Abstract
Do social and economic rights belong in a democratic constitution? Skeptics have wondered whether it is possible to constitutionalize such rights without imposing an untenable managerial responsibility on courts. In an extraordinary decision, the Constitutional Court of South Africa has provided a new approach to social and economic rights, one that respects the fact of limited resources while also requiring governmental attention to basic needs. This new approach might be called an administrative law model of constitutional rights. It contains considerable promise, because it recognize rights to reasonable programs, rather than to protection of each individual, a path that might well be beyond governmental capacities.
Highlights
Is one of the central differences between late eighteenth century constitutions and late twentieth century constitutions: The former make no mention of rights to food, shelter, and health care, whereas the latter tend to protect those rights in the most explicit terms
Should a democratic constitution really protect the right to food, shelter, and medical care? Do “socio-economic” rights of this sort belong in a Constitution? What do they have to do with citizenship? Do they promote or undermine democratic deliberation? If such rights are created, what is the role of the courts?
My aim in this Essay is to shed light on these questions, largely by discussing an extraordinary decision by the Constitutional Court of South Africa, one that carries some significant lessons for the future.[1]
Summary
Is one of the central differences between late eighteenth century constitutions and late twentieth century constitutions: The former make no mention of rights to food, shelter, and health care, whereas the latter tend to protect those rights in the most explicit terms. The approach of the Constitutional Court stands as a powerful rejoinder to those who have contended that socio-economic rights do not belong in a constitution It suggests that such rights can serve, not to preempt democratic deliberation, but to ensure democratic attention to important interests that might otherwise be neglected in ordinary debate. For the first time in the history of the world, a constitutional court has initiated a process that might well succeed in the endeavor of ensuring that protection without placing courts in an unacceptable managerial role This point has large implications for how we think about citizenship, democracy, and minimal social and economic needs
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