November 30, 2019 HUMAN RIGHTS

Economic Rights: Are They Justiciable, and Should They Be?

by Rotem Litinski

By definition, human rights are universal and describe those rights related to human dignity. Thus, the universal obligation to adhere to these rights arguably binds the government to be proactive in its action or inaction toward fostering human dignity. While international human rights law emboldens the fiduciary responsibilities of national governments to protect the human rights of their residents, the universality of human rights also engenders a broad interpretation of how they can be observed. This interpretation is, at times, subjectively operationalized.

Human rights scholars recognize five broad categories of rights—civil, political, social, economic, and cultural—outlined in the 1948 Universal Declaration of Human Rights, but rarely practiced in their totality. More specifically, social rights often deal with the allocation and distribution of resources, a power generally reserved for the legislature. They are regarded as “second-generation” rights protected by the government to ensure the fulfillment of basic needs like sustenance, housing, education, health, and employment. Social rights are primarily private rights requiring government intervention and sacrifice, rather than a negative right that implicates government inaction. This contrasts “first-generation” civil-political rights, which largely limit government interference, and which many claim are compromised at the expense of socioeconomic rights.

Today, economic rights are not deemed officially “justiciable,” meaning there remains significant controversy surrounding whether or not independent judiciaries should remedy a violation of the right through deeming government action or inaction unconstitutional and, to a certain extent, demanding legislative or executive response.

The obligations imposed by economic rights work must be approached in the same way as they are with respect to civil and political rights. These include providing freedoms, imposing obligations on the state regarding third parties, and imposing obligations on the state to adopt measures or to achieve a particular result (International Commission of Jurists, 2008). The enforcement of economic rights is instrumental to the amelioration of the ubiquitous and damaging economic crises domestically and abroad.

"Constitutionalizing economic rights can begin to ameliorate the gaping issues of hunger, unemployment, and poverty."

"Constitutionalizing economic rights can begin to ameliorate the gaping issues of hunger, unemployment, and poverty."

Economic Justice to Combat Economic Strife

Constitutionalizing economic rights can begin to ameliorate the gaping issues of hunger, unemployment, and poverty that disproportionately affect low-income and minority communities in the United States and abroad.

The United States, despite being among the world’s wealthiest and most resource and technology-heavy states, remains the only developed country where millions go hungry (“The State of Hunger in 2009,” Human Rights, 2009). Rates of poverty remain just as demoralizing. There are 39.7 million people living in poverty in the United States, including 12.8 million children (U.S. Census Bureau, 2018). Eighty-six percent of jobs in the food system offer very low wages at or below the poverty level, a steadfastly rising standard (Food Chain Workers Alliance and Solidarity Research Cooperative, 2016). Higher rates of poverty are also intimately connected with unemployment rates. Widespread and lingering unemployment yields dire consequences for both the national economy and the unemployed demographics; the former is fiscally stunted, while the latter may experience emotional and psychological destruction.

The tradition of regarding economic rights as second-class is deceptive, especially considering the fundamental nature of these rights. America has embraced and adopted the Universal Declaration of Human Rights, which states, under Article 25, that there is a “right to a standard of living adequate for the health and well-being” of each person and their family, including basic food, medical care, social services, and security in the event of unemployment or disability. It is these human rights that offer a means of articulating and fulfilling basic human needs. These needs are encompassed by the protections provided by economic rights.

It follows, then, that the judicial protection of human rights is crucial. A right without a remedy raises questions of whether it is in fact a right at all. This is not to say that judicial enforcement is the only, or even the best, way of protecting economic, social, and cultural rights. However, judicial enforcement has a clear role in developing our understanding of these rights, in remedying clear violations, and in providing decisions on test cases that can lead to systematic institutional change and prevent future rights violations.

Justiciability and the Scope of Judicial Authority

Many have questioned whether it is constitutionally acceptable for a court to assess the progressive realization of economic rights, which would require the actions of several mechanisms in concert. Because the responsibility of constructing and enforcing laws belongs to the legislative and the executive branches, respectively, judicial enforcement of economic rights might be misconstrued as a denigration of the checks and balances system. On the other hand, judicial review necessitates that courts evaluate the consistency of legislation and government action with constitutional ideals, aspirations, and obligations. Ensuring the human rights of individuals to shelter, food, and basic economic stability, foundational to the realization of their human dignity, is well within those constitutional bounds. Regardless, U.S. courts often gag themselves by denying their power to constitutionalize socioeconomic rights.

Due to their unelected status, the role and expanse of the courts is constantly in question. But it is this status that insulates judges from the public, enabling them to protect individuals and groups while exercising objectivity. There is an institutional bias toward preserving the public good over individual rights because the latter creates a risk that may conflict with a public interest, a risk that public officials want to minimize. Whereas public officials may base decisions off public approval, insulated judges are distanced from public sentiments and can remain consistent in their values and decisions. These factors establish the credibility needed to exercise powerful judicial review.

Economic Rights as Derivatives of Constitutional Provisions

In practice, democratic constitutions often compel the court to gag itself to counteract judicial overextension and relegate jurisdiction to the State. The court has an obligation—similar to the positive duties imposed on the State—to intervene if unconstitutional legislation unreasonably infringes on the basic rights and liberties of individuals to functionally engage in society. This obligation is as rooted in human rights and economic justice as it is in the Constitution.

Economic liberty has become increasingly associated with First Amendment protections. For example, there are elements of free speech law that challenge wealth distribution. Background rules require that some public property is readily available for political activity (Weak Courts, Strong Rights, Tushnet, 2009). This “First Amendment easement” on public property granted to public demonstrators largely reconciles the reality that the capacity to tangibly influence public policy disproportionately relies on the possession of adequate resources, like money. The protection of contentious speakers during protests also requires funds composed of allocated taxpayer dollars. This reflects a commitment to emboldening both freedom of expression and economic redistribution. While the protection of First Amendment rights is important, the equal access to such fundamental rights cannot be truly operationalized without the prerequisite fulfillment of basic human rights and needs. Although all Americans have the theoretical equal right to free speech, free expression, entry into contracts, or ownership of property, these rights are not equally felt in practice. This has everything to do with economic injustice.

Laws must be established on the principle of legitimacy, rooted in a confidence that all reasonable people would be able to ascertain their merits in a legal claim. Legislation is legitimized through this public endorsement and agreement of reasonable citizens. The State cannot call on its members to accept and participate in their democratic system if it does not conduct itself in a way that properly sustains each individual as a valued contributor in social, political, and economic life. This can be achieved through constitutionalizing social rights.

Social rights relate to the most fundamental of individual preoccupations. To the extent to which the court is entrusted with interpreting the Constitution, it must equally attend to constitutional moral goals of ensuring that individuals’ material needs are met. Thus, judges have a commitment to positive legal ordering because if the Constitution does not guarantee social rights, it is failing its moral purpose. Because legislatures make policy choices independent of constitutional law considerations, there is a clear interest in having the court police legislative actions. Further, policy review is not policymaking (UN Human Rights Office of the High Commissioner). The judiciary is not surpassing its constitutional role by making decisions pertaining to economic rights.

Viable Solutions to Misplaced Fears

Generally, the concerns regarding the constitutionalization of economic rights stem from logistical and bureaucratic fears about the unprecedented expansion of a coercive judiciary and the provision of changes in wealth distribution. But the implementation of weak-form judicial review challenges the sentiment that any judicial interaction with justiciable economic rights must emerge in the form of coercive orders. Through weak-form judicial review, economic rights are “enforced through politics backed up and encouraged by the courts” (Tushnet, 2009). In so doing, rather than rendering the non-justiciable rights “legally irrelevant,” traditional fears of judicial overextension are generally allayed while the rights are rightfully granted government attention and serve foundational roles in defenses to actions of ordinary torts and contracts. This, though not directly amending government policies, does beg legislative and popular response.

On the other hand, weak substantive rights, or those rights that are recognized as judicially enforceable yet largely legislatively discretionary, also serve as a viable alternative to strong justiciable economic rights. Rather than providing relief to individual plaintiffs, the court would call for the “reasonable” protection of economic and social welfare rights, allowing and holding governments accountable to adopt social welfare rights. This is the formal position taken in U.S. constitutional law.

Litigating Economic Rights in Courts—Global and Historical Precedents

Economic rights have been and continue to be litigated in courts around the world, according to the UN Human Rights Office of the High Commissioner. Much of Europe already embraces the justiciability of economic rights. The European Social Charter covers the rights to housing, social protection, education, good working conditions, health, high-quality social services, the protection of migrant workers, and the protection against poverty and social exclusion. The president of the European Committee of Social Rights, Giuseppe Palmisano, for example, has a clear intention of highlighting the connection between economic rights and civil and political ones, enshrined in the European Convention on Human Rights. He claims that “In Europe today, there is an urgent need not only to underline the importance of these rights but, above all, to avoid a narrow approach under which only some are seen as human rights.”

The United States has a long history of attending to social justice by enforcing economic rights. In the midst of the Great Depression, President Franklin D. Roosevelt implemented the New Deal, whereby the government operationalized a host of policies and programs to bolster employment, revitalize housing, and combat poverty and hunger. Decades later, the Affordable Care Act was passed in an effort to ameliorate the extreme inequalities experienced throughout the health care system. The importance of economic rights and justice also finds foundational roots in American legislative policies, state constitutions, and judicial decisions.

Concluding Remarks

Regardless of the solution, the enforcement of economic rights remains important both in ensuring the adequate and equal operationalization of individuals’ civil and political rights and in ensuring adequate standards of living. By observing, respecting, and adhering to the goals of economic justice, government actions toward protecting human dignity transition from aspirational to productive. The enforcement of economic rights through judicial channels forces us to question whether rights pertain to needs or democratic values. Choosing the latter might mean advocating for the legal need to ignore social realities or remain purposely abstract so individuals can decide if democracy should run itself or maintain a more robust structure of ensuring that rights—as operationalized—meet demands.

Rotem Litinski is a third-year student at the University of California Berkeley focusing on legal studies and political science and has interned at the Superior Court of California in San Francisco and for the ABA Section of Civil Rights and Social Justice.