The Minimum Core of Economic and Social Rights: A Concept in Search of Content

Within the catalogue of rights, whether conceived in constitutional or international terms, economic and social rights are said to be especially indeterminate. This Article inquires into the conceptual foundations of a minimum core of economic and social rights. The concept of the minimum core has been applied to provide determinacy and even justiciability to the rights to food, health, housing, and education, and also (most ambitiously) to give substance to minimum legal obligations in both national and global distributive justice debates. This Article brings together the methodological insights of comparative constitutional law and international human rights, and traces the ways in which concepts are borrowed from each field. By doing so, this Article disaggregates three contrasting approaches to giving content to the minimum core - that of ascertaining the normative essence, minimum consensus or minimum obligation of economic and social rights. This Article further demonstrates how each approach is ultimately unable to provide an account that satisfies the proclaimed aims of the minimum core\u27s proponents. It ends by gesturing towards alternative ways of approaching a universalized discourse of minimums in economic and social rights

American Exceptionalism and Government Shutdowns: A Comparative Constitutional Reflection on the 2013 Lapse in Appropriations

The shutdown of the U.S. government after failure to pass a budget is exceptional by global standards. Other governments in mature constitutional democracies do not stop functioning, despite the difficulties in passing revenue bills. Yet shutdowns in America are increasing in occurrence, costliness and intensity. I argue that the Constitution is partly to blame, both because of what it creates and what it lacks. Drawing on a comparative perspective, I show how the constitutional emphasis on checks and balances contributes to the likelihood of shutdown, and how features that might forestall or resolve financial impasse are omitted. After rejecting an easy story of parliamentary functionality compared with presidential deadlock, I provide three frames in which constitutions resolve financial impasse, across branches or legislative chambers. In the first, the constitution rules that a default budget must pass if a proposed budget has stalled. Analogous to proposals for an automatic continuing resolution in the United States, these provisions differ in terms of whether the previous year’s budget continues, or the proposed budget passes. In the second, the constitution outlines the procedure for a prorepresentative solution, in the form of an early election. In presenting a closer case study of the Australian version of this option, this Article shows its dependence upon voter repercussions and hence political compromise. In the third, constitutional silence relies on a political resolution only. As American experience has shown, however, compromise is more difficult in conditions of divided-party government, polarization, and an unequal party tolerance for shutdowns.Unlike other instances of legislative impasse, checks-and-balances deadlock on budgets does not simply continue the status quo, but causes the active shuttering of government operations. These shutdowns harm vulnerable populations, government employees, fiscal stability, and the public trust of government more generally. The curious tolerance for shutdowns in the U.S. is not simply part of a libertarian strain within an American culture of negative constitutionalism. Rather, it may be attributed to distinctive – but curable – features of constitutional design.This Article was part of the Boston University Law Review Symposium: America’s Political Dysfunction, Constitutional Connections, Causes, and Cures, November 15-16, 2013

The World, through the Judge’s Eye

Constitutional interpretation is increasingly performed on a world stage, as judges refer to international and comparative law as a relevant - but not binding - source of law. Yet the practice is an uneven one, with some courts - and some judges - being more open to international engagement than others. This disparity unsettles the conventions of the judicial role, such as decision-making by majority when its members disagree. In a telling example, Justice Michael Kirby of the High Court of Australia was often alone and in dissent when citing international and comparative law, especially when interpreting the Australian Constitution. The Australian example demonstrates the way in which references to foreign law allow minority judges to introduce a new quantity - a new plurality - of informal judicial support. The article goes on to outline constitutionalism as a model of international engagement that justifies this technique. It contrasts this model with the alternative justifications of internationalism and judicial worldliness, two models that are less able to resolve questions of authority and relevance

Adjudicating Social and Economic Rights: Can Democratic Experimentalism Help?

Social and economic rights (SER) adjudication is an ever more common feature of rights-protecting democracies. Yet democratic concerns continue to be expressed: the threat of a judicialized politics, a politicized judiciary, co-opted claimants, distorted markets, and other (real and imagined) challenges. These concerns are raised within jurisdictions that have not yet entrenched SER and those in which SER are explicitly justiciable. Scholars seeking to address, or at least quiet, such concerns often explore the real-world examples of SER justiciability in South Africa, India, Colombia, Brazil, Argentina and other jurisdictions discussed in this book. Another approach is to examine new ways of theorizing the models of democratic representation and separation-of-powers implicit in these criticisms and to test these new models against comparative experience. This chapter examines the promise of the approach of “democratic experimentalism”. We begin by cataloguing the typical critiques of SER adjudication and then describe how democratic experimentalism, read sympathetically, responds to each. Next we apply these responses to the Mazibuko right-to-water case in South Africa and imagine an alternative approach to that case. Our thought experiment is meant to bring the pros and cons of democratic experimentalist thinking into sharp relief. We suggest that, while the theoretical and practical program of democratic experimentalism retains the potential for securing more democratic participation in SER adjudication, it might nevertheless entail significant costs for under-resourced, unorganized and politically-weak claimants. This conclusion raises the question whether any new procedural or remedial formats for SER adjudication can help to realize such rights without a fundamental rethinking of the material preconditions of democracy itself

Freedom, Want, and Economic and Social Rights: Frame and Law

In 1948, the Universal Declaration of Human Rights recognized the aspiration for everyone to enjoy freedom from want and particular economic and social rights. Sixty years after the proclamation of the Universal Declaration, it is important to review its meaning and its effects in the context of significantly different legal, political, economic and cultural landscapes. To approach this task, this article employs the unusual device of considering a Norman Rockwell painting of Freedom from Want. This painting, well-known in the United States, responded to the local wartime political culture, and depicted the private enjoyment of material security in patriarchal, consumerist and culturally uniform terms. This article employs the themes made evident in the painting to underscore the assumptions made in the text of the Universal Declaration. Having outlined this reading, it suggests an alternative framework for understanding economic and social rights. Firstly, economic and social rights provide an important frame around redistributive contestations that strive for universalism in expression and the location of institutional responsibility in response. Secondly, economic and social rights ground legal norms, which are in some cases enforceable and in others available to exert a different kind of pressure on legal decision-makers. As frame and as law, economic and social rights provide an important pragmatic justification for the Universal Declaration\u27s continuing relevance

The New Managerialism: Courts, Positive Duties, and Economic and Social Rights

An inseparable component of liberal constitutionalism is the respect accorded to so-called negative rights, which rest on duties of government restraint. But just as governments must have their hands tied, in this model, they must also work to secure rights, by actively and effectively planning, regulating, budgeting, and monitoring. These positive duties are particularly pronounced for so-called positive rights, which guarantee access to goods, services and opportunities such as social security, education, health care, land, food, water, sanitation, or to a clean environment. Of course, it is clear that so-called negative rights require both duties of commission and restraint; just as so-called positive rights call for the same. Nonetheless, the positive duties that attach to economic and social rights put particular pressure on courts, the executive, the legislature and civil society. Indeed, courts have become central in enforcing the negative and positive duties that arise from justiciable complaints about matters such as medical treatment denials, electricity and water shutoffs, evictions, schools and education outcomes, pollution levels, and food distribution schemes. The widespread adoption of economic and social rights in a majority of the world’s constitutions, combined with a pronounced shortfall in the realization of such rights, herald a new managerialism in constitutional government. This chapter, under review for the edited collection, Constitutionalism and a Right to Effective Government, takes one prominent jurisdiction, South Africa, and examines how its courts have enforced constitutional rights to access health care, housing, electricity, water and sanitation, particularly in the last decade. It describes both interpretive and institutional trends. As a matter of interpretation, courts invoke the textual guarantees of effective, co-operative, federal government and public administration, alert to the capacity needs of municipalities, alongside express economic and social rights. As an institutional matter, courts are increasingly favoring a managerial dynamic, co-originating in South Africa’s case with the behaviour of the executive. Courts increasingly respond to ineffective government by personalizing responsibility, including through costs, joining state actors in private litigation, and supervising and controlling state assets. This chapter also shows how conventional alternatives to managerialism, such as dialogic or experimental review, have become more responsive to management deficiencies. This includes the dialogical suspension of orders, or when courts call on broader institutional actors, and or on existing duties on the state to budget and plan. It also occurs during experimental dispute resolution, when courts supervise a “meaningful engagement” between the parties, or other alternatives. Updating my earlier typology of judicial review, which argued that courts frequently acted as catalysts in provoking governmental or civil society responses, this chapter emphasizes a more urgent, managerial response

Review of When Misfortune Becomes Injustice: Evolving Human Rights Struggles for Health and Social Equality by Alicia Ely Yamin

Review of When Misfortune Becomes Injustice: Evolving Human Rights Struggles for Health and Social Equality (Stanford University Press, 2020) by Alicia Ely Yamin and , Beyond Repair?: Mayan Women’s Protagonism in the Aftermath of Genocidal Harm (New Brunswick: Rutgers University Press, 2019) by Alison Crosby and M. Brinton Lykes