The Role of Justice in the Constitution: The Case for Social and Economic Rights in Comparative Perspective
Modern liberal constitutions grounded in Enlightenment ideals, starting with the late eighteenth-century French and American constitutions, are not ordinarily thought of as imposing requirements of justice, and even less so of distributive justice. In the broadest terms, such constitutions are meant to concentrate on safeguarding four essential pillars: limitations on the powers of government; adherence to the rule of law; protection of a core of fundamental rights; and assuring certain guarantees necessary for the maintenance of a working democracy. On the other hand, most post-World War II liberal democratic constitutions do comprise a set of social and economic rights calling for the provision of some welfare benefits, minimum shelter, some level of education, and some health care benefits. These social and economic rights do plainly comport a distributive justice component. Indeed, in the pursuit of a minimum of material well-being for all, based on the equal basic needs and equal dignity of each person within the relevant constitutional unit, it is necessary to effectuate certain economic redistributions. Thus, for example, assuming that a constitution requires that everyone within society have the opportunity to fulfill certain basic health needs, that would most likely require some wealth redistribution that could be achieved through progressive taxation. In this latter case, the constitution would incorporate the distributive justice precept “to each according to her basic health needs,” and given the typical wealth disparities within advanced contemporary societies, the achievement of this constitutional mandate would require some measure of wealth redistribution.