"Just words": Common law and the enforcement of state constitutional social and economic rights

Stanford Law Review

Volumn 62, Issue 6, 2010, Pages 1521-1582

  Hershkoff, Helen ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 77954744692     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (312)

1. See Lorraine E. Weinrib, The Postwar Paradigm and American Exceptionalism, in THE MIGRATION OF CONSTITUTIONAL IDEAS 84, 89-91 (Sujit Choudhry ed., 2006) (discussing the features of a postwar constitutional paradigm that includes "respect for inherent human dignity"); see also Christopher Essert, Dignity and Membership, Equality and Egalitarianism: Economic Rights and Section 15, 19 CAN. J.L. & JURIS. 407, 407 (2006) (defining positive rights as "those rights which provide entitlements to large-scale distributive arrangements often involving some degree of economic benefit; typical examples would be rights to things such as a basic level of income or medical care").
2. See generally Frank B. Cross, The Error of Positive Rights, 48 UCLA L. REV. 857 (2001) (criticizing the concept of positive rights). For a defense of positive rights, see CÉCILE FABRE, SOCIAL RIGHTS UNDER THE CONSTITUTION: GOVERNMENT AND THE DECENT LIFE (2000).
3. See JOEL BAKAN, JUST WORDS: CONSTITUTIONAL RIGHTS AND SOCIAL WRONGS 139- 40 (1997) (arguing, in the Canadian context, that social and economic rights "will not touch the real causes of poverty and other social ills").
4. See, e.g., RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM 148 (2004) (stating that "the impact of constitutionalization on the creation of meaningful, enduring protection of the lower socioeconomic echelons of capitalist society is often overrated"). Similar arguments pertain to welfare-protective legislation. See Ugo Mattei & Fernanda Nicola, A "Social Dimension" in European Private Law? The Call for Setting a Progressive Agenda, 41 NEW ENG. L. REV. 1, 35-36 (2006-2007) (noting that legal economists have criticized welfare legislation as
5. See William E. Forbath, The Long Life of Liberal America: Law and State-Building in the U.S. and England, 24 LAW & HIST. REV. 179, 182-83 (2006) ("Public social provision has remained largely outside the dignifying aura of citizenship, and social citizenship still sounds oxymoronic to American ears."). But see Sotirios A. Barber, Welfare and the Instrumental Constitution, 42 AM. J. JURIS. 159, 173-74 (1997) (referring to the "pointlessness of a mere charter of negative liberties... [and] clarifying some of the formal properties of the Constitution as a means to positive benefits").
6. See Michael J. Horan, Constitutionalism and Legal Relationships Between Individuals, 25 INT'L & COMP. L.Q. 848, 849-50 (1976) (observing that "[i]t is difficult to find a constitution drawn up in the post-World War II era which does not build upon the traditional personal freedoms 'from' government enjoyed by the citizen by claiming for him a host of what are usually denominated economic and social rights"). But see Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 MICH. L. REV. 391, 449 (2008) (stating that "even among continental western European countries, the extent to which constitutions contain social and economic rights can easily be exaggerated").
7. E.g., HELEN HERSHKOFF & STEPHEN LOFFREDO, THE RIGHTS OF THE POOR 3-4 & nn. 29-33 (1997) (discussing state constitutional welfare rights); see Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 HARV. L. REV. 1131, 1135 (1999) ("Unlike the Federal Constitution, every state constitution in the United States addresses social and economic concerns, and provides the basis for a variety of positive claims against the government."). Even some conventionally styled state constitutional negative rights embrace socio-economic claims. See Jeffrey M. Shaman, The Evolution of Equality in State Constitutional Law, 34 RUTGERS L.J. 1013, 1042 (2003) (discussing state constitutional bans on special privileges).
8. N.Y. CONST. art. XVII, § 1.
9. See William E. Thro, Note, To Render Them Safe: The Analysis of State Constitutional Provisions in Public School Finance Reform Litigation, 75 VA. L. REV. 1639, 1641 n.12 & 1661-68 nn.103-27 (1989) (discussing state constitution education clauses).
10. See, e.g., Matthew O. Clifford & Thomas P. Huff, Some Thoughts on the Meaning and Scope of the Montana "Dignity" Clause with Possible Applications, 61 MONT. L. REV. 301 (2000) (discussing the Montana dignity clause). But cf. Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L.J. 1694, 1736 (2008) (observing that "the United States Constitution does not have a dignity clause").
11. See, e.g., N.J. CONST. art. I, ¶ 1 (providing for the right "of pursuing and obtaining safety and happiness").
12. See Heinz Klug, The Dignity Clause of the Montana Constitution: May Foreign Jurisprudence Lead the Way to an Expanded Interpretation?, 64 MONT. L. REV. 133 (2003); Bert Lockwood, R. Collins Owens, III & Grace A. Severyn, Litigating State Constitutional Rights to Happiness and Safety: A Strategy for Ensuring the Provision of Basic Needs to the Poor, 2 WM. & MARY BILL RTS. J. 1 (1993).
13. See, e.g., FLA. CONST. art. I, § Some state constitutions contain right-to-work clauses, see, e.g., ARK. CONST. amend. 34.
14. See, e.g., Barton H. Thompson, Jr., Constitutionalizing the Environment: The History and Future of Montana's Environmental Provisions, 64 MONT. L. REV. 157, 160 (2003) (stating that "more than a third of all state constitutions now contain environmental policy provisions").
15. See, e.g., Elizabeth Reilly, Education and the Constitution: Shaping Each Other & the Next Century, 34 AKRON L. REV. 1, 6 & n.6 (2000) (discussing representative state constitutional cases enforcing a right to education).
16. See Hershkoff, supra note 7, at 1135-36 (discussing arguments that particular state constitutional positive rights provisions are aspirational and so nonjusticiable).
17. The exceptions, of course, are Shelley v. Kraemer, 334 U.S. 1 (1948), and New Times Co. v. Sullivan, 376 U.S. 254 (1964).
18. Morton J. Horwitz, Conceptualizing the Right of Access to Technology, 79 WASH. L. REV. 105, 106 (2004).
19. See, e.g., Melvin v. Reid, 297 P. 91, 93 (Cal. 1931) (enforcing the California "right to happiness" clause in a dispute involving only nongovernmental actors). See generally Martin B. Margulies, Sheff, Moore, and Westfarms: A Revised Blueprint, 17 QUINNIPIAC L. REV. 177 (1997) (discussing context specific state action requirements under the Connecticut Constitution).
20. Horizontal? refers to the application of constitutional provisions between nongovernmental actors; ?vertical? refers to their application between the government and an individual. See generally Johan van der Walt, Blixen?s Difference: Horizontal Application of Fundamental Rights and the Resistance to Neocolonialism, 2003 J.S. AFR. L. 311, 313 (?Horizontal application is not so much concerned with the simple question of whether fundamental rights apply to private legal subjects. The horizontal application of fundamental rights is... concerned with the question of whether a bearer of legal subjectivity is involved in the privatisation of the political process or the public sphere.?)
21. S. AFR. CONST. 1996, § 39(2). Section 8(2) of the South Africa Bill of Rights further provides: "A provision of the Bill of Rights binds a natural or a juristic person, if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right." Id. § See Jeremy Sarkin, The Common Law in South Africa: Pro Apartheid or Pro Democracy?, 23 HASTINGS INT'L & COMP. L. REV. 1, 18 (1999) (explaining that Section 8(2) "will effectively ensure that the common law is developed in line with the Bill of Rights"); see also Christopher J. Roederer, Working the Common Law Pure: Developing the Law of Delict (Torts) in Light of the Spirit, Purport and Objects of South Africa's Bill of Rights, 26 ARIZ. J. INT'L & COMP. L. 427, 472 (2009) (discussing horizontal effect under Section 39(2)). For a discussion of other national constitutions that address common or private law development, see Renáta Uitz, Yet Another Revival of Horizontal Effect of Constitutional Rights: Why? And Why Now?-An Introduction, in THE CONSTITUTION IN PRIVATE RELATIONS: EXPANDING CONSTITUTIONALISM 1, 10-11 & nn.30-33 (András Sajó & Renáta Uitz eds., 2005) (discussing the United Kingdom and Greece).
22. See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 11 (1992) (discussing the emergence of the public/private distinction and legal recognition of a "'natural' realm of noncoercive and nonpolitical transactions free from the dangers of state interference and redistribution"). But see Alan Wolfe, The Modern Corporation: Private Agent or Public Actor?, 50 WASH. & LEE L. REV. 1673, 1683 (1993) ("The process of drawing the line between private and public is neither natural nor automatic. The line is drawn differently in different times and different places, and law... is one of the major mechanisms by which it is drawn.").
23. The literature on the public/private distinction is voluminous. See, e.g., Gerald Turkel, The Public/Private Distinction: Approaches to the Critique of Legal Ideology, 22 L. & SOC'Y REV. 801, 801 (1988) (explaining that "[t]he dichotomy appears necessary for individual autonomy, the maintenance of social institutions, and the conduct of legal action"). For a critical analysis, see Symposium, The Public-Private Distinction, 130 U. PA. L. REV. 1289 (1982).
24. Hershkoff, supra note 7, at 1166-69 (discussing the absence of federalism constraints on state court decision making).
25. See Michael J. Trebilcock & Steven Elliott, The Scope and Limits of Legal Paternalism: Altruism and Coercion in Family Financial Arrangements, in THE THEORY OF CONTRACT LAW: NEW ESSAYS 45, 51 (Peter Benson ed., 2001) (positing the superiority of private ordering relative to "standardized legal norms or expansive judicial discretion" as the basis for developing individual life plans); see also Ruth Gavison, Feminism and the Public/Private Distinction, 45 STAN. L. REV. 1, 16 (1992) (asserting that "the conceded fact that what is private is determined by public norms and laws does not invalidate the presumption of noninterference with private arrangements").
26. See Halton Cheadle & Dennis Davis, The Application of the 1996 Constitution in the Private Sphere, 13 S. AFR. J. ON HUM. RTS. 44, 59-60 (1997) (asserting that socio- economic rights under the South Africa Constitution "are not suitable for horizontal application"). But see Gavin W. Anderson, Social Democracy and the Limits of Rights Constitutionalism, 17 CAN. J.L. AND JURIS. 31, 33 (2004) (discussing the privatization of government functions).
27. See Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2032 (1996) ("With or without enforcement activity,... laws can help reconstruct norms and the social meaning of action"); see also Anton Fagan, Determining the Stakes: Binding and Non-Binding Bills of Rights, in HUMAN RIGHTS IN PRIVATE LAW 73, 75 (Daniel Friedmann & Daphne Barak-Erez eds., 2001) (explaining that in South Africa "the development of... private common law will be constitutionally constrained whether or not the Bill of Rights is binding or non-binding).
28. See Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 914 (1996) (defining norms as "social attitudes of approval and disapproval, specifying what ought to be done and what ought not to be done").
29. See Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 103-16 (1984) (discussing the constitutive effect of law on social relations).
30. See Helen Hershkoff, Transforming Legal Theory in the Light of Practice: The Judicial Application of Social and Economic Rights to Private Orderings, in COURTING SOCIAL JUSTICE: JUDICIAL ENFORCEMENT OF SOCIAL AND ECONOMIC RIGHTS IN THE DEVELOPING WORLD 268, 286-97 (Varun Gauri & Daniel M. Brinks eds., 2008) (considering the interpretive effect of national constitutional rights to health care and to education on private law decision making in Brazil, India, Indonesia, Nigeria, and South Africa).
31. See, e.g., President of the Republic of S. Africa & Another v Modderklip Boerdery (Pty) Ltd. 2005 (5) SA 3 (CC) (S. Afr.), available at http://www.saflii.org/za/cases/ZACC/2005/5.html.
32. See Hershkoff, supra note 30, at 290-93 (discussing decisions).
33. See Helen Hershkoff, State Common Law and the Dual Enforcement of Constitutional Norms, in DUAL ENFORCEMENT OF CONSTITUTIONAL RIGHTS: NEW FRONTIERS OF STATE CONSTITUTIONAL LAW (James Gardner & Jim Rossi eds., forthcoming 2010) (on file with author) (examining the radiating effects of state constitutional rights to due process,
34. See, e.g., Toussaint v. Blue Cross & Blue Shield of Mich., 292 N.W.2d 880, 885 (Mich. 1980).
35. See Hershkoff, supra note 7, at 1164-65 (discussing "common law alternatives" to state constitutional rulings). For an example of this "middle ground" in the area of trusts, see Charles E. Rounds, Jr., The Common Law Is Not Just About Contracts: How Legal Education Has Been Short-Changing Feminism, 43 U. RICH. L. REV. 1185, 1211 (2009) (urging an analysis of common law doctrine that goes beyond the public/private distinction).
36. See Henry P. Monaghan, Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 3 (1975) (discussing "a constitutional common law subject to amendment, modification, or even reversal by Congress"); see also David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 879 (1996) (discussing "the common law approach to constitutional interpretation").
37. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964); Shelley v. Kraemer, 334 U.S. 1 (1948); see infra note 147.
38. See, e.g., Mark Tushnet, The Issue of State Action/Horizontal Effect in Comparative Law, 1 INT'L J. CONST. L. 79, 81 (2003) (stating that "standard U.S. constitutional doctrine is that constitutional provisions do not have horizontal effect").
39. Judith S. Kaye, Foreword: The Common Law and State Constitutional Law as Full Partners in the Protection of Individual Rights, 23 RUTGERS L.J. 727, 738, 743 (1992).
40. See Gardbaum, supra note 6, at 391 (questioning the notion of American constitutional exceptionalism).
41. See Robert Cooter, Expressive Law and Economics, 27 J. LEGAL STUD. 585, 596 (1998) ("Scholars disagree about the extent to which courts can cause social change."); see also RICHARD P. APPELBAUM, THEORIES OF SOCIAL CHANGE 127-37 (1971) (distinguishing among evolutionary, equilibrium, and conflict theories of social change).
42. The canonical text for this proposition is GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991). Rosenberg discusses efforts to enforce equal protection and due process, and not enumerated social and economic rights. For a summary of views relating to the efficacy of public interest litigation, see Scott L. Cummings & Deborah L. Rhode, Public Interest Litigation: Insights from Theory and Practice, 36 FORDHAM URB. L.J. 603, 607-09 (2009) (summarizing three negative critiques of adjudication as an instrument of change). The debate likewise plays out on the international stage in discussions about law and development. See generally Kevin E. Davis & Michael J. Trebilcock, The Relationship Between Law and Development: Optimists Versus Skeptics, 56 AM. J. COMP. L. 895 (2008).
43. On the effect of positive constitutional rights, see, for example, HIRSCHL, supra note 4, at 13 (asserting that positive constitutional rights paradoxically do not achieve progressive socio-economic reform); Matthew Craven, Assessment of the Progress on Adjudication of Economic, Social and Cultural Rights, in THE ROAD TO A REMEDY: CURRENT ISSUES IN THE LITIGATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS 27, 35 (John Squires, Malcolm Langford & Bret Thiele eds., 2005) (expressing concern that constitutional litigation "naturalise[s]" conditions of deprivation). On the effect of common law, see, for example, HENRY MATHER, CONTRACT LAW AND MORALITY 26 (1999) (stating that contract law is "a relatively ineffective instrument for achieving greater economic equality in our capitalist market society"); Richard A. Epstein, The Social Consequences of Common Law Rules, 95 HARV. L. REV. 1717, 1718 (1982) ("The central theme of this Article is that the intellectual and institutional constraints on common law adjudication require one to be very cautious in attributing major social and economic consequences to common law rules.").
44. See, e.g., LIAM MURPHY & THOMAS NAGEL, THE MYTH OF OWNERSHIP: TAXES AND JUSTICE 8-9 (2002) (discussing the "conventional nature of property"); Jay M. Feinman, Critical Approaches to Contract Law, 30 UCLA L. REV. 829, 834 (1983) ("The modern law's response [to classical contract doctrine] is both a frank acceptance of the courts' role in applying social values in some areas and a retention of the core of contract as founded on private agreement.").
45. See Hershkoff, supra note 7, at 1133 (citing Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983)); see also 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 365-66 & n.41 (1998) (stating that, for the Lochner Court, "the market operated as a prepolitical baseline establishing basic entitlements"); Craig Scott & Patrick Macklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution, 141 U. PA. L. REV. 1, 46-47 (1992) (observing that "[i]n North America, judges have tended to take traditional common law private entitlements as the essential components of a largely unarticulated normative baseline" for constitutional decision making). Compare Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874 (1987) (referring to a preconstitutional baseline of "[m]arket ordering under the common law"), with David E. Bernstein, Lochner's Legacy's Legacy, 82 TEX. L. REV. 1 (2003) (questioning the historical accuracy of Sunstein's account).
46. As the Court explained in Board of Regents v. Roth, "Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. " 408 U.S. 564, 577 (1972).
47. See Siegel, supra note 10, at 1755 (explaining that "[t]ort doctrines of informed consent protect patient autonomy" and constrain government power to regulate communications involving reproductive choice).
48. See, e.g., Mary Anne Case, Community Standards and the Margin of Appreciation, 25 HUM. RTS. L.J. 10, 14 (2004) (discussing the effect of state practice on the Court's view of the Due Process Clause in Lawrence v. Texas, 599 U.S. 558 (2003), concerning private consensual homosexual sex); Martin Guggenheim, Rediscovering Third Party Visitation Under the Common Law in New York: Some Uncommon Answers, 33 N.Y.U. REV. L. & SOC. CHANGE 153 (2009) (discussing the common law right to third party visitation and its effect on family relations).
49. See John Armour, Simon Deakin, Priya Lele & Mathias Siems, How Do Legal Rules Evolve? Evidence from a Cross-Country Comparison of Shareholder, Creditor, and Worker Protection, 57 AM. J. COMP. L. 579, 595 (2009) (discussing barriers to evolution of property rules).
50. See Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283 (1996).
51. Ellen A. Peters, Common Law Antecedents of Constitutional Law in Connecticut, 53 ALB. L. REV. 259, 261 (1989); see also Samuel C. Kaplan, "Grab Bag of Principles" or Principled Grab Bag?: The Constitutionalization of Common Law, 49 S.C. L. REV. 463, 469 (1998) (stating that tradition, as reflected in common law practice, "can affect the shape and scope of constitutional rights"); David S. Law, Generic Constitutional Law, 89 MINN. L. REV. 652, 720 (2005) (providing examples of the federal constitutionalization of state common law and calling the process a "recursive doctrinal loop"); A.C. Pritchard & Todd J. Zywicki, Finding the Constitution: An Economic Analysis of Tradition's Role in Constitutional Interpretation, 77 N.C. L. REV. 409, 503 (1999) (predicting that "[a]s state common law and constitutional law evolved toward the creation of new rights, federal law would follow"); Jeffrey S. Sutton, Why Teach-and Why Study-State Constitutional Law, 34 OKLA. CITY U.L. REV. 165, 176 (2009) (discussing the relation between state common law developments and federal constitutional change). On the significance of time as a variable in processes of change, see ANDREW ABBOT, TIME MATTERS: ON THEORY AND METHOD (2001).
52. ACKERMAN, supra note 45, at 17.
53. See Matthew D. Adler, Linguistic Meaning, Nonlinguistic "Expression," and the Multiple Variants of Expressivism: A Reply to Professors Anderson and Pildes, 148 U. PA. L. REV. 1577, 1577 (2000) (stating that there are various forms of "expressive theories of law" reflecting different definitions of "expression"). A leading account appears in Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503, 1526 (2000).
54. See Deborah Hellman, Judging by Appearances: Professional Ethics, Expressive Government, and the Moral Significance of How Things Seem, 60 MD. L. REV. 653, 673-74 (2001) (discussing the "debate... of whether the expressive content of state action matters
55. See Eric A. Posner, Law, Economics, and Inefficient Norms, 144 U. PA. L. REV. 1697, 1743 (1996) (stating that the literature on law and social norms offers insight into "the ways in which the state can support and hinder attempts by people to cooperate for the purpose of producing collective goods").
56. Anderson & Pildes, supra note 53, at 1520 ("The understandings and practices that underwrite conventional purposive interpretation are sufficient to support expressive approaches to law.").
57. The literature has not ignored the relation of norms to common law styles of decision making. Eric A. Posner writes: Norms... resemble common law doctrines more closely than they resemble statutes. When judges make decisions, they do not strictly apply a preexisting doctrine to the facts of the case; they are guided partly by their sense of justice. If judges or norm-enforcers simply applied preexisting rules, then the rules could not evolve: there must be some element of discretion that allows the decision-maker to revise the rules in light of new situations. But norms are not identical to common law doctrines. Judges are more self-conscious about making their decisions consistent with prior decisions, whereas norm-producers are more likely to be swayed by their sense of justice. Posner, supra note 55, at 1699.
58. The phrase "constitutional sermon" appears in the legislative history to Article I, section 20 of the Illinois Constitution, adopted in 1970: "To promote individual dignity, communications that portray criminality, depravity or lack of virtue in, or that incite violence, hatred, abuse or hostility toward, a person or group of persons by reason of or by reference to religion, racial, ethnic, national or regional affiliations are condemned." ILL. CONST. art. I, § The legislative history further explains: "Like a preamble, such a provision is not an operative part of the Constitution. It is included to serve a teaching purpose, to state an ideal or principle to guide the conduct of government and individual citizens." Id. art I, § 20 cmt. See Evelyn Brody, Entrance, Voice, and Exit: The Constitutional Bounds of the Right of Association, 35 U.C. DAVIS L. REV. 821, 878-86 (2002) (discussing the Illinois dignity clause) (citing ILL. CONST. art. I, § 20, & cmt.).
59. See Stephen Loffredo, Poverty, Inequality, and Class in the Structural Constitutional Law Course, 34 FORDHAM URB. L.J. 1239, 1243 (2007) (observing that even liberal constitutional theorists omit from the "constitution in exile" any mention of social and economic rights); see also Frank I. Michelman, Democracy-Based Resistance to a Constitutional Right of Social Citizenship: A Comment on Forbath, 69 FORDHAM L. REV. 1893, 1893 (2001) (calling the idea of federal constitutional welfare rights "[c]ontentious").
60. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196 (1989).
61. See Mary Ann Glendon, Rights in Twentieth-Century Constitutions, 59 U. CHI. L. REV. 519, 525-26 (1992) (referring to "the attitudes of the post-World War II European constitution-makers who supplemented traditional negative liberties with certain affirmative social and economic rights or obligations").
62. Ulrich Scheuner, Fundamental Rights and the Protection of the Individual Against Social Groups and Powers in the Constitutional System of the Federal Republic of Germany, in RENÉ CASSIN, AMICORUM DISCIPULORUMQUE LIBER III JURA HOMINIS AC CIVIS: PROTECTION DES DROITS DE L'HOMME DANS LES RAPPORTS ENTRE PERSONNES PRIVÉES 250, 255-56 (1971). Gavin W. Anderson explains: [A] number of developments have moved concerns about private power away from the constitutional margins: first, the deepening implication of the private sphere in the performance of traditional state functions, blurring the state/non-state boundary; second, the unraveling of the Keynesian consensus and the realisation of the material, not just procedural, threats to constitutionalism's goals of protecting freedom and autonomy; and the emergence of a more pragmatic attitude towards constitutionalism on the left, given the failure of legislative politics to withstand the neo-liberal onslaught. Anderson, supra note 26, at 33.
63. Cass R. Sunstein, Why Does the American Constitution Lack Social and Economic Guarantees?, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 90, 95 (Michael Ignatieff ed., 2005); see also Dieter Grimm, The Protective Function of the State, in EUROPEAN AND US CONSTITUTIONALISM 137, 138-43 (Georg Nolte ed., 2005) (discussing the "historical roots" of the Federal Constitution's lack of a "protective" function, but also acknowledging other factors).
64. See Helen Hershkoff, Foreword: Positive Rights and the Evolution of State Constitutions, 33 RUTGERS L.J. 799, 813 (2002); see also Horst Dippel, Human Rights in America, 1776-1849: Rediscovering the States' Contribution, 67 ALB. L. REV. 713, 736 (2004) (reporting "that by 1849, almost half of all economic stipulations in the American rights catalogue (seven out of seventeen) had originated in the nineteenth century").
65. See William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1, 1-2 (1999) (associating social citizenship with guarantees of decent work and an opportunity for a livelihood); Frank W. Munger, Social Citizen as "Guest Worker": A Comment on Identities of Immigrants and the Working Poor, 49 N.Y. L. SCH. L. REV. 665, 675 (2004- 2005) ("Social citizenship entitles members of our society to a package of legal benefits and responsibilities, from fair labor standards to free public education.").
66. See generally Robert F. Williams, Rights, in 3 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE AGENDA OF STATE CONSTITUTIONAL REFORM 7, 25 (G. Alan Tarr & Robert F. Williams eds., 2006) (observing that state constitutions deal with "a range of issues, such as health care, shelter, and subsistence income").
67. See John C. Eastman, When Did Education Become a Civil Right: An Assessment of State Constitutional Provisions for Education 1776-1900, 42 AM. J. LEGAL HIST. 1, 3 (1998) (stating that twelve of the twenty-five state constitutions adopted or revised between 1776 and 1800 contained education clauses).
68. PA. CONST. of 1776, § The 1780 Massachusetts Constitution similarly included an education clause, drafted by John Adams, that imposed a duty on the legislature to establish policies promoting learning and culture: "Wisdom and knowledge, as well as virtue... being necessary for the preservation of... rights and liberties... it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth to cherish the interests of literature and the sciences." MASS. CONST. of 1780, chap. V, § Historians see the Massachusetts and Pennsylvania constitutions from this period as reflecting two alternative conceptions of governance in the early republic. As Donald Lutz has written: "The 1780 Massachusetts Constitution was the most important one written between 1776 and 1789 because it embodied the Whig theory of republican government, which came to dominate state level politics; the 1776 Pennsylvania Constitution was the second most important because it embodied the strongest alternative." DONALD LUTZ, POPULAR CONSENT AND POPULAR CONTROL: WHIG POLITICAL THEORY IN THE EARLY STATE CONSTITUTIONS 129 (1980); see also ROBERT F. WILLIAMS, THE LAW OF AMERICAN STATE CONSTITUTIONS 42-62 (2009) (discussing this history).
69. See Carl E. Kaestle, The Development of Common School Systems in the States of the Old Northwest, in "... SCHOOLS AND THE MEANS OF EDUCATION SHALL FOREVER BE ENCOURAGED": A HISTORY OF EDUCATION IN THE OLD NORTHWEST, 1787-1880, at 32 (Paul H. Mattingly & Edward W. Stevens, Jr. eds., 1987)[hereinafter SCHOOLS AND THE MEANS OF EDUCATION] ("The 1785 ordinance required that one section of land in each town in the territory be set aside for the support of schools, and the 1787 follow-up ordinance stated that 'the means of education shall forever be encouraged.'").
70. See Paul L. Trachtenberg, Education, in 3 STATE CONSTITUTIONS FOR THE TWENTY- FIRST CENTURY, supra note 66, at 272 n.2 (citing MATTHEW H. BOSWORTH, COURTS AS CATALYSTS: STATE SUPREME COURTS AND PUBLIC SCHOOL FINANCE EQUITY 34 (2001)); see also David Tyack, Forming Schools, Forming States: Education in a Nation of Republics, in SCHOOLS AND THE MEANS OF EDUCATION, supra note 69, at 25 ("After the Civil War, Republicans in Congress specified in the enabling acts for the admission of Montana, North Dakota, South Dakota, and Washington that the new states must establish and maintain 'systems of public schools, which shall be open to all the children of the said states and free from sectarian control.'").
71. Tyack, supra note 70, at 29 n.32 (discussing the shift from "may" to "shall" in state constitutional language pertinent to education).
72. William C. Rava, State Constitutional Protections for the Poor, 71 TEMP. L. REV. 543, 551-52 & app. A (1998); see also Daan Braveman, Children, Poverty and State Constitutions, 38 EMORY L.J. 577, 595 (1989) (reporting that "the constitutions of 22 states include in some manner a specific provision relating to the care of the needy or the protection of the health of the people"). The Mississippi Constitution, which adopted a poorrelief provision in the post-Reconstruction period, continues to rely on Elizabethan-era notions of the poor house in its conception of indigent relief: The board of supervisors shall have power to provide homes or farms as asylums for those persons who, by reason of age, infirmity, or misfortune, may have claims upon the sympathy and aid of society; and the legislature shall enact suitable laws to prevent abuses by those having the care of such persons. MISS. CONST. of 1890, art. XIV, § For an account of post-Civil War southern state constitutions, see Richard L. Hume, Carpetbaggers in the Reconstruction South: A Group Portrait of Outside Whites in the "Black and Tan" Constitutional Conventions, 64 J. AM. HIST. 313 (1977).
73. PA. CONST. of 1790, art. IX, Dippel reports that the Georgia Constitution of 1798, the Pennsylvania Constitution of 1838, the Rhode Island Constitution of 1842, and the New Jersey Constitution of 1844 likewise included protection for debtors, similar to
74. See JOHN J. DINAN, THE AMERICAN STATE CONSTITUTIONAL TRADITION 211 (2006) ("Several states, beginning with Alabama, Arkansas, North Carolina, and South Carolina in 1868, have enacted provisions committing state or local governments to address the needs of the poor, disabled, or elderly."). The Alabama Constitution of 1868 provided: "It shall be the duty of the General Assembly to make adequate provisions in each county for the maintenance of the poor of this State." ALA. CONST. of 1867, art. IV, § 34.
75. See Barbara A. Terzian, Ohio's Constitutions: An Historical Perspective, 51 CLEV. ST. L. REV. 357, 369-70 (2004) (explaining that under the 1802 Constitution, if a white man "fell on hard times, he could not be imprisoned for his debts once he offered his property to his creditors, and the schools remained open to his children, no matter how poor he became" (citing OHIO CONST. of 1802, art. VIII, §§ 15, 25)).
76. OHIO CONST. art. VIII, § 16 ("To enhance the availability of adequate housing in the state and to improve the economic and general well-being of the people of the state, it is determined to be in the public interest and a proper public purpose for the state... to provide... housing.... ").
77. WYO. CONST., art. I, § 22.
78. See DINAN, supra note 74, at 188-204 (summarizing state constitutional provisions relating to workers' rights). An occupational safety clause first appeared in the Illinois Constitution of See ILL. CONST. of 1870, art. IV, § 29 (creating a legislative duty to enact and enforce laws to protect miners).
79. COLO. CONST. of 1876, art. XV, § 15; id. art. XVI, § 2.
80. See DINAN, supra note 74, at 195 (explaining that state constitutional amendments "took the form... of efforts to prohibit employers from blacklisting union members or preventing workers from joining unions (yellow-dog contracts)"). The New York Constitution, for example, adopted in 1938, provides: "Employees shall have the right to organize and to bargain collectively through representatives of their own choosing." N.Y. CONST. of 1894, art. 1, § 17 (1938).
81. The Florida Constitution was amended in 1944 to include a "right-to-work" provision. See DINAN, supra note 74, at 204.
82. See, e.g., IOWA CONST. art. 1, § 1 ("All men and women are, by nature, free and equal, and have certain inalienable rights-among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness."). See Giovanni Bognetti, The Concept of Human Dignity in European and US Constitutionalism, in EUROPEAN AND US CONSTITUTIONALISM, supra note 63, at 85, 99-107 (noting that the Federal Constitution does not refer to dignity).
83. N.H. CONST. of 1784, pt. I, art. 2.
84. See Vicki C. Jackson, Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse, 65 MONT. L. REV. 15, 21-28 (2004) (discussing the diverse origins of these two constitutional dignity provisions). For international approaches to the concept of dignity, see Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 EUR. J. INT'L L. 655 (2008) (offering a comprehensive account of dignity clauses but not refering to state constitutional provisions).
85. See Michael Lester Berry, Jr., Comment, Equal Protection-The Louisiana Experience in Departing from Generally Accepted Federal Analysis, 49 LA. L. REV. 903 (1989) (discussing LA. CONST. art I, § 3).
86. See Joseph R. Grodin, Rediscovering the State Constitutional Right to Happiness and Safety, 25 HASTINGS CONST. L.Q. 1, 1-5 (1997) (identifying states and suggesting a typology of "happiness and safety" provisions); see also ROBERT F. WILLIAMS, THE NEW JERSEY STATE CONSTITUTION: A REFERENCE GUIDE 29-20 (rev. ed. 1997) (discussing the New Jersey Constitution).
87. See, e.g., Thiede v. Town of Scandia Valley, 14 N.W.2d 400 (Minn. 1944) (finding cognizable claim for damages to remedy forced eviction from home). For the development of such arguments under "right to happiness" clauses, see, for example, Grodin, supra note 86, at 30-32 (1997); Lockwood et al., supra note 12, at 9-16; under "dignity" clauses, see Klug, supra note Eugene Volokh sees in the "right to happiness" clause protection for self-defense and defense of property. See Eugene Volokh, State Constitutional Rights of Self- Defense and Defense of Property, 11 TEX. REV. L. & POL. 399 (2007).
88. E.g., ALASKA CONST. art. VIII ("Natural Resources"). See Ronald L. Nelson, Welcome to the "Last Frontier," Professor Gardner: Alaska's Independent Approach to State Constitutional Interpretation, 12 ALASKA L. REV. 1, 28 (1995) ("This article was born out of the realization by those of the 1956 Alaska Constitutional Convention that the state's future would depend on the successful development of all of its natural resources."); see also DINAN, supra note 74, at 213 (citing the Vermont Constitution of 1777 and the New York Constitution of 1894).
89. See Antonin Scalia, Foreword: The Importance of Structure in Constitutional Interpretation, 83 NOTRE DAME L. REV. 1417 (2008) (discussing the importance of constitutional structure to constitutional interpretation).
90. See Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial Function, 114 HARV. L. REV. 1833, 1892-93 (2001) (discussing differences between state and federal constitutional theories of legislative power).
91. WILLIAMS, supra note 68, at 250; see also Walter F. Dodd, The Function of a State Constitution, 30 POL. SCI. Q. 201, 205 (1915) ("'[L]egislative power,' granted in general terms, must be interpreted as conferring all governmental power, except so far as restricted by constitutional texts, i.e., that all such power inheres in the general grant.").
92. See Hershkoff, supra note 90, at 1891-92 ("State constitutions... do not reflect the same level of trust in state legislative decisionmaking as does the federal Constitution in congressional decisionmaking."); see also Christian G. Fritz, The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth-Century West, 25 RUTGERS L.J. 945, 967 (1994) (exploring how "a widespread distrust of legislatures [at western state constitutional conventions]" led delegates to "favor[] incorporation of legislative detail in constitutions").
93. See DINAN, supra note 74, at 84-85, 99-101 (recounting history of popular initiative, referendum, and executive veto); JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS: A JURISPRUDENCE OF FUNCTION IN A FEDERAL SYSTEM 143-79 (2005) (discussing distinct "patterns of distrust" at the federal and state levels). See generally Robert F. Williams, State Constitutional Law Processes, 24 WM. & MARY L. REV. 169 (1983) (discussing constitutional procedures that constrain legislative authority).
94. See, e.g., Stephanie Hoffer & Travis McDade, Of Disunity and Logrolling: Ohio's One-Subject Rule and the Very Evils It Was Designed to Prevent, 51 CLEV. ST. L. REV. 557 (2004) (discussing the Ohio single subject rule). See generally Robert F. Williams, State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement, 48 U. PITT. L. REV. 797, 798 (1987) (discussing state constitutional provisions that impose procedural constraints on state legislative decision making).
95. See WILLIAMS, supra note 68, at 330-33 (discussing the relation between the concept of plenary legislative power and canons of constitutional interpretation).
96. Hershkoff, supra note 7, at 1138.
97. John Dinan, Foreword: Court-Constraining Amendments and the State Constitutional Tradition, 38 RUTGERS L.J. 983, 995 (2007). Christian G. Fritz has offered a similar account of constitutional conventions in western states: Restraining corporations and limiting governmental debt provided the most dramatic expression of the role of the conventions acting in lieu of legislatures. In the case of controlling corporate power, including the railroad companies, conventions claimed that legislatures were institutionally unable to respond. Moreover, many delegates regarded thecontrol of corporations and debt as matters on which the people had given conventions amandate to act. Fritz, supra note 92, at 968.
98. Dinan, supra note 97, at 991.
99. At the 1869-1870 Illinois Convention, Joseph Medill argued as follows to support a miners'-safety amendment: It is true the Legislature has the power to pass such laws, even though the Constitution may be silent upon the subject; but the Legislature has neglected to perform this duty; session after session has passed, but no law has been enacted to secure the life and health of the miners.... I maintain that it is the bounden duty of this Convention to insert a clause making it obligatory upon the Legislature to provide for their protection; for, unless we do, there is very little likelihood that they will take any effectual action whatever. DINAN, supra note 74, at 191-92 (citing 1 DEBATES AND PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF ILLINOIS 271 (Spingfield, Ill., E.L. Merritt & Brother 1870)).
100. See Fritz, supra note 92, at 968-69 (quoting a delegate to the California Convention of 1878 who announced the need to amend the constitution to protect against "irresponsible corporate management" of banks).
101. REPORT OF THE COMM. ON PRINTING, CONSTITUTIONAL CONVENTION OF THE STATE OF NEW YORK, REVISED RECORD 2126 (1938) (statement of Mr. Corsi), quoted in Helen Hershkoff, Welfare Devolution and State Constitutions, 67 FORDHAM L. REV. 1403, 1422 (1999).
102. See, e.g., Molly O'Brien & Amanda Woodrum, The Constitutional Common School, 51 CLEV. ST. L. REV. 581, 606 (2004) (recounting history of Ohio education clause and explaining that despite legislation establishing free public schools in the state, "[i]t would soon become clear, however, that gains made in one legislative session could easily be lost in another").
103. See Jack M. Balkin, Too Good to Be True: The Positive Economic Theory of Law, 87 COLUM. L. REV. 1447, 1458 (1987) ("The use of common-law categories to define the constitutional rights of contract and property [during the nineteenth and early twentieth centuries] simultaneously foiled majoritarian attempts at economic regulation while preserving the ability of common-law judges to make law without majoritarian interference."); Forbath, supra note 5, at 180-82 (referring to a "court- and common lawdominated institutional order" that defeated the idea of social citizenship). But see Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LAW & HIST. REV. 293 (1985) (challenging the normative and historical critique of laissez faire constitutionalism).
104. See William E. Forbath, The New Deal Constitution in Exile, 51 DUKE L.J. 165, 184 (2001). The phrase "semi-outlawry" also appears in William E. Forbath, The Shaping of the American Labor Movement, 102 HARV. L. REV. 1109, 1179 (1989).
105. See Paul Kens, The Source of a Myth: Police Powers of the States and Laissez Faire Constitutionalism, 1900-1937, 35 AM. J. LEGAL HIST. 70, 83 (1991) (observing that "nineteenth century common law doctrines handicapped workers who hoped to recover damages from their employers after having been injured on the job"); Frank W. Munger, Social Change and Tort Litigation: Industrialization, Accidents, and Trial Courts in Southern West Virginia, 1872 to 1940, 36 BUFF. L. REV. 75, 89 (1987) (discussing common law barriers to recovery by employees in workplace tort actions). See generally JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC: CRIPPLED WORKINGMEN, DESTITUTE WIDOWS, AND THE REMAKING OF AMERICAN LAW 70 (2004) (discussing "the shortcomings of classical tort law" as protection against workplace accidents).
106. WITT, supra note 105, at 400 (quoting opponents of New York's proposed compensation legislation that such an insurance program was "'pure socialism' and 'communistic'"). For an account of changing notions of redistribution under New York law as they affected labor and other relations, see William E. Nelson, Government Power as a Tool for Redistributing Wealth in Twentieth-Century New York, in LAW AS CULTURE AND CULTURE AS LAW: ESSAYS IN HONOR OF JOHN PHILLIP REID 322 (Hendrik Hartog & William E. Nelson eds., 2000).
107. See WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT 85 (1991) (discussing the common law doctrine of master-servant relationship as the basis for defining the labor of another as property of the owner). As Thomas R. Powell observed critically in 1937: uffice it to say that minimum-wage legislation is now unconstitutional, not because the Constitution makes it so, not because its economic results or its economic propensities would move a majority of judges to think so, but because it chanced not to come before a particular Supreme Court bench which could not muster a majority against it and chanced to be presented at the succeeding term when the requisite, but no more than requisite, majority was sitting. In the words of the poet, it was not the Constitution but "a measureless malfeasance which obscurely willed it thus"-the malfeasance of chance and of the calendar. Thomas R. Powell, The Judiciality of Minimum-Wage Legislation, 37 HARV. L. REV. 545, 552 (1924).
108. Michael Les Benedict, Law and Regulation in the Gilded Age and Progressive Era, in LAW AS CULTURE AND CULTURE AS LAW: ESSAYS IN HONOR OF JOHN PHILLIP REID, supra note 106, at 227, 228.
109. Lochner v. New York, 198 U.S. 45 (1905).
110. For one account of the debate, see Jack M. Balkin, "Wrong the Day It Was Decided": Lochner and Constitutional Historicism, 85 B.U. L. REV. 677 (2005); cf. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 861-62 (1992) (referring to Lochner's "fundamental false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare"). 111. 2 THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 745 (8th ed. 1927). For a discussion of the significance of Cooley's views to the free labor movement, see William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Guilded Age, 1985 WIS. L. REV. 767, 792.
111. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 745 (8th ed. 1927). For a discussion of the significance of Cooley's views to the free labor movement, see William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Guilded Age, 1985 WIS. L. REV. 767, 792.
112. Roscoe Pound, Law in Books and Law in Action (1910), in AMERICAN LEGAL REALISM 39, 39-40 (William W. Fischer III, Morton J. Horwitz & Thomas A. Reed eds., 1993).
113. Id. at 42.
114. Joseph C. Hutcheson, Jr., The Common Law of the Constitution, 15 TEX. L. REV. 317, 328 (1937).
115. See, e.g., Terzian, supra note 75, at 387 (explaining that the 1912 Ohio Constitution responded in part to concerns by "[r]eformers and labor leaders [who] had criticized the state courts for overturning labor legislation and maintaining common-law doctrines that advantaged employers at the expense of workers").
116. William F. Dodd, Social Legislation and the Courts, 28 POL. SCI. Q. 1, 5 (1913).
117. Dinan, supra note 97, at 984 ("Progressive-Era commentators took note at the time of the use of state amendment processes to constrain courts in these areas, but contemporary accounts have not fully integrated these amendments into their analyses.").
118. Fritz, supra note 92, at 971 (quoting 2 DEBATES AND PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF THE STATE OF CALIFORNIA, CONVENED AT THE CITY OF SACRAMENTO, SATURDAY, SEPTEMBER 28, 1878, at 815 (Sacramento, State Office 1880- 1881)).
119. Compare Holden v. Hardy, 46 P. 756 (Utah 1896), aff'd, 169 U.S. 366 (1898), and State v. Holden, 46 P. 1105 (Utah 1896), with In re Morgan, 58 P. 1071 (Colo. 1899). Melvin I. Urofsky writes: Only the Colorado court refused to go along [with courts in Utah and several other states in approving protective legislation for miners and factory workers] and struck down that state's eight-hour law for miners as class legislation that violated freedom to contract. The court deemed [the Supreme Court's ruling in] Holden v. Hardy inapplicable because Colorado lacked the constitutional provision for such legislation found in Utah, although both the Utah and the United States supreme courts had emphasized that the authority for such legislation lay in the police power. Melvin I. Urofsky, State Courts and Protective Legislation During the Progressive Era: A Reevaluation, 72 J. AM. HIST. 63, 78 (1985). Urofsky posits that state courts were more receptive to upholding social and economic legislation than earlier historians have recognized; he mentions but does not fully address the role that state constitutional amendment processes played in preemptively controlling judicial outcomes.
120. 94 N.E. 431 (N.Y. 1911).
121. See Ritchie v. People, 40 N.E. 454 (Ill. 1895) (overturning hours legislation); People ex rel. Rodgers v. Coler, 59 N.E. 716 (N.Y. 1901) (overturning minimum wage legislation on public works); In re Jacobs, 98 N.Y. 98 (Crim. Ct. 1885) (overturning statute banning manufacture of cigars in tenements). For a discussion of these cases, see Dinan, supra note 97, at 989-90.
122. Theodore Roosevelt, Workman's Compensation, 98 OUTLOOK 49, 53 (1911), quoted in Edward Hartnett, Why Is the Supreme Court of the United States Protecting State Judges from Popular Democracy?, 75 TEX. L. REV. 907, 934 n.140 (1997) (citing FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT: A STUDY IN THE FEDERAL JUDICIAL SYSTEM 194 n.37 (1927)).
123. N.Y. CONST. art. I, § 19 (adopted Nov. 4, 1913) (current version at N.Y. CONST. art. I, § 18); see also Urofsky, supra note 119, at 87 (discussing that after striking down the New York workman's compensation statute, the New York court "reversed itself, again because it had to in the light of a constitutional amendment an angry electorate passed after the Ives decision").
124. See WITT, supra note 105, at Similarly, in Ohio, delegates to the 1912 Constitutional Convention secured a broad range of constitutional amendments that sought to protect social and economic legislation from common law assault. See Terzian, supra note 75, at 389 ("In addition to its success in restricting the supreme court's power of judicial review, organized labor also obtained seven amendments embodying much of its constitutional reform program: a maximum eight-hour day on public works; the abolition of prison contract labor; a 'welfare of employees' amendment authorizing the legislature to pass laws regulating hours, wages, and safety and health conditions; damages for wrongful death; limits on contempt proceedings and injunctions; workers' compensation; and mechanics' liens.").
125. See John Fabian Witt, The Long History of State Constitutions and American Tort Law, 36 RUTGERS L.J. 1159, 1190 (2005) ("[I]n the wake of cases like Ives, a number of states around the country adopted constitutional amendments expressly authorizing compensation legislation, either to reverse adverse state decisions (as in New York), or to ward off such decisions." (citations omitted)). For a list of court-constraining amendments concerning worker's rights and welfare rights from the Progressive Era through the twentieth century, see Dinan, supra note 97, at 991-1000.
126. Dinan, supra note 97, at 998 (reporting that the "Massachusetts Convention of 1917-1919 was the first to adopt a court-constraining amendment empowering legislative action" regarding care for the economically needy).
127. Id. at The amendment, art. XLVII, provided: The maintenance and distribution at reasonable rates, during time of war, public exigency, emergency or distress, of a sufficient supply of food and other common necessaries of life and the providing of shelter, are public functions, and the commonwealth and the cities and towns therein may take and may provide the same for their inhabitants in such manner as the general court shall determine. MASS. CONST. art. XLVII. See generally Susan Sterett, Serving the State: Constitutionalism and Social Spending, 1860s-1920s, 22 LAW & SOC. INQUIRY 311 (1997) (discussing state constitutional taxing and spending limits and social programs).
128. See William E. Forbath, The Politics of Constitutional Design: Obduracy and Amendability-A Comment on Ferejohn and Sager, 81 TEX. L. REV. 1965, 1976-81 (2003) (quoting FDR's addresses and recounting efforts to amend the Federal Constitution to include social rights).
129. See Tushnet, supra note 38, at 81 (emphasis in original).
130. Stephen Gardbaum, The "Horizontal Effect" of Constitutional Rights, 102 MICH. L. REV. 387, 388-89 (2003) (citation omitted).
131. For an overview of these developments, see, for example, Aharon Barak, Constitutional Human Rights and Private Law, 3 REV. CONST. STUD. 218 (1996) (discussing international judicial approaches to the effect of constitutional rights on private law).
132. See Hershkoff, supra note 30, at 286-97 (considering the interpretive effect of national constitutional rights to health care and to education on private law decision making in Brazil, India, Indonesia, Nigeria, and South Africa); see also MARTIJN W. HESSELINK, The Horizontal Effect of Social Rights in European Contractual Law, in THE NEW EUROPEAN PRIVATE LAW: ESSAYS ON THE FUTURE OF PRIVATE LAW IN EUROPE 177, 184-86 (2002) (referring to the judicial practice of indirectly enforcing solidarity values in private employment decisions).
133. GERMAN BASIC LAW, art. 1, § 1 & art. 2, § 1.
134. See Kenneth W. Lewan, The Significance of Constitutional Rights for Private Law: Theory and Practice in West Germany, 17 INT'L & COMP. L.Q. 571, 572 (1968) ("German jurists are in agreement today that the fundamental-rights clauses are 'significant' for private law. The majority of them prefer 'indirect application' and reject the direct approach.").
135. See Mattias Kumm, Who Is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law, 7 GERMAN L.J. 341, 350 (2006) ("Constitutional rights norms 'radiate' into all areas of the legal system."); Johan van der Walt, Progressive Indirect Horizontal Application of the Bill of Rights: Towards a Co- operative Relation Between Common-Law and Constitutional Jurisprudence, 17 S. AFR. J. ON HUM. RTS. 341, 351-52 (2001) ("'Indirect horizontal application' is generally understood to imply the following: the values and principles of the Bill of Rights have a radiation effect on common law that is principally reflected in the interpretation and application of the broad and open-ended principles of the law.").
136. Matej Avbelj, Is There Drittwirkung in EU Law?, in THE CONSTITUTION IN PRIVATE RELATIONS: EXPANDING CONSTITUTIONALISM, supra note 21, at 145, 147 (quoting the Lüth case as translated in D.P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 363 (1997)).
137. See, e.g., id. at 146 ("[T]he German Constitutional Court constructed the so-called 'radiating effect,' according to which constitutional rights norms pervade the entire legal system by appealing to the concept of an objective order of values." (citing ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 352 (Julian Rivers trans., 2002))).
138. ALEXY, supra note 137, at 47.
139. Id. at 47-For an excellent discussion of Alexy's radiation thesis, see Mattias Kumm, Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice, 2 INT'L J. CONST. L. 574, 584-85 (2004); see also Lech Garlicki, Constitutional Courts Versus Supreme Courts, 5 INT'L J. CONST. L. 44, 50-54 (2007); Mattias Kumm & Víctor Ferreres Comella, What Is So Special About Constitutional Rights in Private Litigation?: A Comparative Analysis of the Function of State Action Requirements and Indirect Horizontal Effect, in THE CONSTITUTION IN PRIVATE RELATIONS: EXPANDING CONSTITUTIONALISM, supra note 21, at 241; Odilon Castello Borges Neto, Is the State Action Requirement Really Necessary?: A Comparative Study Between the American and the Brazilian Systems of Fundamental Rights Protection, 75 REV. JUR. U.P.R. 805, 835-40 (2006).
140. See ALEXY, supra note 137, at 355-56.
141. For a list of countries that adhere to a nonapplication doctrine and those that recognize some indirect effect, see Stephen Ellmann, A Constitutional Confluence: American "State Action" Law and the Application of South Africa's Socioeconomic Rights Guarantees to Private Actors, 45 N.Y. L. SCH. L. REV. 21, 37-40 & n.52 (2001).
142. Cheryl Saunders, Constitutional Rights and the Common Law, in THE CONSTITUTION IN PRIVATE RELATIONS: EXPANDING CONSTITUTIONALISM, supra note 21, at 183, 195 & n.56 (quoting Constitution Act, 1982, § 52 (U.K.)).
143. Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580, [1986] 2 S.C.R. 573, 600 (Can.); see Saunders, supra note 142, at 198 (discussing this case).
144. Dolphin Delivery, 2 S.C.R. at 603.
145. Id.
146. Lorraine E. Weinrib & Ernest J. Weinrib, Constitutional Values and Private Law in Canada, in HUMAN RIGHTS IN PRIVATE LAW, supra note 27, at 43, 44.
147. Shelley v. Kraemer, 334 U.S. 1 (1947), is understood to instantiate the vertical approach to constitutional rights in the sense that the state, in judicially enforcing the racially restrictive covenant, had itself withheld equal protection of the laws from petitioners. However, the case could be read to support a horizontal theory of constitutional rights. In Bell v. Maryland, Justice Black explained that [t]he reason judicial enforcement of the restrictive covenants in Shelley was deemed state action was not merely the fact that a state court had acted, but rather. That state enforcement of the covenants had the effect of denying to the parties their federally guaranteed rights to own, occupy, enjoy, and use their property without regard to race or color. 378 U.S. 226, 330 (1964) (Black, J., dissenting). Building on Justice Black's reading, Halton Cheadle and Dennis Davis maintain that "Shelley would appear to support the contention that once a party relies upon a law to enforce a claim or a cause of action, a court is entitled to examine whether the law is in keeping with the constitutional commitments contained in the Bill of Rights." Cheadle & Davis, supra note 26, at 47.
148. Kumm & Comella, supra note 139, at 241, 276.
149. Mark Tushnet, The Relationship Between Judicial Review of Legislation and the Interpretation of Non-Constitutional Law, with Reference to Third Party Effect, in THE CONSTITUTION IN PRIVATE RELATIONS: EXPANDING CONSTITUTIONALISM, supra note 21, at 167, 169-70.
150. See Gardbaum, supra note 130, at 391.
151. The Supreme Court's willingness to use the Due Process Clause as "a check on undue jury discretion" in tort actions, compare Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 277 (1989), with Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 11-23 (1991), may facilitate a constitutionalization of tort law which, although consistent with a vertical theory of Shelley v. Kraemer, see Richard A. Epstein, Classical Liberalism Meets the New Constitutional Order: A Comment on Mark Tushnet, 3 CHI. J. INT'L L. 455, 460 (2002) ("Judicial administration is surely state action caught by both the due process and equal protection guarantees."), indirectly could affect nongovernmental action. Cf. Mark Geistfeld, Constitutional Tort Reform, 38 LOY. L.A. L. REV. 1093, 1094 (2005) (assuming that "[i]f the Court adopts a reform that depends upon the wrong substantive conception of tort law, the states retain the power to adopt a different substantive objective for the tort practice").
152. For an articulation of the "failure" thesis in the context of Ohio state court interpretation, see Mary Cornelia Porter & G. Alan Tarr, The New Judicial Federalism and the Ohio Supreme Court: Anatomy of a Failure, 45 OHIO ST. L.J. 143 (1984); see also Richard B. Saphire, Ohio Constitutional Interpretation, 51 CLEV. ST. L. REV. 437, 444-45 (2004) (updating the Porter & Tarr failure thesis).
153. Hershkoff, supra note 90, at 1879-81 (discussing weight to be given to absence of "case" or "controversy" requirement from judicial article of state constitutions).
154. See id. at 1889 (discussing state court common law law-making authority); see also Tushnet, supra note 38, at 87 (discussing different institutional judicial features that affect indirect effect).
155. See Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in EUROPEAN AND US CONSTITUTIONALISM, supra note 63, at 49, 66 (discussing the U.S. Supreme Court's "aversion to case-by-case proportionality or balancing analysis").
156. See Hershkoff, supra note 90, at 1898-1905 (discussing federalism and state courts); Hershkoff, supra note 7, at 1157-61 (discussion electoral accountability and state judicial decision making).
157. Twenty years ago, Peter E. Quint noted the relationship between the state action limitation on constitutional enforcement and the presence or absence of affirmative constitutional duties. See Peter E. Quint, Free Speech and Private Law in German Constitutional Theory, 48 MD. L. REV. 247, 346-47 (1989). Commentators have developed this connection further in their analyses of horizontal application. See, e.g., Helen Hershkoff, The New Jersey Constitution: Positive Rights, Common Law Entitlements, and State Action, 69 ALB. L. REV. 553 (2006); Mark Tushnet, State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations, 3 CHI. J. INT'L L. 435 (2002).
158. Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 HARV. L. REV. 246, 272 (2008) (discussing a minimalist approach to constitutional interpretation in the Second Amendment context); see also Lawrence M. Friedman, Legal Rules and the Process of Social Change, 19 STAN. L. REV. 786, 823 (1967) (referring to the "evolutionary movement" of the common law approach, which is "incremental and gradual, rather than sudden or revolutionary"). Richard A. Epstein captures the benefits and risks of the common law approach in his discussion of recent cases having to do with the law of takings: There is much to be said in praise of incremental decisionmaking that treats each case on its own merits. Small steps often mean that judges make fewer mistakes than they would if they sought to develop some grand theory on the basis of a limited set of facts drawn from a particular case. But there are also serious difficulties associated with that cautious approach precisely because it ignores the synergistic effects that arise from the interplay of different doctrines... Judges should be aware of these effects because their decisions rarely take place on a blank slate. Richard A. Epstein, Property Rights, Public Use, and the Perfect Storm: An Essay in Honor of Bernard H. Siegan, 45 SAN DIEGO L. REV. 609, 612 (2008).
159. Anderson & Pildes, supra note 53, at 1520.
160. See Sunstein, supra note 27, at 2024 (defining the expressive function of law as "the function of law in 'making statements' as opposed to controlling behavior directly").
161. Frank I. Michelman, Socioeconomic Rights in Constitutional Law: Explaining America Away, 6 INT'L J. CONST. L. 663, 666 (2008).
162. Id. at 667.
163. See Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. LEGAL STUD. 725, 731 (1998) ("The structural conception focuses on questions more external to the self-interests of those asserting rights, for it focuses on the legitimate scope of state authority in the specific structural arena at issue.").
164. Id. (quoting JOSEPH RAZ, Rights and Individual Well-Being, in ETHICS IN THE PUBLIC DOMAIN 44, 52 (1995)); see also Frank I. Michelman, Ida's Way: Constructing the Respect-Worthy Governmental System, 72 FORDHAM L. REV. 345, 353 (2003) (referring to aspects of governmental order as political and moral goods, "on the understanding that everyone shares in the increase to them that results from any decent practice of government by law"). See Pildes, supra note 163, at 731.
165. See Pildes, supra note 163, at 731.
166. As James Gordley explains in a related context, "[m]aterial goods are of value to the extent they can contribute to... a life" where "all of one's human potential was realized." James Gordley, Takings, 82 TUL. L. REV. 1505, 1517 (2008).
167. CHARLES FRIED, RIGHT AND WRONG 110 (1978).
168. This structural understanding of workplace rights informs current advocacy efforts to secure a "living wage" on the view that the common law at-will doctrine not only depresses an individual employee's salary scale, but also inhibits a collective interest in democratic participation. See Larry S. Bush, State Law and the Struggle for a Living Wage at the University of Mississippi, 70 MISS. L.J. 945, 970 (2001) (stating that "[t]he employment- at-will rule and the culture in which it exists make it extremely difficult for workers [in Mississippi] to freely and openly participate in efforts to improve their working conditions"); see also Munger, supra note 65, at 668-71 (2004) (discussing the effect of reduced wages and lost benefits on the social citizenship of workers). A democratic justification also is put forward for whistleblower protection. See Courtney J. Anderson DaCosta, Stitching Together the Patchwork: Burlington Northern's Lessons for State Whistleblower Law, 96 GEO. L.J. 951, 977 (2008) (defending whistleblower protection on the ground that such laws "enable those with little bargaining power to speak out against those with a great deal of it").
169. Cf. Jeremy Waldron, Community and Property-For Those Who Have Neither, 10 THEORETICAL INQUIRIES L. 161, 171 (2009) ("The trouble with locating all the objections at the social level is the trouble with any aggregative approach to the general good: the
170. See Oliver Gerstenberg, What Constitutions Can Do (but Courts Sometimes Don't): Property, Speech, and the Influence of Constitutional Norms on Private Law, 17 CAN. J. L. & JURIS. 61, 68 (2004) (explaining that "indirect application is a strategy or method of avoiding the first-order conflict between constitutional values through emphasis on the normative coherence of the private law program and on the 'autopoietic' character of the private law system").
171. See WILLIAMS, supra note 68, at 354 (discussing the indirect effect of state constitutional socio-economic provisions on common law development) (citing Helen Hershkoff, supra note 33); see also Robert J. Kaczorowski, The Common-Law Background of Nineteenth-Century Tort Law, 51 OHIO ST. L.J. 1127, 1128 (1990) ("[J]udicial instrumentalism, understood as judges formulating, modifying, and changing legal rules to achieve public policy goals, was characteristic of the common law for centuries. It was not new to the nineteenth century, as legal historians generally believe.").
172. See G. Richard Shell, Contracts in the Modern Supreme Court, 81 CAL. L. REV. 431, 441-42 (1993).
173. See Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87, 91-93 (1989) (using the terms "majoritarian," "tailored," and "penalty defaults").
174. Cf. JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 45 (rev. ed. 1990) (comparing models of strong and weak discretion).
175. See Hershkoff, supra note 33.
176. Philip C. Aka, Analyzing U.S. Commitment to Socioeconomic Human Rights, 39 AKRON L. REV. 417, 424 (2006).
177. See Frank I. Michelman, The Protective Function of the State in the United States
178. Government of the Republic of South Africa v. Grootboom and Others 2000 (11) BCLR 1 (CC) at ¶ 44 (S. Afr.); see also Hershkoff, supra note 30, at 297 (quoting President of the Republic of South Africa v. Modderklip Boerdery (Pty) Ltd. 2005 (20) SA 1 (CC) at ¶ 55 (S. Afr.) (referring to "the constitutional vision of a caring society based on... shared concern"), available at http://www.saflii.org/za/cases/ZACC/toc-P.html.
179. Sandra Liebenberg, The Value of Human Dignity in Interpreting Socio-Economic Rights, 21 S. AFR. J. HUM. RTS. 1, 1 (2005).
180. David Bilchitz, Giving Socio-Economic Rights Teeth: The Minimum Core and Its Importance, 119 S. AFR. L.J. 484, 490 (2002).
181. Khosa v. Minister of Social Development 2004 (12) BCLR 1 (CC) at ¶ 74 (S. Afr.). For a discussion of this decision of the South African Constitutional Court, see Sandra Liebenberg, Enforcing Positive Socio-Economic Rights Claims: The South African Model of Reasonableness Review, in THE ROAD TO REMEDY: CURRENT ISSUES IN THE LITIGATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS, supra note 43, at 73, 87-88.
182. Ian Ward, Universal Jurisprudence and the Case for Legal Humanism, 38 ALBERTA L. REV. 941, 944 (2001) (quoting Richard Rorty, Human Rights, Rationality, and Sentimentality, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 111, 118-19 (S. Shute & S. Hurley eds., 1993)).
183. Cf. Posner, supra note 55, at 1720 (pointing out "that legislators and judges face constraints against allowing their own moral feelings to influence their law-making; norm- producers face no such constraints"). According indirect effect to state constitutional material rights is closely allied with Lawrence Gene Sager's influential theory of constitutional underenforcement. Like many federal constitutional theorists, Sager posits that the federal courts are incapable of directly enforcing positive rights against the government. Yet he refuses to disclaim the existence of positive federal constitutional rights. Rather, these rights operate directly on legislative officials and indirectly on judges; the radiating effects of positive rights helps to make sense of judicial decisions involving the Due Process Clause and the right to travel. See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978); Lawrence Gene Sager, Foreword: State Courts and the Strategic Space Between the Norms and Rules of Constitutional Law, 63 TEX. L. REV. 959 (1985). See generally LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE (2004). For a discussion of Sager's thesis, see Frank I. Michelman, The Protective Function of the State in the United States and Europe: The Constitutional Question, in EUROPEAN AND US CONSTITUTIONALISM, supra note 63, at 156, 175-77 (insisting "that American law confirms the [state's protective function or] duty principle's force in our system of legal norms by visibly under-enforcing it").
184. Etienne Mureinik, A Bridge to Where? Introducing the Interim Bill of Rights, 10 S. AFR. J. ON HUM RTS. 31, 31-32 (1994).
185. See Lawrence Friedman, Reactive and Incompletely Theorized State Constitutional Decision-Making, 77 MISS. L.J. 265, 310-13 (2007) (discussing the advocacy community's role in developing state constitutional meaning); Justin Long, Intermittent State Constitutionalism, 34 PEPP. L. REV. 41, 46 (2006) (discussing "the special role of lawyers" in developing state constitutional discourse).
186. David J. Walsh has studied wrongful discharge cases from a network analytic perspective, finding that courts use citations for legitimation and justification. See David J. Walsh, On the Meaning and Pattern of Legal Citations: Evidence from State Wrongful Discharge Precedent Cases, 31 LAW & SOC'Y REV. 337 (1997). Walsh did not consider whether similarity of state constitutional provisions influences a court's decision to use citations from a different jurisdiction.
187. See J. Hoult Verkerke, An Empirical Perspective on Indefinite Term Employment Contracts: Resolving the Just Cause Debate, 1995 WIS. L. REV. 837.
188. For a brief history of the rule, see Weiner v. McGraw-Hill, Inc., 443 N.E.2d 441, 444 n.4 (N.Y. 1982) (discussing shift in doctrine from requirement of "reasonable cause" to no cause). For a brief period, the U.S. Supreme Court appeared to have constitutionalized the at-will rule. Compare Adair v. United States, 208 U.S. 161 (1908), and Coppage v. Kansas, 236 U.S. 1 (1915), with NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
189. See Robert C. Bird, Rethinking Wrongful Discharge: A Continuum Approach, 73 U. CIN. L. REV. 517, 517 (2004) (reporting that in the period 1985-2004 at least 200 law review articles were published discussing aspects of the at-will relationship).
190. See, e.g., MONT. CODE ANN. §§ 39-2-901 to -915 (2005). Title 29, section 185(a) of the laws of Puerto Rico [known as Law 80] provides the exclusive remedy for a worker who is terminated without just cause. P.R. Laws Ann. tit 29, § 185(a) (2006). In Arroyo v. Rattan Specialties, Inc., 117 D.P.R. 35, 1986 WL 376812 (P.R. 1986), the Supreme Court of Puerto Rico held that Law 80 does not bar remedies for constitutional violations. In that case, the court relied on the Dignity Clause of the Puerto Rico Constitution to find a statutory exclusion on behalf of a worker terminated for refusing to take an employment- mandated polygraph test. In Negron v. Caleb Brett U.S.A., Inc., 212 F.3d 666 (1st Cir. 2000), the Court of Appeals for the First Circuit found that a worker who was terminated for refusing to falsify lab reports likewise could invoke the statutory exception to redress a violation of privacy and dignity rights that are protected by the Puerto Rico Constitution.
191. See, e.g., Jack M. Beerman & Joseph William Singer, Baseline Questions in Legal Reasoning: The Example of Property in Jobs, 23 GA. L. REV. 911, 918 (1989) (arguing that "when workers are more secure, and when they have a greater voice in the operation of the company, they tend to view the company as 'theirs' and they may devote more energy and care to the success of what they see as a common enterprise").
192. See Robert C. Bird & John D. Knopf, Do Wrongful-Discharge Laws Impair Firm Performance?, 52 J.L. & ECON. 197, 219 (2009) (discussing "potential negative economic consequences to employers" of implied-contract exceptions, but emphasizing that "the adoption of wrongful-discharge laws does not appear to impose long-term firm effects"); see also John B. Dudrey, Damage Control: Two Proposals to Limit the Reach and Effect of Oregon's Wrongful Discharge Tort, 12 LEWIS & CLARK L. REV. 205 (2008) (criticizing the Oregon wrongful discharge tort, although urging its retention on limited conditions).
193. See, e.g., Brockmeyer v. Dun & Bradstreet, 335 N.W.2d 834, 840 (Wis. 1983). The court explained: Public policy is a broad concept embodying the community common sense and common conscience.... The provisions of the Wisconsin Constitution initially declared the public policies of this state. Each time the constitution is amended, that also is an expression of public policy.... A wrongful discharge is actionable when the termination clearly contravenes the public welfare and gravely violates paramount requirements of public interest. The public policy must be evidenced by a constitutional or statutory provision. An employee cannot be fired for refusing to violate the constitution or a statute. Id. at 840 (citations omitted).
194. Thompson v. St. Regis Paper Co., 685 P.2d 1081 (Wash. 1984).
195. See, e.g., Hall v. Farmers Ins. Exch., 713 P.2d 1027, 1029 (Okla. 1985) (commenting that the at-will doctrine is "not absolute however, and the interests of the people of Oklahoma are not best served by a marketplace of cut-throat business dealings where the law of the jungle is thinly clad in contractual lace"). For example, in Dunwoody v. Handskill Corp., 60 P.3d 1135 (Or. Ct. App. 2003), the Oregon Court of Appeals recognized a tort of wrongful discharge, even on behalf of a contractual employee, where the employer terminated plaintiff for taking days off "to assist the state in prosecuting her husband's murderers," finding that "compliance with a subpoena in a criminal case" is a protected public duty, and that failure to protect the public policy "would adversely affect not only the victim in an individual case, but the public generally because the prosecution of such crimes, although solved, could be frustrated and the criminal could go unpunished." Id. at 1137, As support, the Oregon court referenced an earlier version of article I, section 15 of the Oregon Constitution, and noted approvingly that "the protection and safety of the people of the state [is] a principle [that] does not have to be expressed in the constitution as it is the reason for criminal law." Id. at 1142 (quoting Tuel v. Gladden, 379 P.2d 553 (Or. 1963)). Similarly, in Danny v. Laidlaw Transit Servs., Inc., 193 P.3d 128 (Wash. 2008), the Washington Supreme Court held that the state had a clear policy of protecting domestic- violence victims, which indirectly could be redressed through a tort of wrongful discharge, and emphasized the "truly public" social cost of domestic violence on individuals, employers, and communities. Id. at The court located the policy both in state legislation and in the state constitution's crime victim amendment, which encourages victims to cooperate with prosecutors in enforcing criminal sanctions against those who engage in domestic abuse. Id. at 136 (citing WASH. CONST. art. I, § 35). However, some courts will recognize a tort action even where the constitutional right affects only an individual and not the broader public. See, e.g., Gerald J. Russello, The New Jersey Supreme Court: New Directions?, 16 ST. JOHN'S J. LEGAL COMMENT. 655, 687 (2002) (noting that New Jersey recognizes a wrongful-termination tort even where the employer's acts do not necessarily impact public policy). The Virginia courts allow a common law wrongful discharge claim even where laws "do not explicitly state a public policy, but instead are designed to protect the 'property rights, personal freedoms, health, safety, or welfare of the people in general.'" City of Virginia Beach v. Harris, 523 S.E.2d 239, 245 (Va. 2000) (citing Miller v. SEVAMP, Inc., 362 S.E.2d 915, 918 (Va. 1987)).
196. Sieverson v. Allied Stores Corp., 776 P.2d 38, 40 (Or. Ct. App. 1989) (citing Nees v. Hocks, 536 P.2d 512 (Or. 1975)). The Oregon court subsequently has emphasized that the public policy must require "the kinds of acts that allegedly triggered" the worker's discharge. See Babick v. Or. Arena Corp., 40 P.3d 1059, 1063 (Or. 2002).
197. Burk v. K-Mart Corp.,770 P.2d 24, 28 (Okla. 1989); see also Monge v. Beebe Rubber Co., 316 A.2d 549 (N.H. 1974), describing the balancing test as follows: In all employment contracts, whether at will or for a definite term, the employer's interest in running his business as he sees fit must be balanced against the interest of the employee in maintaining his employment, and the public's interest in maintaining a proper balance between the two....We hold that a termination by the employer of a contract of employment at will which is motivated by bad faith or malice or based on retaliation is not [in] the best interest of the economic system or the public good and constitutes a breach of the employment contract.... Such a rule affords the employee a certain stability of employment and does not interfere with the employer's normal exercise of his right to discharge, which is necessary to permit him to operate his business efficiently and profitably. Id. at 551-52 (citations omitted).
198. 801 P.2d 373 (Cal. 1990).
199. Id. at 388 ("A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin." (quoting CAL. CONST. art. I, § 8)).
200. Id. at 388 (quoting Foley v. Interactive Data Corp., 765 P.2d 373 (1988)).
201. Id. at 389 (emphasis in original).
202. Id. at 388-89 (internal citations omitted) (emphasis in original).
203. 776 P.2d 752 (Wyo. 1989)
204. Id. at 754.
205. Id. at 753.
206. The court relied on two provisions. Article 19, section 7 of the Wyoming Constitution provides: It shall be unlawful for any person, company or corporation, to require of its servants or employees as a condition of their employment, or otherwise, any contract or agreement whereby such person, company or corporation shall be released or discharged from liability or responsibility, on account of personal injuries received by such servants or employees... WYO. CONST. 19, § Article 10, section 4(c) provides, in pertinent part: Any contract or agreement with any employee waiving any right to recover damages for causing the death or injury of any employee shall be void. As to all extrahazardous employments the legislature shall provide by law for the accumulation and maintenance of a fund or funds out of which shall be paid compensation.... The right of each employee to compensation from the fund shall be in lieu of and shall take the place of any and all rights of action against any employer contributing as required by law to the fund in favor of any person or persons by reason of the injuries or death. WYO. CONST. 10, § 4(c).
207. The Wyoming court subsequently gave a narrowing construction to the wrongful- discharge tort. See McGarvey v. Key Prop. Mgmt. LLC, 211 P.3d 503, 507 (Wyo. 2009).
208. See F.F., Book Note, 28 HARV. L. REV. 218, 219 (1914) (reviewing ROME G. BROWN, THE MINIMUM WAGE (1914)) ("The Workman's Compensation Law has become practically an accepted commonplace of our legislation, either through necessary state constitutional amendments or through a temper of interpretation different from that of the New York Court of Appeals.").
209. Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 794 (N.D. 1987).
210. Id. Indiana was the first state to recognize a tort for wrongful discharge based on the worker seeking workman's compensation benefits. See Frampton v. Cent. Ind. Gas Co., 297 N.E.2d 425, 428 (Ind. 1973); accord Kelsay v. Motorola, Inc., 384 N.E.2d 353, 357 (Ill. 1978); Murphy v. City of Topeka-Shawnee County Dep't of Labor Servs., 630 P.2d 186, 192 (Kan. Ct. App. 1981).
211. N.D. CONST. art. X, § 12 (adopted 1939).
212. In Amos v. Oakdale Knitting Co., 416 S.E.2d 166, 173 (N.C. 1992), the North Carolina Supreme Court recognized a wrongful-discharge tort on behalf of a worker who was fired for refusing to work for less than the statutory minimum wage. However, the court did not refer to the state constitution, which provides that the "[b]eneficent provision for the poor, the unfortunate, and the orphan is one of the first duties of a civilized and a Christian state." N.C. CONST. art. XI, § North Carolina's minimum wage legislation postdates enactment of the federal Fair Labor Standards Act of See Oakdale Knitting, 416 S.E.2d at 169; see also Keith B. Leffler, Minimum Wages, Welfare, and Wealth Transfers to the Poor, 21 J.L. & ECON. 345, 348 tbl.1 (1978) (listing the twenty-five states that had minimum wage regulation at the time of the enactment of FLSA); Michael D. Moberly, Fair Labor Standards Act Preemption of "Public Policy" Wrongful Discharge Claims, 42 DRAKE L. REV. 525, 536-47 (1993) (arguing for preemption of the common law tort under federal law). For a history of the federal constitutional debate about minimum wage legislation, see K.R. Willoughby, Mothering Labor: Difference as a Device Towards Protective Labor Legislation for Men, 1830-1938, 10 J.L. & POL. 445, 472-88 (1994).
213. Robert C. Bird, An Employment Contract "Instinct with an Obligation": Good Faith Costs and Contexts, 28 PACE L. REV. 409, 413 (2008).
214. See Brent Appel & Gayla Harrison, Employment At Will in Iowa: A Journey Forward, 39 DRAKE L. REV. 67, 83 (1989).
215. Gates v. Life of Mont. Ins. Co., 638 P.2d 1063, 1067 (Mont. 1982); see also Toussaint v. Blue Cross & Blue Shield of Mich., 292 N.W.2d 880, 892 (Mich. 1980) (stating rationale of protecting an individual worker's "security" as well as the public interest in a "cooperative and loyal work force").
216. MONT. CONST. art. II, § 3.
217. Id. at art. II, § The Montana provision is based on a similar provision in the Puerto Rico Constitution, which "follows a history of international and foreign constitution- making and human rights declarations at the end of World War II.... " Snetsinger v. Mont. Univ. Sys., 104 P.3d 445, 458 (Mont. 2004) (Nelson, J., concurring); see THE OPPORTUNITY AGENDA, HUMAN RIGHTS IN STATE COURTS: AN OVERVIEW AND RECOMMENDATIONS FOR LEGAL ADVOCACY 25 (2008 ed.).
218. MONT. CONST. art. XII, § 2(2).
219. Id. at art. XII § 3(3), as amended by Constitutional Amend. No. 18 (1988)..
220. Butte Comm. Union v. Lewis, 745 P.2d 1128, 1133 (Mont. 1987); see Michael M. Burns, Fearing the Mirror: Responding to Beggars in a "Kinder and Gentler" America, 19
221. Butte Comm. Union, 745 P.2d at 1133 (citation omitted). In a 2004 decision, the Montana Supreme Court found that the state's policy of denying dental assistance to same- sex partners of employees of the Montana University violated equal protection. In a concurrence, Judge Nelson relied on the Dignity Clause of the Montana Constitution which, he explained, "reflects the international community's focus on human dignity as a fundamental value." Snetsinger, 104 P.3d at 458 (Nelson, J., concurring).
222. See Elizabeth M. Glazer, Rule of (Out)law: Property's Contingent Right to Exclude, 156 U. PA. L. REV. PENNUMBRA 331, 332 (2008) ("The right to exclude has long been considered the centerpiece of property law.").
223. William Michael Treanor, Take-ings, 45 SAN DIEGO L. REV. 633, 633 (2008) (associating property with a range of meanings including "'ownership' interest, individual control of the possession, use, and disposition of resources,... and physical control of material possessions" (citing Thomas W. Merrill, The Landscape of Constitutional Property, 86 VA. L. REV. 885, 893 (2000); Richard A. Epstein, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 22-23 (1985); D. Benjamin Barros, Defining "Property" in the Just Compensation Clause, 63 FORDHAM L. REV. 1853, 1854 (1995); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 782 (1995)).
224. See Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 568 (1972) (stating that the Court "has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only").
225. See Hershkoff, supra note 157, at 556 (discussing examples drawn from New Jersey law).
226. State v. Shack, 277 A.2d 369 (N.J. 1971).
227. See Madhavi Sunder, IP3, 59 STAN. L. REV. 257, 257 (2006) (tracing the "social relations" theory of property to the decision).
228. See Gregory S. Alexander & Eduardo M. Peñalver, Properties of Community, 10 THEORETICAL INQUIRIES L. 127, 149-55 (2009). The authors state that the decision is "difficult to reconcile with classical liberal conceptions of property rights as well as with utilitarian methodology favored by law and economics," but "makes good sense... from the perspective of an account of human flourishing.... " Id. at 154.
229. See Eduardo M. Peñalver, Land Virtues, 94 CORNELL L. REV. 821, 884 (2009) (discussing the property owner's "moral obligation to his workers").
230. See Joseph William Singer, Democratic Estates: Property Law in a Free and Democratic Society, 94 CORNELL L. REV. 1009 (2009) (discussing a democratic theory of property that builds on obligation).
231. See Keith Sealing, Dear Landlord: Please Don't Put a Price on My Soul: Teaching Property Law Students that "Property Rights Serve Human Values," 5 N.Y. CITY L. REV. 35 (2002) (discussing Shack and the first-year property course).
232. Joseph William Singer, The Reliance Interest in Property, 40 STAN. L. REV. 611, 675 (1988).
233. State v. Shack, 277 A.2d 369, 372 (N.J. 1971) ("The migrant farmworkers are a community within but apart from the local scene. They are rootless and isolated.... [T]hey are unorganized and without economic or political power.").
234. Id. at 372.
235. Id. at 374.
236. Id. at 372.
237. See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489 (1977); see also William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. REV. 535 (1986); Helen Hershkoff, Seventy-fifth Anniversary Retrospective: Most Influential Articles, 75 N.Y.U. L. REV. 1554 (2000) (discussing Justice Brennan's articles and the revival of state constitutional decision making); Stewart G. Pollock, State Constitutions as Separate Sources of Fundamental Rights, 35 RUTGERS L. REV. 707, 716 (1983) (referring to Justice Brennan's Harvard Law Review essay as the "Magna Carta of state constitutional law").
238. Article I, section 1 of the New Jersey Constitution provides: "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness." See April Land, Children in Poverty: In Search of State and Federal Constitutional Protections in the Wake of Welfare "Reforms," 2000 UTAH L. REV. 779, 825-26 (discussing the New Jersey Happiness Clause as a source of substantive protection for the poor); see also Connie M. Pascale, Homeless People Have Rights Too, 156 N.J. LAW. 18 (1993) (discussing the happiness clause as a source of a right to shelter, to privacy, and to household inviolability).
239. Jones v. Haridor Realty Corp., 181 A.2d 481 (N.J. 1962).
240. Article I, section 5 provides: "No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles,
241. S. Burlington County N.A.A.C.P. v. Twp. of Mt. Laurel, 336 A.2d 713, 725 (N.J. 1975); see also State v. Baker, 405 A.2d 368, 369 (N.J. 1979) (invalidating on state constitutional grounds local zoning ordinance that utilized "criteria based upon biological or legal relationships in order to limit the types of groups that may live within its borders").
242. N.A.A.C.P., 336 A.2d at 727-28.
243. Cherry Hill Twp. v. Oxford House, Inc., 621 A.2d 952 (N.J. Super. Ct. App. Div. 1993) (internal citations omitted).
244. Id. at See Stacy Alison Fols, Clear, Manageable Limitations on Governmental Excess: Judge King's Opinions on Individual Liberty and Privacy, 35 RUTGERS L.J. at xxxv, xliii (2004) (discussing the Cherry Hill case).
245. Cf. Bruce D. Greenberg, New Jersey's "Fairness and Rightness" Doctrine, 15 RUTGERS L.J. 927 (1983-1984) (discussing state "extra-constitutional" doctrine that looks to "fairness and rightness").
246. Cf. Daniela Caruso, Private Law and Public Stakes in European Integration: The Case of Property, 10 EUR. L.J. 751, 758-61 (2004) (discussing but rejecting criticisms of the "'property-as-constitution' syllogism" and arguing that property rules are conceptually linked to constitutional traditions).
247. See Kaye, supra note 39, at 738.
248. The Shack court instead relied on common law decisions involving the unconscionability doctrine in which the court declined to enforce contractual terms because of the parties' disparity in bargaining power. State v. Shack, 277 A.2d 369, 375 (N.J. 1971) (citing, for example, Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960)). This use of the unconscionability doctrine has puzzled commentators, for it overrides the parties' stated preference for pricing and other terms even where there is no duress or fraud or any evidence of pricing disparity. Eric A. Posner writes: these "'restrictive contract rules,' have generally resisted efforts to rationalize them on economic grounds, and they in fact are criticized on the ground that they interfere with wealth-generating transactions and are inefficient means for redistributing wealth." Eric A. Posner, Contract Law in the Welfare State: A Defense of the Unconscionability Doctrine, Usury Laws, and Related Limitations on the Freedom to Contract, 24 J. LEGAL STUD. 283, 285 (1995). The typical case for Posner is illustrated by the famous District of Columbia Court of Appeals decision in Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965), which involves an indigent consumer's default on an installment contract for household goods that contains a harsh statutory penalty or high interest rate on amounts due. Posner, supra, at 304-In Walker- Thomas Furniture, the consumer's default triggered a cross-collateralization clause that the furniture company invoked in an effort to repossess all goods previously purchased on credit by the customer. Id. at Posner has attempted to explain this application of the unconscionability doctrine through a theory of minimum welfare; on this view, unconscionability curbs welfare opportunism by raising the cost of credit where the purchase would otherwise be "inconsistent with maintaining the minimum welfare level." Posner, supra, at Whether the minimum welfare theory better explains this use of unconscionability doctrine than do competing theories of libertarianism, liberalism, or paternalism, which Posner rejects, I leave to others. See, e.g., Eben Colby, What Did the Doctrine of Unconscionability Do to the Walker-Thomas Furniture Company?, 34 CONN. L. REV. 625 (2002) (reporting the effects of the tightening of credit on the company's customers); Richard A. Epstein, Unconscionability: A Critical Reappraisal, 18 J.L. & ECON. 293 (1975) (urging limits on the doctrine); Russell Korobkin, A "Traditional" and "Behavioral" Law-and-Economics Analysis of Williams v. Walker-Thomas Furniture Company, 26 U. HAW. L. REV. 441, 441 (2004); Alan Schwartz, A Reexamination of Nonsubstantive Unconscionability, 63 VA. L. REV. 1053, 1057 (1977) (examining the problem in terms of the poor person's "ability to buy away disfavored terms" and "poverty as a possible limitation upon a consumer's competence"). What is significant to the present argument is that Posner provides a positive account of minimum welfare theory that he locates in the history of the Poor Law in England and the contemporary "complicated patchwork of programs" that make up the welfare system in the United States. Posner, supra, at 298-99, 309-Without staking out a causal argument, it seems useful to consider whether state constitutional positive norms are doing any work in the handful of common law cases that Posner cites as endorsing this use of the doctrine. The decisions cited are drawn from the District of Columbia and from three states: New York, New Jersey, and New Hampshire. The District of Columbia implicates no state constitutional provisions. See Courts Oulahan, The Proposed New Columbia Constitution, Creating a "Manacled State," 32 AM. U. L. REV. 635 (1983) (discussing a proposed constitution should
249. James A. Gardner, What is a State Constitution?, 24 RUTGERS L.J. 1025, 1025-26 (1993). Gardner's critique initially appeared in James A. Gardner, The Failed Discourse of State Constitutionalism, 90 MICH. L. REV. 761 (1992). He since has developed a functional approach to state constitutional interpretation. See JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS: A JURISPRUDENCE OF FUNCTION IN A FEDERAL SYSTEM 274 (2005) (explaining that a functional approach to state constitutional interpretation "focuses on what it is we do when we engage in self-government, not collectively as a nation, but within our respective subnational units").
250. See, e.g., William P. Marshall, Diluting Constitutional Rights: Rethinking Rethinking State Action, 80 NW. U. L. REV. 558, 559 (1986) (arguing that the extension of constitutional rights into the private domain through a relaxation of the federal state action doctrine will undermine "the exercise of individual freedom").
251. Frank I. Michelman, The Bill of Rights, the Common Law, and the FreedomFriendly State, 58 U. MIAMI L. REV. 401, 429 (2004).
252. The literature on constitutional balancing tests is large. See, e.g., T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 945 (1987) (explaining that "[t]he metaphor of balancing refers to theories of constitutional interpretation that are based on the identification, valuation, and comparison of competing interests"). On categorical interpretation as an alternative to balancing, see Kathleen M. Sullivan, Post-liberal Judging: The Roles of Categorization and Balancing, 63 U. COLO. L. REV. 293 (1992).
253. Marshall, supra note 250, at 564.
254. Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 COLUM. J. TRANSNAT'L L. 73, 76 (2009).
255. HESSELINK, supra note 132, 180-81 (reporting objections that courts will "balance rights away").
256. See, e.g., Ellmann, supra note 141, at 45 (discussing the Court's Miranda rule as an example of constitutional common law that inhibits legislative flexibility).
257. Ellen A. Peters, State Constitutional Law: Federalism in the Common Law Tradition, 84 MICH. L. REV. 583, 592 (1986); see also Friedman, supra note 158, at 823-24
258. Marshall, supra note 250, at 566.
259. Or abroad. See e.g., Derek van der Merwe, Constitutional Colonisation of the Common Law: A Problem of Institutional Integrity, 2000 J.S. AFR. L. 12, 31 (according horizontal effect "will tend to reduce the rights guaranteed in the constitution to mere static loci for private disputes and to subject them to a stale exercise in strategic privileging of one right over other rights," rather than encouraging "an ongoing 'reflexive' narrative"); Gerstenberg, supra note 170, at 62 (acknowledging the argument that constitutionalization of the common law will insulate private law from politics).
260. Hans Linde of Oregon has written: "When a state court alters the law of products liability, abolishes sovereign or charitable tort immunity, redefines the insanity defense, or restricts the range of self-exculpation in contracts of adhesion, its action is rarely attacked as 'undemocratic.'" Hans A. Linde, Judges, Critics, and the Realist Tradition, 82 YALE L.J. 227, 248 (1973); see also Robert F. Williams, Juristocracy in the American States?, 65 MD. L. REV. 68, 79-81 (2006) (discussing the effect of the state judiciary's distinct institutional position in state governance on democratic concerns).
261. For a discussion of current legislative battles over common law doctrine, see JAY M. FEINMAN, UN-MAKING LAW: THE CONSERVATIVE CAMPAIGN TO ROLL BACK THE COMMON LAW (2004) (discussing efforts to return common law to a "classical" period).
262. See Marius Pieterse, Coming to Terms with Judicial Enforcement of Socio- Economic Rights, 20 S. AFR. J. HUM. RTS. 383, 389 (2004) ("Legitimacy-based objections to the constitutionalisation of socio-economic rights typically relate to broader ideological concerns on redistribution of wealth and state intervention in market economies.").
263. Indeed, even state constitutional decisions are subject to this form of legislative veto. See Hershkoff, supra note 7, at 1161-66 (discussing the revisibility of even state constitutional decisions by a legislature or by popular majorities).
264. See Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L. 707 (2002); Mark Tushnet, Weak-Form Judicial Review and "Core" Civil Liberties, 41 HARV. C.R.-C.L. L. REV. 1, 2 (2006). "Weak-form review" is illustrated by the South Africa Court's enforcement of a right to housing, see, e.g., Government of the Republic of South Africa v. Grootboom 2000 (1) SA 46 (CC) (enforcing a right to housing under the South Africa Constitution), and by a state court's enforcement of state constitutional positive rights, see, e.g., Helen Hershkoff, School Finance Reform and the Alabama Experience, in STRATEGIES FOR SCHOOL EQUITY: CREATING PRODUCTIVE SCHOOLS IN A JUST SOCIETY (Marilyn J. Gittell ed., 1998). In the state-court welfare-rights context, I have identified a form of "consequentialist" review, similar to weak-form review, that assesses "whether a state action is likely to achieve a mandated policy," through a process that provides "a set of institutional arrangements enabling other legal actors-the legislature, social service departments, welfare recipients themselves-to develop and share information about workable alternatives that might reasonably carry out the state constitutional welfare mandate." Hershkoff, supra note 90, at 1183-This approach is consistent with what Gerstenberg describes as a "non-court-centric multi-level process of public discussion." Gerstenberg, supra note 170, at 63.
265. See Randy E. Barnett, The Sound of Silence: Default Rules and Contractual Consent, 78 VA. L. REV. 821, 904-05 (1992) (arguing that the public-policy defense is a consensual doctrine because the parties can negotiate a choice-of-law provision); Arthur Allen Leff, Unconscionability and the Crowd-Consumers and the Common Law Tradition, 31 U. PITT. L. REV. 349, 356 (1969-1970) (predicting that even if courts decline to enforce contracts on grounds of unconscionability, the seller will just "start up again with new parties in a new jurisdiction").
266. See, e.g., Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 VAL. U. L. REV. 359, 360 (1988) (criticizing the concept of positive rights on the ground that "the debated matter seems a choice among instrumental social policies rather than a matter of adjudicating relatively fixed law and rights").
267. Lawrence G. Sager, The Constitution Outside the Courts and the Pursuit of a Good Society: Thin Constitutions and the Good Society, 69 FORDHAM L. REV. 1989, 1990 (2001); see also Kenneth L. Karst, The Coming Crisis of Work in Constitutional Perspective, 82 CORNELL L. REV. 523, 529 (1997) ("American courts lack the capacity to enforce a constitutional right to stable, adequately compensated work-or even to define the contours of such a right with a serviceable particularity."). But see Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 OHIO ST. L.J. 731 (1997) (questioning the premise of judicial incapacity).
268. Ellmann, supra note 141, at 43 ("If every builder of low-income housing were deemed subject to constitutional duties, would the courts have to spell out a code of minimally adequate housing, as part of ruling that a builder of less than minimally adequate housing was in breach of constitutional duties?"); see, e.g., Tushnet, supra note 38, at 96 (discussing Ellmann's hypothetical).
269. See Hershkoff, supra note 90, at 1891 ("Congress is said to enjoy an advantage in some areas relative to the Article III courts because it can control its agenda, research issues, and compare alternatives.").
270. Id. at 1892 (discussing state institutional capacity as an empirical question). But see Epstein, supra note 43, at 1730 (referring to the "structural limitations of the common law system" and insisting that "courts have recognized for centuries that only legislative bodies possess the means to devise effective and comprehensive solutions to many of the most serious issues in the field of land use").
271. See, e.g., BRENNAN CTR. FOR JUSTICE, STILL BROKEN: NEW YORK STATE LEGISLATIVE REFORM: 2008 UPDATE (Andrew Stengel et al. eds., 2008) (calling the New York State Legislature "dysfunctional").
272. See Myron Moskovitz, The Implied Warranty of Habitability: A New Doctrine Raising New Issues, 62 CAL. L. REV. 1444 (1974) (describing the California Supreme Court's development of the implied warranty of habitability); see also Helen Hershkoff, Justiciability and the Horizontal Effect of Social and Economic Rights: Observations from Sub-National Practice in the United States, Lecture at the University of Florence Department of Comparative Law (unpublished manuscript, on file with author) (explaining how the New York State Court of Appeals relied on the common law warranty of habitability in developing a state constitutional right to adequate shelter).
273. See Beerman & Singer, supra note 191, at 986-87.
274. Id. at 986-87; see Brockmeyer v. Dun & Bradstreet, 335 N.W.2d 834, 842 (Wis. 1983) (justifying recognition of an action for wrongful discharge on the ground that "the at will doctrine is a common law principle" and that "[t]he common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions" (internal citation removed) (citing Schwanke v. Garlt, 263 N.W. 176 (Wis. 1935))).
275. See, e.g., Jean Braucher, Response to Eric Posner, 7 FORDHAM J. CORP. & FIN. L. 463, n.21 (2002) (stating that "contract rules are a crude, temporary and puny way to redistribute wealth; taxes and transfer payments are a more precise, sustained and significant means of redistribution" but that "when we fail to create an adequate safety net, the legal system is forced to cope").
276. See Jane B. Baron, The Expressive Transparency of Property, 102 COLUM. L. REV. 208, 212 (2002) (stating that legal actions signal commitments).
277. Elizabeth A. Anderson and Richard H. Pildes explain that legal interpretation consists of "the external attribution of meaning," emphasizing "[t]hat attribution will reflect the purposes... of the legal order as a whole," with norms exerting an effect that helps to ensure that new law is "integrated harmoniously" with existing law. See Anderson & Pildes, supra note 53, at 1526.
278. See, e.g., Robert E. Scott, The Limits of Behavioral Theories of Law and Social Norms, 86 VA. L. REV. 1603, 1603 (2000).
279. See Asbjorn Eide, Realization of Social and Economic Rights and the Minimum Threshold Approach, 10 HUM. RTS. L.J. 35, 35 (1989) (noting that "the precise content of a number of economic, social and cultural rights... remains extremely vague").
280. See Michelman, supra note 161, at 668-69 (questioning whether courts can enforce socio-economic rights "by any process possessed of a modicum of sincerity and prudence").
281. See Hugh Corder, Comment, in EUROPEAN AND US CONSTITUTIONALISM, supra note 63, at 128, 128-33 (observing that "it is clear that dignity is the single most significant value, but its meaning remains deliberately vague in the South African constitutional jurisprudence").
282. See Walter Gellhorn, Contracts and Public Policy, 35 COLUM. L. REV. 679, 695 (1935) (stating that too strong use of the public policy defense would result in "too much uncertainty... [in] contractual relationships"). See generally RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD, at xii (1995) (positing that "permanence and stability are the cardinal virtues of the legal rules that make private innovation and public progress possible").
283. See generally Steven L. Winter, Indeterminacy and Incommensurability in Constitutional Law, 78 CAL. L. REV. 1441, 1448 (1990) ("The indeterminacy critique seeks to unmask legal doctrine for the social construction that it is. The critique assumes that, in the absence of a formalist view of language as an acontextual reference to objective reality, law can only function as a cover for politics."). The literature on this subject is large and contested. See generally J.M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 YALE L.J. 105 (1993) (discussing different approaches to legal coherence).
284. See Paul B. Stephan, Redistributive Litigation-Judicial Innovation, Private Expectations, and the Shadow of International Law, 88 VA. L. REV. 789, 794 (2002) (stating that "all judicial activity contains the incubus of instability").
285. See generally Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 YALE J. INT'L L. 113 (2008) (discussing the different possible normative concepts of a minimum core of social and economic rights).
286. Thomas Nagel, The Fragmentation of Value, in MORTAL QUESTIONS 128 (1979); see also Winter, supra note 283, at 1522 (stating that "the elaboration of constitutional meaning is unavoidably affected by contemporary assumptions, beliefs, crises, and events").
287. See Singer, supra note 230, at 1054 (referring to value pluralism in a liberal democracy).
288. E. ALLAN FARNSWORTH, CONTRACTS § 5.2, n.11 (2d ed. 1990). G. Richard Shell similarly observes: It is important to note that public policy doctrines are, by their nature, subject to change. Rights that were once subject to immutable rules may become subject to special or even ordinary default rules as time passes... [T]he settled appearance of the public policy doctrine masks a host of changes in the application of the law made possible by the judicial power to reinterpret the public policy doctrine at different points in history. Shell, supra note 172, at 445-46.
289. For example, some states give explicit consideration to a constitutional provision's function, including whether the drafters intended to constrain judicial decision making by overruling or in some other way attempting to "overcome" earlier judicial interpretations. See WILLIAMS, supra note 68, at Other states emphasize the importance of searching for the "the voice of the people" within a constitutional term. See, e.g., Vreeland v. Byrne, 370 A.2d 825, 830 (N.J. 1977).
290. For a libertarian discussion of autonomy, see Richard A. Epstein, Are Values Incommensurable, or Is Utility the Ruler of the World?, 1995 UTAH L. REV. 683, 698-See also David A. Weisbach, Should Legal Rules Be Used to Redistribute Income?, 70 U. CHI. L. REV. 439, 453 (2003) ("Legal rules should not be used to redistribute income."). But see Christine Jolls, Behavioral Economics Analysis of Redistributive Legal Rules, 51 VAND. L. REV. 1653 (1998) (arguing that the work incentives of those burdened by and those who benefit from redistribution are less likely to be distorted by legal rules than by taxes).
291. Jeremy Waldron, Autonomy and Perfectionism in Raz's Morality of Freedom, 62 S. CAL. L. REV. 1097, 1098 (1989).
292. See Epstein, supra note 290, at 687-700 (explaining and distinguishing subjectivity from incommensurability, and the relation of the two to attitudes toward government intervention).
293. See David Horton, Unconscionability in the Law of Trusts, 84 NOTRE DAME L. REV. 1675, 1685-86 (2009) ("Liberal-individualistic theories revolve around the value of autonomy.... Not only are the parties the best judge of what they stand to gain or lose from a transaction, but second-guessing their decisions would be inimical to free will-the very attribute that the edifice of contract exists to serve.").
294. Richard A. Epstein refrains from calling common law rules natural, but posits that they embody enduring features of "human choice." See Epstein, supra note 290, at 698-99.
295. Waldron, supra note 291, at 1099 (reciting these criticisms, but urging that the neutrality approach not be dismissed "out of hand").
296. See, e.g., Stephen Gardbaum, Liberalism, Autonomy, and Moral Conflict, 48 STAN. L. REV. 385 (1996) (criticizing the neutrality of liberalism and of autonomy); Linda C. McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond "Empty" Toleration to Toleration as Respect, 59 OHIO ST. L.J. 19, 22 (1998) (arguing for a "formative project" of government's fostering of its citizens' capacities for self-governance).
297. See, e.g., Heidi Li Feldman, Harm and Money: Against the Insurance Theory of Tort Compensation, 75 TEX. L. REV. 1567, 1585-94 (1997) (applying a version of capability theory to tort doctrine); Katrina Miriam Wyman, The Measure of Just Compensation, 41 U.C. DAVIS L. REV. 239, 276 (2008) (applying Sen's capability theory to just compensation doctrine).
298. JOSEPH RAZ, THE MORALITY OF FREEDOM 369, 371 (1986).
299. Id. at 155.
300. Id. at 297.
301. Joseph Raz, Liberalism, Skepticism, and Democracy, 74 IOWA L. REV. 761, 782 (1989).
302. Id. at Waldron raises the objection that if an "environment for autonomy... exists already, the government may not use coercively raised funds to subsidize existing or additional options purely on the grounds of their goodness," and a similar concern might be raised about according indirect effect to material rights in common law principles, if we were to agree, counterfactually, that such an environment exists. Waldron, supra note 291, at 1148.
303. Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV. 295, 303 (1991).
304. Id. at 307.
305. Id. at 308.
306. Id. at Consistent with this view Daphna Lewinsohn-Zamir has written that the autonomy needed to "determine one's own course" requires "adequate levels of nutrition, health and sanitation; freedom from anxiety and pain; certain levels of self-respect, self- esteem and aspiration; and sufficient material goods, such as a home and household property." Daphna Lewinsohn-Zamir, In Defense of Redistribution Through Private Law, 91 MINN. L. REV. 326, 346 (2006).
307. Amartya Sen, Justice: Means Versus Freedoms, 19 PHIL. & PUB. AFF. 111, 118 (1990).
308. See AMARTYA SEN, DEVELOPMENT AS FREEDOM 70-86 (1999).
309. Amartya Sen, Well-Being, Agency and Freedom: The Dewey Lectures 1984, 82 J. PHIL. 169, 191 (1985). Sen writes: "Our reading of what is feasible in our situation and station may be crucial to the intensities of our desires, and may even affect what we dare to desire.... In some lives small mercies have to count big." Id. at 191.
310. See, e.g., Alexander and Peñalver, supra note 228, at 136 (drawing from the capabilities approach in reconceptualizing property).
311. Barak, supra note 131, at 226.
312. See Bruce Porter, The Crisis of ESC Rights and Strategies for Addressing It, in THE ROAD TO A REMEDY: CURRENT ISSUES IN THE LITIGATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS, supra note 43, at 47 (referring to the judicial elaboration of positive rights "as a collaborative project linking social and economic policy to human rights norms and values, grounded in the act of rights claiming, rather than in predefined legal constructs").