Skip to content

Mark Tushnet, The Inadequacy of Judicial Enforcement of Constitutional Rights Provisions to Rectify Economic Inequality, and the Inevitability of the Attempt, in Judicial Review: Process, Power and Problems 13 (Salman Khurshid, Sidharth Luthra, Lokendra Malik & Shruti Bedi eds., 2020).

Abstract: This essay, to appear in a chapter in Judicial Review: Process, Power and Problems, edited by Shruti Bedi and Lokendra Malik, a festschrift for Upendra Baxi, argues that the pursuit of judicially enforced social welfare and equality rights in the modern world is bound to fail but must be pursued. The contemporary picture of judicial enforcement of social welfare rights in one in which there is a consensus that such enforcement is possible, general agreement that enforcement should be dialogic rather than coercive, and a sense that enforcement is rather less effective than is desirable. As to the last, the essay argues that the predicate for generating resources to finance the provision of social welfare rights – investment from abroad – generates economic and legal limitations that inhibit the government from accumulating those resources. The essay develops a parallel argument about judicial enforcement of substantive equality rights, referring specifically to problems associated with the horizontal effect/state action doctrine. The conclusion here is that courts have the capacity to move outcomes in the direction of substantive equality, and might not face overwhelming constraints from the domestic political system, but their ability to achieve true substantive equality is limited by economics, both domestic and international. Yet, where constitutions are committed to substantive equality and social and economic rights, the lesson of the twentieth century is that judges will – and should – attempt to enforce those commitments. Enforcing the constitution – the entire constitution – is what democratic-minded citizens have come to expect of their courts. What is needed is a realistic understanding of what courts can accomplish – less than one might hope (the noble dream), but more than nothing (the nightmare). The attempt more than the achievement is what matters. The task then might be to develop a judicial rhetoric associated with the enforcement of these rights that effectively communicates why what the courts are doing is worth doing, why what they are doing is not enough, and why it is as much as the courts can do.