“Just Words”: Common Law and the Enforcement of State Constitutional Social and Economic Rights

Helen Hershkoff New York University School of Law

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Since World War II, a number of countries abroad have adopted constitutions or amended these documents to include rights to goods and services such as public schooling, health care, and a clean environment. Skeptics argue that these positive “rights” deserve no place in a constitution; in particular, critics insist that socioeconomic provisions are ineffective because courts are incapable of enforcing them against an indifferent or recalcitrant government. On this view, positive rights are “just words” that cannot end poverty or improve conditions and instead perversely hurt those that they are intended to benefit. 1 This Article examines the “just words” thesis from a different perspective: it looks at socioeconomic rights in the subnational constitutions of the United States and assesses whether they do and should influence common law decision making.

Linking social and economic rights to any American constitution may seem odd. No feature of American constitutional law is more entrenched than the absence of positive rights from federal doctrine. The U.S. Constitution does not protect a right to education, to housing, or to health care—protective guarantees found in the majority of constitutions adopted abroad in the period after World War II. But associating constitutional norms with private law doctrines of contract, tort, and property may seem even more discordant. For at least the last century, the U.S. Supreme Court has limited the scope of federal constitutional doctrine to “state action”: the settled rule is that state common law decision making rests outside the orbit of constitutional doctrine, depriving the Federal Constitution of what Continental and other scholars refer to as horizontal effect.

Constitutional understandings in many states differ significantly from these two federal assumptions, and my argument builds on these differences. First, every state constitution in the United States includes some textual commitment to positive rights. Some of these provisions date back to the eighteenth century; others are of twentieth-century vintage. These rights embrace both a range of goods and services, including public schooling, workplace safety, and income support, as well as constitutional ideas, such as human dignity and happiness. Second, not every state constitution includes a state action requirement, and some state courts, though only a very few, allow an individual litigant to enforce the constitution against another nongovernmental actor. Of course, the absence of state action does not explain the role that state constitutional provisions ought to play in common law decision making. Moreover, the separation of common law from state constitutional positive rights would seem to make special sense: conventionally, only the government can undertake the financing and delivery of services such 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.

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. I argue that 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. 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, a state constitutional positive right nevertheless may serve as grounds on which a judge may base one result rather than another when resolving a dispute where state action is not present. The effect of the constitutional norm might be expressive, signaling approval or disapproval of particular forms of private behavior (for example, an employer’s right to fire an employee summarily without giving a reason); it might be constitutive, informing the shape and content of a social relation (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 relationship). Of course, the application of positive rights in the private domain need not be the same as against the government; nevertheless, in some number of cases, a state court’s consideration of state constitutional positive rights provisions can be expected to alter the shape or direction of common law doctrines as they currently are understood.

The topic is important for a number of related reasons. First, identifying the indirect influence of socioeconomic rights on private law decision making may have the benefit of descriptive power. State common law has long served as a modality for the enforcement of public norms: whether through the public law tort or the doctrine of reasonableness, state courts traditionally import constitutional values into areas of private life that are considered to be immune from constitutional regulation under the federal state action doctrine. Whether a similar practice exists of state courts indirectly enforcing social and economic rights through common law portals raises a significant but unanswered question.

Second, the analysis may illuminate convergences between American constitutional practice and interpretive practices abroad. Discussions of the horizontal effect of constitutional rights typically draw from foreign sources and assume that U.S. law is impervious to the practice. Absent from the discussion is any mention of state court practice—what Judith S. Kaye, former Chief Judge of the New York Court of Appeals, has called “a common law infused with constitutional values” in which “constitutional values—especially the values so meticulously set out in our lengthy state charters— . . . enrich the common law.” 2 This form of common law constitutionalism—not to be conflated with the federal practice of a similar name—works through private law pathways in extending public norms to nongovernmental activity. The state court interpretive approach antedates and may be understood as a variant of the foreign practice of indirect constitutional effect. Recognizing its existence raises questions about the presumed exceptionalism of American constitutional doctrine. Just as analyzing foreign constitutions may influence our understanding of American constitutions, so analyzing state constitutions may influence our understanding of both the Federal Constitution and constitutions abroad.

Third, understanding the pathways through which state constitutional positive norms may influence common law doctrine offers new insight into the relation between law and social change. This area has generated a great deal of disagreement. In particular, law skeptics typically criticize the constitutionalization of social and economic rights as being not only ineffective but also counterproductive. This criticism looks at positive rights from a top-down perspective and considers whether they may be enforced through litigation against the government. I suggest we take a bottom-up approach to the question and ask how the existence of positive rights ought to affect judicial understandings of the myriad common law rules that sustain and perpetuate existing social and economic conditions.

Fourth, a better appreciation of the interpretive effects of state constitutional social and economic rights may hold prescriptive possibility as a way to reorient federal constitutional doctrine toward concerns of material well-being. It is widely recognized that a common law baseline informs federal constitutional doctrine, determining such issues as whether something is property for due process protection. But common law rules can evolve and change, and as they do, they potentially may reshape federal constitutional doctrine. In particular, over time, the indirect effect of social and economic rights on common law development may create new understandings that “presage” federal constitutional rights. 3

Finally, the focus of the Article holds interest in considering expressivism as a theory of law. There are different forms of expressivist theory, and a central debate concerns whether expression matters because of its consequences or in and of itself. A large interdisciplinary literature on norms further emphasizes how government can encourage or impede nongovernmental efforts to secure collective aims even if a law is not subject to direct enforcement mechanisms. Commentators have recognized that the expressivist approach holds a family resemblance to the judicial practice of purposive legal interpretation, and on this view, the Article extends expressivist theory to the discursive behavior of common law judges. Those who treat positive constitutional rights as “just words” ignore the expressive potential of these public norms on common law development.

Some readers already may have decided that the proposal is too impractical, too difficult, and too aspirational. Let me quickly point to empirical evidence of this practice both abroad and in the United States. Looking abroad, I recently finished a consultancy with the World Bank looking at judicial enforcement of national constitutional rights to health and education in five countries: Brazil, India, Indonesia, Nigeria, and South Africa. I found evidence of courts’ giving indirect effect to positive constitutional rights in their private law decision making. For example, in South Africa, the Constitutional Court in the Modderklip litigation interpreted the scope of a property owner’s right to exclude squatters in light of the South Africa Constitution’s commitment to the progressive realization of a right to housing.4 The India Supreme Court similarly has interpreted contract terms, involving insurance and school tuition, in light of the India Constitution’s directive principle of protecting socioeconomic justice. Turning to the states of the United States, I next examined whether I could find similar evidence of common law judges’ incorporating first-generation rights in their common law decision making. Here, too, I found evidence of the practice. For example, those states that recognize a covenant of good faith use that private law portal as the channel through which a constitutional norm of due process is incorporated into the common law. The current proposal suggests that this practice be made explicit and that it affirmatively include social and economic rights.

The principle of indirect constitutional effect has the advantage of fitting comfortably with the common law’s practice of looking to policy in its decision-making processes. However, the proposal is not simply an exercise in doctrinal redescription. Rather, acknowledging the public law source of a policy would alter the context of common law analysis: policies that previously seemed unmoored from public values now would find roots in the constitutional text, and their legitimacy made more articulate and explicit. The common law would remain distinct but should no longer be treated as discontinuous from constitutional law; private decision-making would be acknowledged as a site for the articulation and development of public norms.

Recognizing the principle of indirect constitutional effect thus alters the context of common law decision making, for it grounds policy in a constitutional text. To take a quick example: many states adhere to the “at will” doctrine of employment, a common law rule that relieves an employer of an obligation to give reasons or even to have reasons for terminating a worker from employment. In return, the employee retains his or her unfettered freedom to leave the workplace and to seek a better job elsewhere at any time. Giving indirect effect to a state constitutional right of due process in a court’s resolution of a private dispute could require an employer to provide the worker with an explanation and perhaps even require a justifiable reason for a job action. Moreover, in those states where the state constitution contains explicit protection for laborers in the private workplace, considering positive rights provisions could provide a common law court with grounds for recognizing a laborer’s reliance interest in continued employment if his or her performance conforms to workplace expectations.

Recognizing the principle of indirect constitutional effect also helps to make better sense of some decisions that appear aberrant from accepted doctrine. By way of example let me focus on a state common law case that is well known in property rights circles. State v. Shack, 5 a 1971 decision of the New Jersey Supreme Court, overturned the trespass conviction of a legal services lawyer who wanted to talk with migrant farm workers where they lived, which was a privately-owned campsite run by the farmer who employed them. The case holds iconic status among writers who support a social relations theory of property and who argue that property doctrine ought to be rooted in conceptions of human flourishing, virtue, and democracy. The Shack court stated: “Property rights serve human values. They are recognized to that end, and are limited by it. Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises.” 6 The Shack court did not consider whether its conception of human values could be justified by norms implicit or explicit in positive rights provisions of the New Jersey Constitution. This is not surprising, for at the time of the decision, Justice Brennan’s call to arms for a renaissance in state constitutional analysis was still a decade away. However, even at this early time, the New Jersey court could have found interpretive material in its state constitution that would have nourished its common law analysis; in particular, Article I’s “happiness” clause already had been read to limit a property owner’s right to exclude.

I fully expect objections to be raised to the proposal I am making. I put to the side arguments that go to the constitutionalization of social and economic concerns: I am not prepared to ignore the last seventy years of constitutional and human rights development around the world. But I do take seriously four possible objections: a concern that according indirect effect to constitutional rights will result in the overall dilution of rights; that the interpretive process is disrespectful of democracy and that reforms of common law ought to be left to the legislature; that the practice is too open-ended and indeterminate; and that the practice will subvert personal autonomy and its requirements of self-control, self-authorship, and self-ownership. The Article considers each of these objections and answers each in turn.

I hope that the approach suggested in the Article generates discussion of how law evolves in response to norms and of the complicated relation that exists between state and federal constitutional law. Above all, I hope it encourages appreciation of the power that “just words” may have on social and economic life.


Copyright © 2011 Stanford Law Review.

Helen Hershkoff is the Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties and a Codirector of The Arthur Garfield Hays Civil Liberties Program at New York University School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: Helen Hershkoff, “Just Words”: Common Law and the Enforcement of State Constitutional Social and Economic Rights, 62 STAN. L. REV. 1521 (2010).

  2. Judith S. Kaye, Foreword: The Common Law and State Constitutional Law as Full Partners in the Protection of Individual Rights, 23 RUTGERS L.J. 727, 738, 743 (1992).
  3. Ellen A. Peters, Common Law Antecedents of Constitutional Law in Connecticut, 53 ALB. L. REV. 259, 261 (1989).
  4. See, e.g., President of the Republic of S. Africa & Another v Modderklip Boerdery (Pty) Ltd. 2005 (5) SA 3 (CC) (S. Afr.), available at http://www.saflii.org/za/cases/ZACC/2005/5.html.
  5. 277 A.2d 369 (N.J. 1971).
  6. Id. at 372.

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