Frank I. Michelman, The Constitution, Social Rights, and Liberal Political Justification, 1 Int'i J. Const. L. 13 (2003).
Abstract: Proposals to put positive social and economic guarantees into constitutional law typically meet an objection linked to judicial review (the ’institutional objection’). It seems that a related objection would hold even assuming away judicial ’enforcement.’ The constitutionalized rights would, after all, be no less intended to curb and constrain the choices of current majorities (the ’majoritarian objection’). Constitutionalization of social rights may, moreover, be thought to render the constitution nontransparent in a way disallowed by leading liberal accounts of political legitimacy (the ’contractarian objection’). On the table, then, are three possible objections to constitutionalization of social rights-institutional, contractarian, majoritarian. The first, the author argues, ought to be the least of our concerns; the second is manageable, or at any rate political liberals cannot deny that it is while upholding in general the practice of constitutionalism; and the third is grave only if we choose an ideal or normative conception of democratic decisionmaking that is not the only one available to us, or the best one. Reprinted by permission of Oxford University Press