A look at the U.S. Constitution and constitutional jurisprudence reveals an almost total absence of protection for economic and social rights. Beyond the constitutional realm, however, the fate of economic and social rights in America is far more complex, and sometimes even contradictory. At the sub-constitutional level, these rights have seen their ups and downs: they reached their peak between the end of President Franklin Roosevelt's term in office - shortly before the end of the Second World War - and the beginning of President Reagan's term in 1981. Despite their ups and downs, and while many Americans hold them dear, economic and social rights are generally frowned upon in the U.S., so much so that even their staunchest defenders often see them as a lesser evil.
Paradoxically, the struggle around economic and social rights, which has been going on for over a century in the United States, involves players who, for the most part, share a fairly clear aversion or reticence towards these rights. How can we explain this paradox? Is it due to American national identity? To the individualist and capitalist ideology that prevails in the country? To the stakes of national politics?
An analysis of the history, jurisprudence and politics of economic and social rights reveals that the American paradox is due to a combination of factors stemming from the country's identity, ideology and politics. American identity is founded on a Lockean vision that every individual has (or should have) the opportunity to control his or her own destiny and guarantee his or her own well-being. This identity dovetails perfectly with an ultraliberal capitalist ideology and a two-dimensional laissez-faire policy: protection of the free economic market and abstention from federal regulation in economic and social matters, in favor of the federated states. In this context, reticence towards economic and social rights found its best justification in the fight against external threats or internal abuses. Thus, Roosevelt's New Deal - whose justification is disputed today by many revisionists - would have been a pertinent response to the fear that communism, promoted by Soviet propaganda, would present advantages in the face of persistent setbacks suffered in the wake of the great American economic depression of 1929. Similarly, the new universal health insurance law of 2010, theAffordable Healthcare Act, is said to have been justified above all by the systematic abuses of the big insurance companies, which seriously undermined the normal functioning of the private medical services market.
Faced with these justifications (external dangers and internal abuses), American defenders of economic and social rights generally find themselves on the defensive. At best, the need for these rights is only temporary. At worst, the free economic market would ultimately be a better response to external dangers and internal abuses, far better than any positive state intervention in the economy and subsequent social policy. However, despite these precarious justifications, the welfare state played an important role in the United States for much of the twentieth century, albeit less extensively and less firmly entrenched than in continental Europe. American aversion has therefore certainly weakened the breakthrough of the welfare state in the United States. And, at the same time, it has concealed it, through a rhetoric that is highly unfavorable towards it.
America's aversion to the welfare state is rooted first and foremost in its Constitution. This is hardly surprising, given that a constitution from the 18th century is not supposed to include the rights we now call "second-generation" rights, which were not enshrined in many constitutions until the second half of the 20th century. On the other hand, it is more surprising that the jurisprudence of the American Supreme Court - after advocating the constitutionalization of the ultraliberal market economy at the beginning of the twentieth century, only to reverse this position thirty years later - was able not only to prevent any constitutionalization of second-generation rights, but also to invoke the first-generation rights protected by the AmericanBill of Rights to declare certain infra-constitutional economic and social rights unconstitutional.
