Welfare Rights in State Constitutions

Elizabeth Pascal, SUNY Buffalo

Abstract

Although nearly two dozen state constitutions contain some type of affirmative guarantee of welfare rights, state courts are extremely reluctant to enforce those rights. This Article applies a comparative approach to the under-enforcement problem by examining how courts in Europe and South Africa wrestle with affirmative rights in their constitutions. The analysis suggests that courts lack the institutional incentives to vigorously enforce welfare rights and instead, rely on more familiar modes of judicial review of individual rights’ claims. Consequently, if U.S. state courts are to take the enforcement of welfare rights seriously, they will do better by utilizing analytic frameworks more recognizable to the state judiciary, such as Equal Protection.