Legal Commentary

The United States has recently seen high numbers of home foreclosures because more people are in dire economic straits.  Typically people in the U.S. place the burden on our political officials to assist with such problems, or we hope for charitable efforts.  Judicial action is usually not the solution to poverty or homelessness because the U.S. Supreme Court has rejected arguments that socio-economic rights can be implied in the Constitution, unlike the right to privacy.

In my recent book, Constitutional Rights in Two Worlds:  South Africa and the United States, I contrast the Supreme Court's approach with that of the South African Constitutional Court.  Indeed, one reason I became so fascinated by the South African Constitution was because it contains such rights provisions.  I couldn't imagine how these rights could be enforceable given problems with judicial competence and scarce resources.  How could a court order the government to provide people with houses while other people needed medical treatment?  Did such provisions mean a homeless person could essentially walk in off the steet and demand housing or shelter from a government agency?  Well, the Constitutional Court's resolution of these questions revealed my limited view regarding what was possible.

The Constitutional Court's leading case is Republic of South Africa v. Grootboom (2000).  It has become one of the most noteworthy human rights decisions in the world.  The Court ruled that the government violated the Constitution's right to access adequate housing by having no policy for assisting the homeless (Irene Grootboom lived with a group of squatters on a field with no real shelter from the elements, or sanitation).  It did not make a difference that the government was trying to build many small homes for those in dire straits, because the government had no plan for those who could not get into homes soon.  And many of these people faced such a bad situation because of the racist travel, living, and work restrictions that existed under Apartheid.  The Court, however, rejected any individual right to housing on demand.  Instead, as Cass Sunstein has said, the Court adopted an "administrative law model" of deference that involved determining if the overall policy was not reasonable.  The Court also paid heed to separation of powers concerns by allowing the government to develop a legitmate policy for the homeless.  The Court ordered the South African Human Rights Commission (SAHRC) to monitor compliance.

Now, in the interest of full disclosure, the story did not end happily ever after.  The government eventually constructed a small building with toilets and showers for Grootboom's community, but never provided the resources to take care of the building.  And the SAHRC failed to ensure vigorous enforcement of the order for a variety of unsatisfactory reasons.  Thus, Ms. Grootboom never lived in a proper place until her unfortunate death this past year.  Many South African scholars have therefore criticized the Court for having been timid.   But the decision opened the door to a number of other substantial lawsuits that have helped those without basic socio-economic rights to obtain judicial assistance, and to improve their situations.  Moreover, the Constitutonal Court has gotten smarter about how to ensure implementation.  I will write more about this later, and about the relevance of these decisions to U.S. Supreme Court views of socio-economic rights. 

Addendum:  Chapter 2 Section 26, South African Constitution Housing provision:  (1) Everyone has the right to have access to adequate housing; (2)  The state must take reasonable and other legislative measures within its available resources, to achieve the progressive realization of this right; (3) (addresses evictions).