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. Even where moored to the text of a constitution, social and economic rights remain controversial. 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, and instead perversely hurt those they are intended to benefit. 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, every state constitution in the United States—like many constitutions abroad—contains some explicit commitment to positive rights. 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.” Other state constitutional clauses contemplate provision of public schooling; others guarantee respect for individual “dignity” or the pursuit of “happiness,” both of which may include a substantive component; still others recognize a worker’s right to unionize or guarantee a clean environment. State courts have treated some social and economic provisions as justiciable claims against the government, but others only as aspirational statements that cannot be judicially enforced...

 

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