PROPORTIONALITY, REASONABLENESS,
AND ECONOMIC AND SOCIAL RIGHTS
Katharine G. Young
∗
in
PROPORTIONALITY: NEW FRONTIERS, NEW CHALLENGES
(Vicki C. Jackson & Mark Tushnet, eds., Cambridge University Press, forthcoming 2017)
SMUR Version as of June 7, 2016
INTRODUCTION
The textual guarantees of economic and social rights are saturated by standards. Using
the example from international law, the right to “an adequate standard of living”, 1 to
“adequate food, clothing and housing”,2 to variously targeted levels of education,3 and to
“the highest attainable standard of physical and mental health” 4 , which are to be
“progressively realized”5 subject to “maximum available resources”,6 all beg a kind of
Associate Professor, Boston College Law School. With thanks to Vicki Jackson and Carlos Bernal for
helpful comments on a previous draft.
1
See, e.g., International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3
[hereinafter ICESCR], art. 11(1). For commentary on the shared influence between human rights treaties
and constitutional rights, see Zachary Elkins, Tom Ginsburg & Beth Simmons, Getting to Rights: Treaty
Ratification, Constitutional Convergence, and Human Rights Practice, 54 Harv. Int’l L. J. 61 (2013). Yet
evidence on the influences between international and constitutional economic and social rights indicates a
far more idiosyncratic dynamic within different systems: see, e.g., Daniel M. Brinks, Varun Gauri & Kyle
Shen, Social Rights Constitutionalism: Negotiating the Tension Between the Universal and the Particular,
11 Ann. Rev. Law Soc. Sci. 289, 297-300 (2015). A focus on judicial methodology, rather than merely text
and/or broader legal mobilization, is thus fruitful for economic and social rights.
2
ICESCR, art. 11(1).
3
Id., art. 13.
4
Id., art. 12(1).
5
Id., art. 2(1).
6
Id.
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1