And welfare for all? Cass Sunstein's case for inalienable economic rights

Washington Monthly, Sept, 2004 by Daniel Farber

Indeed, our legal system does recognize a number of economic rights--notably, the right to a free public education, the right to a public defender in a criminal case, and the right to emergency medical care. Given the public consensus that exists in favor of these rights, it isn't hard to imagine that they might receive constitutional stares as might other similar rights (like the right to employment opportunities). Surely, what Sunstein is advocating would be a major step, but our constitutional system has grown in similar ways in the past.

A third argument against constitutional economic rights is that courts are not suited to enforcing them. Here, Sunstein is at his best. He observes that a number of other countries have added welfare rights to their constitutions but name them non-enforceable. The goal is not to empower judges but to announce a serious national commitment. Other countries, notably South Africa, have made such rights judicially enforceable, but the courts have been careful to intervene only in extreme cases. The rights are defined in a way that acknowledges limited funds and requires only that the government make progress toward the goal.

Yet another option would be to make cautious modifications in current constitutional doctrines, giving special procedural protection to critical human needs or demanding better justifications for curtailing them than for other economic interests. Rather than demanding that the government establish programs to satisfy critical human needs, the courts would simply try to prevent arbitrary exclusions from those programs or unequal distribution of benefits. For example, courts could demand justifications for unequal funding for different groups. The Warren court may have been moving in this direction, but the Burger court put an end to this trend. Notably, the critical Burger made an effort to use the federal Constitution to equalize educational funding in Texas. But that case could easily have gone the other way. Like a number of other state courts, the Texas Supreme Court later interpreted the state constitution to require more equal funding. Americans seem to have adapted to these state court rulings without suffering any fundamental trauma. A similar decision from the Supreme Court would not have been out of the question had its makeup been different.

A fourth argument is that economic rights would be counterproductive. Some of the adverse effects suffered by European welfare states are well known, and mealy economists believe that measures like the minimum wage and rent control actually hurt the poor. Acknowledging these criticisms, Sunstein nevertheless argues in a somewhat Clintonian mode for smarter programs--for example, he favors the earned income credit over minimum-wage laws.

The Second Bill of Rights makes a good case for giving greater heed to the special stares of certain human needs in constitutional law. Perhaps the Warren court decisions deserve a more generous application than they have received. Sunstein provides a credible argument for some doctrinal modifications. Accomplishing this is no mean achievement. But he wants more than some modest fine-tuning of Supreme Court doctrine. He wants a more fundamental orientation of social goals: a Second Bill of Rights, not just federal court involvement in school finance cases or the like. Though he makes a reasonable argument for this outcome, it's an argument that seems curiously academic and unlikely to influence the national agenda.