Economic, Social, and Cultural Rights in U.S. State Courts: An Unlikely Possibility

The Opportunity Agenda recently released an updated version of Human Rights in State Courts: An Overview and Recommendations for Legal Advocacy. (To see an older version of the publication, click here.) The report states, "Federal constitutional and legislative protections tend not to include economic, social, and cultural rights that are an important part of the international human rights system. State courts, by contrast, often consider such protections and, in interpreting state law, have the independence to recognize a broader panoply of rights." Despite this statement, the publication notes only two state cases that acknowledge and apply the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the leading international agreement on these rights.

Unlike the International Covenant on Civil and Political Rights, the United States has not ratified the ICESCR. (It is worth noting that even a ratified treaty is subject to limited implementation if it is not self-executing.) Although the United States is a signatory to the ICESCR and although at least some principles embodied in the ICESCR are arguably customary international law meriting enforcement regardless of whether the treaty is ratified or implementing legislation exists, application of the ICESCR in the United States is minimal. The two cases cited by the Opportunity Agenda's report are a concurring opinion in a 1995 Connecticut Supreme Court case (233 Conn. 557 (Conn. 1995)), which relied on the ICESCR in part to argue that Connecticut's constitution requires a minimal welfare safety net for the poor, and a 1978 New Hampshire Supreme Court case (118 N.H. 713 (N.H. 1978)), which quoted the ICESCR to conclude that parents have natural rights over their children.

It appears to be far outside the realm of possibility that state courts will reference, let alone apply, the ICESRC. The recent presidential election in the United States revealed the deep-seated distaste that many U.S. citizens have for government provision of social rights. Many critics accused President-elect Barack Obama of being a socialist. As vice-presidential candidate Sarah Palin warned a crowd, "Friends, now is not the time to experiment with socialism." Many individuals agreed, claiming "Barack Obama is a socialist," "Barack Obama was a member of the New Party in the 1990s," and "[he] is a creature with at least two too many socialist ideas." Although Barack Obama won the election, many U.S. citizens voted for his opponent, and many of these individuals voiced concerns over Barack Obama's socialist tendencies.  

In light of this harsh reaction to even a hint of socialism (despite that everyone in society benefits from social programs, such as health care, public transportation, education, and police forces), it is unsurprising that state courts have only rarely referred to the ICESCR, if at all. Because many state judges are elected, they are particularly sensitive to popular sentiment. In addition to our historical underpinnings, which reflect a desire to restrict government intrusions on the rights of citizens as opposed to mandating government provision of services, the U.S. population cannot seem to fight the urge to attack anything that smacks of socialism.