Should the Constitution protect rights such as health, education, and housing, beyond the traditional freedoms such as freedom of expression and religion? If so, what should be the desirable level of commitment? Join the debate.
The inclusion of social and economic rights in the constitution would require the government to ensure that people have access to such basic needs as food, health care, housing, and education. Should the constitution protect such rights? If so, what should the level of commitment be? Should the Supreme Court be allowed to pass judgment on questions of social and economic policy? The inclusion of social rights in a constitution is controversial both in Israel and around the world. Many nations have spent two decades debating whether social rights should be afforded constitutional protection or left to ordinary law.
Arguments in Favor of Including Social and Economic Rights in the Constitution
Supporters of the constitutional protection of social rights maintain that such rights are a precondition for maintaining human dignity, and that civil and political rights can only be realized if social rights are protected. Without basic education, health, and shelter, there is no hope for inclusive political participation. Citizens must posses and have access to basic goods and services in order for effective political participation be a real opportunity, not a mere hypothetical possibility.
Supporters also maintain that the need for such a constitutional commitment to social rights is particularly urgent in Israel, given the level of inequality in society and the great gaps between the rich and the poor both in wealth and in opportunities. Income inequality in Israel has risen over the past three decades, and Israel is now one of the countries with the widest economic disparities. This development applies to all sections of Israeli society, and particularly to specific underprivileged populations: Arabs, new immigrants, and the ultra-orthodox. The inequality in education is also higher than in many other countries, despite the relatively large share of government expenditure on education.
Protecting social rights in the constitution may provide a safeguard against the excessive growth of inequality in the allocation of income and national wealth. This inequality is unjust in itself, but it also embodies social, political and economic dangers - the greater the level of income inequality, the greater the social upheavals, and hence the graver the threat to the stability of the democratic system. Maintaining social stability in Israel is particularly important given the many schisms within society. Finally, income inequality undermines the democratic structure of government and the principle of equal participation to all. Those who are better off participate more in political deliberations and political decision-making, and by participating more they exercise more influence on government officials. Unequal resources also produce unequal influence in determining which issues get on the political agenda and, indeed, which even seem open to discussion.
In particular, the inclusion of social rights in the constitution may provide a safety net for disadvantaged minorities and augment their sense of security. The inclusion of social rights in the constitution will create an educational and political tool that limits the tendency of the legislature to harm groups that are too weak to exert direct political power. Finally, supporters point out the fact that most countries include social rights in the constitution, albeit with varying levels of commitment. Israel’s constitution particularly should mention social rights, since the Basic Laws passed in 1992 provide constitutional status for property rights and freedom of occupation, thus creating a clear imbalance regarding the legal status of social rights.
Arguments Against the Inclusion of Social and Economic Rights in the Constitution
The opponents of the including social and economic rights in the constitution emphasize the fact that the realization of social rights must be subject to the limited resources available to the economy and the desired extent of government expenditure. Protecting social rights is important, but may ultimately impair social welfare by harming other values, such as the right to property or the ability of the individual to realize his or her full potential. In certain circumstances, awarding far-reaching social rights is liable to act as a disincentive to work, thus depressing economic growth and preventing a rise in standard of living. Opponents also claim that priorities change from time to time, and this may also require changes in the rights granted by the state. Tying the hands of the policy-makers will make it difficult to adjust policies to meet changing conditions. Given the political nature of social and economic decisions, opponents are also worried that the inclusion of social and economic rights in the constitution will grant the Supreme Court authority to make controversial policy decisions. The legal arena, they maintain, is not the appropriate forum for decisions regarding public preferences, nor is the judiciary the suitable body to fully understand the needs that arise from changing economic circumstances. The Supreme Court may be suitable to decide issues regarding such civil rights as freedom of speech or religion, but social rights are more quantitative in nature. Supporters respond by saying that many of the arguments against the inclusion of these rights in the constitution may be neutralized or diminished by restricting judicial review, as well as by enacting legislation that accords the legislature and government extensive discretion alongside binding constraints. Comparative studies show that the courts are extremely reluctant to extend judicial protection to issues that require the allocation of financial resources and complicated policy decisions. Read a memo on legal debate over including social and economic rights in Israel's constitution.
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