Constitutional social welfare rights? [long]

Tue Jan 8 14:48:28 PST 2002

Actually, I find Mark's questions easy, too easy.  Assume, as he does, that a constitutional issue is genuinely open.  That is to say examination of distinctly legal sources (texts, precedents, original intentions, etc) does not yield any clear answers.  In such circumstances, constitutional authorities chould clearly rely on their best all things considered judgments.  What else is there to rely on (notice that Mark specifically asks what a legislator might do, so we are not asking anyone to overrule a legislative choice, but to make one).  So if there is some evidence that one understanding of the constitution will make us better off than another, we should, of course, choose the better one.  Where is the problem?

Mark A. Graber

>>> VOLOKH at 01/08/02 02:39PM >>>
        I'm not sure that trying to maximize people's expressed life
satisfaction is a proper goal of constitutional interpretation (despite the
"pursuit of happiness" connection!).  Many people might find their life more
satisfactory in many circumstances -- not just if they are constitutionally
entitled to make taxpayers give them money, but also if they are untroubled
by offensive speech, or bask in the warm glow of knowing that their religion
is the established church, or derive emotional pleasure from knowing that
their race is properly treated as the superior one.  I don't quite see that
this should affect how particular clauses of the constitution should be
interpreted, including in cases such as Rodriguez and M.L.B.

        But beyond this, I'm particularly hesitant about making con law
based on surveys such as this one.  Among other things, the countries that
have social democratic policies aren't a random sample of the world -- they
have them for various reasons (cultural, historical, or whatever else), and
these reasons may well cause both social democratic policies and greater
satisfaction.  Mark's listing of Norway, Sweden, and Denmark, three
countries that to my knowledge are intimately linked culturally, at the top
of the results only reinforces this concern.  Sex crimes, I believe, are
correlated with ice cream consumption, but that's not because ice cream
causes sex crimes.  (The more plausible answer is that both are higher when
the weather is warmer.)

        As to voters and legislators voting, I don't think that the question
of underenforced constitutional norms is particularly helpful here -- of
course voters and legislators may feel that they should vote for policies
that increase people's life satisfaction, just as they may feel that there
are certain external constraints (e.g., a preference against wealth
transfers from A to B) on this desire.


> -----Original Message-----
> From: Mark Tushnet [SMTP:tushnet at LAW.GEORGETOWN.EDU]
> Sent: Tuesday, January 08, 2002 6:13 AM
> Subject:      Constitutional social welfare rights?  [long]
> The con law questions come at the end of a long description.  An article
> in the most recent American Political Science Review, Benjamin
> Radcliffe, "Politics, Markets, and Life Satisfaction:  The Political
> Economy of Human Happiness," 85 APSR 939 (2001), reports on the results
> of a cross-national survey in which people in 15 nations (more than
> 1,000 respondents in each nation except Finland) were asked, "All things
> considered, how satisfied are you with your life now?"  The bottom line
> of the analysis is that the level of satisfaction is correlated with the
> degree to which the nation has social democratic policies in place:  the
> more social democratic, the more satisfied people are.  (A diagram on p.
> 947 illustrates the analysis:  The highest levels of satisfaction are in
> Sweden, Norway, and Denmark, the lowest in Japan, France, and the UK.
> For those who think that Scandinavians commit suicide at higher rates,
> the author reports finding no statistically significant differences
> between the suicide rates in Scandinavia and the other nations, and no
> difference in self-reported rates of depression either.)  A secondary
> influence is the degree to which the nation's culture is individualistic
> or communitarian.  People in the US are more satisfied than an analysis
> based solely on social democratic policies would indicate, because the
> US is more individualistic; people in Japan are less satisfied, because
> its culture is more communitarian.
> Now, the con law questions.  (1)  Should this information, assuming that
> it stands up to critical analysis, affect constitutional interpretation
> in cases of interpretive openness where one result would be to recognize
> a constitutional social welfare right and the other would be to deny
> such recognition?  [I personally would define "cases of interpretive
> openness" in rather positivistic terms, such as:  cases in which a
> majority of the Supreme Court or a significant minority found or would
> have found a social welfare right.  The first class includes M.L.B. v.
> S.L.J., the second (with a bit of tweaking to take account of the equal
> protection context), San Antonio Sch. Dist. v. Rodriguez.]
> (2)  Assuming that the constitutional status of social welfare rights is
> that they are underenforced constitutional norms, perhaps because of
> specific incapacities of courts to enforce such rights, should the
> information reported here provide a reason associated with
> constitutional rights for (a) a legislator to vote in favor of
> establishing a social welfare right (and in favor of devoting a larger
> portion of tax revenue to such a right than it would otherwise receive),
> and (b) a voter to vote for a candidate who pledged to establish a
> social welfare right and find the taxes to pay for it? << File: Card for
> Mark Tushnet >>

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