| Mark S. Kende, The South African
Constitutional Court's Embrace of Socio-economic Rights: a Comparative
Perspective, 6 Chapman Law Review 137 (Spring 2003)
One of the most common assumptions about the United States
Constitution is that it protects negative rights. Yet the International
Covenant on Economic, Social, and Cultural Rights, as well as many
foreign constitutions, require governments to affirmatively provide
socio-economic necessities. The theory is that liberty at least presumes
International human rights experts actually speak of three
"generations" of rights. First generation rights are political
and civil, and are usually negative rights. Second generation rights
involve the government's socio-economic obligations, and are frequently
positive rights. Finally, third generation rights are exemplified by the
right to a clean and healthy environment, and are commonly called
Cass Sunstein said that the South African Constitution is "the
most admirable constitution in the history of the world." It
contains a lengthy list of socio-economic rights, which the drafters
hoped would protect and assist those disadvantaged by Apartheid and
those who are poor and vulnerable. The relatively new South African
Constitutional Court has required the government to implement these
rights. Conversely, the United States Supreme Court has been unwilling
to find socio-economic rights in the United States Constitution, in part
because of separation of powers concerns.
This paper is divided into three parts. The first part describes some
of the distinctive features of the South African Constitution, and
compares these features with the United States Constitution. Part two
discusses the South African socio-economic rights cases. Finally, part
three critically examines American constitutional jurisprudence on
socio-economic rights. This paper seeks to demonstrate that the South
African Court has accomplished quite a feat: it has made clear that
socio-economic rights are enforceable, but has interpreted economic
rights in a way that limits separation of powers concerns. Moreover,
this paper asserts that the United States Supreme Court should
reconsider its separation of powers objections in light of these South
II. Background of the South African Constitution
South Africa adopted its constitution in 1996. That year, the
Constitutional Court issued the Second Certification Judgment, ruling
that the Constitution complied with the thirty-four Constitutional
Principles agreed upon in political negotiations that took place from
1991 to 1993. The new Constitution embodied the nation's transformation
from a racist, brutal, Apartheid-based regime to a democratic,
multi-cultural government. Both the Constitution's length and detail
distinguish it from the United States Constitution.
The South African Constitution establishes a parliamentary structure
for the national government and allocates powers to the provincial
governments. It also creates a Constitutional Court with eleven Justices
who are appointed to serve twelve-year non-renewable terms. The first
group of Justices was impressive as it included an international war
crimes prosecutor, several former law professors, and the attorney who
founded the nation's leading civil rights litigation firm and
represented President Nelson Mandela during his imprisonment.
The South African Constitution's Bill of Rights seeks to preserve and
enhance human dignity, and substantive equality, by encompassing all
three generations of rights previously discussed. Whereas the United
States Supreme Court implies the existence of certain fundamental
personal rights in the liberty provision of the Fourteenth Amendment's
Due Process Clause (a legacy of Lochner v. New York), the South African
Bill of Rights specifically enumerates these rights. Section 12 of the
Bill of Rights addresses the "freedom and security of the
person." This section specifically bans torture, cruel and inhumane
treatment, general violence, detention without trial, and deprivation of
freedom without just cause. It further provides that everyone has bodily
and psychological integrity, including the right to make reproductive
decisions. Section 14 encompasses the right to spatial privacy: privacy
in one's home, of one's possessions, etc. Section 21 guarantees freedom
of movement and residence. There is a lengthy equality provision in
Section 9, Section 10 protects human dignity, and Section 11 says that
everyone has a right to life.
The South African Bill of Rights also employs the flexible
proportionality analysis used in the Canadian Charter of Rights and
Freedoms and in Germany's Basic Law, rather than the tiers of scrutiny
applied in United States constitutional jurisprudence. The first issue
addressed in any South African rights case is whether there has been an
infringement of one's constitutional rights. Interestingly, state action
need not always be present. The next issue addressed is whether the Bill
of Rights "Limitations" Clause justifies the infringement. Any
limitation must be pursuant to a law of "general application."
The Limitations Clause requires the Court to balance several factors,
including the nature of the right, the purpose of the limitation, the
nature and extent of the limitation, the relation between the limitation
and its purpose, and the possibility of employing less restrictive
alternatives. The Court's overall responsibility is to determine whether
the infringement on the right is proportional to the resulting societal
benefit. This method of rights analysis is more common internationally
than the American use of different degrees of scrutiny.
An example of proportionality analysis can be found in the South
African Constitutional Court case of Christian Education South Africa v.
Minister of Education. In that case, a Christian school association,
whose parental members believed in the Biblical maxim "spare the
rod, spoil the child," challenged on religious freedom grounds a
national law banning corporal punishment in schools. The Court assumed
arguendo that the free exercise rights of the parents were infringed.
The Court then had to determine whether the government limitation was
The Court found that powerful justifications support the ban
including international conventions and the South African Constitution,
which outlaws any violence against children. The Court also explained
that, under Apartheid, the schools used corporal punishment in a brutal,
degrading, and racist manner. Although it acknowledged that the parents
sincerely believed corporal punishment was a religious necessity, the
Court held that the restriction on free exercise was not sufficiently
burdensome because parents could still carry out corporal punishment at
home. Because the law only prohibited corporal punishment at school, the
Court held that it was an acceptable limitation on religious freedom.
Besides the Limitations Clause, the South African Bill of Rights has
several other interesting provisions, such as interpretive instructions.
One provision provides that courts should "promote the values that
underlie an open and democratic society based on human dignity, equality
and freedom." Courts are also supposed to construe legislation and
the common law to promote the spirit of the Bill of Rights. Moreover,
courts must consider international law in rendering decisions, and may
also consider foreign law.
Furthermore, the South African Bill of Rights requires that the
government undertake affirmative action programs. It also contains a
provision regarding how the government can carry out property
redistribution--an important provision given the land seizures carried
out under Apartheid.
III. The South African Constitutional Court's Socio-Economic Rights
The South African Constitution's socio-economic rights provisions
have been celebrated internationally. Yet some South African scholars,
such as Dennis Davis, argued that they were unenforceable. These
objections resemble the United States Supreme Court's reasoning in
several cases discussed later. Socio-economic rights protected by the
South African Constitution include rights to housing, health care, food,
water, social security, and education, among others. Several cases have
interpreted these provisions.
A. The Right to Housing
The seminal socio-economic rights case in South Africa is Government
of the Republic of South Africa v. Grootboom, which involved the right
to housing. Irene Grootboom was one of several hundred poor people, half
of whom were children, who lived in an informal squatter settlement. The
settlement lacked running water, electricity, sewage, and refuse removal
services. Millions of South Africans still live in such conditions as a
legacy of Apartheid's influx control policies and forcible relocations.
Because of these conditions, the group moved onto vacant private land
earmarked for low-income housing. The group was trespassing, however, so
the owner obtained an eviction order. The situation worsened when the
local government bulldozed the group's shanties and then burned the
wreckage before the date set for eviction. This occurred during a cold,
windy, and rainy Western Cape winter.
The group moved to a nearby municipal sports field and erected flimsy
temporary structures. Winter rains left them unprotected under plastic
sheeting, and the municipality declined to provide any assistance. The
group obtained legal counsel and brought suit charging that the
government failed to comply with the right to housing. The
Constitutional Court ruled for the settlers after applying chapter 2,
section 26, of the South African Constitution, which states:
26. (1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive realization
of this right.
Initially, the Court addressed whether socio-economic rights were
justiciable by quoting from its First Certification Judgment:
"[T]hese rights are, at least to some extent, justiciable. As we
have stated in the previous paragraph, many of the civil and political
rights entrenched in the [constitutional text before this Court for
certification in this case] will give rise to similar budgetary
implications without compromising their justiciability. The fact that
socio-economic rights will almost inevitably give rise to such
implications does not seem to us to be a bar to their justiciability. At
the very minimum, socio-economic rights can be negatively protected from
The Court then explained the importance of socio-economic rights:
Our Constitution entrenches both civil and political rights and
social and economic rights. All the rights in our Bill of Rights are
inter-related and mutually supporting. There can be no doubt that human
dignity, freedom and equality, the foundational values of our society,
are denied those who have no food, clothing or shelter. Affording
socio-economic rights to all people therefore enables them to enjoy the
other rights enshrined in Chapter 2 [The Bill of Rights]. The
realisation of these rights is also key to the advancement of race and
gender equality and the evolution of a society in which men and women
are equally able to achieve their full potential.
The Court acknowledged that there is a nexus between the government
meeting socio-economic needs and people exercising their civil and
political rights. As South African scholar Pierre de Vos said,
"Starving people may find it difficult to exercise their freedom of
speech . . . ."
The Court then examined international human rights law, but rejected
an approach in which the government would be required to provide a
"minimum core" level of housing, health care, etc. in order to
satisfy constitutional requirements. The Court noted that the
"minimum core" concept lacked flexibility, and that the text
of South Africa's socio-economic rights provisions differed from
international covenants. The Court instead asserted that the key
question was "whether the measures taken by the state to realise
the right afforded by Section 26 are reasonable." The Court
explained that "[t]he measures must establish a coherent public
housing programme directed towards the progressive realisation of the
right of access to adequate housing within the State's available
means." The Court further stated that progressive realization meant
that the government had "an obligation to move as expeditiously and
effectively as possible towards that goal." The Court added that
the program must be "reasonably implemented. An otherwise
reasonable programme that is not implemented reasonably will not
constitute compliance with the State's [positive] obligations."
The Court then held:
To be reasonable, measures cannot leave out of account the degree and
extent of the denial of the right they endeavour to realise. Those whose
needs are the most urgent and whose ability to enjoy all rights
therefore is most in peril, must not be ignored by the measures aimed at
achieving realisation of the right. . . . If the measures, though
statistically successful, fail to respond to the needs of those most
desperate, they may not pass the test.
This statement was significant because the Court was addressing the
government's worthy efforts at constructing low-income housing.
Nevertheless, the Grootboom group, and many others, could not obtain
such housing for years given the backlog. The government simply had no
policy to assist the homeless. The Court elaborated:
The nationwide housing programme falls short of obligations imposed
upon national government to the extent that it fails to recognise that
the State must provide relief for those in desperate need. They are not
to be ignored in the interests of an overall programme focussed on
medium and long- term objectives [rather than short term objectives]. It
is essential that a reasonable part of the national housing budget be
devoted to this, but the precise allocation is for national government
to decide in the first instance.
This last sentence illustrates the Court's careful balancing act.
Though the Court forced compliance with the Constitution, it gave the
government discretion on how to comply with the law.
Grootboom demonstrates that placing socio-economic rights in a
Constitution does not mean that every individual is entitled to
assistance on demand. Instead, the Court analyzed whether the overall
government policy was reasonable. Cass Sunstein said, "[w]hat the
South African Constitutional Court has basically done is to adopt an
administrative law model of socioeconomic rights."
B. The Right to Health Care
The South African Constitutional Court has decided two major health
care cases: Soobramoney v. Minister of Health and Minister of Health v.
Treatment Action Campaign. Chapter 2, section 27 of the Bill of Rights
Health care, food, water, and social security
27. (1) Everyone has the right to have access to --
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support
themselves and their dependants, appropriate social assistance.
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive realisation
of each of these rights.
(3) No one may be refused emergency medical treatment.
1. Soobramoney v. Minister of Health
The first socio-economic rights case ever decided by the
Constitutional Court was Soobramoney, not Grootboom. Soobramoney's
ruling against the claimant made some commentators fear the Court would
render the rights provisions toothless. Grootboom and Treatment Action
Campaign have since alleviated that worry.
The issue in Soobramoney was whether a public hospital
unconstitutionally failed to provide renal dialysis services to a
terminally ill man who suffered from diabetes, ischemic heart disease,
and cerebro-vascular disease. The hospital produced evidence that it
prioritized treatment for non-terminal patients because dialysis was a
scarce resource. Soobramoney brought suit claiming that the hospital's
refusal to treat him violated his right to health care and to emergency
medical treatment under chapter 2, section 27 of the Bill of Rights of
the South African Constitution.
The Court initially recited the Constitution's fundamental
We live in a society in which there are great disparities in wealth.
Millions of people are living in deplorable conditions and in great
poverty. There is a high level of unemployment, inadequate social
security, and many do not have access to clean water or to adequate
health services. These conditions already existed when the Constitution
was adopted and a commitment to address them, and to transform our
society into one in which there will be human dignity, freedom and
equality, lies at the heart of our new constitutional order. For as long
as these conditions continue to exist that aspiration will have a hollow
The Court then rejected the claimant's "emergency"
assertion. Relying on a case from India, the Court noted that claimant's
chronic renal failure would require dialysis several times a week to
prolong his life, but held: "This is not an emergency which calls
for immediate remedial treatment. It is an ongoing state of affairs
resulting from a deterioration of the applicant's renal function which
The Court also rejected the claimant's argument that the hospital
violated his right to health care by reasoning that the hospital had a
rational policy for making a scarce resource available. The Court
asserted that the dialysis program would collapse and"no one would
benefit" in the absence of a prioritization policy. Moreover, the
These choices involve difficult decisions to be taken at the
political level in fixing the health budget, and at the functional level
in deciding upon the priorities to be met. A court will be slow to
interfere with rational decisions taken in good faith by the political
organs and medical authorities whose responsibility it is to deal with
The ruling illustrates, once again, that a court can take
socio-economic rights seriously and yet still respect separation of
powers concerns and legislative competence.
2. Minister of Health v. Treatment Action Campaign
The recent decision in Treatment Action Campaign is among the most
important Constitutional Court cases thus far, because it involved the
South African government's unsatisfactory response to the AIDS pandemic
that South Africa is currently experiencing. Indeed, one in nine South
Africans is infected with HIV. In the year 2000 alone, 2.4 million
Africans died of HIV related causes. More than 70,000 babies infected
with HIV are born in South Africa each year due to mother-child
transmission. One ray of hope is a drug called Nevirapine, which the
World Health Organization ("WHO") says can prevent the spread
of HIV/AIDS from pregnant women to their fetuses and babies.
Unfortunately, for several years the South African government refused
to distribute Nevirapine at public health clinics. Initially, President
Thabo Mbeki expressed skepticism about whether HIV causes AIDS. Then the
government had cost concerns, which were unfounded because the
manufacturer offered the pills for free. The government also claimed
Nevirapine had potentially hazardous side effects. The WHO ultimately
dispelled these concerns.
The government finally agreed to a pilot distribution program at two
public health centers in each province. Government health officials said
a broader program was not feasible since Nevirapine only worked when
infected mothers used formula to feed their newborns. The government
said that it lacked the capacity to insure that women all over the
country used formula to feed their babies.
After years of unsuccessful lobbying, a South African AIDS advocacy
group, the Treatment Action Campaign ("TAC"), brought suit
charging that the government violated the Constitution's right to health
care by not widely providing Nevirapine to pregnant women. The
government responded that its pilot program was reasonable and that
separation of powers required the courts to stay out of this issue.
Nevertheless, the Constitutional Court issued a unanimous opinion
ordering the government to provide the free Nevirapine. Initially, the
Court spoke of its standard of review:
Courts are ill-suited to adjudicate upon issues where court orders
could have multiple social and economic consequences for the community.
The Constitution contemplates rather a restrained and focused role for
the courts, namely, to require the State to take measures to meet its
constitutional obligations and to subject the reasonableness of these
measures to evaluation. Such determinations of reasonableness may in
fact have budgetary implications, but are not in themselves directed at
rearranging budgets. In this way the judicial, legislative and executive
functions achieve appropriate constitutional balance.
The Court, nonetheless, defined the "progressive
realization" obligation by noting that "[t]he State is obliged
to take reasonable measures progressively to eliminate or reduce the
large areas of severe deprivation that afflict our society." The
Court then decided that the government inaction was not reasonable
because it "fail[ed] to address the needs of mothers and their
newborn children who do not have access to these [pilot] sites."
The Court said the government's goal of maximizing Nevirapine's
effectiveness by limiting its distribution to mothers trained in the use
of baby formula did not justify refusing to distribute it beyond the
pilot sites, because too many babies would become infected or die in the
The Court also rejected the government's separation of powers defense
There is . . . no merit in the argument advanced on behalf of
government that a distinction should be drawn between declaratory and
mandatory orders against government. Even simple declaratory orders
against government or organs of State can affect their policy and may
well have budgetary implications. Government is constitutionally bound
to give effect to such orders whether or not they affect its policy and
has to find the resources to do so. Thus, in the Mpumalanga case, this
Court set aside a provincial government's policy decision to terminate
the payment of subsidies to certain schools and ordered that payments
should continue for several months. Also, in the case of August the
Court, in order to afford prisoners the right to vote, directed the
Electoral Commission to alter its election policy, planning and
regulations, with manifest cost implications.
But the Court showed respect for separation of powers by asserting
that it would be for the "government . . . to devise and implement
a more comprehensive policy that will give access to health care
services to HIV- positive mothers and their newborn children, and will
include the administration of Nevirapine where that is
appropriate." The Court supported its remedial authority by citing
cases from India, Germany, Canada, and the United Kingdom. The decision
in Treatment Action Campaign even relied on the United State Supreme
Court's decision in Brown v. Board of Education II.
In sum, as Heinz Klug pointed out, Treatment Action Campaign goes
beyond Grootboom because Treatment Action Campaign's directive to the
government was quite specific. The government is now complying and many
young lives will likely be saved.
IV. Critique of the United States Supreme Court's Socio-Economic
Comparing South African Constitutional Court and United States
Supreme Court decisions on socio-economic rights is difficult because
these courts are the products of different societies, cultures, and
political and legal systems. One obvious difference is that the United
States Constitution lacks explicit socio-economic rights. This helps
explain why the Supreme Court rejects such claims. In Lindsey v. Normet,
the Court said: "We do not denigrate the importance of decent,
safe, and sanitary housing. But the Constitution does not provide
judicial remedies for every social and economic ill." The first
part of this section looks at Supreme Court decisions related to socio-
economic rights. The second part relies on the above-mentioned South
African cases to show the flawed nature of the Supreme Court's doubts
about the judiciary's competence to enforce such rights.
A. The United States Supreme Court on Socio-Economic Rights
The United States Supreme Court has rejected socio-economic rights
claims in cases with varying facts and legal grounding. In Dandridge v.
Williams, the Court ruled that Maryland did not violate equal protection
by imposing a $250 cap on welfare benefits, regardless of family size.
The Court held that the cap was rationally related to the state's
interests in preserving scarce resources, and in creating incentives for
the poor to seek employment and to engage in family planning. In San
Antonio Independent School District v. Rodriguez, the Court ruled that
Texas' public education financing scheme was consistent with equal
protection and substantive due process, despite dramatic school district
disparities in per student funding. The Court said the law burdened
neither a suspect class nor a fundamental right. Additionally, in Harris
v. McRae, the Court ruled that a federal health care program that
omitted financial coverage for abortions, even when the pregnancy
endangered the woman's health, did not violate substantive due process.
To be fair, strong dissents were authored in these cases. Moreover,
the Court has upheld socio-economic rights in a few circumstances. In
Shapiro v. Thompson, the Court ruled that a durational residency
requirement for welfare recipients discriminated against a person's
fundamental right to travel. This was a hybrid case that implicated what
has been called "equal protection fundamental interests." More
recently, in Saenz v. Roe, the Court issued a similar ruling regarding
welfare payments, but held that the right to travel was based on the
Fourteenth Amendment's Privileges and Immunities Clause. This travel
issue was not present in Dandridge.
In Plyler v. Doe, the Court ruled unconstitutional a Texas law that
required illegal alien children to pay to attend public schools. Though
neither a suspect class nor fundamental right was implicated, the Court
asserted that the law revealed an irrational animus towards a vulnerable
group not responsible for its situation. This was a surprising result in
light of Rodriguez. One distinction was that in Rodriguez the law
provided students with a minimum education, whereas in Plyler certain
students were denied any education unless they paid for it themselves.
To sum up, the Supreme Court has rejected socio-economic rights
claims under both Substantive Due Process and Equal Protection
doctrines. The Court, nonetheless, has been more receptive regarding
hybrid "equal protection fundamental interests" claims. But
even then, the Court has tried to find a hook, such as the right to
travel or the right to vote.
B. Socio-Economic Rights and Separation of Powers: Two Approaches
The United States Supreme Court has raised separation of powers
objections to socio-economic rights. This paper responds to these
objections. Of course, scholars such as Frank Michelman, Peter Edelman,
Mark Tushnet, and Charles Black have challenged the United States
Supreme Court's socio-economic rights decisions based on their
respective views of the Fourteenth Amendment. This paper leaves the
Fourteenth Amendment questions for a later day, however, because the
South African cases shed light on separation of powers issues, but not
on the peculiarities of American substantive due process or the
Privileges and Immunities Clause. Moreover, Fourteenth Amendment theory
becomes less important regarding socio- economic rights if pragmatic
separation of powers objections cannot even be overcome.
The Supreme Court has raised three separation of powers concerns.
First, the legislature, not courts, should make socio-economic funding
allocations. Second, the judiciary lacks the competence to make such
decisions. Third, separation of powers problems are minimized if the
Constitution encompasses negative rights. The South African cases
address these concerns.
1. The Legislature's Prerogative
The Supreme Court has made clear the legislative and executive
branches should resolve socio-economic rights issues. In Dandridge, the
Court said "the Constitution does not empower this Court to
second-guess state officials charged with the difficult responsibility
of allocating limited public welfare funds among the myriad of potential
recipients." The Court added that the "problems presented by
public welfare assistance programs are not the business of this
Court." In Lindsey v. Normet, the Court upheld Oregon's summary
eviction procedures holding: "Absent constitutional mandate, the
assurance of adequate housing and the definition of landlord tenant
relationships are legislative, not judicial, functions."
The majority in Rodriguez said that it lacked the
"authority" to intervene regarding school financing decisions
because it would then be a "super-legislature." This objection
resembles Justice Holmes's famous dissent in Lochner. The Rodriguez
opinion also asserted that educational decisions should be left to
government entities with expertise regarding local political and
economic conditions. Finally, in Harris, the Court said, "Whether
freedom of choice that is constitutionally protected warrants federal
subsidization is a question for Congress to answer, not a matter of
The South African cases, however, demonstrate that the judiciary can
enforce socio-economic rights without intruding into quintessentially
legislative or executive functions. In Soobramoney, Grootboom, and
Treatment Action Campaign, the Constitutional Court asserted that it
would uphold government socio- economic policies so long as they were
reasonable. This is a pro-government presumption. The government only
lost in Grootboom and Treatment Action Campaign because it had
essentially no plan for assisting people in difficult circumstances.
Moreover, the Court's rejection of "minimum core" obligations
in Grootboom and Treatment Action Campaign provides the government with
flexibility in dealing with multiple social problems.
Finally, Grootboom demonstrates that a court can issue a powerful
remedial order that still gives the legislature latitude on
implementation. Mark Tushnet called this an "action-forcing remed[y]."
In the context of employment rights, Tushnet said that,
"enforcement [of an order that the legislature offers plans for
relief] could guarantee that legislatures make jobs policy a high or
higher priority." Frank Michelman said this remedy involved "a
judicial mandate to legislative, executive, or administrative officers
to prepare, submit, and carry out a corrective plan."
Michelman further confirmed that Grootboom "does not as it
stands seem shockingly pre-emptive of legislative and executive policy
choice." Other commentators have suggested that Grootboom did not
go far enough. In my view, the Constitutional Court performed an
impressive high wire act in Grootboom by vindicating the right to
housing while preserving separation of powers. The Constitutional Court
accomplished what the United States Supreme Court has said courts cannot
The United States Supreme Court has also questioned the judiciary's
ability to make budgetary decisions. In Dandridge, the Court labeled
such issues "intractable." In Rodriguez, the Court said the
judiciary lacked the "competence" to evaluate
education-funding levels. The Rodriguez Court also invoked "our
federalism" by saying that the Court did not possess "the
expertise and the familiarity with local problems so necessary to the
making of wise decisions with respect to the raising and disposition of
public revenues." The Court added that its "lack of
specialized knowledge and experience counsels against premature
interference with the informed judgments made at the state and local
levels." The Supreme Court's concerns are overstated. Grootboom's
action-forcing remedy allows the legislature or local entities to
wrestle with implementation despite the court's intervention. Moreover,
judicial intervention is justified when the other branches violate the
Charles Black's interesting 1997 book, A New Birth of Freedom,
explains why lack of competency is not a valid defense against judicial
About half our black children under six live in poverty, which very
commonly entails malnutrition. Some helpless old people have been known
to eat dog food when they could get it; it is not recorded that any
Cabinet member has yet tried this out on elderly persons in his own
extended family. Now you can bog down in a discussion about the exact
perimeter of "decent livelihood," or you can cease for a
moment from that commonly diversionary tactic and note that, wherever
the penumbra may be, malnourished people are not enjoying a decent
livelihood. In a constitutional universe admitting serious attention to
the Declaration of Independence, a malnourished child is not enjoying a
"right to the pursuit of happiness."
3. Negative Rights
Another concern related to separation of powers is that the American
constitutional tradition presumes that courts have an easier time
enforcing negative political and civil rights rather than positive
socio-economic rights. It seems simpler for a court to order the
government to stop interfering with speech than for a court to determine
how much funding is needed for secondary education.
This reasoning has two problems. First, it is an oversimplification.
In the First Certification Judgment, as well as in Grootboom and
Treatment Action Campaign, the Constitutional Court said that protecting
socio-economic rights sometimes requires the Court to negate government
actions that interfere with a right. Thus, in Treatment Action Campaign,
as Frank Michelman has pointed out, the Constitutional Court found that
the government unconstitutionally interfered with the right of public
doctors to distribute Nevirapine. This "negative" role
regarding socio-economic rights is little different from the
"negative" role United States courts play when vindicating
Second, Mark Tushnet, Cass Sunstein, and others have established that
enforcing negative rights also implicates budgetary matters. Sunstein
Even conventional individual rights, like the right to free speech
and private property, require governmental action. Private property
cannot exist without a governmental apparatus, ready and able to secure
people's holdings as such. So-called negative rights are emphatically
positive rights. In fact all rights, even the most conventional, have
costs. Rights of property and contract, as well as rights of free speech
and religious liberty, need significant taxpayer support.
The First Certification Judgment is in accord with Sunstein, as
quoted above. American philosopher Henry Shue wrote that courts
enforcing positive socio-economic rights are not performing a task
"more difficult, more expensive, less practicable, or harder to
'deliver"' than protecting negative rights. The United States
Supreme Court's intrusive efforts to implement a remedy against
segregation in Brown v. Board of Education II illustrate this starkly.
4. New Results
The South African cases discussed above reveal how the United States
Supreme Court could have decided certain socio-economic rights cases.
The Court in Dandridge did not have to resolve "intractable"
welfare budgeting questions. The Court could have ordered the government
to develop a more equitable funding rule that took into account family
size, which would ensure that children in bigger families would not be
Similarly, in Rodriguez, the Court could have ruled against the Texas
financing scheme but left the state to devise an equitable alternative,
subject to the Court's guidelines. Numerous state courts have
invalidated school financing schemes. The Supreme Court mistakenly
assumed that it had to "direct the States either to alter
drastically the present system or to throw out the property tax
altogether in favor of some other form of taxation." The South
African cases suggest the remedy need not be so intrusive and
Moreover, the Supreme Court could have ruled for the plaintiff in
Harris by simply requiring the government to ensure that the health
service was provided to these women, just as in Treatment Action
It is also worth noting that the Supreme Court decisions in Shapiro,
Plyler, and the "new property" entitlement case, Goldberg v.
Kelly, as well as the eloquent Dandridge and Rodriguez dissents,
demonstrate that the Court can address socio-economic rights issues.
5. The Reaction
One possible reaction to the aforementioned arguments is that the
current United States Supreme Court will not be endorsing socio-economic
rights anytime soon. Indeed, Lawrence Lessig essentially suggested at a
1997 Fordham Law School constitutional law conference that Frank
Michelman's welfare rights theories make Michelman look like a dreamer
today, given the evolution of the Supreme Court's jurisprudence.
Nevertheless, the South African cases illustrate that courts, acting
cautiously, can enforce such rights without destroying separation of
powers or taxing judicial competency. Once these false concerns are
eliminated, the more foundational issues about interpreting the
Fourteenth Amendment, and perhaps the Ninth Amendment, can be addressed
Moreover, two United States Supreme Court decisions have shown that
the Court has the potential to approach socio-economic rights cases in
the same manner as the South African judiciary. These two cases are
Atkins v. Virginia and Romer v. Evans.
a. Atkins v. Virginia
In Atkins, the Court ruled that the state could not constitutionally
execute a mentally retarded person. Atkins, which was decided last term,
reversed the thirteen-year-old decision in Penry v. Lynaugh. Atkins
relied on the fact that fourteen states had eliminated the death penalty
for the mentally retarded since Penry was decided. The majority also
noted that "within the world community, the imposition of the death
penalty for crimes committed by mentally retarded offenders is
overwhelmingly disapproved." Much to the chagrin of Chief Justice
Rehnquist and Justice Scalia, the majority relied on a brief from the
European Union for support.
Atkins demonstrates that the Court no longer ignores international
norms. Moreover, Justice Breyer has a history of examining foreign
precedents in his opinions. That is exactly what the South African
Constitutional Court has been doing since its founding. If applied more
frequently, this approach could lead the Court to rely on international
norms in other areas, such as socio-economic rights.
b. Romer v. Evans
The majority in Romer also adopted a South African style approach.
The Court ruled that Colorado violated equal protection when its
citizens enacted, by referendum, a state constitutional amendment
removing all anti-discrimination protections for homosexuals. The Court
held that the amendment was based on animosity towards homosexuals and
therefore failed rational basis review.
The Court's analytical starting point was significant. The Court
rejected the argument that Colorado had the legal right to repeal
statutory protections it enacted. Instead, the Court assumed Colorado
had a positive constitutional obligation to continue protecting all of
its citizens--including homosexuals. The South African Constitution
embraces just this kind of positive constitutional obligation.
As Kimberlé Crenshaw and Gary Peller noted, "The majority's
construction of a baseline of general protection against discrimination
for everyone is based on an outright reversal of the common law
construction." Louis Seidman said, "Romer seems to impose an
affirmative constitutional requirement on jurisdictions to protect gay
people from private discrimination, at least so long as they maintain
comprehensive protection for other groups." Seidman asserted that
Romer would have "potentially far-reaching consequences,"
particularly in its use of a heightened form of rational basis review.
Jefferson Powell said that Romer's recognition that the government has
affirmative duties to protect citizens is consistent with longstanding
equal protection doctrine.
Moreover, Romer is not unique. There is case law from the anti-Lochner,
post economic substantive due process era, which assumed government has
affirmative obligations. For example, in West Coast Hotel v. Parrish,
the Court suggested that if the government lacked a minimum wage law,
taxpayers would have to help more destitute people, which would
essentially amount to a subsidy for low paying businesses.
Romer's view that the government has an affirmative duty to aid
subordinated groups, and Atkins' reliance on international norms, sound
more like South African Constitutional Court decisions than like the
United States Supreme Court's decisions in Dandridge, Rodriguez, and
The United States Constitution is the oldest written nation-governing
charter in the world. Many Americans probably assume it is the best
constitution possible. Yet perhaps it is time that we Americans become
less self-centered. Many countries, like South Africa, have adopted
truly modern constitutions. These documents typically contain a
comprehensible, detailed list of enumerated rights based on generally
accepted international human rights norms, unlike the United States
Constitution. The judiciary in these countries has been entrusted with
interpreting these new provisions. The United States Supreme Court and
American scholars could learn much from the South African Constitutional
Court's socio-economic decisions. Now seems like a particularly good
time for the Court to open itself to well reasoned foreign
[a1]. Professor of Law and Associate Dean, The University of Montana
School of Law. B.A., Yale University; J.D., University of Chicago Law