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Published online by Cambridge University Press: 14 October 2011
In the 1960s and 1970s, when the judicial rights revolution was in full swing in the United States, poverty lawyers and allied legal scholars urged the courts to add to the expanding catalog of constitutional rights certain social and economic rights—to housing, education, and a minimum decent subsistence. The advocates of welfare rights were not deterred by the absence of pertinent constitutional language. After all, if the Court could find a right to privacy in the “penumbra” of the Bill of Rights, who knew what else might be discovered there? Those efforts to constitutionalize what were historically matters of legislative discretion had only partial success. The Supreme Court did hold that, once government grants certain statutory entitlements such as welfare and disability benefits, the recipients have a constitutional right not to be deprived of those benefits without procedural due process. The Court declined, however, to find that the entitlements themselves were constitutionally required.
1. Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare entitlements); Mathews v. Eldridge, 424 U.S. 319 (1976) (social security disability payments).
2. E.g., Lindsey v. Normet, 405 U.S. 56 (1972) (no constitutional right to housing); San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) (no constitutional right to education).
3. Louis Favoreu, “La Protection des droits economiques et sociaux dans les constitutions,” in Conflict and Integration: Comparative Law in the World Today (1988), 691–92.
4. Three-quarters of the approximately 160 single-document constitutions in the world have adopted since 1965. Lis Wiehl, “Constitution, Anyone? A New Cottage Industry,” New York Times, 2 February 1990, B6 (citing Professor Albert P. Blaustein of the Rutgers Law School).
5. Expanded suffrage in the French Third Republic and fear of militant socialism in Bismarck's Germany in the late nineteenth century led those countries to adopt factory legislation, rudimentary social welfare laws, and statutes regulating commerce and public utilities. France adopted a limited form of constitutional control only in 1958, and judicial review was established in Canada only in 1982. In Germany, though some courts in the Weimar Republic had claimed the power to rule on the constitutionality of laws, constitutional review did not become a significant feature of the legal order until 1951, when the Federal Constitutional Court was established in what was then West Germany. Kommers, Donald, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham, N.C., 1989), 6–11Google Scholar.
6. As James Q. Wilson has noted. In the first seventy-five years of this country's history, only two federal laws were held unconstitutional; in the next seventy-five years, seventy-one were. Of the roughly nine hundred state laws held to be in conflict with the federal Constitution since 1789, about eight hundred were overturned after 1870. In one decade alone—the 1880s—five federal and forty-eight state laws were declared unconstitutional. Wilson, James Q., American Government: Institutions and Policies, 3d ed. (Lexington, Mass., 1986), 83Google Scholar.
7. See, for France, Duguit, Leon, Law in the Modern State (London, 1919), 32–67Google Scholar (translated by Frida and Harold Laski); and for England, Dicey, A. V., Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century (London, 1914), 259–302Google Scholar. See, generally, Alvarez, Alexander, “Dominant Legal Influences of the Second Half of the Century”, in The Progress of Continental Law in the Nineteenth Century, 11 Continental Legal History Series 31 (Boston, 1918), 52–56Google Scholar.
8. For a concise survey of the development of judicial review, see Favoreau, Louis, “American and European Models of Constitutional Justice,” in Clark, David S., ed., Comparative and Private International Law: Essays in Honor of John Henry Merryman (Berlin, 1990), 105–11Google Scholar.
9. For a discussion of why the American model was widely regarded as unsuitable for transplant, see Cappelletti, Mauro, Judicial Review in the Contemporary World (New York, 1971), 53–66Google Scholar.
10. Favoreau, “American and European Models, 112–13. But Germany is an exception. There the bulk of the caseload of the Constitutional Court consists of constitutional complaints by private citizens. Kommers, Constitutional Jurisprudence, 32–33.
11. I use the word “somewhat” advisedly. See, for example, Missouri v. Jenkins, 110 S Ct 1651 (1990), in which the Supreme Court in dicta authorized a lower federal court, as part of a desegregation plan, to direct a local school district to levy taxes for capital improvements to schools, even without the normal requirement that the voters approve.
12. Franz Wieacker, Foundations of European Legal Culture, 37 American Journal of Comparative Law 1, 29(1989).
13. See, for example, the United Nations Universal Declaration of Human Rights, adopted by the General Assembly on 10 December 1948:
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social, and cultural rights indispensable for his dignity and the free development of his personality.
Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
The United Nations Covenant on Economic, Social and Cultural Rights was opened for signature in December 1966 and came into force a decade later after being ratified by nearly ninety countries, but not, so far, by the United States. The United States did, however, sign the Universal Declaration and the Helsinki Final Act of 1975 (which, like the Universal Declaration, calls for a nonbinding commitment to stated human rights). See, generally, Richard B. Lillich, United States Ratification of the United Nationas Covenants, 20 Georgia Journal of International and Comparative Law 279 (1990); Louis B. Sohn, “United States Attitudes Toward Ratification of Human Rights Instruments,” 20 Georgia Journal of International and Comparative Law 255 (1990).
14. The formulations vary from the bare recitation in the Geman Basic Law of 1949 that the Federal Republic of Germany is a “social” state (Article 20), to detailed lists of specific social and economic rights such as those contained in the constitutions of France, Italy, Japan, Spain, and the Nordic countries.
15. Gerhard Casper, Changing Concepts of Constitutionalism: Eighteenth to Twentieth Century, 1989 Supreme Court Review 311, 318–19 (the Continental concept of the “state” is closer to the Anglo-American notion of the “welfare state” or the “administrative state”). See also Krieger, Leonard, The German Idea of Freedom: History of a Political Tradition (Boston, 1957)Google Scholar.
16. See Casper, 1989 Supreme Court Review, 319–21. Early constitutions used the language of obligation rather than of rights: for example, “It is incumbent on the authorities of the State to create conditions which make it possible for every person who is able to work to earn his living by his work.” Norwegian Constitution of 1814, 110, reprinted in Gisbert H. Flanz, Norway, in Blaustein, Albert P. and Flanz, Gisbert H., eds. Constitutions of the Countries of the World (Dobbs Ferry, N.Y., 1976)Google Scholar.
17. “[The state achieves legitimacy] not so much through its constitution as through the active, welfare-providing administration.” Casper, 1989 S Ct Rev, 325 and n. 69 (quoting a treatise by a former constitutional law professor now serving on the German Constitutional Court).
18. See Pfaf, William, Barbarian Sentiments: How the American Century Ends (New York, 1989), 25Google Scholar.
19. See David P. Currie, Positive and Negative Constitutional Rights, 53 University of Chicago Law Review 864 (1986), which includes discussion of instances in which the U.S. Supreme Court has found “duties that can in some sense be described as positive” in negatively phrased provisions of the Constitution.
20. Jackson v. City of Joliet, 715 F2d 1200, 1203 (7th Cir 1983).
21. The Court did, however, extend procedural due process protection to certain forms of “new property.” See, for example, Goldberg v. Kelly, 397 US 254 (1970) (welfare entitlements); Mathews v. Eldridge, 424 US 319 (1976) (social security disability benefits).
22. 489 US 189, 195 (1989).
23. Casper, 1989 Supreme Court Review, 331.
24. de Zayas, Alfred, “The Potential for the United States Joining the Covenant Family,” Georgia Journal of International and Comparative Law 299 (1990)Google Scholar; Lillich, United States Ratification of the United Nations Covenants, 20.
25. See, for example, Frank I. Michelman, The Supreme Court 1986 Term-Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harvard Law Review 7 (1969).
26. “[T]here are two categories of fundamental rights: immutable and absolute rights that exist whatever the epoch or the reigning ideology; and other rights, known as economic and social rights, that ‘carry a certain coefficient of contingency and relatively’ and whose recognition is a function of the state of society and its evolution.” Favoreau, La Protection des droits economiques, 701.
27. For example, the German republic is a “social” state. German Basic Law of 1949, Art 20. The treaty of German reunification, however, obliges the legislature to consider adding a list of affirmative “goals of the state” to the traditional political and civil rights at present enumerated in the Basic Law. Fred L. Morrison, “Constitutional Mergers and Acquisitions: The Federal Republic of Germany,” 8 Constitutional Commentary.
28. Gisbert H. Flanz, Sweden, in Blaustein and Flanz, eds., Constitutions, 9–11.
29. The “Second Bill of Rights,” which Roosevelt urged in his 1944 State of the Union message, included the following:
The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
The right to earn enough to provide adequate food and clothing and recreation;
The right of every family to a decent home;
The right to adequate medical care and the opportunity to achieve and enjoy good health;
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
The right to a good education.
See Sunstein, Cass R., “Constitutionalism After the New Deal,” 101 Harvard Law Review 421, 423 (1987)Google Scholar (quoting Roosevelt's “Second Bill of Rights”). See also Sunstein, Cass R., After the Rights Revolution: Reconceiving the Regulatory State (Cambridge, Mass., 1990), 21–22Google Scholar.
30. See Osuka, Akira, “Welfare Rights,” 53 Law and Contemporary Problems 13 (1990)Google Scholar. See also Ukai, Nobushige, “The Signifance of the Reception of American Constitutional Institutions and Ideas in Japan,” in Beer, Lawrence Ward, ed., Constitutionalism in Asia: Asian Views of the American Influence (Berkeley and Los Angeles, 1979), 114–27Google Scholar.
31. Property as such is not among the rights protected. It supposedly was excluded in order to conform the Japanese procedural guarantees to the American Due Process Clause as it stood de facto after the U.S. Supreme Court accepted “the necessity of direct state intervention in social and economic processes.” Osuka, 53 Law and Contemporary Problems, 15–16. According to Osuka, the Japanese Constitution “substantially incorporate[d] the fruits of the New Deal,” Id at 16. The Japanese Constitution of 1947 is set forth in Itoh, Hiroshi and Beer, Lawrence Ward, eds., The Constitutional Case Law of Japan: Selected Supreme Court Decisions, 1961–70 (Seattle, 1978), 256–69Google Scholar.
32. The original programmatic draft proposal was retained as Article 25(2), preceded by the right to a minimum standard of living in Article 25(1). Osuka, 53 Law and Contemporary Problems, 15.
34. Asahi v. Japan, translated and reprinted in Itoh and Beer, eds., The Constitutional Case Law of Japan, 130, 134.
35. Shortly after adopting the 1947 Constitution, Japan supplemented its prewar social legislation with a series of important statutes in the areas of unemployment relief, social security, and child welfare. Osuka, 53 Law and Contemporary Problems, 16 n. 5.
36. Preamble, Social Security Act, 49 Stat 620 (1935), codified at 42 USC 301 et seq (1988).
37. Housing Act of 1949, 63 Stat 413 (1949), codified at 42 USC 1441 et seq (1988).
38. See Osuka, 53 Law and Contemporary Problems, 17–18.
39. For an example of how the constitutional principle of the social welfare state has affected the interpretation of the equality principle in Germany, see the German Constitutional Court decision which held that medical schools could not impose numerical limits on admissions unless they had class-size restraints. Numerus Clausus Case I, 33 BVerfGE303 (1973), excerpted in Kommers, Constitutional Jurisprudence, 295–302. The Court explicitly stated: “Any constitutional obligation [of the legislature] that may exist does not include the duty to supply a desired place of education at any time to any applicant.” Of the constitutional right to education, the Court also said: “[We] need not decide whether … an individual citizen can use this constitutional mandate as the basis for an enforceable claim [against the state] to create opportunities for higher study.”
40. Percentages of central government expenditure devoted in 1988 to health, housing, social security, and welfare in selected countries with “high-income economies” are as follows:
World Development Report 1990, table 11 (Central Government Expenditure) (New York, 1990), 198–99.
41. Ibid. One cannot fit the United States readily into such comparisons because of the unique structure of our welfare state. But sophisticated analyses consistently rate us poorly, especially in assisting child-raising families. See Kahn, Alfred J. and Kamerman, Sheila B., Income Transfers for Families with Children: An Eight-Country Study (Philadelphia, 1983), 182–95Google Scholar; Preston, Samuel H., “Children and the Elderly in the U.S.,” Scientific American 44 (December 1984), 251Google Scholar; Smeeding, Timothy M. and Torrey, Barbara Boyd, “Poor Children in Rich Countries,” Science 873 (November 1988), 242Google Scholar.
42. Twain, Mark, Concerning the Jews, in The Writings of Mark Twain: Literary Essays (New York, 1899), 263, 265Google Scholar.
44. For example, since the 1960s, Section 1983 has been the second most heavily litigated section of the United States Code. Schuck, Peter H., Suing Government: Citizen Remedies for Official Wrongs (New Haven, 1983), 199Google Scholar.
45. Markesinis, Basil S., “Litigation-Mania in England, Germany, and the USA: Are We So Very Different?” 49 Cambridge Law Journal 233, 243–44 (1990)Google Scholar.
47. For a critique of the use of comparative law as a source of “models,” see Rodolfo Sacco, “Legal Formats: A Dynamic Approach to Comparative Law,” 39 American Journal of Comparative Law.
48. See Glendon, Mary Ann, “French Labor Law Reform 1982–83: The Struggle for Collective Bargaining,” 32 American Journal of Comparative Law 449, 485–91 (1984)Google Scholar.
49. “Reflexive law” is an expression used by some legal sociologists to designate an alternative to direct regulation, in which legal norms shape procedures to coordinate interaction among social subsystems, rather than prescribe outcomes. See Teubner, Gunther, “Substantive and Reflexive Elements in Modern Law,” 17 Law and Society Review 239, 276 (1983)Google Scholar.
50. For a comparison of nongovernmental service organizations in the Netherlands, England, Israel, and the United States, see Kramer, Ralph M., Voluntary Agencies in the Welfare State (Berkeley and Los Angeles, 1981)Google Scholar.
51. Heintzen, Markus, “Subsidaritatsprinzip and Europaische Gemeinschaft,” 46 Juristenzeitung 317 (1991)Google Scholar.
53. Amar, Akhil Reed, “The Bill of Rights as a Constitution,” 100 Yale Law Journal 1131, 1133–37 (1991)Google Scholar.
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