Introduction: Framing Economic, Social, and Cultural Rights

Abstract

The status of economic, social, and cultural rights (ESC rights) under U.S. law qualifies as a hard case and presents a challenge. United States federal law recognizes few of these rights, and although state constitutions often specify rights to education or welfare, few state courts have connected those provisions with the larger international jurisprudence of ESC rights.

These challenges arise because ESC rights transgress the familiar frames of U.S. law. On the one hand, this transgression illuminates the significance of what is happening outside of the narrow legal frame that encompasses only civil and political rights. As with visual art, the transgression calls into question our familiar and accepted boundaries. In fact, it is this very act of underscoring the out-ness of ESC rights that generates and organizes community-based power to claim such rights. Economic and social rights have proven to be effective organizing constructs for communities precisely because they transgress the prevailing frame and challenge a status quo that has left many communities and individuals on the margins of society. At the same time, as lawyers we are trained to expand the legal frame, not to abandon it. Economic and social rights, we are predisposed to argue, should be frame-able as rights within the U.S. legal system - perhaps as part of a constitutional right to live or an underlying natural law that predates and transcends the Constitution.

We tend to proceed incrementally and strategically and to build out from existing, accepted frames. Because of the difficulty of finding a universal frame under domestic law that encompasses the full range of ESC rights, we may focus on specific issues such as housing or food, or on specific population sectors such as children or veterans or the disabled, to begin the reframing task. With these incremental moves, however, the question remains: is such reframing even possible within our domestic legal constructs, and if it is, does it run the risk of undermining the truly radical movement-building power of ESC rights in the United States? The articles in this symposium issue grapple fully with these tensions and their practical implications for lawyers and social movements.