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Chapter 4 Why Does the American Constitution Lack Social and Economic Guarantees? C A S S R . S U N S T E I N The alms given to a naked man in the street do not fulfill the obligations of the state, which owes to every citizen a certain subsistence, a proper nourishment, convenient clothing, and a kind of life not incompatible with health. —Montesquieu This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches. They were our rights to life and liberty. As our economy has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness. . . . We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed, The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation; The right to earn enough to provide adequate food and clothing and recreation; The right of every farmer to raise and sell his products at a return which will give him and his family a decent living; The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; The right of every family to a decent home; The right to adequate medical care and the opportunity to achieve and enjoy good health; The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment; The right to a good education. I ask Congress to explore the means for implementing this economic bill of rights—for it is definitely the responsibility of the Congress to do so. —Franklin Delano Roosevelt L AC K O F G UA RA NT EE S 91 Introduction The Universal Declaration of Human Rights protects a wide range of social and economic rights. It proclaims, for example, that “[e]veryone has a right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.” It also provides a “right to equal pay for equal work,” a right “to form and to join trade unions for protection,” and a right to “just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” More broadly still, the Declaration gives “everyone” a “right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment , sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” The Declaration also provides a “right to education” and to “social security.” The International Covenant on Social, Economic, and Cultural Rights follows the Declaration in creating social and economic rights. So do many constitutions, which guarantee citizens a wide range of social entitlements. Of course this was true for the Soviet Constitution. But many noncommunist and postcommunist constitutions contain these rights as well. The Constitution of Norway imposes on the state the responsibility “to create conditions enabling every person capable of work to earn a living by his work.” The Romanian Constitution includes the right to leisure, the right to work, the right to equal pay for equal work, and measures for the protection and safety of workers. The Constitution of Peru announces, “The worker is entitled to a fair and adequate remuneration enabling him to provide for himself and his family material and spiritual well-being.” The Syrian Constitution proclaims that the “state undertakes to provide work for all citizens.” The Bulgarian Constitution offers the right to a holiday, the right to work, the right to labor safety, the right to social security, and the right to free medical care. The Hungarian Constitution proclaims, “People living within the territory of the Republic of Hungary have the right to the highest possible level of physical health.” It also provides that “[e]veryone who works has the right to emolument that corresponds to the amount and quality of the work performed.” I am grateful to many people for valuable comments...


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