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Tuesday, April 14, 2009

Socio-Economic Rights

The United States has recently seen high numbers of home foreclosures because more people are in dire economic straits.  Typically people in the U.S. place the burden on our political officials to assist with such problems, or we hope for charitable efforts.  Judicial action is usually not the solution to poverty or homelessness because the U.S. Supreme Court has rejected arguments that socio-economic rights can be implied in the Constitution, unlike the right to privacy.

In my recent book, Constitutional Rights in Two Worlds:  South Africa and the United States, I contrast the Supreme Court's approach with that of the South African Constitutional Court.  Indeed, one reason I became so fascinated by the South African Constitution was because it contains such rights provisions.  I couldn't imagine how these rights could be enforceable given problems with judicial competence and scarce resources.  How could a court order the government to provide people with houses while other people needed medical treatment?  Did such provisions mean a homeless person could essentially walk in off the steet and demand housing or shelter from a government agency?  Well, the Constitutional Court's resolution of these questions revealed my limited view regarding what was possible.

The Constitutional Court's leading case is Republic of South Africa v. Grootboom (2000).  It has become one of the most noteworthy human rights decisions in the world.  The Court ruled that the government violated the Constitution's right to access adequate housing by having no policy for assisting the homeless (Irene Grootboom lived with a group of squatters on a field with no real shelter from the elements, or sanitation).  It did not make a difference that the government was trying to build many small homes for those in dire straits, because the government had no plan for those who could not get into homes soon.  And many of these people faced such a bad situation because of the racist travel, living, and work restrictions that existed under Apartheid.  The Court, however, rejected any individual right to housing on demand.  Instead, as Cass Sunstein has said, the Court adopted an "administrative law model" of deference that involved determining if the overall policy was not reasonable.  The Court also paid heed to separation of powers concerns by allowing the government to develop a legitmate policy for the homeless.  The Court ordered the South African Human Rights Commission (SAHRC) to monitor compliance.

Now, in the interest of full disclosure, the story did not end happily ever after.  The government eventually constructed a small building with toilets and showers for Grootboom's community, but never provided the resources to take care of the building.  And the SAHRC failed to ensure vigorous enforcement of the order for a variety of unsatisfactory reasons.  Thus, Ms. Grootboom never lived in a proper place until her unfortunate death this past year.  Many South African scholars have therefore criticized the Court for having been timid.   But the decision opened the door to a number of other substantial lawsuits that have helped those without basic socio-economic rights to obtain judicial assistance, and to improve their situations.  Moreover, the Constitutonal Court has gotten smarter about how to ensure implementation.  I will write more about this later, and about the relevance of these decisions to U.S. Supreme Court views of socio-economic rights. 

Addendum:  Chapter 2 Section 26, South African Constitution Housing provision:  (1) Everyone has the right to have access to adequate housing; (2)  The state must take reasonable and other legislative measures within its available resources, to achieve the progressive realization of this right; (3) (addresses evictions). 


Posted by Mark kende on April 14, 2009 at 07:45 PM in Constitutional thoughts | Permalink


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Take a look at Varun Gauri and Daniel M. Brinks, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Devleoping World (Cambridge 2008). The book compares the effects of and compliance with SE rights decisions five countries, including South Africa.

Posted by: adam | Jun 5, 2009 11:30:15 AM

Patrick: Thanks for your useful comments. Yes, the Sunstein administrative law characterization comes from Designing Democracy. He also uses it in at least one law journal article where he has a colloquy with Theunis Roux, a distinguished South African scholar. I've always admired Barber's book a great deal, though I'm not sure I agree with all of his arguments. He talks a lot about DeShaney which I think the Court clearly got wrong because there was solid evidence of state involvement in the situation. Other cases about whether the state has freestanding obligations under the U.S. Constitution to grant benefits are more problematic in my view.

Posted by: Mark Kende | Apr 16, 2009 3:37:48 PM

On the domestic front, I'm also curious as to what you think of Sotirios Barber's Welfare and the Constitution (2003), as he attempts to transcend the negative-liberties model by arguing that fidelity to the U.S. Constitution entails, as with the Federalists of old, an overarching concern for "the general Welfare."

Posted by: Patrick S. O'Donnell | Apr 15, 2009 8:42:28 AM

I look forward to reading your book. Was Sunstein's chapter, "Social and Economic Rights? Lessons from South Africa?" in Designing Democracy: What Constitutions Do (2001) in any way an inspiration for your specific pursuit of this topic?

It came to mind because I mentioned that chapter in the context of a comment to a post at the Legal Ethics Forum critical of Justice Kennedy's recent remark (in keeping with other things he's said over the last couple of years) that

“If we are asking the rest of the world to adopt our idea of freedom, it does seem to me that there may be some mutuality there, that other nations and other peoples can define and interpret freedom in a way that’s at least instructive to us.” [This is only part of the quote from LEF]

As I wrote in response,

For assembling premises of an argument in support of Kennedy's comment, one might look at Sunstein's chapter, "Social and Economic Rights? Lessons from South Africa," in his book, Designing Democracy: What Constitutions Do (2001): 221-237, as well as the discussion of economic, social and cultural rights in Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (2nd ed., 2000): 237-320. Of course the U.S. Constitution focuses on civil and political rights (generally and a bit crudely, more on 'freedom from' rather than 'freedom to') while the U.N. Declaration of Human Rights gives expression to both civil and political rights on the one hand, and economic, social and cultural rights on the other, and this through the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) respectively, and the transnational and international courts that implement these legal instruments. [Given your post, I should now add 'municipal courts' here.]

For the real-world consequences of privileging the former rights often (but not necessarily or invariably) at the expense of the latter kinds of rights [indeed, I believe the latter should have as a necessary condition the former], please see Robert E. Goodin, et al., The Real Worlds of Welfare Capitalism (1999). This comparative study assesses various sorts of welfare state regimes according to criteria involving efficiency, reduction of poverty, and the promotion of equality, social integration, social stability and autonomy. The differences beween different kinds of welfare regimes: liberal (e.g., the U.S.), social democratic (e.g., Netherlands), and corporatist (e.g., Germany) can be examined clearly in light of the various understandings of freedom intrinsic to the historical evolution and entrenchment of these different welfare states. Perhaps needless to say, the conclusion is that the "social democratic welfare regime is 'the best of all possible worlds' [or 'actually existing worlds'...of welfare capitalism]." Regardless of the goals cited in the criteria above, the social democratic welfare regime "turns out to be the best choice, regardless of what you want it to do."

In other words, legally and otherwise, "other nations and other peoples can define and interpret freedom in a way that’s at least instructive to us.”

Your post can be proffered in support of Justice Kennedy as well.

[Incidentally, Kennedy's thoughts on international law have impeccable constitutional pedigree, at least if I understand works like Sarah Cleveland's "Our International Constitution" or William S. Dodge's "After *Sosa*: The Future of Customary International Law in the United States," correctly.]

Posted by: Patrick S. O'Donnell | Apr 15, 2009 8:06:47 AM

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