Conference Report: Constitutions, Human Rights & Economic Inequality

–Matthew Coe and Zoe Graus, University of New South Wales, Grand Challenge on Inequality

What is the relationship among constitutions, human rights and economic inequality? How strong is this relationship in light of the fact that all liberal democratic constitutions guarantee equality? And what constitutional changes can be made to decrease violations of human rights and redistribute wealth to ease inequality? On August 10 and 11 a conference of over 20 academics from Israel, Germany, the United States, Canada, Australia and the World Bank, hosted by UNSW Law School, the Gilbert + Tobin Centre of Public Law, the Australian Human Rights Centre and the UNSW Grand Challenge on Inequality met to discuss these issues. A total of 12 papers were discussed. The event also included the launch of a book entitled The Crisis of the Middle Class Constitution by Ganesh Sitaraman, and the 2017 AHRCentre Annual Lecture with guest speaker Professor Philip Alston, UN Special Rapporteur on extreme poverty and human rights. There was a theme of skepticism as to whether constitutions are the appropriate, or an effective vehicle for change in this area. See a review of The Crisis of the Middle Class Constitution here.

The opening papers were by Professor Ran Hirschl and Rosalind Dixon (joint with Professor Julie Suk).

Dixon and Suk’s paper highlights a correlation between the stagnation of wages and economic insecurity and the rise of populist nationalism. In doing so, they draw attention to recent events such as the election of President Trump and the Brexit vote to bolster their claim. They also canvassed the range of possible responses to this problem – from structural to rights-based solutions, as well as the potential conceptual and practical challenges involved.  At the structural level reimagining representation to have mandatory representation of the poor in the legislature, or removing those who wield too much power to instigate self-interested legislation may enable Economic and Social Rights (ESRs) to be recognised. However, through all of this there are two main definitional problems. Who is the protected class and, once this is defined, does one level up or down?  And how can problems of institutional path-dependence be overcome to make this possible?

Hirschl focused more squarely on the role of liberal ideology, and liberal ideas about the state and markets as posing obstacles to change of this kind. In fact, as Hirschl pointed out, liberal constitutionalism, with its focus on individual rights and delineation of the public and private divide, might even contribute to rising inequality. At the same time, he questioned whether federalism might offer an under-explored area for addressing spatial and economic inequality.

Both papers commented on the emergence of ESRs in modern constitutions. However, while the symbolic effect of constitutionalizing ESRs is unquestionable, the reality is that constitutions do not exist in a vacuum and that political, economic and practical considerations have been significant roadblocks to realising these enshrined rights. Constitutionalization of ESRs is a necessary, but not sufficient step to remedying economic inequality.

As Hirschl points out, one area that requires more investigation is that of fiscal federalism, or the redistribution of wealth regionally. This has been effectively used in Germany to counter regional inequality through the use of Article 104b of Germany’s Basic Law. The concept of constitutionally entrenched equalization mechanisms have to date, been overlooked by many nations and may provide a constitutional means to counter inequality.

The second sets of papers to be discussed were authored by Dr Varun Gauri of the World Bank and A/Professor Adam Chilton from the University of Chicago. Both papers were concerned with the effect that constitutionalizing ESRs have had across a wide variety of countries. Dr Gauri examined the ability for individuals to enforce the entrenched ESRs in a court and found that while courts were willing to make orders, there was an issue with compliance once order were made. This leads to the conclusion that any entrenched ESR must have a relevant compliance mechanism to ensure that it is enforced. Further, from an access to justice perspective, wealthier individuals were more adept at having their rights enforced than their poorer counterparts. Chilton and Versteeg examined the relationship between constitutionally enshrined ESR and government spending. It was found that adoption of such rights does not lead to a significant increase in government spending in these areas and thus, constitutionalizing of ESR does not, of itself, assist in remedying inequality.

A third set of papers focused on qualitative case-studies of social rights, equality law, and how they can and do respond to challenges of inequality.  A highlight of the discussions was a paper presented by A/Professor Katharine Young. Young’s recent work has been focusing on the role of ‘queues’ in the law of human rights and constitutional rights. The specific paper discussed at the conference sought to explore the challenge presented to human rights by ‘queue talk’, encompassing such terminology as “queue jumping” with reference to examples of housing, patient and asylum seeker rights in South Africa, Canada and Australia respectively.

She argued that this language can limit ability for rights to be enforced as the concept of a queue is simplified and legitimized as the rights claimants are seen as queue jumpers. This is problematic as it obscured the real question which should be answered to determine resource decisions in the most efficient manner.

Other speakers at the conference included Professor Brian Ray, Associate Professor Iddo Porat, Dr Murray Wesson, Professor James Fowkes, Dr Michaela Hailbronner, and Associate Professor Beth Goldblatt.

Sitaraman’s book, The Crisis of the Middle Class Constitution was launched by Australian public policy expert, Sam Crosby. Director of the McKell Institute.  He drew comparisons between the United States and Australia in terms of levels of inequality and the political responses to it: the fundamental difference he noted, however, was the constitutional basis for a greater response in the US.  Sitaraman’s book shows how The US Constitution was premised on the belief that equality, and a strong middle class, was essential for the continuation of the Republic.

Finally, Philip Alston, UN Special Rapporteur (speaking in his personal capacity), gave a public lecture on ‘Why does it matter if others have more? How extreme inequality and poverty violate human rights’. Listen here.

Alston suggested that whilst economists have tended to ignore human rights, likewise the human rights movement has largely seemed to ignore economics perhaps as a result of their confoundment with how the discipline might assist in the economic arena. In a way, this is similar to the way in which traditional economic theory treated behavioural economics at the outset. However, as can be seen, the field of behavioural economics has had a high influence on modern economic theory. One hopes that this same symbiotic approach can be taken in relation to human rights theory and economics. Alston finished on a more positive note by providing his thoughts on how the human rights sector could meaningfully contribute to the fight against inequality.

His first proposal was not difficult to understand, and as he admitted, we need to ‘acknowledge that extreme inequality is a fundamental threat to human rights’.

Secondly, it was stressed that terminology matters. In the Sackville Report income protection was labeled as “rights of the citizen”. Recently, we have moved away from rights language and the Federal Government in Australia instead talks about the welfare state. This language is used to stigmatise and belittle. It appears that there is a reluctance to embrace economic rights are part of the value of modern Australia.

Professor Alston also stressed the need to update our human rights policies to take account of what the real challenges are and how they’re seen. As he stated: “If the populist surge has an upside, it is to refocus the attention on both moral necessity and practical benefits of helping people cope with economic disruptions that accompany growth.” There is clearly still much work to do in this area.