"Just Words": Common Law and the Enforcement of State Constitutional Social and Economic Rights. (Symposium: State Constitutions‪)‬

INTRODUCTION Since World War II, a number of countries abroad have adopted constitutions or amended these documents to include social and economic rights. These so-called positive rights embrace guarantees to goods and services such as public schooling, health care, and a clean environment. (1) Even where moored to the text of a constitution, social and economic rights remain controversial. (2) Among the criticisms, skeptics argue that constitutional provisions of this sort are ineffectual because courts cannot meaningfully enforce them against the government; positive rights are "just words" that can neither end inequality nor prevent poverty, (3) and instead perversely hurt those they are intended to benefit. (4) This Article examines the efficacy of positive constitutional rights from a different perspective: it considers the relation between the social and economic rights that are set forth in a subnational constitution and the development of private law doctrines of contract, torts, and property. Specifically, the Article examines the positive rights clauses that are included in some state constitutions in the United States and asks whether they can and should influence the state's common law decision making.