Constitutional social welfare rights? [long]

[Mark S Kende]

I respectfully disagree with Professor Sisk's points that courts lack the
ability and experience to make decisions regarding socio-economic rights
matters.  I spent the year 2000 in South Africa on a Fulbright studying
their new Constitution and Constitutional Court and interviewing the
Justices there.  During the year, the Court issued a seminal decision
intepreting the vague language in their Constitution regarding the right
to housing.  In a case that has received international attention,
Grootboom, the Court there ruled that the government had failed to comply
with its constitutional obligations by failing to have any policy to
provide even minimal housing/shelter to the truly homeless.  The Court did
not say everyone had an absolute right to housing on demand but did say
the government lacked any rational policy to deal with this serious aspect
of the homelessness problem.  To show deference to the Parliament,
however, the Court gave the elected branches the chance to pass new
legislation.  Cass Sunstein has talked about the decision
in his recent book Designing Democracy.  There has been no suggestion that
the Court lacked the ability to render a coherent
decision in the area, even though it clearly had to do a lot of gap
filling.
        Now obviously the U.S Constitution lacks even such vague
socioeconomic language, but there's no reason to believe courts in general
lack the ability to act in this area and there are certainly non-frivolous
arguments (made in Rodriguez, and by scholars like Michelman) that finding
a right to basic sustenance is prerequisite to living a life where the
right to privacy has any meaning.  Many other countries have
socio-economic constitutional provisions which their courts have dealt
with in creative and useful ways, such as India.  Moreover, the UN
Covenant on Social and Cultural Rights lists such rights.  To sum up, I
believe we American constitutionalists are trapped by our rather narrow
focus and don't realize that we are way out of the international
mainstream in our very pessimistic assertions that constitutions or courts
should have any role to play here, particularly where the legislature has
so clearly failed to provide for basic needs.  This will also be a major
issue in South Africa regarding the government's failure to provide a drug
to pregnant women that can prevent the transmission of HIV to their
fetuses.  A court has ordered the government to develop a policy for
rolling out this drug (given minimal costs) should further testing confirm
its successes.   Certainly this seems like a good thing.

Professor Mark Kende
University of Montana School of Law

On Tue, 8 Jan 2002, Greg Sisk wrote:

> I too find Mark Tushnet's questions easy, but reach the opposite
> conclusion from Mark Graber (but one in keeping with Eugene Volokh).
> Given the underlying democratic structure of the Constitution, the
> priority of place given to legislative power in Article I, and that
> the courts are granted the "judicial Power" under Article III and are
> not conferred with legislative authority, if legal sources (the text
> of the Constitution, precedent, original meaning, etc.) should prove
> indeterminate on any particular question, then the courts should
> defer to the democratic process and refrain from imposing a
> constitutional solution that ties the hands of the people's elected
> representatives to make the policy-oriented, contextual,
> multi-factored, line-drawing kinds of legislative judgments as to
> which the courts simply are incompetent (both incompetent in terms of
> constitutional authority and incompetent in terms of practical
> ability, experience, and reasons for appointment so as to make good
> legislative choices).
>
> Gregory Sisk
> Richard M. & Anita Calkins
>    Distinguished Professor
> Drake University Law School
> 2507 University Avenue
> Des Moines, Iowa  50311-4505
> 515-271-4184
> greg.sisk at drake.edu
> http://cartwright.drake.edu/gregory.sisk/sisk.html
>
>
> >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 >>
>
>

Mark Kende
Associate Professor of Law
University of Montana School of Law
Missoula, Montana 59812
406-243-4317 (phone)
406-243-2576 (fax)