Social and Economic Rights as Fundamental Rights

Abstract

This report uses the definition of “social rights” in “The Toronto Initiative for Economic and Social Rights,” and focuses on two of these rights which have been litigated in the United States: the right to social security, at the Federal level, and the right to education, at the state level. We note that the U.S. Constitution does not expressly recognize any of the social rights listed in the introduction to this national report, and that American courts and legal scholars are generally skeptical about protecting social rights through constitutional law. The limited exceptions to this skepticism appear in the prohibition on discrimination against the indigent with respect to the exercise of “fundamental rights” like the right to travel and the guarantee of procedural rights before welfare rights may be terminated. All fifty state constitutions recognize the right to education to varying degrees, although only some deem it a fundamental right. While some state courts consider challenges to educational schemes to be non-justiciable, and defer to the legislature, others have heard such cases, most of which are based on equal protection or educational quality rationales. We conclude, however, that the United States is likely not in total compliance with the education component of the International Covenant on Economic, Social, and Cultural Rights.