Social Rights Under The Constitution

The desirability, or lack thereof, of bills of rights has been the focus of some of the most enduring political debates over the last two centuries. Unlike civil and political rights, social rights to the meeting of needs, standardly rights to adequate minimum income, education, housing, and health care are not usually given constitutional protection. This book argues that social rights should be constitutionalized and protected by the courts, and examines when such constitutionalization conflicts with democracy. It is thus located at the crossroads of two major issues of contemporary political philosophy, to wit, the issue of democracy and the issue of distributie justice. Interestingly and surprisingly enough, philosophers who engage in penetrating discussions on distributive justice do not usually reflect on the implications of their argument for democracy; they are met with equal indifference on the part of theorists of democracy. This book stems from the perception that there may be conflicts between the demands of democracy and the demands of distributive justice, both of which are crucially important, and from the resulting recognition that the question of the relationship between these two values cannot be ignored.

Drawing on a wide range of interdisciplinary resources, this scholarly work provides an in-depth and thorough analysis of the socio-economic rights jurisprudence of the newly democratic South Africa. The book explores how the judicial interpretation and enforcement of socio-economic rights can be more responsive to the conditions of systemic poverty and inequality characterising South African society. Based on meticulous research, the work marries legal analysis with perspectives from political philosophy and democratic theory.

Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.

1.2. Rights

"This publication is designed to assist United Nations staff who provide human rights advice to States, which undertake to amend an existing constitution or write a new one. It should also be of use to States that undertake constitutional reform, including political leaders, policymakers, legislators and those entrusted to draft constitutional amendments or a new constitution. Further this publication should also facilitate advocacy efforts by civil society to ensure that human rights are properly reflected in constitutional amendments or new constitutions. Finally, this publication, along with the international human rights instruments, should not only provide a standard to measure whether constitutional amendments or a new constitution has appropriately reflected human rights and fundamental freedoms, but also assist in evaluating whether the processes used in constitutional reform are consistent with international procedural norms"--Introduction, page 1.

A history of the idea of human rights and comparison of the United Nations Universal Declaration of Human Rights with United States federal and state constitutions.