International Journal of Constitutional Law Advance Access originally published online on June 16, 2008
International Journal of Constitutional Law 2008 6(3-4):663-686; doi:10.1093/icon/mon013
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This article appears in the following International Journal of Constitutional Law issue: SYMPOSIUM: constitutionalism in an era of globalization and privatization [View the issue table of contents]
Socioeconomic rights in constitutional law: Explaining America away
* Robert Walmsley University Professor, Harvard Law School. Email: fmichel{at}law.harvard.edu
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Abstract |
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The apparent absence of a commitment to socioeconomic rights in United States constitutional law gives rise to continuing debate. It is unclear that this omission has any bearing on the actual performance of American governments in the social welfare field. Might there be other reasons for treating the omission as problematic? If so, might the omission nevertheless be explained in terms consistent with the belief that some kind of socioeconomic commitment ideally does belong in the constitutional law of a country like the U.S.? After briefly reviewing the uneasy instrumental case for a constitutionalized socioeconomic commitment, this article suggests why inclusion could be demanded, nonetheless, as a matter of political-moral principle. It then canvasses possible responses to the American case. These include both a possible denial that socioeconomic guarantees are, in fact, lacking from U.S. constitutional law and a possible claim that omitting them is the correct choice for the U.S. as a matter of nonideal political morality.