The Constitution and the Common Good: the case for Social Rights.

by Elias Blum

The Scottish National Party has been committed to a written constitution for a very long time. This commitment is not unique: it has traditionally been shared (albeit in a UK-wide, rather than Scottish, context) with the Liberal Democrats, some Labour members, Charter 88, and many other groups who oppose the centralisation of power and monopolisation of privilege in the British State.

A liberal-democratic constitution will necessarily, almost by definition, include provisions for the protection of fundamental legal and civil rights. These rights, broadly covered by the European Convention, are essential to allow the development of a thriving, open, and pluralistic society, and to protect individuals from outright oppression. They include such staples as freedom of speech, publication, assembly, association, and religion, as well as freedom from slavery and torture, and a guarantee of legality, due process, and the right to a fair trial. There will be, I predict, little dispute about the importance of these rights, or the importance of embodying them in the supreme constitutional law of the country.

Potentially more controversial are ‘second generation’, ‘social’, or ‘socio-economic’ rights. It is on this issue that individualist market-liberals and those with a more communitarian approach to democracy will differ. Market-liberals will argue, firstly, that these rights – such as the right to public healthcare, a living wage, fair working conditions, or education – are not ‘constitutional’ in nature, secondly, that their enforcement is likely to be drag judges into policy-making, and thirdly, that the inclusion of such rights turns the Constitution into a manifesto, unduly narrowing the legislature’s freedom of action.

The first of these objections – that these rights are not truly constitutional – can be dismissed. Socio-economic conditions are ‘constitutional matters’, in the widest sense of the term, because they concern the distribution of power, influence, wealth, prestige and opportunity in society. In an Aristotelian sense, they distinguish polity from oligarchy. 

What sort of democracy is it, if the rich are able to dominate public life, and the poor are  excluded? What sort of liberty is there, if many do not have the basic resources, security or dignity of life and condition necessary to be full members of society? Where is the ‘common good’, if ‘the least of these my brethren’ are marginalised, exploited or dehumanised? What sort of ‘commonwealth’ is it, if wealth is engrossed by a tiny minority, and if the common people are left to shift for themselves?

Besides, a Constitution is not just a legal document that defines justiciable rights. It is also – I’d say more so – a political document that defines the values and aims of a state. Liberal-neutralists may shudder at the idea of a state having any values and aims, but for a civic-republican or Christian democrat this is less problematic, especially as these values and aims may be grounded in widespread agreements and updated from time to time by amendment. It is entirely appropriate to make certain constitutional commitments on matters of principle, which, being widely shared amongst the political community, proclaim what a country stands for, and what it will not stand for.  Having a commitment in principle to universal public education, for example, could fit in this category.

The second objection is more problematic. There is, indeed, a danger that judges become too much involved in questions of policy if they are called upon to enforce socio-economic rights. In so doing, their purported independence may be compromised. The delivery of socio-economic rights often requires funding, and elected Parliaments, not courts, should be the primary forum for determining the allocation of funds and the prioritisation of competing, possibly conflicting, demands. Moreover, a Constitution is supposed to be an enduring document, intended to last for decades and generations to come, while specifics of socio-economic policy will have to change with changing times.

However, it is not impossible to overcome this objection. Constitutional commitments to socio-economic principles need not bind Parliaments too tightly, and can be framed in ways that make it clear that Parliaments, and not the courts, are responsible for their translation into policy.

One option is to put socio-economic rights in the preamble, rather than in the main body of the Constitution. The preamble to the French Constitution of 1946 was deliberately intended to be a statement of principles, without legally binding the legislature or transferring authority to the Courts (although, under the Fifth Republic, this preamble is now deemed to be justiciable).

In some countries, including Malta, Ireland and India, fundamental civil-legal ‘rights’, which are justiciable (enforced by the courts), are distinguished from socio-economic ‘directive principles’ which are only morally binding on Parliament. These directive principles therefore belong to the political, rather than legal, part of the Constitution – they politically proclaim, but do not legally enforce, a commitment to social values.

Another solution is to list socio-economic rights alongside other, civil-legal rights, and not to exclude them from ultimate judicially enforcement, but still to word them in such a way as to make it clear that they really bind Parliament. These provisions are framed in ways that make it clear that courts are ordinarily expected to defer to parliamentary discretion. The SNP’s 2002 draft Constitution takes this second approach. Sections 14 (property rights), 15 (working conditions), 18 (restriction of monopolies), 20 (housing), 21 (healthcare) and 22 (education) of Article VI are framed in terms of obligations on Parliament to enact appropriate legislation to give practical effect to socio-economic rights.

The third objection is that the inclusion of socio-economic rights turns the Constitution into a mere manifesto, a wish-list, rather than something enduring, unifying, and truly fundamental to the governance of a state. Certainly, it is important that a constitution does not over-reach itself. There’s no point in having a Constitution that reads like the manifesto of the Radical Green Left Collective – it would not be acceptable to the broad mainstream of Scottish society. Constitutions that work and last cannot be ideologically tied to one ‘side’ of public opinion, but must remain rooted in the broadest possible general consensus of society.

That said, a constitution that entrenches neo-liberalism, or that results in progressive legislation intended to tackle economic inequalities being struck down by the courts, would not be legitimate either – at least not in Scotland, which sees itself (mythologically or otherwise) as a progressive, communitarian, egalitarian country. 

A Constitution within the broad mainstream of Scottish public opinion might therefore acknowledge and protect the basic principles of a ‘social’ democracy – the welfare system, the NHS, public education, the regulation of monopolies, land access rights, progressive taxation, and so forth. It could do this while still leaving room for differences of opinion on the relative importance, ordering, and means of delivery, of these rights, to be argued over by different parties.

I, for one, would take pride in the idea that the Constitution of my country enshrines universal access to health care, free at the point of delivery. I see it as a commitment to civilised, humane, values – a commitment to the common good. Yet whether this commitment is delivered by a single public provider (UK, Spain), a single public payer (France, Canada), or a universal state-assisted insurance (Germany, Netherlands) model is, as far as I am concerned, is a pragmatic issue of ordinary politics.

To summarise, the inclusion of socio-economic rights is necessary and practicable – they reflect values and principles that are genuinely ‘constitutional’ and fundamental to our society. Yet it is important to prescribe these rights only at the level of principle, while leaving Parliament free to implement and enforce these rights, and to balance and deconflict them, according to the usual processes of ordinary politics, in which different parties will have different aims and priorities.