Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law

By Mark Tushnet | Go to book overview

CHAPTER 8
Enforcing Social and Economic Rights

Writing in the immediate aftermath of the adoption of new constitutions in central and eastern Europe, Cass Sunstein characterized the inclusion of social and economic rights in those constitutions as “a large mistake, possibly a disaster.”1 For Frank Cross, “reliance on positive constitutional rights is an ultimately misguided plan.”2 These statements are merely representative of the common wisdom among U.S. constitutional scholars, and are occasionally echoed elsewhere. South African Constitutional Court judge Albie Sachs describes the primary objection to including social and economic rights in constitutions as resting on questions about the capacity of courts to enforce such rights.3

Justice Sachs's observation is plainly accurate, as I will show. And yet, the concern about judicial capacity needs more elaboration than it usually gets, for two reasons. First, the discussion in the preceding chapters shows that the doctrines of state action and horizontal effect (whether direct or indirect) are also about the judicial enforcement of social and economic rights. Every constitutional court finds state action or gives some horizontal effect to constitutional provisions on some occasions where doing so calls into question the background rights of property, contract, or tort and thereby enforces some vision of social or economic rights. Yet, no one raises serious questions about the capacity of courts to develop and enforce a state action or horizontal effect doctrine. The first section of this chapter expands on this observation by discussing several areas of U.S. constitutional law in which the courts in effect displace the background rules in the service of constitutional values, again without controversy over their capacity to do so (however controversial particular decisions might be).

On analysis, the concern over judicial capacity turns out to be a concern about the ability of courts to coerce the political branches into making substantial changes in background rules, typically by large programs of social provision that require significant alterations in the distribution of wealth by means of taxes and transfer payments. That concern, though, rests on the

1 Cass R. Sunstein, “Against Positive Rights,” in Western Rights? Post-Communist Applica-
tion (András Sajó ed., 1996). As we will see, Sunstein's views may have changed.

2 Frank R. Cross, “The Error of Positive Rights,” 48 UCLA L. Rev. 857 (2001).

3 Albie Sachs, “The Judicial Enforcement of Socio-Economic Rights:The Grootboom Case”
(unpublished manuscript in author's possession).

-227-

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