Social and Economic Rights: A Brief Guide to the Constitution of Work and Livelihoods
William E. Forbath
University of Texas at Austin - School of Law
WORKINGUSA: The Journal of Labor and Society, Vol. 11, 2008
U of Texas Law, Public Law Research Paper No. 132
Constitutional democracy is impossible here, just as it is elsewhere, without some limits on social and economic deprivation. Mounting poverty and poverty wages, growing job insecurity, a renaissance of sweat shops, a lack of decent education, of access to health care, housing, and other basic social goods: millions of Americans thus afflicted lack more than money. They are at constant risk of physical and social debilitation. As a consequence, they can't participate on anything like a roughly equal footing in the world of work and opportunity or in the polity, where the terms of social and economic cooperation and competition are meant to be open to democratic scrutiny and revision. Equal liberty and the consent of the governed - the basic precepts of constitutional democracy - are a hoax in a system that allows such savage inequality as ours.
The rest of this short essay is divided into three parts. First and briefest, just a couple pages, is a plain-spoken philosophical explanation of why most Americans' reflective (now that I think about it) understanding of constitutional democracy demands social and economic rights. This seems like it might be useful, since the idea of fundamental rights to social goods rubs so sharply against the grain of our official legal and political culture today. Second is an historical account that shows that the idea is as rooted in American history and tradition as conservatives' laissez faire. It also shows how the tangled knot of race and class constrained efforts in the polity and courts to make good on the claims of social and economic citizenship during the twentieth century. And third are some suggestions about renewing and reinventing social and economic rights today.
Number of Pages in PDF File: 21
Keywords: social, rights, economic rights, fourteenth, amendment, constitution, laissez faire
JEL Classification: A13, A14Accepted Paper Series
Date posted: February 11, 2008
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