Reply to Diane Wood, Constitutions and Capabilities: A (Necessarily) Pragmatic Approach

What are people actually able to do and to be? And are they really able to do or be these things, or are there impediments, evident or hidden, to their real and substantial freedom, in some areas that are agreed to be of central importance to a rich human life, a life worthy of human dignity? More specifically, how have the basic constitutional principles of a nation, together with their interpretation, promoted or impeded people's abilities to function in some central areas of human life? The idea that all citizens in a nation are equally entitled to a set of basic opportunities, a set of substantial preconditions for a flourishing human life that includes opportunities to unfold themselves, to develop a set of basic human abilities to choose and act, has had a lasting appeal over the centuries in the Western tradition of political and legal thought. A familiar understanding of the purpose of government is that it should, at a minimum, secure those central entidements.1 If it does not, it will not have a claim to be even minimally just. The Capabilities Approach (CA), as I have developed it over the years, is a normative approach to basic social justice.2 It identifies a list of ten Central Human Capabilities, or substantial freedoms, and it then says that securing those capabilities up to a threshold level is a minimum necessary condition of social justice. It does not, then, purport to describe any particular nation. It does however, have a close resemblance to the aims of quite a few modern nations, as embodied in their constitutional guarantees and their attempts to fulfill them. The task of relating the CA to constitutional law is one that has keenly interested me. In my Supreme Court Foreword concerning the 2006 Term, I set out to explore the complicated relationship between the CA and the US tradition of thinking about constitutional entitlements.3 1 conclude that some aspects of the CA are well embedded in our constitutional tradition, particularly in its tradition of interpreting the Bill of Rights, and in the interpretation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment; others (those concerned with what are usually called social and economic rights) are not recognized as topics for constitutional law, although a beginning of such recognition appeared in the 1970s. Focusing on the 2006 Term, I conclude that, even to the extent to which the CA has been recognized in constitutional interpretation, the 2006 Term represented a backing away from it, toward a different sort of jurisprudence. One difficulty in making any such argument is that of political structure. The CA says what should be delivered to people, not through what set of institutions. The whole topic of political structure has been insufficiently attended to by all the proponents of the approach. One certainly could not conclude from the fact that courts are not involved in the securing of a particular entitlement that this entitlement has not been recognized as important, and secured through legislation, or the actions of administrative agencies. Still, the fact that a given set of entitlements has been left to the legislature to secure means, at least, that these entitlements are not protected for all beyond the reach of majority whim. To that extent, then, looking at what a nation has decided to protect through its system of constitutional law and judicial interpretation offers us useful information about what it thinks most central, and most worthy of protection. I am very grateful to Judge Diane Wood for her serious interest in this normative philosophical project and for her very thoughtful and shrewd comments. Since her paper is a commentary on my Supreme Court Foreword, I must begin this response with a brief summary of what I argue there. I then reply to her commentary. I begin the Foreword by spelling out the core philosophical claims of the CA, contrasting it with two alternative normative approaches that have some influence in the legal fold, Utilitarianism and Libertarianism. …