The Promise of a Minimum Core Approach : The Colombian Model for Judicial Review of Austerity Measures

This chapter will be published in a forthcoming edited volume on the enforcement of socio-economic rights since the global financial crisis. It uses the evolving jurisprudence of the Colombian Constitutional Court to argue that a minimum core approach to the enforcement of social rights may serve as a model for those courts currently wrestling with austerity measures in Europe and elsewhere. A minimum core approach, which prioritizes the basic needs of the poorest members of society, may be the most effective way for courts to protect the vulnerable during times of crisis without causing an overwhelming political backlash or freezing the status quo in the face of a genuine crisis. The Court has been guided by two key constitutional principles: the vital minimum doctrine, which gives all citizens a right to a basic level of subsistence, and the social state of law principle, which requires that the state construct and maintain a social safety net that prioritizes the poor. Recent jurisprudence, for example, gives especially probing scrutiny to tax increases, budget cuts, and other austerity measures with disproportionate effects on the minimum core rights of the poor. Similarly, the Court intervened in the healthcare and other sectors in an effort to force the state to expand existing safety nets to the benefit of marginalized groups. These interventions have helped to maintain and improve the quality of life of the neediest without destroying the state's ability to respond to crisis. Finally, the Colombian experience rebuts important objections to a minimum core approach, formulated by various scholars and by the Constitutional Court of South Africa. Such an approach need not require a court to formulate a minimum entitlement to social rights with exacting and impossible precision, and should be seen as complementary rather than antagonistic to other approaches like proportionality analysis. Further, by targeting judicial review towards vulnerable populations, a minimum core approach may serve as an instrument of judicial restraint rather than of judicial aggrandizement