rights, review, and spending: policy outcomes with judicially enforceable rights

European Journal of Political Research39: 23–52, 2001.© 2001Kluwer Academic Publishers. Printed in the Netherlands.

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Rights, review, and spending:Policy outcomes with judicially enforceable rights

AMY K. MÄKINENUniversity of Rochester, New York, USA

Abstract. This paper posits that countries with a constitutional right to social security thatcan be enforced by courts via judicial review will show patterns of spending on social securitythat are distinct from countries with other constitutional and judicial arrangements. Govern-ments in countries with enforceable rights will be constrained to spend more on transferprograms to avoid censure from the courts. The hypotheses are tested using data from 22OECD countries using time-series cross-section analysis. The results show that enforceablerights are associated with higher growth rates in social security spending and lower fluctuationin expenditures on social programs, although the amount of GDP spent on social transfers isunaffected by rights. These results are consistent with the idea that governments’ spendinghabits are constrained by positive rights, but rebut the argument that rights lead to economicdistortions.

Introduction

Whether written or unwritten, constitutions commonly reserve rights to theircitizens and set up the means to constrain the government from infringingon these rights. The right to free speech, for instance, forbids the state fromstifling expression. In the twentieth century, it has become common for writ-ten constitutions to enumeratepositive rights, such as the right to socialsecurity or to public education. Positive rights require not only that gov-ernment not impede the production of these goods, but, in theory at least,they impose a duty on the current government to provide certain services.A conception of citizenship that includes rights to socially provided goodshas developed with industrialization (see Twine 1994; Marshall 1950) andthe extension of representation in the constitution-writing process, and isreflected in international human rights treaties (Casper 1990). The effectsof positive rights have been discussed in general (Currie 1936; Glendon1992; Sunstein 1992, 1993; Schwartz 1992; Fabre 1998) and in relationto individual countries’ social jurisprudence (see, for example, Tuori 1995;Schlenker 1986; Currie 1994; Diez-Picazo & Ponthoreau 1991). Howeverthe relationship between positive rights and policy outcomes, a main concernfor constitution writers and their constituents, has not been systematically

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tested. Similarly, cross-national studies of government spending have notinvestigated the constitutional status of social entitlements.

This paper investigates the relationship between constitutional rights toincome assistance (most often phrased as ‘social security’ in constitutions)and spending on the social policies which provide this aid. While consti-tutional entitlements can take a myriad of forms, this one was chosen forstudy because it appears frequently in contemporary constitutions, and be-cause the effects of redistributive policies are fairly easy to measure. I expectconstitutional rights to social assistance to produce higher spending on socialprograms and to make programs harder for lawmakers to cut. The right’sprominence in the constitution may raise citizen expectations of what ap-propriate spending levels are, also constraining lawmakers. However, judicialenforcement of the constitutional bargain, where courts are permitted to strikedown laws deemed to cut too deeply into entitlement, should heighten therights’ effects by vetoing (or posing the threat of vetoing) cuts and encour-aging generosity. The result is a more stable commitment to social programs,backed by court definitions of the constitutional rights.

Here, several models of social security spending in 22 OECD countriestest the significance of a constitutional right to social security and judicialreview in determining spending levels. The results show that countries withconstitutional rights to social assistance and judicial review tend towardshigher growth and less fluctuation in spending on social programs. On thewhole, countries with judicial review, whether they have constitutional rightsto social security or not, display similar spending patterns. Greater portionsof GDP and public expenditure are devoted to social programs in thesecountries. Where social rights are present, this tendency continues but withdecreasing returns to stronger powers of judicial review. However, the res-ults of the models of spending growth and fluctuation show that whateverthe level of spending is with regard to GDP or public expenditure, judi-cially enforceable rights are associated with a smooth upward trend in socialoutlays.

This paper will first briefly discuss the nature of positive rights. Discussionwill then turn to the controversy over the appropriateness and justiciabilityof positive rights and the effects constitutional status is likely to have onthe policy areas targeted by these rights. Several models of social securityspending including rights and judicial review are then proposed and tested,and the results discussed in light of the current controversies.

RIGHTS, REVIEW, AND SPENDING 25

Positive rights and the courts

A positive right such as the right to minimum subsistence or social securityobliges the government to provide some kind of tangible good or service.Budgeting and policy development are traditionally the function of the le-gislature, yet constitutional rights frequently involve claims in court. Legalscholars, in particular, focus attention on if and how the courts will decidecases involving positive rights. The common complaint with a positive rightlike that to social security is with its justiciability, or the ability of the judi-ciary to settle a dispute concerning the right and enforce a constitutionallyacceptable outcome. The vagueness of a right to social security makes itdifficult for the courts to rule on rights and easy for a legislature to ignore boththe right and court rulings. It is argued that if the legislature were to neglectthe welfare right, the courts alone lack the resources to enact the programsnecessary for redress (Scott & Macklem 1992: part III; Glendon 1992). Thenull hypothesis of this comparative exercise is thus that the spending patternsof countries with judicially enforceable rights to social assistance will notsignificantly differ from those of other countries.

Further analysis, however, reveals two main ways in which a constitutionalright to welfare may influence policy outcomes. By providing a forum outsidethe electoral and legislative processes for citizens to raise social policy issues,and by formalizing the norm that ‘a decent society ensures that its citizenshave food and shelter’ (Sunstein 1993: 36) which must then be weighedagainst civil and political liberties in courts’ decisions, including social rightsin the constitution gives courts less ‘opportunity to frustrate progressive re-form initiatives in the name of classical civil liberties’ (Scott & Macklem1992: 31).

If a society believes the state should provide minimum subsistence to theneedy, there are of course several ways of implementing it. The norm canbe written into the constitution, but in any case, legislation should enact aprogram. Failure to do so could become an issue at election time. Still, courtsprovide an alternative arena for identifying breaches of the norm or of theconstitution. Individuals or groups that stand to benefit from subsistence canbring suit and draw attention to the problem without having to muster anelectoral or legislative majority, and courts can often offer remedies morereadily than the legislative process. Although it is difficult for courts to estab-lish social programs themselves, once a program has been put in place, courtscan influence their administration and revisions to the policies. Even in theabsence of a constitutional right to social security, courts have influencedsocial policy by judging individual cases relating to administrative proced-ures and eligibility criteria, thus setting spending floors or imposing specificinterpretations of legislation which are binding on other branches (Schwartz

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1992; Shapiro & Stone 1994; Melnick 1994; Horowitz 1977). And if attemptsare made to cut existing programs beyond ‘acceptable’ levels, the issue mayhave an additional hearing in court.

A court must have cooperation from the executive and legislature, how-ever, when making judgments that involve government action or agencies.Decisions made by an unelected judiciary are more likely to be accepted andimplemented when they are based on a recognizable legal or constitutionalprinciple, rather than on the purely political preferences of the judges. Allcountries have a hierarchy of legal norms on which judges base their de-cisions. Some norms may not be founded in written law but are still cited indecisions, even ones involving constitutional principles (Grey 1979). In thecase of conflict between an enumerated and an unwritten norm, the clearlyspecified provision will be used more often as the basis of judgments (Grey1979; in the case of Britain’s mostly unwritten constitution, see Marshall1984). In fact, judges might be reluctant to base decisions on norms of dubi-ous constitutional status for fear of noncompliance by other officials or publicdisapproval.1 Thus clearly stating a citizen’s right to social security in lawor the constitution has the effect of widening the scope of issues on whichthe courts can legitimately exercise discretion (Cappelletti 1989: 28). In theabsence of a constitutional right to social security, courts will have to findother principles to use when deciding disputes over citizens’ claims of socialassistance and claims are more likely to be turned down.

Because of this widened judicial scope, some argue that democraticallyunaccountable judges can and will become all too involved in the essentially‘political’ matter of social programs. (For a full discussion of several legalschools of thought on social rights, see Scott & Macklem 1992: sections I andII.) There is reason to believe the courts can act to enforce a right to socialsecurity in much the same way that they have acted to enforce other positiveconstitutional provisions, such as the right to speedy trial and the right tocounsel, which also entail the use of public resources (Scott & Macklem1992; see also Posner 1995). The courts do not usurp legislators’ power, andthey do not have the power of enforcement, but they can bring unconstitu-tional behavior to light. The historical administration of social programs andthe norms of a society should, with time, make clear what is acceptable ina policy field and eliminate some of the right’s vagueness. This occurs inother types of cases as, for instance, when the notion of ‘cruel and unusualpunishment’ has been redefined over time (Scott & Macklem 1992).

Ordinary law can also enumerate a right to social assistance, of course, andcourts can use that principle in settling disputes. A plaintiff may be found tohave a claim to social assistance based on the wording of the legislation thatsets up social programs. Or a decision may be founded on a principle of equal


application of a given law for all citizens. Courts with the power of judicialreview may use constitutional arguments to apply equal protection or due pro-cess principles to existing statutory programs, as the US Supreme Court didin Goldberg v. Kelly.However, a claim founded on due process or equal pro-tection under ordinary legislation disappears with a modification of the law.In most countries, though, legislation is considerably easier to change thanconstitutional provisions. Constitutional change generally requires approvalby a legislative supermajority or via a special procedure, while a legislativemajority suffices to pass new legislation. A right enshrined in the constitutionand the judicial interpretations and precedents based upon it, therefore, shouldendure longer than a right embedded in ordinary law. Courts should act asa brake on policy change, especially where lawmakers wish to reduce thegenerosity of a program and renege on the constitutional bargain.

Thus courts can rule on positive rights and they can influence lawmakers’agenda by bringing noncompliance with the constitution to public attention.Even if the public finds the rightper seunimportant, governmental violationof constitutional arrangements may stir up public disapproval.2 Legislatorsand governments must be aware of the possibility of judicial review and takepossible constitutional conflicts into account when drafting laws. In Europeannations, especially France and Germany, the constitutional tribunal has be-come known as a ‘third chamber’ because of the influence that judicial reviewor the anticipation of review has had on the content of legislation; legislatorsregularly consult legal scholars in their attempt to avoid having measurespublicly ruled out of bounds (Shapiro & Stone 1994; Stone 1994; Landfried1988; Vanberg 1998).

Although a comparative overview of court interpretations of rights to so-cial assistance is beyond the scope of this paper (see Mäkinen 2000 for amore detailed analysis), an example from the German Federal ConstitutionalCourt (FCC) helps illustrate how such rights set bounds on lawmakers’ policychoices. Article 20 of the Basic Law states, ‘The Federal Republic of Ger-many is a democratic and social federal state’.3 ‘Social state’ can have manypractical interpretations, but the prevailing one is that it creates a state dutyto take an active role in social problem solving (Schlenker 1986: 244; Zacher1993), and it influences the interpretation of all the other provisions in theBasic Law (Kommers 1989: 52; Diez-Picazo & Ponthoreau 1991: 19). TheFCC has ruled, that together with the statement in Section 1 that ‘humandignity is inviolable’ and the right to life in Article 2, the social state clauseobliges the state to guarantee a minimum living wage (Existenzminimum) suf-ficient for a dignified human existence, including certain social and culturalgoods (Entscheidungen des Bundesverfassungsgerichts(BVerfGE) 40: 121;61: 81; Schlenker 1986: 93–94). In keeping with the ‘democratic’ aspect of

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Article 20, however, the FCC has deferred responsibility for designing andexecuting social policies to the government and legislature, and it has ruledthat the clause does not entitle any individual to a particular amount of support(BVerGE 1: 91, 105). Despite this deference, a key decision gives a fairlyspecific indication of what the FCC considers the minimum living wage.

The 1990 decision of the ‘tax-free minimum subsistence’ case (Steuer-freies Existenzminimum, BVerfGE 82: 60) concerned child allowances andincome tax exemptions for dependent children. This ruling declares that theamount necessary for minimum subsistence must not be taxed; for familieswith children, an amount necessary for minimum subsistence for each mem-ber of the family must either be tax-exemptive or received as a grant fromthe state. At the time under consideration in this case (e.g., 1983) the taxexemption for children was 432 DM per head. In addition, families couldreceive a grant of between 50 and 240 DM per child per month, dependingon the type and amount of parents’ income and the number of children. Theopinion implies that this amount is too low; the 1990 decision declares that thetax was unconstitutional until the end of 1985. In 1986 the per-child deductionwas raised to 2484 DM, which, combined with the baseline child allowance,evidently passed muster. The basis for the decision was the equality provisionof Article 3.4 The FCC held that the tax-and-grant combination penalizedfamilies with children (the social-security supporting taxpayers of the future)vis-à-vis households with no children because childless households were leftwith more disposable income after basic expenses and taxes. However, theFCC explains that the concept of the minimum subsistence grant stems fromArticles 1 and 20 (BVerfGE 80: 60, 85).

The decision may seem weak on its face; it builds on a purposefully vague‘social state clause’,5 it rules on a law already expired, and it does not lista specific minimum subsistence amount. A later decision on the same matter(BVerfGE 91: 93), further explained that the tax-free allowance need not evenbe exactly as high as the subsistence welfare payment, since that is calculatedon average costs that may differ from family to family. Yet the decisions senda clear signal to lawmakers that they must balance social concerns with fiscalones, even in times of economic difficulties like the ones facing Germany inthe early 1980s. This comes through clearly in the tax-free subsistence case:

The urgency of budget reform does not justify [the unconstitutional tax.. . . Even when the state is forced to take measures to cut spending, it mustpay attention to the just distribution of the [resulting] financial hardship(BVerfGE 91: 89)

The decision also warns,


Insofar as the amount needed for minimum subsistence can vary by re-gion, the legislator may not mandate a lower or average cutoff amountthat may, in the majority of cases, be insufficient [for subsistence](BVerfGE 91: 91)

In other words, it is better to err on the side of generosity. Although theopinion goes on to absolve policy from having to satisfy the needs of eachindividual family, it signals where the lower bounds of acceptable subsistencepayments lie. Lawmakers considering policy changes in the future know theymust meet those bounds for the majority of families or risk censure from theFCC. On a broader scale, then, it is not unreasonable to expect that govern-ments in other countries face the possibility of court sanctions for insufficientsocial assistance policies and will adjust spending accordingly.

Rights, review and spending

A right to social security is one of the most commonly encountered pos-itive rights, and thus affords a large sample of countries to examine. It ishypothesized that countries with a stated right to social security and judicialenforcement will be obligated to spend more on public assistance, which inthis paper is defined as pensions, sickness and unemployment compensation,and income assistance. This hypothesis is tested using data from 22 OECDmember countries.6

Characterizing countries’ systems of judicial review and, consequently,the likelihood that courts will help implement social rights, is far fromstraightforward. In this study, I employ two different measurements of rightsand judicial review. The first uses dummy variables to indicate whether acountry has both a right to social security and judicial review, judicial re-view only, or only a right (see Table 1). Countries fall under the ‘right tosocial security’ column when their constitutions include an article entitlingcitizens to, or obliging governments to provide citizens with, public support.This classification holds even if the right is deemed a nonjusticiable nationalaspiration, because these have also been known to influence legislation andjudicial interpretation of other constitutional provisions.7

For present purposes if a constitution gives a court or courts reviewpowers, or if judicial review has been exercised by a court actively or inact-ively, the country is counted as having judicial review.8 Countries were scored1 for the category they fall into in Table 1 and 0 on all others. The categoryof no right or review was omitted from the regressions, and serves as thereference group. Information on the assignment of nations to categories canbe found in the appendix. Categorical dummy variables do not capture any of

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Table 1. Classification of positive right and judicial review regimes circa 1985

No right to social security Right to social security

No judicia1 review Belgium Denmark

New Zealand Iceland

United Kingdom Netherlands

Switzerland

Judicial review Australia France

Austria Germany

Canada Greece

Finland Ireland

Norway Italy

United States Japan

Portugal

Spain

Sweden

the nuanced institutional differences between countries in the same category,but rather allow easy comparison of the behavior of ‘families’ of countrieswith similar institutional structures.

Secondly, a scale measurement of judicial review powers is an attempt todifferentiate the extent to which judicial review is exercised. It is based on ascale devised by Lijphart (1999: Table 12.2). Here, countries with no judicialreview are scored 0, and the countries with the strongest judicial review score3 (see Table Al for details).9 A dummy variable indicates whether a countryhas a constitutional right to social assistance; all countries in the ‘right only’or ‘right and review’ category above are scored 1 for a right to social assist-ance, the rest are zero. An interaction term gauges the effects of having bothjudicial review and a right, so the complete effect of having rights and reviewis discerned by adding the individual effects of judicial review, the positiveright, and the right and review interaction term. This characterization allowsthe researcher to measure, however crudely, the differences between nationalsystems, and to reflect changes within a country’s institutions. It permits us tosee whether stronger courts are associated with higher spending and whetherstronger courts can enforce social rights more vigorously. At the same time,the imprecision of the scale makes interpreting coefficients a delicate exer-cise; can we really believe, for instance, that medium-strength judicial reviewis equivalent to a positive right if the numbers so indicate? Comparison of the


results of both measurement systems gives us a broader perspective on theproblem.

A nation’s configuration of positive rights and judicial review is taken tobe exogenous, in that all the countries in the sample had rights and reviewprovisions in their constitutions before the time covered by this study.10 Moretroubling is the prospect that both current spending levels and the existenceof constitutional rights and review may be correlated with an unmeasurable‘culture’ variable. In other words, the norms that prompted including therights in the constitution will be correlated, through path dependence andconscious reference to the ideals of the founding,11 to the culture at the timeof appropriation. Also the culture of a nation may be such that citizens arelikely to provide high levels of social security regardless of the existence ofrights. In other words the culture causes both the spending and the right inthe constitution. An examination of the categorization of the countries in thissample (Table 1), however, shows that they are culturally fairly heterogeneousgroupings; no group is made up of exclusively Anglo-American countries,or ex-fascist nations, or primarily Catholic countries, or Scandinavian coun-tries, or ‘corporatist’ or ‘consensual’ democracies, for instance, nor do thesecountry groupings all fall into a single category.12 Public opinion polls couldcapture the attitudes of a country’s citizens towards welfare provision. Thewidest-ranging cross-national survey available is the 1990 World Values Sur-vey (World Values Study Group 1994), which asked citizens in 19 of the 22countries used here (all but Australia, New Zealand and Switzerland) whetherthey felt welfare should be the responsibility of the state or the individual.Responses to this question correlated with the existence of judicially enforce-able rights at 0.149 (N = 26,342). Correlations between mean country surveyresponses and measures of social security spending were equally low; in factthere was a significant negative correlation between spending as a percentof GDP and citizens’ responses favoring state responsibility for welfare. Inthe regression models, measures of the extent to which Christian Democraticand left parties have dominated the government also control for the country’spredisposition to public spending. Overall unmeasured cultural effects willtend to exaggerate any evidence of the institutional effects, making positiveresults difficult to assess. On the other hand, negative results will be a morereliable disconfirmation of hypotheses. The results will be evaluated with aneye to potential problems.

To get a clearer idea of what it means to spend ‘a lot’ on public assistance,it is important to look at the spending of all government units (national, re-gional and local) in several different metrics. Considering the amount socialsecurity spending as a percentage of gross domestic product, as a share oftotal public expenditure, or as the rate of increase over time yields different

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hypotheses as to the role of rights and review in spending decisions. Thedata reflect national spending on pensions, unemployment compensation andsickness, disability and family benefits and social assistance.13 Outlays foreducation and health care were not included because these often are thesubject of their own constitutional rights. The figures used communicate anation’s spending on transfer payments, and some in-kind benefits are notincluded (see Huber, Ragin & Stephens 1993). Left-corporatist countries tendto spend more on labor market re-integration programs, for instance, whileothers rely more on cash transfers (Huber, Ragin & Stephens 1993) and thedependent variables will reflect these programmatic choices. However, trans-fers closely correspond to the type of entitlement mentioned in constitutions,and by using ideological control variables and several metrics of transferspending, the effects of constitutional institutions can still be discerned.

Spending is at least partly a function of the funds that governments areable to raise. If rights and review make social assistance a constitutional issueand thus a spending priority over other programs, assistance would be expec-ted to make up a greater share of public expenditure in countries with thoseprovisions.14 Even in times of fiscal duress, these funds would be less likely tobe cut than those for other ‘nonessential’ programs. Governments in countrieswith rights to social security and no review may feel obligated to providehigher levels of assistance in order to be within the constitutional bounds, butsince voters cannot sanction the majoritarian governments specifically for thisbreach the way courts can, they will have more leeway to reduce spending.Judicial review alone may also tend to increase the share of public moniesspent on social security because courts can extend eligibility for benefits, forinstance, under equal protection clauses, and thus the number of recipients ofassistance. Consequently, countries with stronger judicial review are expectedto be more subject to these pressures, and this should be reflected in the modelwith the scale measure of judicial review. On the whole, though, countries inthe ‘no right’ column of Table 1 are expected to spend a smaller share of theirbudgets on social security than those with rights, while countries with judicialreview and rights will spend most.

Looking atsocial security spending as a proportion of GDPgives someindication of the absolute level of transfers in the economy of a country. Onemight expect a judicially enforceable right to social assistance to lead to ahigher overall level of transfer payments. On the other hand, many welfarestates have expanded to the point where members of the middle class are therecipient of many of the programs initially intended to provide security tothe poor (Goodin & LeGrand 1987). A society with social rights and judicialreview might be fulfilling its obligation to those in need without devotinga large portion of its income to it, although an article worded to give all


citizens (not only the poor) a right to social security could also work to inflatethe percentage of national income devoted to transfers. It will be difficult totell from this model whether rights and review have an effect, but it will beinstructive to see where countries with these institutions fall relative to others,and what implications it carries for the desirability of positive rights.

Examining thegrowth rate of social security spendingmay help to gaugethe effect of rights and review on spending in the face of demands for cut-backs. Spending cuts tend to take the form of reductions in the rate of growthof spending on a program, not in overall appropriations. We would expectcountries without the right to social security and judicial review to be associ-ated with lower growth in spending than those with the provisions; courtswith review in the absence of the right may have no constitutional basison which to disapprove cuts, so long as other constitutional principles areobserved in their application. Consequently, countries with a right to socialsecurity should display higher growth rates overall, because policy makerswill be less inclined to cut. In addition, regardless of the extent of a country’sreliance on transfers as a social policy tool, with this measure we can explorethe dynamics of spending within transfer-based programs.

As a corollary to the hypothesis about spending growth, we can also pos-tulate thatfluctuations in spendingin countries with a judicially enforceableright will be smaller than in non-right countries. This is measured as theabsolute value of the change in per capita spending from one year to the next.In systems without a check on spending cuts, one government may reducesocial security spending in one term, and the next government may restoreit to previous levels or higher, leading to great fluctuations in expenditure.Rights and review may, in curbing cuts and setting clear expectations forlevels of support, smooth out the spending curve.

To be more confident of how enumerated rights and the availability ofjudicial review affect the level of spending, it is of course necessary to takeinto account, through regression analysis, other factors that can impact so-cial security outlays. Wilensky (1975) has identified the level of economicdevelopment and the demand for services (gauged by the percentage of thepopulation over age 65) as significant correlates with welfare spending. Like-wise, an increase in the unemployment rate will also increase demand fortransfer payments. A highly unionized workforce will also be more able tolobby for social benefits through corporatist arrangement.15 A control will beadded for the fiscal pressures on the government to reduce outlays as reflectedin the government deficit.16 Exposure to the world economy, as measured byimports and exports as a share of GDP, can lead either to increased redis-tributive spending (Katzenstein 1985; Garrett & Lange 1996), or to decreasedspending in an effort to keep tax levels and labor costs competitive (Alesina

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& Rodrick 1994). A post-1975 dummy is also included to control for thedifferent conditions constraining spending after the OPEC oil crisis.

Importantly, the ideological complexion of a country’s governing partiesmust be included in a model to help distinguish purely ‘political’ causes ofspending from the ‘institutional’ variables (e.g., Skocpol 1985; Weir, Orloff &Skocpol 1989; Hicks & Swank 1992), and must be controlled for. Both partiesof the left and Catholic or Christian Democratic parties have been shownto promote social spending (Hicks & Swank 1992; Esping-Anderson 1990;Hicks & Misra 1993; Huber, Ragin & Stephens 1993; Wilensky 1981; Castles1982; van Kersbergen 1995). Furthermore, for this paper it is important tocontrol for the effects of overtly Christian parties because of the close associ-ation between social rights and religious, particularly Catholic, thought (Perry1997). Huber, Ragin and Stephens (1993) utilize a cumulative measure of thepercentage of cabinet seats that have been held by Christian Democratic andLeft parties since 1946. This measure thus incorporates not only the extent towhich program structures have been shaped by parties in the past, but, whenused in a time series, also reflects year-to-year changes in partisan control ofgovernment. Unfortunately the cumulative measure is not available for Spain,Portugal, Greece or Iceland. Instead, for each observation the cabinet sharesof Christian Democrat and left parties were summed over the previous fiveyears.17 The 5-year sums of left and Christian cabinet shares correlate at 0.70and 0.87, respectively, with the post-war cumulative variables, and allow theretention of four additional countries.

Other constitutional institutions besides rights and judicial review canconstrain social spending. Federalism, bicameral legislatures, single-memberdistricts, presidentialism and referenda all check the ability of governingparties to implement preferred policies by setting up veto points in the policyprocess or providing electoral disincentives for inter-institutional coopera-tion (Tsebelis 1995; Huber & Powell 1994; Huber, Ragin & Stephens 1993;Schmidt 1996; Birchfield & Crepaz 1998). Decentralized institutions arecommonly thought to slow policy change by giving opponents the opportun-ity to veto them, and thus are expected to be associated with lower spendingand spending growth (however, see also Pierson 1994). I use the index de-veloped by Huber, Ragin & Stephens (1993) and augmented by Schmidt(1996), which is an additive measure of the degree of federalism, bicamer-alism, and proportional representation, and the existence of presidentialismand referenda. It is scaled so that a higher score indicates more obstacles topolicy change. Higher levels of all of the control variables should correlatewith higher levels of spending and spending growth, except the post-1975dummy, government deficit and the institutional index.


Estimation with the time-series cross-section data involved correcting forthe first-order autocorrelation displayed in the ordinary least squares modelby using a lagged dependent variable. For more precise and efficient estimatesof the autocorrelation factor, rho, it was constrained to be the same for allcountries and time periods (Beck & Katz 1995). Then the standard errorsof the coefficients were corrected for heteroskedasticity and the contempor-aneous correlation of the error terms for pairs of countries in the sample.18

Instead of the usual diagonal variance matrix used to calculate standard er-rors, panel data requires the use of a variance-covariance matrix that hasestimates of the inter-unit correlations as its off-diagonal elements (Greene1993: 452; Beck & Katz 1995). Because different length series were avail-able for different countries, the calculation of the off-diagonal elements wasadjusted accordingly.19

The independent variables show little or no correlation among themselves.In particular, the rights and review variables display little substantive correl-ation with any of the other independent variables, and most importantly, theywere not correlated with the measures of government ideology.20 This furtherserves to reduce the likelihood that the institutional arrangements of a coun-try are driven by any unmeasured cultural variable, and it makes for stablecoefficients. However, the two sets of measures of judicial review and rightsto social security were, by their categorical or interactive nature, somewhatcorrelated. The index of veto institutions also shows fairly high correlationswith the measures of judicial review (0.35 and 0.51 for the dummy and scalemeasures, respectively) because of the tendency of judicial review, federalismand bicameralism to occur concurrently, and because the relatively unchan-ging institutional configuration reoccurs over many years in the sample. Tobe certain of the stability of the results obtained for the institutional variablesof interest, several different models were estimated for each of the dependentvariables. Other controls for bureaucratic authoritarianism, corporatism, andmilitary spending did not alter results. The results were reassuringly similaracross model types.

Results

Social security as a share of public expenditure

The results of the regression listed in Table 2 show that the effect of judicialreview and rights on the amount of public expenditure devoted to social secur-ity is far from clear. When the institutions are measured as dummy variables(left-hand column) the categories of countries do not significantly differ fromone another. The coefficients on the rights-review variables are neither singly

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nor jointly significant. When judicial review is measured on a scale, and an in-teraction term measures the joint effect of judicial review and rights to socialsecurity (‘Scale model’, right-hand column) judicial review has a significantpositive coefficient. An F-test shows that together with the judicial reviewvariable, the three rights/review coefficients are also jointly significant (F =3.14). Interpreting the three coefficients, we see there are decreasing returnsto strong judicial enforcement of social rights. Rights to social security boostthe spending level, but the stronger the powers of judicial review, the lowerthis increase is. Most interesting is the effect of judicial review on spendinglevels. The positive coefficient shows that countries with judicial review de-vote more of the budget to social transfers, and that stronger review powersenhance this effect. However, this result should be taken cautiously giventhat this factor was not significant in the dummy model. Still, the jointlysignificant coefficients on the scale variables are not inconsistent with thenonsignificant ones in the dummy model; countries with judicial review onlydevote the largest portion of public expenditure to social security. A statedright to social security and judicial review also raises the level of spending,but to a smaller degree. Of all the variables, the one for the right to socialsecurity alone is weakest, casting doubt on the effectiveness of a right in theabsence of judicial review.

As expected, the control variables for trade openness and the elderly popu-lation have statistically significant positive coefficients, and increases in themraise the portion of the public budget that is used for social security. Likewise,institutional veto points and the high indebtedness result in proportionallyless social spending. The negative coefficient on GDP growth indicates that agreater share of funds go to the social budget during economic contractions.High levels of unionization, contrary to expectations, lead to smaller amountsof the budget being used for social security. It may be that unionized countriesalso end up increasing spending on other areas, as well, keeping the portiontaken by social security steady. The other control variables are substantivelyand statistically insignificant, although it is worth noting that the party controlvariables had coefficients in the expected direction.

Social security spending as a percentage of GDP

The results in Table 3 display little evidence that a judicially enforceable rightto social security has any effect on how much of the GDP a country spendson transfer payments. The coefficients in the dummy model are singly andjointly not statistically different from zero at a 95 percent confidence level. Inthe scale model, the coefficient on judicial review is significantly positive, butthe three right-review variables are not jointly significant. For countries withjudicial review, the large portion of the budget spent on social expenditures


Table 2. Models of social security spending as a percentage of public expenditure,1965–1990. N = 426. Coefficients and standard errors have been multiplied by 100

Dummy model b b Scale model

(Std. error) (Std. error)

Judicial review 0.197 0.223∗ Judicial review

(0.106) (0.099)

Positive right −0.049 0.299 Positive right

(0.249) (0.263)

Right & Review 0.140 −0.258 Right & Review

(0.168) (0.146) (Interaction)

GDP −13.7∗ −13.6∗ GDP

(% change) (2.80) (2.79) (% change)

Unemployment −0.0084 −0.010 Unemployment

(% labor force) (0.020) (0.021) (% labor force)

Elderly 0.062 0.078∗ Elderly

(% population) (0.038) (0.037) (% population)

Deficit per capita −0.00095∗ −0.00095∗ Deficit per capita

(Deficitt − Deficitt−1) (0.00033) (0.00033) (Deflcitt − Deficitt−1)

CD cabinet share 0.045 0.047 CD cabinet share

(t -5 to t-1) (0.076) (0.074) (t-5 to t-1)

Left cabinet share 0.021 0.036 Left cabinet share

(t-5 to t-1) (0.045) (0.045) (t-5 to t-1)

Institutional index −0.110∗ -0.167∗ Institutional index

(0.056) (0.058)

Union density −0.0098 −0.011∗ Union density

(0.005) (0.005)

Trade openness 0.026∗ 0.028∗ Trade openness

(0.010) (0.0099)

Post -1975 −0.353 −0.393 Post -1975

(0.186) (0.190)

Dependent variable 94.8∗ 94.3∗ Dependent variable

(t-1) (1.229) (1.230) (t-1)

Constant 2.279* 2.279* Constant

(0.397) (0.420)

R2 0.97 0.97 R2

∗Significant at 95% confidence level.

38 AMY K. MÄKINEN

Table 3. Model of social security spending as a percentage of GDP 1965–1990. N= 435. Coefficients and standard errors have been multiplied by 100.



Judicial review 0.119 0.071∗ Judicial review

(0.079) (0.036)

Positive right 0.0036 0.095 Positive right

(0.093) (0.104)

Right & Review 0.114 −0.068 Right & Review

(0.080) (0.066) (Interaction)

GDP −13.3∗ −13.l∗ GDP

(% change) (1.137) (1.129) (% change)

Unemployment 0.153∗ 0.150∗ Unemployment

(% change) (0.054) (0.055) (% change)

Elderly −1.656 −1.710 Elderly

(% change) (1.728) (1.735) (% change)

Deficit per capita −0.00006 -0.00005 Deficit per capita

(Deficitt − Deficitt−1) (0.00006) (0.00007) (Deficitt − Deficitt−1)


(t-5 to t-1) (0.028) (0.028) (t-5 to t-1)

Left cabinet share −0.004 0.004 Left cabinet share

(t-5 to t-1) (0.018) (0.017) (t-5 to t-1)

Institutional index −0.064∗ −0.080∗ Institutional index

(0.013) (0.015)

Union density 0.557 0.683 Union density

(% change) (0.917) (0.899) (% change)

Trade openness 0.0008 0.0004 Trade openness

(0.004) (0.003)

Post-1975 −0.324∗ −0.316∗ Post-1975

(0.086) (0.086)


(t-1) (0.834) (0.860) (t-1)

Constant 1.26∗ 1.32∗ Constant

(0.109) (0.106)

R2 0.98 0.98 R2



translates into a large percentage of the GDP going to the same items, andstronger review powers enhance this. However, rights to social security donot seem to influence the magnitude of spending on their own.

The economic growth control indicates that more of a country’s GDP isused for social security during less prosperous periods. Accordingly, spend-ing was lower in the post-1975 period. Growth in unemployment contributesto higher spending, and institutional veto points decrease it. The controls forthe deficit, trade openness, unionization, and Christian Democratic cabinetshare had coefficients of the expected sign, but, with the other remaining con-trol variables, they cannot be regarded as significant determinants of welfarespending.

Growth in social security spending

The regression results in Table 4 show that, when controlling for other factors,countries with judicial review - with and without a right to social security– are significantly associated with increases in the rate of social securityspending, whereas countries without this arrangement show a lower levelof spending growth. In the dummy model, estimates for the judicial re-view and the right and review dummies point to a substantive relationshipbetween enforceable rights and higher growth in welfare spending, with thelatter showing the greater tendency. Countries in the omitted category, those‘unfettered’ countries with neither a constitutional welfare right nor judicialreview show the greatest tendency toward low or negative growth, followedby the countries with unenforceable social rights. Notably, an F-test showsthat the coefficient estimates for judicial review only and rights and revieware not equal (F = 4.71), confirming the tendency towards higher growthin the presence of enforceable rights. In the ‘scale model’ in the right-handcolumn, this pattern is repeated except for countries with the strongest reviewpowers. Only the positive coefficient estimate for judicial review is individu-ally statistically significant, but the three right-review variables are jointlysignificant (F = 4.55). Taken together, the three coefficient estimates showthat a stated right to social assistance raises the rate of spending growth, asdoes judicial review. In rights-review countries, the effects of judicial revieware diminished compared with countries with judicial review alone, but thejoint effect of both institutions raises the growth rate so that growth in rights-review countries is higher than that under any other institutions except verystrong judicial review. So despite the fact that the portion of national productdedicated to social spending may be comparatively lower in countries withrights and judicial review, spending has crept upward.

The economic control variables behave consistently across models. In-creasing amounts of trade influence the rate of increase in social security

40 AMY K. MÄKINEN

Table 4. Model of percentage change in social security spending 1966–1990. N= 435. Coefficients and standard errors have been multiplied by 100.



Judicial review 1.040∗ 0.891∗ Judicial review

(0.400) (0.335)


(0.866) (0.964)

Right & Review 1.520∗ −0.842 Right & Review

(0.631) (0.459) (Interaction)

GDP −24.5∗ −24.1∗ GDP

(% change) (10.733) (10.387) (% change)

Unemployment 1.289 1.260 Unemployment

(% change) (0.775) (0.772) (% change)


(% change) 10.733 (19.748) (% change)

Deficit per capita 0.002∗ −0.002∗ Deficit per capita

(Deficitt − Deficitt−1) (0.0006) (0.0006) (Deficitt − Deficitt−1)


(t-5 to t-1) (0.196) (0.199) (t-5 to t-1)

Left cabinet share −0.140 −0.040 Left cabinet share

(t-5 to t-1) (0.142) (0.146) (t-5 to t-1)

Institutional index −0.497∗ −0.707∗ Institutional index

(0.175) (0.214)

Union density 4.747 6.754 Union density

(% change) (7.516) (7.624) (% change)

Trade openness 0.390∗ 0.387∗ Trade openness

(0.048) (0.045)

Post-1975 −3.323∗ −3.263∗ Post-1975

(0.738) (0.736)

Social security/GDP −37.8∗ −41.9∗ Social security/GDP

(% share t-1) (5.984) (6.201) (% share t-1)


(t-1) (5.777) (5.743) (t-1)

Constant 13.2∗ 13.5∗ Constant

(1.079) (1.090)

R2 0.51 0.52 R2



spending. Growth in spending is related to economic contraction, growth de-clines as the absolute size of the social budget grows, and growth in spendingwas lower in the post-1975 period. The negative coefficient estimate on thedeficit variable indicates that growth is curbed when the deficit grows large.The institutional veto index, as expected, has a significantly negative im-pact on spending growth. The ideology controls do not indicate a significantimpact for government composition on spending increase.

Fluctuation in social security spending

The model in Table 5 uses the absolute value of change in per capita socialsecurity spending as its dependent variable, and it aims to gauge the itemscontributing to contraction of spending as well as to its growth. High valuesof the dependent variable correspond to greater ‘disruption’ in spending, inthat a considerably larger or smaller amount of money is being spent ontransfers per capita than in the preceding year. The coefficient estimates of theright-review variables in the ‘dummy model’ on the left-hand side show thatcategorically, countries with rights and judicial review and those with judicialreview alone display the most steady spending patterns, with fluctuationswell below those countries without judicial review. Of all the institutionalcategories, countries with both a right to social security and judicial reviewexperienced the fewest vacillations in spending levels. Combined with thetendency towards higher spending growth displayed in Table 4, we can de-duce that increases in spending are have not been followed by decreases inthese review countries. The coefficients in the ‘scale model’ are not signi-ficantly different from zero, however, indicating that the strength of judicialreview powers does not affect the variability of spending.

As evinced by the negative coefficient estimate for change in unemploy-ment rates, spending undergoes greater changes during periods of decreasingunemployment, most likely in the form of cuts. Likewise, the negative coef-ficients on government deficits, combined with their negative coefficients inTable 4, indicate that deficits constrain spending behavior, and pressure gov-ernments to cut spending. Also, when union strength wanes, spending variesmore, probably in a downward direction. Interestingly, increases in the elderlypopulation and in GDP do not significantly contribute to fluctuation in socialspending, nor do institutional veto points. Given that institutional constraintsslowed spending growth in Table 4, the non-results in this model may givecredence to Pierson’s (1994) argument that while majoritarian governmentsare able to increase spending more easily, the accountability associated withthese governments makes it difficult to cut programs without electoral cost.

In this model, change in the ideology of the government is associatedwith changes in spending levels. Government ideology is operationalized

42 AMY K. MÄKINEN

Table 5. Model of fluctuation in social security spending, 1966–1990 N = 429.



Judicial review −65.75∗ 6.32 Judicial review

(22.54) (11.25)


(34.29) (20.28)

Right & Review −81.74* −8.12 Right & Review

(21.62) (11.46) (Interaction)

GDP 813.47 512.05 GDP

(% change) (559.6) (552.1) (% change)

Unemployment −61.09∗ −57.23∗ Unemployment

(% change) (19.84) (19.02) (% change)


(% change) (607.3) (608.9) (% change)

Deficit per capita −0.120∗ −0.l35∗ Deficit per capita

(Deficitt − Deficitt−1) (0.042) (0.040) (Deficitt − Delicitt−1)

Ideological change 15.49∗ 15.30∗ Ideological change

|Ideologyt−1 − Ideologyt| (3.98) (4.066) |Ideologyt−1 − Ideologyt|

Institutional index 1.87 −0.143 Institutional index

(3.14) (3.31)

Union density −818.59∗ −618.11 Union density

(% change) (366.8) (368.9) (% change)

Post-1975 68.54 57.22 Post-1975

(58.74) (59.38)


(t-1) (0.00005) (.00007) (t-1)

Constant 27.41 −11.77 Constant

(46.03) (46.67)

R2 0.26 0.25 R2


differently here than in the other model.21 Because there is no theoreticalreason to expect that left or Christian Democrat parties are more inclined tospending variations, I use a single, more concise measure of the variabilityin ruling parties’ proclivity to spend. In this model we see some evidencethat social spending responds to changes according to the weight attached tosocial programs by the parties in office.


Discussion

The evidence presented in this paper indicates that countries with an en-forceable right to social security have tended toward higher growth and lessfluctuation in benefit flows over the time period considered. One of the morenotable results of the regression models is the similarity among countries withjudicial review, with and without rights to social security. The differencesbetween them are mainly ones of degree. In terms of the shares of GDPand the budget consumed by income transfers, countries with judicial reviewtake the lead, and stronger powers of judicial review correspond with largersocial spending shares. Countries with rights to social security and judicialreview follow in this pattern, but with decreasing returns to stronger powersof judicial rights enforcement. Since courts generally leave the legislator todetermine the structure of social programs, this reliance on transfers may notbe driven by the judicial review per se. However, the strong results of thegrowth and fluctuation models show that to the extent that a social securitysystem relies on transfers in countries with these institutions, spending issubject more to growth than it is to cuts. Social rights bolster these tendencies.The ‘unconstrained’ systems without judicial review experience lower growthin spending, but they see more fluctuations in per capita transfers, here in adownward direction. This evidence is consistent with the idea that a consti-tutional right to social assistance raises the priority of these programs in theeyes of legislators, and may encourage groups to lobby for increased benefits.At the same time, judicial review provides an additional veto point on lawsthat might cut social programs, resulting in higher growth rates overall. Thisis consistent with others’ findings on the role of veto points and spending,and, indeed, with the performance of the veto-point index in this study.

The middle road taken by ‘right and review’ countries invites comparisonwith the institutional alternatives. Thus there is no evidence that an enforce-able right to social security means that a government must spend itself intothe poorhouse. Conversely, a group that manages to lobby rights into theconstitution also cannot necessarily expect to effect radical redistribution.For countries without judicial review there are fewer brakes on change. Thatsaid, there is no evidence from this sample that countries with a right tosocial security and judicial review have failed to provide citizens with what ispromised. Transfers comprise a larger share of public expenditures and seemto be more resistant to cuts in the countries with an enforceable right. If acountry’s institutions include courts with judicial review, including a rightto social security does not threaten to propel spending out of proportion tothe GDP and the budget. Advocates for the disadvantaged may still find itworthwhile to lobby for a constitutional right to social assistance, especiallywhen judicial review occurs, as it often does, with federalism, presidentialism

44 AMY K. MÄKINEN

or other institutions that work to produce lower spending. Much researchremains to be done on the policy effects of judicial review, especially in acomparative context. The differing (though not completely disparate) resultsproduced by models with different measurements of judicial review powershighlight the difficulties of measuring institutional capabilities. This is in partdue to the relatively small N of this study. Although every effort was madeto include as many country-regimes as possible, greater variance in judicialreview regimes could be achieved with an even broader study.

Whether or not it is in citizens’ best interest to spend large amounts ontransfers, the fact that benefits are subject to less fluctuation with judiciallyenforced rights than under other arrangements could work to smooth outcitizens’ economic expectations and make them more likely to take entre-preneurial risks, for instance (Lijphart 1993). The fact that social securityspending is subject to growth in ‘right and review’ countries, plus the factthat this growth still does not make it a larger part of the budget than in othernations, could indicate that other types of spending are also accelerated by thesame mechanisms. In the long run, the constitutional rights could tie the handsof government in allocating funds. If this is the case for all positive rights(for instance to education or health care), the government might indeed finditself too constrained to respond flexibly to crises. These issues bear furtherinvestigation.

Before drawing any far-reaching conclusions about the implications ofsuch results, the important issues of culture and ideology must be addressedagain. The control variables for Christian Democrat and left government ideo-logy generally have coefficient estimates in the expected direction, but failto show statistical significance.22 The models were all rerun using the partymanifestos coding of welfare state ideology and yielded similar results forboth the rights review and ideology variables; using the Hicks and Swank(1992) coding of governments as ‘left’, ‘right’ or ‘center’ did, too. Whileit still seems that there must be ideological effects that can and should bemeasured, the coefficients on the rights-review variables were identical tothose in the models presented here. On the other hand, when groups man-age to institutionalize policies, they work hard to make them impervious tofuture policy makers by developing a loyal clientele and bureaucratic safe-guards (Moe 1989). Moreover, more than half of the countries in this samplehave constitutionalized social security, which should make it even harder totinker with. Perhaps the very weakness of the ideological control variables istestament to the constraints of enumerated rights.

These preliminary results have left alive the suspicion that positive rightscan have an impact on policy outcomes.


A broader project (Mäkinen 2000) compares how judicial interpretationsof the right to social security vary across countries and shows that legislatorsdo apply court rulings when bargaining over policies. As a result, policiestend to have a broader eligibility criteria in rights-review countries. Giventhese results, do other positive rights, such as the right to education, have sim-ilar effects? While it seems social security has fared well under constitutionalprotection, other issues invite research.

Appendix

Table A1.Coding of sample countries on judicial review and rights to social security

Country No Judicial Positive Right Rights and Judicial

Rights/Review Review Only Only Review Review

Australia 0 1 0 0 2

Austria 0 1 0 0 2

Belgium 0 0 0 1 0 to 1984

1 after 1984

Canada 0 0 0 1 2 to 1982

3 after 1982

Denmark 0 0 1 0 1

Finland 0 1 0 0 0.5

France 0 0 0 1 0 to 1974

2 after 1974

Germany 0 0 0 1 3

Greece 0 0 0 1 1

Iceland 0 0 1 0 1

Ireland 0 0 0 1 1

Italy 0 0 0 1 2

Japan 0 0 0 1 1

Netherlands 0 0 1 0 0

New Zealand 1 0 0 0 0

Norway 0 1 0 0 1

Portugal 0 0 0 1 1

Spain 0 0 0 1 2

Sweden 1 – to1975 0 0 1 – after1975 1

Switzerland 0 0 1 0 0

UK 1 0 0 0 0

UK 0 1 0 0 3

Sources:Rights: Blaustein & Flanz 1994. Judicial review: Brewer-Carias 1989; Cappelletti1989. Scale: Lijphart 1999.

46 AMY K. MÄKINEN

Table A2.Years included in regression models by country and dependent variable.

Country Public expenditure GDP Growth Fluctuation

Australia 1965–1989 1965–1990 1966–1990 1966–1989

Austria 1965–1990 1965–1990 1966–1990 1966–1990

Belgium 1965–1989 1965–1990 1966–1990 1966–1990

Canada 1965–1989 1965–1990 1966–1990 1966–1990

Denmark 1973–1989 1973–1990 1973–1990 1973–1990

Finland 1965–1990 1965–1990 1966–1990 1974–1989

France 1975–1989 1975–1990 1975–1990 1975–1989

Germany 1965–1990 1965–1990 1966–1990 1966–1990

Greece 1980–1989 1980–1990 1980–1990 1977–1990

Iceland 1978–1987 1977–1990 1978–1990 1973–1989

Ireland 1973–1987 1973–1990 1973–1990 1976–1990

Italy 1976–1990 1976–1990 1976–1990 1973–1990

Japan 1965–1989 1965–1990 1966–1990 1966–1990

Netherlands 1973–1989 1973–1990 1973–1990 1973–1990

New Zealand 1978–1990 1978–1990 1978–1990 1978–1990

Norway 1965–1989 1965–1990 1966–1990 1966–1989

Portugal 1980–1989 1980–1990 1980–1990 1978–1990

Spain 1982–1989 1982–1990 1982–1990 1977–1989

Sweden 1973–1989 1973–1990 1973–1990 1973–1989

Switzerland 1965–1989 1965–1990 1966–1990 1966–1990

UK 1965–1989 1965–1990 1966–1990 1966–1990

USA 1965–1989 1965–1990 1966–1990 1966–1990

Acknowledgments

Thanks to G. Bingham Powell Jr, John M. Carey, Renée M. Smith, ArendLijphart, Robert J. Franzese Jr. and anonymous reviewers for insightful com-ments. This research was supported by a grant from the US National ScienceFoundation. An earlier version of this paper was presented at the 1997 AnnualMeeting of the Midwest Political Science Association.

Notes

1. The French Constitutional Council, for instance, has drawn the most criticism for rulingsnot based on constitutional texts but on ‘principles particularly necessary for our time’and, perhaps as a result, it bases 85 percent of nullification rulings on specific texts. As an


example, the principle of equality does not appear in any French constitutional text, andthe Council bases far fewer of its rulings on this principle than do constitutional courtsin Italy, Germany or Austria, where this principle does appear in constitutions (Favoreu1988: 98).

2. The classic example of this is the public outcry over F. D. Roosevelt’s attempts to securejudicial support for popular New Deal programs by packing the Supreme Court.

3. All translations are my own.4. Combined with the state obligation to support marriage, mothers and children stated in

Article 6.5. The authors of the Basic Law chose this clause over more specific social entitlements

(Diez-Picazo & Ponthoreau 1991: 18; Currie 1994: 22). Most regard the social state clauseas a less powerful judicial tool than specific provisions, but some imply that the broaderprovision is a stronger basis for argument (see Diez-Picazo & Ponthoreau 1991: 10).

6. Despite the fact that discussion of positive rights often concerns emerging democracies,the sample of established, economically advanced democracies was chosen on theoreticaland empirical grounds. Empirically, the most reliable, comparable data is available onthese countries. Theoretically, these stable democracies represent systems in equilibrium,so that the effects of various constitutional provisions can better be estimated. Beingin equilibrium also implies that individuals stand to lose more from ‘defecting’ on theconstitutional order (by flouting a judicial decision, for instance) than they might gain.In a transitional system, flouting the court may be more acceptable if the court is seenas an artefact of a corrupt former regime. With constitutional reform afoot in severalOECD countries during the 1990s, the issue of positive rights is hardly moot. Finland, forinstance, added a constitutional right to social assistance in 1995.

7. Evidence from India shows that even positive rights which are included in the constitutionbut which are specifically designated as nonjusticiable by any court, have influenced courtrulings on the ‘fundamental’ justiciable negative rights, and anticipation of judicial actionhas influenced legislation (Reddy 1976; Sharma 1977).

8. Switzerland and Belgium are difficult cases. In each, a high court can rule on the actionsof regional governments but not on those of the national government. They are neverthe-less both classified as being without judicial review for the purposes of social assistancebecause for the period covered by this study, social assistance is the responsibility of thenational governments. See Fitzmaurice (1996) on Belgium, and articles 31, 34 and 113 ofthe Swiss constitution in Hughes (1970).

9. Besides shifting Lijphart’s scale (originally 1 to 4) downward, I scored Finland at 0.5for the advisory role the courts play in constitutional vetoes by the president. It shouldalso be noted that if a constitution does not explicitly forbid judicial review, Lijphart callsthis ‘weak review’ but I do not. Thus according to the dummy measurement, Iceland andDenmark have no judicial review, but in the scale measure they have weak powers.

10. The sole exception is Sweden, which added a right to social security to Article 2 of itsconstitution in the 1970s. Its coding reflects this change.

11. The main concern is the political culture that may have made the society likely to providebenefits regardless of the existence of rights. Whether increased spending is due to therights-review constraint itself or simply to popular reverence for the constitution is fairlyirrelevant, since the higher spending will still result from constitutionalized rights. How-ever, given two countries with a right to social security, we would still expect the one withjudicial enforcement to outspend the one without.

48 AMY K. MÄKINEN

12. Except perhaps that all the Mediterranean democracies fall into the ‘right and review’ cellat the bottom right.

13. Data on social security spending were derived from the volumeSocial Expenditure1960–1990(OECD 1985) and from general government expenditures (total from allgovernmental units) listed in OECD National Accounts (various years). TheSocial Ex-pendituredata were checked against National Accounts data and, for some countries,against data obtained directly from departments of social welfare.

14. Data on public revenues and expenditure and gross domestic product (below) weregathered from the OECD Health Data Program (OECD/CREDBS 1991). Officials in NewZealand and Iceland provided additional figures directly.

15. Information on the unionized percentage of the workforce is OECD (1991) data,interpellated for years without data.

16. Data on the percent of the labor force unemployed, and percent of the population that isaged originate from the OECD Health Data Program (OECD/CREDES 1991). Informa-tion on government balances and exchange rates originates from the World Bank (1993).As information on the public debt was not available for all of the sample countries for allof the years required, a proxy was created. The proxy used was the average budget deficitfor the years t-I and t-2, where the deficit was the difference between public revenuesand expenditures (OECD National Accounts), or World Bank data on the governments’budget balances. The proxy correlated at 0.96 with the information available on actualgovernment debt. All monetary variables were corrected for inflation and, when necessaryfor comparability, converted to United States dollars.

17. Parties in these four countries were coded with reference to Day (1996) and the cabinetshare was weighted by the length of the party’s term in office (Keesings, various years).Data for the other 18 countries originate from Huber, Ragin & Stephens (1997).

18. Classical regression assumes that the error terms for individual observations are independ-ent of one another. However, it is unlikely that the observations from countries with linkedeconomies, like the Netherlands and Belgium, will be independent. Rather they will bothbe subject to the same shocks from the world economy. The variance-covariance matrixshould reflect this.

19. Twenty-five years of data were not available for all variables for all countries in thesample. Rather than drop countries with shorter series, thus losing scarce observations onthe institutional variables, I have estimated the models using ‘unbalanced’ country panels.Details on the series used are in Table A2. F-tests for the appropriateness of pooling the‘balanced’ panels (generally years 1982–1990) with the ‘unbalanced’ portion (pre-1982)gave a green light for pooling (see Greene 1993: 211–212).

20. The highest amount of correlation was−0.284 between the dummy variable for judicialreview and the Christian Democrat cabinet share.

21. The measure of governing party ideology on welfare is the percentage of the party’selection-year manifesto devoted to the subject of welfare state expansion minus thepercentage on welfare state limitation (in Budge 1992). Scores were averaged for allmembers of coalition governments and a weighted average for the year was calculatedwhen mid-year changes in power occurred. This measurement captures the differencesbetween parties (on average Social Democrats devote more space to welfare than Chris-tian Democrats and Conservatives) as well as ideological shifts over time, and attemptsto gauge parties’ stance on the particular issue of social spending. Gaps in the data werefilled by using the score for the party from the most recent election for which data wereavailable. The data set does not include scores for any Swiss, Portuguese or Greek parties;


the yearly average scores from parties of the same type (Socialist, Agrarian, etc.) in thedata set were substituted for these parties’ scores. Information on governing coalitionsfrom Strom (1990) and Banks, Day and Müller (1996).

22. The use of lagged dependent variables, in one form or another, to correct for the autore-gressive nature of the spending data obscures the cumulative nature of the party controlvariables. In these models, the party control variables mainly reflect ideological changesfrom one year to the next, which may indeed have only a small effect on spending patterns.

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Address for correspondence:Amy K. Mäkinen, Department of Political Science, Universityof Rochester, 334 Harkness Hall, Rochester, NY 14619, USA.Phone: (703)823-1464; Fax: (716)271-1616; E-mail: [email protected]

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