"Just Words": Common Law and the Enforcement of State Constitutional Social and Economic Rights
Hershkoff, Helen, Stanford Law Review
INTRODUCTION I. SOCIAL AND ECONOMIC PROVISIONS IN STATE CONSTITUTIONS A. American Constitutionalism and State Social and Economic Rights B. Social and Economic Rights as Oversight of Legislative Activity C. Social and Economic Rights as Judicial Constraint II. SOCIAL AND ECONOMIC RIGHTS AND INDIRECT CONSTITUTIONAL EFFECT A. Indirect Constitutional Effect and Interpretive Practice Abroad B. Indirect Constitutional Effect and Federalism C. Indirect Constitutional Effect and Expressivism III. ACHIEVING INDIRECT CONSTITUTIONAL EFFECT THROUGH COMMON LAW PATHWAYS A. Indirect Constitutional Effect as an Interpretive Practice Distinct from Policy Analysis B. Indirect Constitutional Effect and Existing Common Law Practice 1. The tort for wrongful discharge 2. The covenant of good faith 3. The owner's right to exclude C. Indirect Effect and Problems of State Constitutional Discourse IV. ANSWERING OBJECTIONS TO INDIRECT POSITIVE RIGHTS ENFORCEMENT A. The Dilution Objection B. The Democracy Objection C. The Indeterminacy Objection D. The Autonomy Objection CONCLUSION
Since World War II, a number of countries abroad have adopted constitutions or amended these documents to include social and economic rights. These so-called positive rights embrace guarantees to goods and services such as public schooling, health care, and a clean environment. (1) Even where moored to the text of a constitution, social and economic rights remain controversial. (2) Among the criticisms, skeptics argue that constitutional provisions of this sort are ineffectual because courts cannot meaningfully enforce them against the government; positive rights are "just words" that can neither end inequality nor prevent poverty, (3) and instead perversely hurt those they are intended to benefit. (4) This Article examines the efficacy of positive constitutional rights from a different perspective: it considers the relation between the social and economic rights that are set forth in a subnational constitution and the development of private law doctrines of contract, torts, and property. Specifically, the Article examines the positive rights clauses that are included in some state constitutions in the United States and asks whether they can and should influence the state's common law decision making.
Unlike the Federal Constitution, which consistently has been interpreted as excluding affirmative claims to government assistance, (5) every state constitution in the United States--like many constitutions abroad (6)--contains some explicit commitment to positive rights. (7) The New York Constitution, for example, provides that "[t]he aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine."(8) Other state constitutional clauses contemplate provision of public schooling; (9) others guarantee respect for individual "dignity" (10) or the pursuit of "happiness," (11) both of which may include a substantive component; (12) still others recognize a worker's right to unionize (13) or guarantee a clean environment. (14) State courts have treated some social and economic provisions as justiciable claims against the government, (15) but others only as aspirational statements that cannot be judicially enforced. (16)
From the perspective of federal constitutional doctrine, one might assume that state common law exists in an orbit quite apart from a state's constitutional law, especially those provisions that relate to socio-economic concerns. After all, for more than one hundred years, the U.S. Supreme Court has limited the Federal Constitution to state action, with common law decision making located outside the scope of constitutional regulation. (17) Moreover, American constitutionalism consistently is seen as excluding social and economic rights. …