Social Welfare Rights and the Forms of Judicial Review

Abstract

I. Introduction The conventional wisdom among scholars of U.S. constitutional law is that the Constitution-and indeed constitutions more generally-should not recognize, or be interpreted to recognize, so-called second generation social welfare rights, such as a right to shelter or a right to a minimum subsistence.1 The argument against the recognition of social welfare rights2 begins with the proposition that constitutional rights must be enforceable in the courts.3 Sometimes that proposition is taken as something like an entailment of the idea of rights itself.4 Sometimes that proposition rests on the observation that first- and second-generation rights-the standard civil liberties and civil rights (including equality rights)-are taken seriously because they are judicially enforceable. From this observation comes the additional claim that constitutional rights cannot be taken seriously by a nation's population unless they are judicially enforceable.5 The next step in the argument is that social welfare rights cannot be enforced in the courts because their enforcement requires the courts to make decisions that have large-scale consequences for government budgets.6 Of course, sometimes the enforcement of first- and second-generation rights has some implications for government budgets. This is obvious with a right like representation in criminal proceedings when it is interpreted to require the public provision of lawyers for the indigent. It is less obvious, but still present, in other situations. For example, if free speech law rejects the heckler's veto,7 government can respond to the threat of disruption caused by adverse reactions to a speaker not by the cheap means of removing the speaker from the area, but only by the more expensive method of deploying additional police forces to protect the speaker.8 Stephen Holmes and Cass Sunstein have argued that providing courts to enforce, not public law rights, but ordinary rights, under contract, tort, and property law is expensive.9 The examples of rights-protections with budget consequences could be prolifer-ated almost endlessly. So, it is not that recognizing constitutional social welfare rights would have budget consequences, while recognizing other constitutional rights does not. Rather, the claim is that the size of the budget consequences matters. Protecting private law rights and first- and second-generation constitutional rights is cheap, though not free. Protecting social welfare rights is expensive. Constitutional rights with large fiscal consequences require someone to raise the funds, either through taxation or through the redirection of existing taxes, to ensure that the constitutional rights are effectively realized. But courts lack the power to raise money through taxes. Only legislatures can do that.10 Suppose, then, that a constitution recognizes judicially enforceable social welfare rights. When the courts enforce such rights, they have to get legislatures to raise or divert taxes. Yet, the very fact that the courts have found a constitutional violation means that the legislature's own priorities placed attainment of the social welfare right below other social policies-national defense, building new roads, and the like. So, in enforcing social welfare rights, courts displace legislative judgments about how social policies should be ranked-and because social welfare rights are expensive, the displacement is large. The conventional wisdom concludes that constitutions with judicially enforceable social welfare rights are even more strongly counter-democratic than those with traditional civil liberties and civil rights. That, finally, is an argument against recognizing such rights. The key part of the argument, I believe, is the claim that judicially enforceable social welfare rights require the courts to displace legislative judgments on a large scale. In the remainder of this Article, I examine that claim.11 First, I identify the following three ways in which constitutions might recognize social welfare rights: by enumerating them but making them nonjusticiable, by making them justiciable but allowing the courts to find a constitutional violation only if the legislature has quite dramatically departed from what the constitution requires, and by making them enforceable to the same degree that traditional civil liberties and civil rights are. …

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