on both descriptive and normative grounds by providing the first systematic examination of temporary constitutions, exploring their benefits as well as their costs, and providing prescriptions for their optimal use. A temporary constitution or constitutional provision, as this Article defines it, limits its own term and lapses at its expiration date unless reenacted through regular constitutional amendment procedures. Although underexplored and undertheorized, temporary constitutions have an extensive historical pedigree and neglected benefits for constitutionalism. Temporary constitutions can reduce error costs associated with entrenching a norm in a durable constitution and promote incrementalism and experimentation in constitutional design by allowing constitutional drafters to consider a greater quality and quantity of information about the empirical effects of their constitutional choices. The use of temporary constitutions can also reduce cognitive biases that tend to predominate in constitutional moments and promote consensus building among constitutional designers by lowering the decision costs involved in negotiating and reaching a constitutional bargain. Finally, temporary constitutionalism can respond to the central critique of durable constitutions by easing the “dead hand” problem, which refers to the ability of the constitutional founders to entrench norms that bind future generations. Temporary constitutions, however, can also impose their own costs on the polity by undermining constitutional stability and design efficiency, and by injecting different types of cognitive biases into the design process. This Article analyzes these costs, offers some prescriptions for minimizing them, and studies the advantages and disadvantages of temporary constitutions vis-à-vis other strategies of constitutional design intended to ease constitutional rigidity or permanence, including “by law” clauses, low amendment thresholds, and constitutional vagueness.

This article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups under an anti-democratic framework. That conventional framework considers military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose existing regimes in order to rule their nations indefinitely. Under the prevailing view, therefore, all military coups constitute an affront to stability, legitimacy, and democracy.

This article, which draws on fieldwork that I conducted in Egypt and Turkey in 2011, challenges that conventional view and its underlying assumptions. The article argues that, although all military coups have anti-democratic features, some coups are distinctly more democracy-promoting than others because they respond to popular opposition against authoritarian or totalitarian regimes, overthrow those regimes, and facilitate free and fair elections.

Following a democratic coup, the military temporarily governs the nation as part of an interim government until democratic elections take place. Throughout the democratic-transition process, the military behaves as a self-interested actor and entrenches, or attempts to entrench, its policy preferences into the new constitution drafted during the transition. Constitutional entrenchment may occur in three ways: procedural, substantive, and institutional. The article uses three comparative case studies to illustrate the democratic-coup phenomenon and the constitutional-entrenchment thesis: (1) the 1960 military coup in Turkey; (2) the 1974 military coup in Portugal; and (3) the 2011 military coup in Egypt.

Continuity is a striking hallmark of the constitutional world. Empirical evidence shows that many constitutional amendment and replacement processes counterintuitively produce relatively little change in substance. During constitutional makeovers, existing provisions frequently “stick,” even where they are arbitrary, suboptimal, or anachronistic.

This paradox, which I call “constitutional stickiness,” has been neglected in the scholarship. American constitutional theorists have largely assumed that Article V’s high threshold for amendment is the primary culprit for lack of formal constitutional change and that significant alterations might follow with a lower threshold. With mounting calls by the states for a constitutional convention, this assumption has also prompted concerns about a “runaway convention” that could drastically alter the substance of the U.S. Constitution.

This Article challenges that assumption. Drawing on rational-choice theory and behavioral law and economics, it provides the first theoretical analysis of constitutional stickiness in descriptive and normative terms. Even with low amendment thresholds, the constitutional status quo exerts significant historical weight and the constitutional starting points constrain future choices in specific and systemic ways. The existing constitutional configurations therefore often depend, quite arbitrarily, on the historical starting point, rather than a rational assessment of all alternatives. As a result, relatively insignificant events in a country’s early constitutional history can have an enormous impact, whereas more dramatic events — such as a revolution or a major constitutional convention — that occur later are much less consequential than assumed. Ultimately, the Article aims to reorient the normative focus of constitutional scholarship to oft-neglected temporal and sequential considerations.

In the debate about originalism in the United States, scholars have devoted scant attention to the question whether the United States stands alone in its fascination with originalism. According to the prevailing view, originalism is distinctively American and the study of comparative originalism is an oxymoron. This Article challenges that conventional view. Drawing on neglected Turkish-language sources, the Article analyzes, as a comparative case study, the use of originalism by the Turkish Constitutional Court (Anayasa Mahkemesi) to interpret the secularism provisions in the Turkish Constitution. Comparing the Turkish version of originalism to American originalism, the Article sheds light on broader debates in the United States about the origins, functioning, and limits of originalism.

This comparative study calls into question the existing theories in the American legal literature about why originalism thrives in certain nations. This Article suggests a new hypothesis that views support for originalism as a cultural, not legal, phenomenon: Originalism blossoms in a nation when a political leader associated with the creation or revision of the Constitution has developed a cult of personality. The cult-of-personality hypothesis explains why originalism has thrived in nations such as Turkey and the United States, where the nation’s founders have developed a strong cult of personality, but has failed to find a strong and sustained following in nations such as Australia, where the founders are held in no special reverence.

The Turkish case study is also instructive on the limits of originalism. Critics of originalism in the United States argue that originalism allows the dead hand of the past to rule an evolving society. In response to the critics, originalists note that the legislature has the option of amending the Constitution if its original meaning no longer comports with societal norms. But what if constitutional amendment were not an available option? The Turkish case study suggests that when the legislature lacks a plausible method - however difficult it may be - for amending the Constitution in times evolving societal norms, the continued use of originalism by the judiciary may motivate the legislature to place political constraints on the courts. In Turkey, the Constitutional Court’s embrace of originalism but rejection of legislative attempts to amend the Constitution led to the adoption of a court-packing plan in September 2010.

The study of mass social movements, and their influence on legal, constitutional, and political reform, has long preoccupied legal scholars. Bottom-up social revolutions, ranging from the Civil Rights Movement in the United States to the struggle against apartheid in South Africa, are studied extensively in the literature. The traditional conceptions of social movements largely portray them as somber occasions that reflect the gravity of the moment and the seriousness of their objectives. This Article identifies and studies a novel pattern emerging from the social movements of the 21st century, providing a unique contribution to the burgeoning legal literature on the role of non-state actors in shaping legal and constitutional change.

These new social movements — including the Arab Spring, the Occupy Wall Street movement, and the mass protests that took place in Summer 2013 in Turkey and Brazil — bear a counterintuitive ingredient in their conception and design: the ubiquitous use of humor. Although humor might appear to be antithetical to the somber nature of social movements, this Article argues, drawing on behavioral research and social movement theory, that humor can be an effective strategic tool to influence legal, constitutional, and political reforms. Humor can pierce the culture of fear prevalent in tyrannical regimes, serve as an effective coping mechanism against repressive government practices, and provoke government officials into reactionary conduct that furthers the social movement’s objectives. The use of humor can reframe and supplant the negative regime narratives of the movement and build solidarity among heterogeneous members of a movement with pre-existing sociopolitical differences. Humor can also support political mobilization by providing a low cost point of entry into a social movement, obtaining domestic and global resonance for the movement, and persuading others to join the movement by depicting an alternate, more appealing, reality. Finally, humor can provide an effective avenue for expressing popular discontent and undermine traditional methods for suppression employed by repressive leaders, including laws that criminalize and censor dissent and social mobilization.