Social rights and social security: The legal and political effects of constitutional rights to social assistance.

摘要

The nature of rights and of judicial review suggests that constitutional rights to social assistance will function best as a defensive measure against cuts in existing programs. My regression analyses of general social spending levels in 22 OECD countries between 1965 and 1990 shows that countries with a combination of judicial review and a constitutional right to social assistance have higher spending growth rates and lower fluctuation in spending. I trace the impact of the right through the types of judgments courts make in cases concerning social programs, and in the rhetoric of legislators and committee members when making changes to these programs. For the legal and legislative analyses, I use a 4-country sample; Germany, and Sweden, which have a right to social assistance in their constitutions, and the United States and Finland (before 1995), which do not. Social questions are more often linked to constitutional principles in countries with social rights and effective review mechanisms, and the rights are interpreted as requiring subsistence support for all individuals. Legislative evidence shows that legislators consider their constitutional obligations and anticipate court rulings when deciding on changes to social programs, particularly when they consider cutting programs. In the larger sample of countries, I compare the eligibility criteria, duration of benefits, and the centralization of social assistance programs over time. I also use quantitative analyses to trace the effects of social rights on per-recipient benefit levels. Right-review countries tend towards centralized programs and higher benefit growth. The research shows that constitutional rights to social assistance can be effective brakes on policy change in the right institutional context. Rights have a greater impact the greater the institutional opportunities for minority vetoes. Among these, judicial review institutions are the most significant.