A perception exists that little communication occurs between the ivory tower of legal academia and the trenches of legal practice. The Chicago's Best Ideas talk on Monday, February 2 tried to bridge this gap by "making philosophy confront reality," according to Professor Martha Nussbaum, the first speaker. Nussbaum started building the bridge on the philosophical side, extending her remarks into the legal implementation of her philosophy, and Judge Diane Wood of the Seventh Circuit started on the legal side, extending into the hopes for applying a coherent philosophy to decisionmaking.
Nussbaum began the talk by explaining her capabilities approach to social justice and how that theory can inform constitutional law. A fuller explanation can be found in her Harvard Law Review foreword, "Constitutions and Capabilities: 'Perceptions' against Lofty Formalism." Citizens' actual achievement of important personal capabilities forms the essence of the capabilities approach. Putting rights down on paper is important, but Nussbaum focuses on the next step of putting those values into practice. Nussbaum's list of core capabilities--such as health, bodily integrity, use of practical reason, freedom of assembly, political participation, and so on--closely tracks strands of constitutional law. Nussbaum argues that even an originalist could acknowledge the role of capabilities in our jurisprudence, which was emphasized by Adam Smith, James Madison, and Thomas Paine in the eighteenth century and John Stuart Mill and social reformer Thomas Hill Green in the nineteenth.
Other countries, notably South Africa and India, have explicitly written more protections in their constitutions than the political and procedural rights in ours. South Africa includes provisions protecting rights to housing, health care, food, water, social security, education, and even participation in cultural life in its 1996 constitution. India's constitution provides for cultural and educational rights.
The key to implementing this approach in the US is context. Cases like Brown v Board of Education, Loving v Virginia, and US v Virginia all offer fact-driven analysis. The Brown Court burrowed into the psychological effects of "separate but equal" on black schoolchildren rather than relying on the formal distinction of equal facilities; the Court in US v Virginia struck down the male-only policy of the Virginia Military Institute because a proposed separate women's leadership institute could not provide the same type of rigorous military training, facilities, courses, faculty, financial opportunities, and alumni connections as VMI. The opposite approach is what Nussbaum calls "lofty formalism," represented by cases like Ledbetter v Goodyear and Parents Involved v Seattle School District. The majority in Ledbetter seemed to ignore or forget the fact that pay was secret, so Ledbetter did not know about the pay disparity for many years.
Wood focused her response on the limitations of implementing something like the capabilities approach. One limitation is a tradition centered on so-called "negative" rights. The US, for example, ratified the International Covenant on Civil and Political Rights but not the parallel International Covenant on Economic, Social, and Cultural Rights adopted on the same day. In the US as opposed to the rest of the world, the word "right" implies that the rightholder can walk into court and get a court order forcing someone to respect that right, which partially explains the American reluctance with respect to so-called "positive" rights. Many countries with young constitutions included economic-rights provisions in them, but the US has consistently rejected the constitutional-text approach to economic rights.
Alternative institutions besides federal courts can tackle economic and social deficiencies. State constitutional law, for example, often protects the right to education. Massachusetts's constitution protects education to, among other reasons, "countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people." Kentucky simply directs the legislature to "provide for an efficient system of common schools throughout the State." The federal political branches may also handle problems. Many provisions in the Constitution seem to address Congress and the President, such as the Preamble and (a favorite of Wood's) the Titles of Nobility Clause. Congress has, regardless of political party, consistently appropriated money for entitlement programs. But what should federal courts do? Is there room for a "strong" approach?
One road open to federal courts is using the capabilities approach as a canon of interpretation. Wood analogizes the proposed canon to the canon in favor of customary international law created by the Charming Betsy case: "An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." Customary international law is known to be "out there," but we are not always sure how to translate it into practice; the same could be said of the capabilities approach. The same assumption underlies both canons: Congress is reasonable, so it does not want to violate international law and it does not want people to be less educated. The consistent support of entitlement programs bolsters this point. The other road is the use of context as suggested by Nussbaum. Wood pinpointed the use of legislative intent; judges should ask what problem Congress was attempting to solve. Justice Ginsburg exemplifies the use of context through her opinion in US v Virginia and her strong dissent in Ledbetter; other examples are Justices Breyer and Blackmun (for whom Wood clerked).
As a source of individual rights, however, the approach is problematic. Supreme Court case law is not friendly to placing affirmative duties on government institutions. In DeShaney v Winnebago County Department of Social Services, the Court held that the department was not liable when a child died as the result of a beating by his father even though the department had evidence that the child had been beaten in the past. Government has no affirmative duty to help protect people. A Seventh Circuit case authored by Judge Posner, Sandage v Vanderburgh County, explained the principle further. The sheriff's department continued to allow a convict out on work release despite reports that he was harassing a family; the prisoner killed a member of that family, so the family sued the police department. After citing DeShaney, Posner marched through the parade of horribles: judges must decide how much money to allocate to each locality, how much to appropriate for police and prosecutors, how much of a sentence must be served by a prisoner, and so forth.
Courts can and do still push along the boundaries of this rule. To justify the opposite result in Vanderburgh, one could distinguish it from DeShaney based on the fact that the police department was placed on specific notice by someone, which prevents the parade of horribles. Many courts have held that once the state engages with a problem, such as by placing a child in foster care, the state becomes liable for the consequences of that decision. But still, going down the capabilities line may be asking judges to perform tasks for which they are ill suited.
Wood concluded by asserting the fundamental fact, on which Wood agrees with Nussbaum, that rights are not worth much if we are not in a position to enjoy them.
Nussbaum, in rebuttal, reiterated that the capabilities approach is not alien to our tradition. Some of the capabilities are protected even in a positive rather than negative sense, such as freedom of religion by court-ordered accommodation. In the 1970s, the Supreme Court came close to recognizing a right to education; nothing prevents this outcome from occurring in the future.
Besides the inability to stretch doctrine that far, I think political capital is the other major limitation on implementing the capabilities approach. Courts have only so much political capital to expend leading society before society stops listening or a backlash occurs. President Jackson's famous (but apocryphal) retort after Worcester v Georgia was "John Marshall has made his decision; now let him enforce it." President Roosevelt's Court-packing plan scared the Supreme Court into dramatically loosening its Commerce Clause doctrine. The Court sometimes uses creative interpretations of procedural issues to avoid controversial substantive issues, such as in Elk Grove v Newdow (the "under God" case). Implementing the capabilities approach through the federal courts will require time, incremental steps, and a corresponding shift in society's thinking.