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The Role of Justice in the Constitution: The Case for Social and Economic Rights in Comparative Perspective

Rosenfeld, Michel, The Role of Justice in the Constitution: The Case for Social and Economic Rights in Comparative Perspective (October 5, 2020). Cardozo Legal Studies Research Paper No. 620, Cardozo Law Review, Forthcoming, Available at SSRN: – “Liberal Constitutions enacted after World War Two typically comprise social and economic rights and hence enshrine a distributive justice component. This component is embedded in the ideal of liberal constitutionalism thus requiring a guarantee of a minimum of justice which represents the “justice essentials” of the constitutional order. What that minimum requires varies depending on time, place, and resources. Moreover, social welfare rights are well set to further the justice essentials by advancing the three facets of the requisite distributive justice imperative: economic redistribution, recognition, and representation. Social welfare rights, however, are second generation rights that unlike traditional civil and political rights raise certain daunting conceptual and practical challenges. Second generation rights seemingly upset the right/duty correlation and defy providing individual remedies. Based on a conceptual and a practical examination, it becomes clear that at present the divide between first and second generation rights has become significantly blurred over time. Moreover, a comparative review of the judicial handling of constitutionally protected social and economic rights in various jurisdictions throughout the world reveals that the latter have been variously enforced and their violations remedied sometimes individually and sometimes on a more collective basis over time. Also, such rights have at times been vindicated directly, and at other times indirectly—e.g., grant of minimum subsistence on the basis of constitutional equality or dignity rights. Finally, turning to the US, the Constitution does not address social and economic rights and the US Supreme Court has thus far not given them any indirect recognition. Nevertheless, given the current exacerbation of economic inequalities, a compelling case can be made under the justice essentials for indirect US vindication of social welfare rights under the Due Process and the Equal Protection clauses of the Constitution.”

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