an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
For the past several weeks, I have been puzzling over the nature of the rights that my panel will address at The Constitution in 2020 conference. The panel is entitled “Social Rights”—which echoes the section of the book that I assume we are to discuss. My first instinct was that the panel would be populated with those who have thought a good deal about race, race relations, and racial equality. To my surprise, however, my fellow panelists are people who have thought a good deal about economic issues, labor organizing, and social insurance. To me, these topics—which are indeed largely the concerns of the “Social Rights and Legislative Constitutionalism” chapters of the book—would more likely come under the rubric of “economic rights.”
My puzzling, then, has largely been about terminology. Two distinct origins of “social rights” come to mind. The first comes from 19th-century American history. The common delineation of rights into the categories “civil, political, and social” in the Reconstruction era is a frequently defining principle not only of that era but of the Jim Crow era that followed. Within that tripartite conception of rights, civil rights meant those commonly protected by the common law: rights to contract, hold property, and protect one’s property in a court of law. Political rights concerned the relationship of a person to his or her government, largely involving voting but also at times jury service. Social rights, finally, referred to rights to interact in the ordinary settings of social life, to choose one’s place in a restaurant, a neighborhood, a school.
Protection of African American rights in the wake of the Civil War and Reconstruction generally waned as one descended the ladder from civil to political to social rights. Civil rights received the earliest and most vigorous (albeit still inadequate) protection. Political rights faced greater contestation, and greater evisceration, but still found some basis in the Constitution. Social rights were the runt of the litter. As the Supreme Court made clear in its infamous decision in Plessy v. Ferguson, social rights were beyond constitutional redress. Indeed, some would have said that the essence of a social right was precisely its inability to be remedied at law. The understanding of the time was that labeling the right to sit in a particular railroad car a social right removed it from the realm of enforceability.
These labels were, of course, always fuzzy, slippery, and contestable. And they changed over time. In the 1930s, civil rights became associated closely with labor rights and rights to economic security. In the 1940s, such rights seemed constitutionally salient and possibly attainable. Social rights, however—like the right to integration—remained largely beyond the pale. Once rights that had been thought of as social rights began to gain traction in courts and legislatures, the nomenclature changed. No longer did we speak of “social rights.” They somehow became transformed, along with newly enforced political rights, into a unified category of “civil rights.” It would be too simple to say that “civil rights” encompasses those rights that are generally viewed as enforceable. But it does seem fair to observe that once social rights became protectable, they also ceased in important ways to be understood as social rights.
My second association with the term “social rights” comes from the international human rights context. There is a robust and growing literature on the relationship between American ideas about rights and international ideas about rights, between “civil rights” at home and “human rights” abroad. Much of this literature emphasizes how stingy the American conception of rights is. In response, scholars and activists have sought to expand American conceptions of rights by integrating broader understandings of international human rights into the domestic context.
This origins story refers to the kinds of “social rights” included in the International Covenant on Economic, Social and Cultural Rights—rights to work, housing, health care, social insurance, education, and the like. In the international human rights context, “economic, social and cultural rights” or “ESC rights” stand in sharp contrast to “civil and political rights.” These two categories of rights each has its own international covenant, its own monitoring committees, and its own orbit. Moreover, each has its own distinctive political salience. Although the United States has ratified the International Covenant on Civil and Political Rights (with exceptions, of course), it has never ratified the International Covenant on Economic, Social, and Cultural Rights. Indeed, the existence of the two conventions was a product of differing international opinions about the desirability and enforceability of economic, social, and cultural rights.
What has all this to do with The Constitution in 2020? A lot, it seems to me. A major theme of the chapters in the “Social Rights and Legislative Adjudication” section of the volume is the judicial unenforceability of “social rights.” With some minor exceptions, the authors of these chapters have largely given up the possibility of constitutionally based, judicially enforced rights to work, housing, health care, social insurance, and education. Some still retain a shred of hope for judicial involvement in the provision of such goods, others despair that such time has come and gone, and others affirmatively seek legislative alternatives. But overall, the view that these rights are consigned to the political branches is rather overwhelming.
On one level, I was surprised by this surrender. The Constitution in 2020 is an ambitious volume, reimagining a progressive Constitution for the future. Whatever the relative merits of legislative versus adjudicative constitutionalism, one might expect an aspirational, progressive project to include a more robust commitment to some form of constitutionally enforceable economic rights.
On another level, however, I was not surprised. The section of the book and the title of my panel—with its nomenclature of “social rights”—already tells us that these rights will be different. Whatever the origins of “social rights” they share one fundamental characteristic: they are unenforceable. Perhaps “social rights” sounds more palatable than the still-Communist-inflected “economic rights.” Perhaps it sounds more malleable and open to debate than “positive rights.” I imagine there are good reasons to use the term. Even so, I cannot but conclude that any attempt to provide judicially enforceable rights to the kinds of goods encompassed by the term will face as their first and most enduring obstacle the term itself.