Thailand’s Red-Shirt and Yellow-Shirt factions don’t agree on much, but they do have one thing in common: invoking Section 69 of the now-suspended Thai Constitution, which grants citizens a “right to peacefully resist any act committed to obtain powers to rule the country by means not in accordance with the modus operandi as provided in the Constitution.”
For years, during the slowly escalating crisis of protests and political polarization that eventually precipitated Thailand’s recent coup, leaders of ousted Prime Minister Yingluck Shinawatra’s ruling party warned against elite plots to subvert the democratic process—an outcome for which the “right to resist” served as a shield. Meanwhile, opponents of Thailand’s former government also invoked the provision, arguing that the real interruption of the constitutional order occurred with the hijacking of national institutions by a harsh and subversive majoritarian populism—one machinated from afar by the exiled billionaire Thaksin Shinawatra and his allies.
Thailand is not alone. In a study I co-authored with Tom Ginsburg of the University of Chicago and Emiliana Versteeg of the University of Virginia, we scoured the world’s constitutions looking for similar rights to resist. At present, 37 countries, representing roughly 20 percent of all nations, have such rights. The percentage is growing, having more than doubled since 1980.
For Americans, who are often by nature suspicious of government, this right may not sound like a bad idea. Granted, there is something paradoxical in the idea of a constitutional provision empowering individuals to resist, or in some cases openly rebel, against the very same authorities and institutions so meticulously established elsewhere in the same document. Nevertheless, it makes sense that the final say on matters of governance should lie with the people, and that such a clause might well serve as a valuable insurance policy in the future.
Still, these clauses may tell us more about a country’s past than about its future. Sometimes, countries introduce the right to resist into constitutions following a crisis in which people followed the orders of national authorities, to tragic effect. Rwanda’s first post-genocide constitution, for instance, grants each citizen “the right to defy orders received from his or her superior authority if the orders constitute a serious and manifest violation of human rights and public freedoms.” Similarly, the West Germans adopted a right to resist—a provision that survived unification and remains in Germany’s constitution to this day.
Quite often, the right appears in constitutions written in the immediate aftermath of a military revolt or popular revolution. Such “founding” texts frequently include language meant to justify the overthrow of the old order as well as provide a blueprint for the new. Our Founding Fathers, with their fondness for the idea of natural rights, might have embraced something similar in the United States had the Declaration of Independence not been separated by more than a decade from the drafting of the Constitution.
After all, our French compatriots included a “right to resist oppression” in their 1789 Declaration of the Rights of Man and of the Citizen, which later became the preamble to the post-revolutionary Constitution of 1793 (and has remained in force over many of France’s 14 subsequent constitutions, including its current one). Similar provisions were included by the drafters of nearly a dozen U.S. state constitutions, from fiercely independent lands like New Hampshire and Texas, to more traditionally supine states like Maryland.
The absence of an explicit right to resist in the U.S. Constitution hasn’t stopped Americans from finding creative ways to identify one. During the Whiskey Rebellion, which pitted Pennsylvania farmers against the nascent federal authorities, the rebels invoked just such a right. Later, at the outset of the Civil War, some Confederate leaders argued that the Declaration of Independence had conferred a constitutional right to rebel. Since then, anti-government movements have claimed that such a right is implicit in the Second Amendment, or, failing that, the Fourth. The courts have proven reluctant to uphold such arguments, however, preferring that individuals resist their government through more conventional legal channels.
While Thailand’s erstwhile right to resist allowed only for “peaceful resistance,” other countries like Benin, Ghana, and Cape Verde have gone further: they explicitly authorize the use of force or even upgrade the “right” to a “duty” or “obligation.” Honduras’s constitutional “right of insurrection” has spanned (and likely spawned) several constitutional rewrites since its debut in 1957. When the Honduran congress, backed by the country’s armed forces, removed President Manuel Zelaya from power in 2009, the right was cited as a justification for his ouster. Yet when Zelaya himself sought to harness it to stage a comeback, the requisite mobs failed to materialize.
As was the case in Thailand, these provisions often destabilize politics by legitimizing individuals and groups seeking to undermine the status quo. Several of today’s trouble spots, including Mali, Turkey, and Venezuela, have constitutional rights to resist. In many ways, the regimes in these countries couldn’t be more different. But they also share something else: disputed legitimacy at the time of their ascension.