Affirmative Action Reconceived: A Comparative Study of Constitutional Precommitments to Group Preferences for Racial Minorities and Women

The nation-state’s struggle with liberal individualism on the one hand and the recognition of group rights on the other is well documented in the literatures on constitutionalism, constitution-making, comparative politics and racial/ethnic relations. However, the manner in which this conundrum manifests in a state’s acceptance or rejection of affirmative action has been under-discussed. Traditional approaches to the study of affirmative action are inadequate because they tend to circumscribe the universe of policies and programs that may qualify as affirmative action by focusing only on certain groups, issue domains or countries. More specifically, current scholarship on affirmative action suffers from several substantive and methodological shortcomings: (1) a neglect of the constitutional foundations of affirmative action, (2) a fundamental definitional uncertainty when it comes to understanding what affirmative action actually is, (3) a lack of a clear analytical framework with which to classify various types of affirmative action policies, (4) a narrow focus on single-case studies, and (5) a paucity of inter-group and intra-group comparisons. To address these lacunae, this study focuses on constitutional precommitments to affirmative action. Prior to any substantive analysis, this study first proposes a consensus definition of affirmative action and develops a universal typology and sub-typology with which to categorize, analyze and compare affirmative action precommitments. Next, this study employs a large N comparative methodology to examine the constitutions of 30 countries and categorize affirmative action precommitments through the use of constitutional textual analysis and secondary source historical materials. Finally, this study compares affirmative action precommitments – both inter-group and intra-group – for racial/ethnic minorities and women across the sample. There are three principal substantive findings. First, although liberal individualism remains central to the constitution-making process, all cases exhibited constitutional acknowledgement of some form of group rights and/or preferences. Second, for various reasons, racial/ethnic minorities tend to fare better than women when it comes to the overall prevalence of preferential constitutional precommitments. Third, historical evidence suggests that both endogenous and exogenous political pressures, such as internal ethnic conflicts and global human rights movements, matter when it comes to racial/ethnic minorities’ or women’s chances of having affirmative action provisions included in constitutions during the constitution-making process