The issue addressed herein, the wisdom and propriety of inserting specific
entitlement guarantees (social insurance; health care) within the constitution,
raises a variety of complex legal, political, institutional and interpretive questions.
Put in pragmatic terms, which forms of constitutional guarantees will prove most
politically tenable over generations, capable of binding, obligating and constraining
future governments and majorities?  Which understandings of a nation’s founding era
are more likely to be accepted as fundamental and permanent, and which merely of
transitory authority?

I.  First, a fundamental concern is the appropriateness of explicit safeguards of
social and/or economic entitlements within the body of constitution.  It could be
argued that constitutionaal provisions ought to be limited to ensuring fundamental
institutional/political and power arrangements of policy (questions of sovereignty,
accountability, allocation and seperation of powers, checks and balances, and
federalism ), along with fundamental rights and tenets of individual citizens.  The
latter are most commonly conceived, espetially in western societies, as guarantees of
liberty, i.e., political and social fredoms from state interference (forms of negative
liberty), rather than what may be termed positive freedoms, non-political claims to
government provisions, or assurance of certain benefits or conditions ( often
prioritized in socialistic systems).  The latter, in the western historical traditionn,
generally have not been viewed as comparable, in terms of absolute moral priority
and immutability.  Indeed, evaluating explicit social and economic guarantees to the
level of core liberties has often been criticized as conflating dissimilar categories of
rights, if not equating rights with mere privileges or transitory political enactments.
This is widely been viewed in the western, especially Anglo-American, constitutional
tradition, as diminishing the paramount status of the select, limited core of personal
liberties deemed largely inviolable by any subsequent democratic majorities or
political exigencies.  The constitutional arena is often thought properly reserved to
only the most clearly fundamental precepts of personal freedom and limits on state
power.  Such consensus, concerning a sphere of preeminent rights beyond majority
rule or normal democratic processes, has rarely attached to economic or social
tenets.

A related issue of popular sovereignty and accountability concerns the matter of
who decides which rights are primary.  Should a founding majority be empowered
to “lock in”, specify and codify social and economic assumptions for all time, not
subject to democratic processes and debate, legislative deliberation, or the
necessary balancing of priorities, needs, and costs by each succeeding generation.
Powerful counter arguments exists, however, in favor of according entitlement
guarantees constitutional status.  Such provisions would represent the firmest, most
irrevocable (save possibly by constitutional amendment) assurance of critical social
and economic state obligations (triggered by right, not privilege) against future
rescission, given the variability of majority opinion, or socioeconomic exigencies.
They also represent a protective bulwark on behalf of the neediest, least powerful
segments of society in any generation, those most highly dependent upon
government benefits, yet least likely to mobilize against or counteract currents of
retrenchment led by coalitions of interest groups or elites.  On balance, these
justifications appear compelling.

II.  A second, instrumental set of concerns relates to the definition and interpretation
of constitutional guarantees.  Hazards abound in any enumeration of rights -
excessive narrowness or rigidity may bear needed evolutionary changes, while,
conversely, ambiguity or vagueness may fail to restrict or guide future interpreters.
Again, these enumeration problems appear more intrinsic to the long - term
interpretation of economic and social enactments, as in the case of definitions of
property, or the minimum appropriate level of social insurance, or degree of health
care, to be provided to all citizens.

In sum, it could be argued that overly particularistic social and economic
judgements, invariably founded upon transitory majorities and political currents,
make poor candidates for elevation into permanent, supra-political guarantees
binding future eras.

On the other hand, if constructed in broad, general terms, a declaration of
entitlement might well prove durable in its capacity for undergoing long-term
interpretive evolution, across a range of future political scenarios and contingencies.

Moreover, affirmations of a basic array of minimum social and economic rights of
state citizens have been increasingly acknowledged in western democracies, both
explicitly (see, the relevant European Covenant on Economic and Social Rights),
and implicitly (legislative or judicial recognition of “inherent” or evolving
constitutional entitlement, inclusive of various rights to government provision of , or
assistance in obtaining, such critical needs as a minimum income, adequate housing
and nutrition, old age and disability insurance, education, pre-natal and child care,
and health care, even if ambiguous, or limited to due process safeguards or
presumptions against arbitrary state deprivations).

Finally, the scope of such constitutional guarantees may range along a continuum,
and may take strong, explicit forms (mandating comprehensive state obligations), or
weaker forms (endorsing or permitting rights to obtain state and/or private social or
health insurance, as well as equality of access to said coverage, and possibly
provision of a state safety net of subsidies or vouchers, and corresponding legislative
initiatives, on behalf of those unable to obtain adequate levels of private insurance).
The range of potential variation is broad indeed, bur great care must be taken to
ensure that the prevailing language is appropriate both to current potential realities,
and the degree of consensus in the society as to which precepts and guarantees are
truly most fundamental in the long run.

Submitted by CEELI Legal Expert, Dr. Robert M. Kaufman
Professor of Political Science and Law at the Catholic University of America
Washington D.C., U.S.A