The Wisdom and Enforceability of Welfare Rights as Constitutional Rights (2001)

For many people in the former communist bloc, the collapse of communism has been a very mixed blessing. There is obviously more freedom in most of these countries, but the modest economic security on which so many people relied is now gone and this in turn threatens democracy. This is not just a problem for countries in transition. The development of global capitalism and the dominance of market thinking have resulted in massive inequalities in many countries. In the United States, perhaps the richest country in world history, one in five children lives in poverty. As market capitalism sweeps the western and other parts of the world, the problem of inequality will grow. At the same time, the last half-century has seen the ascendancy of the judiciary. This is the age of the judges. The establishment in much of the world of constitutional courts is perhaps the most prominent example of this development. These tribunals exercise immense powers in many areas and thus have had to confront the severe economic and social problems growing out of the transition to a market economy. The broad jurisdiction of these tribunals is due in part to the framework of these constitutions. Like constitutions elsewhere in the world, and unlike the United States constitution, East European constitutions contain extensive lists of social welfare rights and governmental obligations, which have been brought before their constitutional courts. These rights include the right to basic subsistence, food, clothing, housing, health care, education, special protection for mothers and children, and the right to work in its many facets, including the right to safe and fair conditions of work, to form trade unions, and to strike. Whether economic and social rights should be included in new constitutions has been hotly debated among academics. As a practical matter, this is largely a non-issue now because almost all the constitutions adopted since 1945 contain a relatively full complement of such rights, in a variety of formulations. To most U.S. lawyers, however, including social welfare rights in a constitution verges on the unthinkable. Partly this is because Americans have been taught to think that constitutional rights depend on judicial enforceability almost by definition, and most U.S. lawyers believe that courts can enforce only negative rights, rights that deny power, and cannot impose positive obligations upon government, which social welfare rights do. For purposes of discussion, there are two arguments against constitutionalizing social welfare rights: (1) whether they are judicially enforceable; and (2) whether it is consistent with a free, democratic, market-oriented civil society to have such rights in a constitution. Before turning to these questions, however, a preliminary clearing away is necessary. Insofar as the issue is put in terms of the contrast between positive and negative rights, it should first be noted that many of the so-called social rights at issue are essentially negative rights. Some of these, such as the right to form unions, are just variations of the right to freely associate, a traditional negative right. The related right to strike includes the right to be free from interference with strikes, also a negative right. Even so outlandish seeming a right as the right to a clean environment will often call for just stopping public and private actors from polluting the atmosphere or the land, which is similar to traditional public-nuisance litigation. Many of these social rights also are closely related to rights that are indisputably negative. The most significant of these is the right to be free from discrimination. Most countries already have statutes creating rights to public health care, education, maternity benefits, housing, social security, and similar benefits. In the enforcement of such statutory rights, the right of putative recipients to be free from discrimination has been routinely invoked. Discrimination is not the only possible abuse of these rights. Established social programs may be administered in ways The Human Rights Brief is a publication of the Center for Human Rights and Humanitarian Law in conjunction with the Washington College of Law at American University. No portion of this newsletter may be reprinted without the express written permission of the Human Rights Brief. All correspondence, reprinting and subscription requests, and articles submitted for publication may be sent to: The Human Rights Brief, Center for Human Rights and Humanitarian Law, Washington College of Law, American University, 4801 Massachusetts Avenue, NW, Suite 630, Washington, DC 20016. Ph. (202) 274-4027. Fax (202) 274-4028. e-mail: hrbrief@wcl.american.edu. Internet: www.wcl.american.edu/hrbrief. The views expressed in this publication are those of the writers and are not necessarily those of the editors, the Center, or American University. © Copyright Human Rights Brief, 2001. ISSN 1522-6808