Social and Economic Rights as Fundamental Rights

In 2014, the constitutional law topic for the International Congress of Comparative Law was “Social and Economic Rights as Fundamental Rights.” This national report on the American system, which responds to the extensive questionnaire circulated to the national reporters, analyzes the protections afforded for the right to social security at the federal level and the right to education at the state level. We demonstrate that unlike a number of other countries, the right to social security is not afforded significant protection: the text of the U.S. Constitution does not expressly contain such a right; the Supreme Court has only recognized a right to non-discrimination against the indigent with respect to certain “fundamental rights” and a right to due process before the termination of government benefits; and constitutional and sub-constitutional norms of legitimate expectations, vested rights, and non-retroactivity do not prevent the state from immediately ending benefits under government programs. By contrast, at the state level, the right to education is recognized in all state constitutions and has given rise to an extensive jurisprudence on issues such as unequal funding of school districts, education for juveniles in detention and the homeless, and education for the children of undocumented workers