Constitutional social welfare rights? [long]

[Michael McConnell]

If the constitutional issue is "open," isn't this precisely the sort of
issue that should be left to the democratic process to decide?

Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112


> -----Original Message-----
> From: Mark Graber [mailto:MGRABER at GVPT.UMD.EDU]
> Sent: Tuesday, January 08, 2002 12:48 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Constitutional social welfare rights? [long]
>
>
> 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 mail.law.ucla.edu 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.
>
>         Eugene
>
> > -----Original Message-----
> > From: Mark Tushnet [SMTP:tushnet at LAW.GEORGETOWN.EDU]
> > Sent: Tuesday, January 08, 2002 6:13 AM
> > To:   CONLAWPROF at listserv.ucla.edu
> > 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 >>
>