"Just words": common law and the enforcement of state constitutional social and economic rights.

Author:Hershkoff, Helen
Position:Symposium: State Constitutions

INTRODUCTION I. SOCIAL AND ECONOMIC PROVISIONS IN STATE CONSTITUTIONS A. American Constitutionalism and State Social and Economic Rights B. Social and Economic Rights as Oversight of Legislative Activity C. Social and Economic Rights as Judicial Constraint II. SOCIAL AND ECONOMIC RIGHTS AND INDIRECT CONSTITUTIONAL EFFECT A. Indirect Constitutional Effect and Interpretive Practice Abroad B. Indirect Constitutional Effect and Federalism C. Indirect Constitutional Effect and Expressivism III. ACHIEVING INDIRECT CONSTITUTIONAL EFFECT THROUGH COMMON LAW PATHWAYS A. Indirect Constitutional Effect as an Interpretive Practice Distinct from Policy Analysis B. Indirect Constitutional Effect and Existing Common Law Practice 1. The tort for wrongful discharge 2. The covenant of good faith 3. The owner's right to exclude C. Indirect Effect and Problems of State Constitutional Discourse IV. ANSWERING OBJECTIONS TO INDIRECT POSITIVE RIGHTS ENFORCEMENT A. The Dilution Objection B. The Democracy Objection C. The Indeterminacy Objection D. The Autonomy Objection CONCLUSION INTRODUCTION

Since World War II, a number of countries abroad have adopted constitutions or amended these documents to include social and economic rights. These so-called positive rights embrace guarantees to goods and services such as public schooling, health care, and a clean environment. (1) Even where moored to the text of a constitution, social and economic rights remain controversial. (2) Among the criticisms, skeptics argue that constitutional provisions of this sort are ineffectual because courts cannot meaningfully enforce them against the government; positive rights are "just words" that can neither end inequality nor prevent poverty, (3) and instead perversely hurt those they are intended to benefit. (4) This Article examines the efficacy of positive constitutional rights from a different perspective: it considers the relation between the social and economic rights that are set forth in a subnational constitution and the development of private law doctrines of contract, torts, and property. Specifically, the Article examines the positive rights clauses that are included in some state constitutions in the United States and asks whether they can and should influence the state's common law decision making.

Unlike the Federal Constitution, which consistently has been interpreted as excluding affirmative claims to government assistance, (5) every state constitution in the United States--like many constitutions abroad (6)--contains some explicit commitment to positive rights. (7) The New York Constitution, for example, provides that "[t]he aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine."(8) Other state constitutional clauses contemplate provision of public schooling; (9) others guarantee respect for individual "dignity" (10) or the pursuit of "happiness," (11) both of which may include a substantive component; (12) still others recognize a worker's right to unionize (13) or guarantee a clean environment. (14) State courts have treated some social and economic provisions as justiciable claims against the government, (15) but others only as aspirational statements that cannot be judicially enforced. (16)

From the perspective of federal constitutional doctrine, one might assume that state common law exists in an orbit quite apart from a state's constitutional law, especially those provisions that relate to socio-economic concerns. After all, for more than one hundred years, the U.S. Supreme Court has limited the Federal Constitution to state action, with common law decision making located outside the scope of constitutional regulation. (17) Moreover, American constitutionalism consistently is seen as excluding social and economic rights. Morton J. Horwitz, pointing to this omission from the Federal Constitution, posits that an indifference to material well-being "extends all the way from top to bottom, from constitutional to tort law, as a fundamental expression ... of rugged individualism and an antipathy to the state."


State courts are not required to follow the federal state action doctrine: they may choose to extend state constitutional rights even to the conduct of nongovernmental actors. Indeed, not all state constitutions include a state action requirement, and in some states admittedly, only a few--state courts permit an individual to enforce public rights directly against another private actor. (19) State constitutions do not, however, explicitly subject common law decision making to state constitutional regulation, and so questions about the application of state constitutional norms in the horizontal position remain open. (20) Provisions such as Section 39(2) of the South Africa Constitution, for example, which requires that "[w]hen developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights," are simply absent from state constitutions. (21)

Treating common law as detached from constitutional law may appear to be natural and uncontroversial; (22) the separation has deep roots and marks the divide between the public and the private that is critical to liberal theories of constitutionalism. (23) From the federal perspective, the strict compartmentalization reflects the institutional demands of federalism, which are absent at the state level, (24) as well as a desire to protect an autonomous private realm from the intrusion of government regulation. (25) Less obviously, the separation of constitutional and common law reflects a particular conception of law that limits the content of a law to its coercive effect: if a nongovernmental actor cannot sue to enforce the Federal Constitution against another nongovernmental actor, it is assumed that the Constitution exerts no influence in disputes between these private parties. The separation of common law from state constitutional positive rights would seem to make special sense: after all, only the government can undertake the financing and allocation of such services as public schooling and welfare support, so, by definition, these constitutional provisions ought to be treated as irrelevant to private disputes-they are "just words" and of no practical significance. (26)

This Article reconsiders the "just words" thesis and asks whether state constitutional social and economic rights can and should exert influence on a state court's common law decision making. The basic question is whether positive constitutional rights, even those of an aspirational nature, may serve as legal material from which state courts can construct common law rules of decision, I argue that even if a constitutional provision does not command or control a private litigant's behavior ex ante, and so cannot be enforced directly by one private litigant against another, it nevertheless may serve as grounds for a judge to reach one result rather than another in a case involving nongovernmental actors. (27) Moreover, because cases involving contracts, torts, and property typically implicate social and economic concerns, a court's giving weight to a state constitutional positive right could reorient common law doctrine in ways that appear more egalitarian or even redistributive from the federal constitutional perspective. The effect of the constitutional norm might be expressive, signaling approval or disapproval of particular forms of private behavior (28) (for example, an employer's right summarily to fire an employee without the giving of reasons); it might be constitutive, informing the shape and content of the social relation at issue (29) (for example, that of a private employer and an uninvited guest to the workplace); or it might entail both forms of effect (for example, the protection of a reliance interest in an employment or tenancy relation).

In previous writing, I have considered the relation between constitutional norms and private law development in two separate contexts. First, drawing from a five-nation empirical study, ! examined the effect of national constitutional rights to health and to education on the development of private law doctrines in five developing countries: Brazil, India, Indonesia, Nigeria, and South Africa. (30) Here, I found evidence of the indirect effect of constitutional positive rights in contract, tort, and property cases involving only nongovernmental actors: foreign constitutional courts in the nations studied looked to social and economic rights, as well as to conventional "first-generation" rights, as interpretive authority in their construction and application of private law doctrines. Thus, for example, the South Africa Constitutional Court interpreted the scope of a property owner's right to exclude in the light of the national constitution's commitment to the progressive realization of a right to housing. (31) The India Supreme Court similarly interpreted contract terms, involving insurance and school tuition, in the light of the national constitution's directive principle of protecting socio-economic justice. (32) In a second project, I turned to state common law in the United States, and examined whether I could find evidence of "first-generation" state constitutional rights, such as those to due process or to free speech, affecting the scope or content of contract, tort, and property doctrines. (33) Again, in some states, state constitutional provisions served as interpretive material from which courts reshaped and reoriented common law doctrines. For example, those states that recognize an implied covenant of good faith in some cases used that common law doctrine as a pathway through which to import due process norms into contractual employment terms that otherwise would be governed by the at-will doctrine. (34) The current...

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