New Comparative Constitutional Scholarship on Enforcing Second Generation Rights

The Texas Law Review recently published an important symposium on Latin American constitutionalism. Many of the articles make important contributions to the field of comparative constitutional law, not least because the English-language literature in the field has been dominated by discussions of constitutional doctrine in Europe and North America. (Not surprisingly, the part of the literature on creating constitutions has had a wider geographical range.)

The two articles I have singled out deal with a phenomenon of growing importance outside the United States, the judicial enforcement of social and economic – so-called “second generation” – rights. Interpreting constitutions adopted or amended substantially much more recently than the U.S. Constitution has been, constitutional courts around the world have moved past the question on which U.S. scholars typically focus – whether courts should enforce second-generation rights – to consider how to do so. Or, perhaps more precisely, many courts have embarked on projects of enforcing second-generation rights, and their performance allows scholarly evaluation, informed by actual experience in additional to theoretical speculation, of judicial enforcement of second-generation rights.

These articles examine judicial performance in Brazil and Colombia, and offer rather different evaluations. Octavio Luiz Motta Ferraz examines litigation in Brazil over the right to medicine, and as his subtitle indicates he is not impressed. Right-to-medicine cases arise when an ailing person believes that he or she would benefit medically from a prescription drug not available through the nation’s health care system, and seeks a judicial order directing that the system make the medication available to the claimant. These right-to-medicine cases have been strikingly “successful” in Brazil, in the sense that large numbers of patients win their cases and get access to the medication – but at great cost to the nation’s health-care system. Motta Ferraz reports estimates that more than 40,000 lawsuits a year are filed, and that almost all are successful. He gives the example of one case that has, he says, become “paradigmatic.” The case involved a patient with Duchenne’s muscular dystrophy, a “genetic degenerative disease that affects muscle cells and progressively leads to the death of the patient.” A private clinic in the United States offered the only treatment with any promise, at a cost of more than $63,000, which Motta Ferraz observes is “about twenty times Brazil’s nominal GDP per capita.” Rejecting the government’s objection that ordering it to provide the treatment would stress its resources (and thereby undermine its ability to provide health care to large numbers of Brazilians less well-to-do than the claimant), the Supreme Federal Court held that the “inviolable rights to life and health” required that the treatment be provided.

Motta Ferraz finds this and similar results troubling – as he should. The Brazilian experience shows that enforcing second-generation rights through ordinary, case-by-case litigation is unsatisfactory, for several reasons. Motta Ferraz notes that this enforcement mechanism disproportionately favors relatively well-off litigants (well-off in terms of wealth, of course, not health) over poor litigants, because the former group are likely to be more knowledgeable about their rights and, perhaps more important, better able to get access to legal representation and so better able to get into court in the first place. In addition, the government’s invocation of what in other contexts would be described as a risk-risk tradeoff (the risk to the litigant’s health traded off against the risks to the health of a much larger number of people not before the court) shows how case-by-case litigation can interfere with the kind of planning that a sensible system of health care provision requires.

Notably, though, the difficulties Motta Ferraz describes arise from the form of the litigation (as well as from what Motta Ferraz describes as the “absolutist” characterization of the right to health by the Brazilian courts, an approach that in the end I think is not separate from the case-by-case litigation form). Courts in other constitutional systems have taken a different approach, most notably in developing litigation forms that induce consultation between the government and affected constituencies and also induce rational government planning to ensure that second-generation rights are respected.

César Rodriguez-Garavito describes one of these alternative litigation forms, drawing on Colombia court orders dealing with efforts to provide housing and social integration for “internally displaced persons,” most of whom were the victims of Colombia’s widespread political violence over the past generation. Opening his article with a dramatic depiction of a “hearing” in the Colombian Constitutional Court, which to all appearances could have been a hearing before a committee of the Colombian parliament, Rodriguez-Garavito analyzes the Court decision that led to the hearing. In 2004, the Court “mandated that the government formulate a coherent plan of action to tackle the IDPs’ humanitarian emergency and to overcome the unconstitutional state of affairs, …, ordered the administration to calculate the budget that was needed to implement such a plan of action and … instructed the government to guarantee the protection of at least the survival-level content … of the most basic rights – food, education, health care, land, and housing.”

Rodriguez-Gavarito then evaluates developments since 2004, listing several “major effects.” First, the decision changed the agenda for state bureaucracies. No longer could they ignore, or give a low priority to, the rights of IDPs. Rodriguez-Gavarito properly describes this effect as resulting from the exercise of a “destabilization right” of the sort identified by Charles Sabel and Roberto Unger. Second, it induced the agencies to coordinate their efforts, a particularly important effect given the cross-cutting nature of the needs of IDPs. Third, the decision induced participation by IDPs and supportive non-governmental organizations in the development of the relevant policies. Fourth, the decision had the effect of “reframing” the claims of IDPs. Rather than being seen by the public as persons in need of social assistance, they became seen as holders of constitutional rights.

Yet, Rodriguez-Garavito acknowledges, “the situation has changed little: although access to education and health care has dramatically improved, benefitting nearly 80% of IDPs, conditions with regards to all other [social and economic rights] continue to be unsatisfactory. To illustrate, 98% of IDPs live in poverty, only 5.5% have adequate housing, and only 0.2% of displaced families received the legally mandated emergency humanitarian assistance in the months immediately following their forced displacement.” One might wonder about the claim that little has changed if “access to education and health care has dramatically improved.” But, suppose we accept Rodriguez-Gavarito’s overall evaluation. Does this mean that the Court’s efforts failed – or “only” that achieving real change under the conditions in Colombia is quite difficult? The evaluation must in the end be comparative: Were the IDPs better off after the Court’s intervention than they would have been had the Court done nothing? The other effects Rodriguez-Gavarito identifies suggests that the answer is, “Yes.”

As I indicated at the outset, recent studies of judicial performance in enforcing social and economic rights suggests that the debate over second-generation rights should be reframed, so to speak. Instead of debating whether courts should enforce such rights, scholars might profitably turn their attention to other questions: When courts enforce such rights, how should they do so? Which litigation forms are appropriate and which inappropriate for these projects? What implications, if any, are there for the enforcement of first-generation rights if we conclude that traditional forms of litigation are unsuitable for enforcing second-generation rights? And, of course, is it possible to identify conditions under which the enforcement of second-generation rights is likely to be relatively more or relatively less successful?

Cite as: Mark Tushnet, New Comparative Constitutional Scholarship on Enforcing Second Generation Rights, JOTWELL (February 8, 2012) (reviewing Octavio Luiz Motta Ferraz, Social and Economic Rights: Harming the Poor Through Social Rights Litigation: Lessons from Brazil, 59 Tex. L.Rev. 1643 (2011) and César Rodriguez-Garavito, Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America, 89 Tex. L. Rev. 1669 (2011)),