Legal Commentary

The U.S. Supreme Court has issued numerous decisions where it has ruled against implying positive socio-economic rights, though it has not hesitated to find an implied right to privacy, abortion, travel, etc.  One of the Court's major arguments has been separation of powers.  For example, in Dandridge v. Williams, the Court said there was no equal protection violation when a welfare cap meant that a large family could get no more assistance than a small family.  In San Antonio Indep. School District v. Rodriguez, the Court refused to find any fundamental right to education, nor that being poor was a suspect class.  Another related objection is that forcing government to implement positive rights is fundamentally different than negative rights.  The South African Constitutional Court decisions that I've discussed in earlier posts show these separation of powers objection are flawed.

First, Constitutional Court cases like Grootboom (Court says national government must adopt policy regarding the homeless) and Olivia Road (Court orders municipality to "meaningfully engage" with squatters) show how separation of powers concerns can be alleviated in a pragmatic and transformative way.  In both cases, the Court said that the government must act, but left some discretion regarding what the government must do.  Several commentators have argued that both cases turned a potentially head on conflict, between the judiciary and another part of government, into a meaningful dialogue in which each branch is acting within their roles.  Similarly, nothing in Rodriguez or Dandridge would have prevented the Court from ruling both laws unconstitutional and yet leaving significant (but not absolute) discretion to the state to remedy the situation. 

Second, the positive versus negative rights distinction is troubling.  Government spends money affirmatively to guarantee "negative" rights e.g. funding elections, funding police to protect property or controversial speakers, etc.  Moreover, so-called positive rights often have a negative component.  Thus, the right to access housing includes a right against arbitrary evictions.  Numerous other scholars have made these points.  I'm not saying there's no distinction at all betweeen positive and negative rights.  But the distinction is certainly not so great as to preclude enforcement of positive socio-economic rights. 

Now the more complicated theoretical question is whether the Ninth Amendment and the Fourteenth Amendment should be read as encompassing such rights.  I argue in my book that one key to that is the U.S. Supreme Court's artificial reliance on three levels of scrutiny.  First, the reality is that the Court has used numerous additional levels of scrutiny.  Second, if the Court adopted a sliding scale, then its results in these areas might not be that different from South Africa.  As Justice Marshall wrote in Rodriguez, if one combines the importance of education, with the social stigma of being poor, it's apparent that a higher level of srutiny should be used when there is a law that impacts both.  Then the question becomes whether the potential slippery slope and clarity problems with a sliding scale (or something like South African proportionality) are too serious.  I think the benefits in providing a more just and equal society from such an approach (not to mention a more candid Court -- think of Plyer v. Doe) outweigh the costs of some unpredictability.