| In my dissertation I investigate the process of how new rights get the status of constitutional rights, especially within democratic transitions. The mechanisms and actors involved in the creation of new rights have so far not been addressed sufficiently; instead existing approaches focus on the diffusion of generic templates of rights, or on the political interests of elites in the judicialization of politics.;My dissertation offers an alternative explanation of rights creation. I argue that new rights are constitutionalized through political mechanisms familiar from regular democratic politics, understood as advocacy relations. New rights often do not enjoy widespread recognition at the time of drafting, and hence are not automatically included in draft bills of rights. Their consideration depends on active political interventions through mechanisms such as interest representation, lobbying, and coalition building.;To explain the concrete dynamics and outcomes of this process, I develop an agenda-setting model of rights constitutionalization. In this model, new rights are created through partisan agenda-setting in which different actor groups enjoy constitutional initiative. Two factors determine the success of such rights initiatives: First, variation in constitutional agenda access advocates enjoy; and second, the politics around the rights claim once it is on the agenda, i.e., whether or not it is subject to partisan conflict and/or counter-mobilization.;With this model I compare the drafting of bills of rights in Poland and South Africa. I study three new rights - gender equality, environmental rights, and sexual orientation - and base the analysis on an evaluation of expert interviews and original (archival) sources. The first result is that in none of the six cases new rights accessed the constitutional agenda because of the initiative of drafters; rather, most new rights were put on the agenda through lobbying by external actors, alone or in cooperation with sympathetic advocates. Secondly, once on the agenda, the likelihood of success is relatively high, as only those rights claims were fully/partially rejected that became subject of partisan conflict and/or counter-mobilization.;New rights become part of bills of rights through political advocacy processes in which social movements, interest groups and ordinary citizens exert crucial constitutional initiative. |
