In Print: Volume 88: Number 3
From Preservative to Transformative: Squaring Socioeconomic Rights with Liberty and the American Constitutional Framework
By Micah Zeller
88 Wash. U. L. Rev. 735 (2011)
The U.S. Constitution is not designed to create legally enforceable socioeconomic rights. Despite growing consensus about the normative importance of judicial consideration of socioeconomic deprivation, in 200 years of expounding the Supreme Court has never recognized socioeconomic rights as constitutional rights. Theories abound for this continued quiescence. Accepted reasons include lack of explicit textual support, well-embedded conceptions of “negative” liberty, problems of justiciability, concerns about separation of powers, and difficulties with majoritarian approval. Yet, in the context of growing disparities in wealth and the perceived consequences of legislative failure to address inequality, jurists (and political philosophers) increasingly view the recognition of socioeconomic rights as both a practical necessity and moral imperative.
This Note addresses the recognition of socioeconomic rights by U.S. federal courts. In this context, “socioeconomic rights” means “subsistence rights.” The former may refer to a broader set of rights, like the right to equally accessible higher education. The latter is more limited and refers to rights to the basic goods necessary to gain livelihood. Constitutional rights to subsistence, for example, may include the right to adequate food and water, the right to shelter, or the right to “survival income.” This Note considers the context in which these rights arise, what they are intended to address, and how their justification and implementation differ from that of existing constitutional rights. Though there is reason to believe that such rights lurk below the constitutional surface, that textual keys to unlock them exist, and that their recognition would be politically popular, federal courts remain unlikely venues for their constitutionalization.
That said, a revitalization of the Fourteenth Amendment’s Privileges or Immunities Clause, augured by its recent reexamination before the Court in McDonald v. City of Chicago, offers the most feasible analytic framework for judicial implementation of enforceable socioeconomic rights.
Part I of this Note considers the conceptual distinction between positive and negative rights, and the first constitutional articulations of socioeconomic rights. Part II examines the perceived problems with socioeconomic rights’ justiciability. Part III explains characteristics of the American constitutional framework that render it unreceptive to the recognition of socioeconomic rights. Finally, Part IV describes how a revived Privileges or Immunities Clause may lead to the recognition of socioeconomic rights.