Equality, Liberty and Modern Constitutionalism

Since 1989, there has been a multiplicity of constitution-drafting processes which have taken place in Eastern Europe, Latin America and Africa. These ‘new’ constitutions (‘the new wave’) have differed from older ones in a number of respects: for the purposes of this paper, I consider the fact that they have usually included a set of socio-economic rights in their bill of rights. These rights include entitlements to ‘adequate housing’, ‘sufficient food and water’, and ‘to have access to health care services’.It has thus been deemed appropriate in these recent constitutions to include core normative commitments that state institutions have obligations to address questions relating to the distribution of economic resources and opportunities (Bilchitz, 2013: 50). [1]I use here the formulation of these rights in the South African Constitution. The inclusion of these rights raises important questions concerning the relationship between constitutions and the achievement of distributive justice in society. In constitutions drafted before this new wave, particular entitlements to resources were not guaranteed in the bill of rights and the distribution of resources was to be determined in democratic systems by the elected branches of government. Some countries created such entitlements by statute whilst others did not. The ‘new wave’ of constitutions, however, constrain the discretion of democratic branches and require the state to realise particular goals of distributive justice and a certain level of equality. These provisions, however, do not interpret themselves: in understanding these rights and their role in a democratic polity, political philosophy is useful in attempting to chart the various normative routes that can be taken....