What is the place of social and economic guarantees in a democratic constitutional order? Do such guarantees place a special strain on the judiciary? Do they help poor people? What is the relationship between such guarantees and doctrines involving state action and the horizontal application of constitutional norms?
Mark Tushnet does not attempt to answer these questions directly. But he casts new light on them by analyzing a number of cases in which courts have, or have not, taken their constitutions to alter background rules of property, contract, and tort. Tushnet contends that the rise of the activist state, understood as some form of social democracy, unsettles preexisting understandings of the relationship between constitutional norms and the private sector. In the classical liberal state, the constitution does not apply horizontally; there are no economic guarantees; and what counts as state action is relatively clear. But once the state assumes "affirmative obligations," constitutional norms might well be triggered, and the state's failure to alter the background rules of property and contract law might well raise serious constitutional problems. To borrow from Tushnet's summary of his complex account: In a "thin social democratic nation," such as Canada, courts are placed in a new and extremely difficult position, being forced either to "enforce obviously arbitrary lines between what they treat as state action and what they do not," or to work out "the set of entitlements people should have in a thicker social democracy."1
Much of what Tushnet says is highly illuminating, but I think that there are several gaps in his discussion. I emphasize two points here. First, the classical liberal state assumes affirmative obligations, and does so no less than the social democratic state. The obligations are different, but they are not less affirmative. The widespread neglect of this point, within the legal and political culture, has led to serious failures in analysis, and the failures are not innocuous. Second, state action is always present. IMAGE FORMULA5
The constitutional question, in any system that has a state action requirement, is not whether there is state action, but whether the relevant state action is unconstitutional. That is a hard question on the merits, but it is not a hard state action question. A thin social democracy may struggle with constitutional issues, but by virtue of its status as a thin social democracy, it ought not to have any special struggle with questions involving state action or horizontal effect. A nation that currently embraces social democracy might create, at the constitutional level, social and economic rights, or it might not. A nation that currently rejects social democracy might offer, at the constitutional level, social and economic rights, or it might not. The legal questions involve the merits.
I now offer some details about these two points.
1. The so-called activist state is no more activist than what preceded it. Tushnet speaks of the "rise of the activist state," which he contrasts with the "classical liberal state." In his view, the "activist state ... is defined by the fact that it has affirmative obligations."2 This is the conventional understanding. But the conventional understanding is an unfortunate way of seeing the relevant categories. Most of the so-called negative rights require governmental assistance, not governmental abstention. Those rights cannot exist without public assistance. Consider, for example, the right to private property. As Bentham wrote, "Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases."3 In the state of nature, private property cannot exist, at least not in the way that it exists in a free society. In the state of nature, any property "rights" must be protected either through self-help-useful to the strong, not to the weak-or through social norms. …