142 THE YALE JOURNAL OF INTERNATIONAL LAW A. [Vol. 33: 113 The Core Consensus: A Positivist Inquiry As an orienting theory for the minimum core in international law, the search for the minimum consensus on each economic and social right looks to additional treaties with over lapping content or more sp ecific obligations with respect to economic and social rights, such as widely ratified human rights treaties or regional agre ements, and the internationa l jurisprudence flowing from them.163 It is therefore significant to the Consensus Approach that the Covenant now has 153 State Parties. 164 Yet the substantive commitment and implementation behind ratification are also significant.165 Thus, the Consensus Approach also references the national measures fo r protecting economic and social rights, such as federal and stat e constitutional texts, stable and longlasting legislative regimes, and j udicial precedent. In the Unit ed States, for example, this approach would draw attention to th e explicitly protected rights provided for i n some state constitutions,166 the judicial pr onouncements that have upheld a set of minimum constitu tional entitlements with respect to 167 and the body of public education and welfare in the Supreme Court, legislative protections that have existed in the United States since t he New Deal. In fact, the historical efforts of Franklin D. Roos evelt have arguably served to engender several cultural commitments in t he United States, including at least support for the right to education, the right to social security, the right to be free from monopoly, and perhaps even the right to a job. 168 Through comparative analysis of sociolegal equivalents,169 a converging set of principles regarding socioeconomic protection is empirically “uncovered” rather than deductively “discovered.” 163. E.g., Van Bueren, supra note 7 (describing the optional protocols to the Convention on the Rights of the Child and the Inte rnational Labour Organization (ILO) Convention N o. 182 and arguing that the adoption by states of additional, m ore focused, treaties has resulted in an expanded m inimum core of children’s rights); see also Marcus, supra note 64, at 63 (advocating norm ative development by supranational adjudication in different bodies). 164. Office of the U.N. High Comm’n for Hum an Rights, Status of Ratifications of the Principal International Human Rights Treaties , (June 15, 2006), http://www2.ohchr.org/english/ bodies/docs/ratificationstatus.pdf. 165. For the skeptical view on the significance of treaty ratification, see, for exam ple, Oona Hathaway, Do Human Rights Trea ties Make a Differenc e?, 111 Y ALE L.J. 1935 (2002). Cf. Ryan Goodman & Derek Jinks, Measuring the E ffects of Human Rights Treaties , 14 E URO. J. INT’L L. 171 (2003). 166. E.g., Hershkoff, supra note 56; Martha F. Davis, The Spirit of our Times: State Constitutions and Inter national Human Rights, 30 N.Y.U. REV. L. & S OC. CHANGE 359, 372 (2006) (noting the common state constitutional right to we lfare and canvassing different state constitutional protections of education, public health, and the right to work and associate). 167. LAWRENCE G. SAGER, JUSTICE IN PLAIN CLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE 95-102 (2004) (presenting a range of seemingly inconsistent Supreme Court decisions with respect to welfare payments and public education, which can be understood to set out the protection of a right to minimum welfare on the basis of a ballpark needs criteria). 168. SUNSTEIN, A SECOND BILL OF RIGHTS, supra note 74 (showing how Franklin D. Roosevelt’s proposed second bill of rights of 1944 grounded particul ar economic and social rights i n American constitutional culture). 169. For a sim ilar practice in private law, see K ONRAD ZWEIGERT & HEIN KÖTZ, INTRODUCTION TO COMPARATIVE LAW (Tony Weir trans., Oxford Univ. Press, 3d rev. ed. 1998) (1977). For a tenta tive exploration in pub lic law, see V ICKI JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW (2d ed. 2006); and Tushnet, The Possibilities of Comparative Constitutional Law, supra note 18.