Balancing Competing Individual Constitutional Rights : Raising Some Questions

Despite increasing support for global human rights ..., some scholars and constitutional democracies, like the United States, continue to resist constitutionalizing socio-economic rights. Socio-economic rights, unlike political and civil constitutional rights that usually prohibit government actions, are thought to impose positive obligations on government. As a result, constitutionalizing socio-economic rights raises questions about separation of powers and the competence of courts to decide traditionally legislative and executive matters. ... [W]hen transitional democracies, like South Africa, choose to constitutionalize socio-economic rights, courts inevitably must grapple with their role in the realization of those rights.... Two questions immediately come to mind: (1) whether it is possible to treat conflicting constitutional rights equally, or whether a hierarchy of rights, either formal or informal, is an inevitable result; and (2) whether in a true participatory democracy courts should be placed in the position of determining this hierarchy of constitutional rights, or whether the ordering of rights is an inherently political task. A related question is whether when vast socio-economic inequities exists among the citizenry a judicial approach is more appropriate until that society has reduced those inequities.... [and when courts] declare these rights justiciable, judicial enforcement is an issue. This chapter argues that some hierarchy of rights that privileges one set of rights over another is inevitable, especially where neither the state constitution nor the court clearly creates a formal hierarchy of rights. It uses the right to housing cases decided during the Constitutional Court's first decade to explore this question