162 THE YALE JOURNAL OF INTERNATIONAL LAW [Vol. 33: 113 This trend is assisted by the growing discussion of the “horizontality” of rights, which may be seen to expand the state’s duty to protect rights, revealing how t he actions of t he state may be at is sue even when no “st ate action” is pres ent. That is, the acti on of the state may be, at base, legally structuring the actions of private parties in ways t hat reveal its fail ure to comply with the duty to protec t economic and social rights. 281 It marks the difference between a classical libera l constitution and a more affirmative constitution, which some argue separate s the U.S. Constitution from others around the world. 282 It also invites the attentio n of expanded, unconventional remedies. 283 For present purposes, it suffices to indicate that the i nherent justiciability of a right may include both negative and positive duties. Yet even with a somewhat expanded recognition of justiciability, there are important reasons not to equate the definition of the minimum core to the decision rules leading to justiciability and remedies. A conceptual separation of the minimum core gives courts and tribunals the freedom to give “optimal” expressions of economi c and social rights protections by adjusti ng justiciability or remedial doctrines ra ther than the mean ing of the right the purview of justiciability, the itself. 284 Instead of being restricted to minimum core may overl ap with the “under-enforced domain” of constitutional or human ri ghts. 285 Such rights may be “partl y aspirational, embodying ideals that do not command complete and immediate 286 enforcement.” This course of acti on, well-theorized by Lawrence Sager, allows a constitutional rights discou rse to withstand the centralizing 287 The minimum core of economic and social rights tendencies of courts. would then take its place as part of the “si gnposts to the neighborhood of constitutional justice,”288 guiding the decisionmaking of nonjudicial officials and providing a litmus test for dete rmining the government’s political 281. E.g., S. AFR. CONST. 1996 s. 8(2); Stephen Gardbaum , The "Horizontal Effect" of Constitutional Rights, 102 M ICH. L. REV. 387 (2003); A.J. van der W alt, The State's Duty to P rotect Property Owners v The State's Duty to Provide Housing: Thoughts on the Modderklip Case, 21 S. AFR. J. HUM. RTS. 144 (2005). 282. The textual grounding of this statement, and its potential exaggeration, is revealed by comparative study. See, e.g., David P. Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864 (contrasting the U.S. Constitu tion with th e German Basic Law but interrogating the interpretation of the U.S. Constitution as negative only). 283. For an experimentalist account, see Sabel & Simon, supra note 278, and see also Susan P. Sturm, A Normative Theory of Public Law Remedies, 79 GEO. L.J. 1355 (1991), for a precursor. 284. E.g., Richard H. Fallon, Jr., The Linkage between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 V A. L. REV. 633, 643 (2006) (asserting that “it will frequently be an open choice whether to make the adjustment within justiciability, substantive, or remedial law”). 285. SAGER, supra note 167, at 84-128; see also DWORKIN, supra note 70, at 93 (distinguishing “between background rights, which ar e rights that provide a justification for political decisions by society in the abstra ct, and institu tional rights, that provide a justif ication for a decision b y some particular and specified political institution”). 286. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1274, 1324-25 (2006) (extending Sager’s unde renforcement thesis to condone a separation of the right and its institutional articulat ion for nonjudicial official s as well as for courts (internal citation omitted)). 287. SAGER, supra note 167. For further support of constitu tionalism outside of the cou rts, see LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); and J EREMY WALDRON, LAW AND DISAGREEMENT (1999). 288. SAGER, supra note 167, at 146-47.