Civil Rights Foreword 121 Harv. L. Rev. 4

Constitutions and Capabilities: “Perception” Against Lofty Formalism


For several centuries, an approach to the foundation of basic political principles that draws its key insights from Aristotle and the ancient Greek and Roman Stoics has played a role in shaping European and American conceptions of the proper role of government, the purpose of constitution-making, and the nature of basic constitutional entitlements. This normative approach, the “Capabilities Approach” (CA), holds that a key task of a nation’s constitution, and the legal tradition that interprets it, is to secure for all citizens the prerequisites of a life worthy of human dignity – a core group of “capabilities” – in areas of central importance to human life.

The purpose of this Foreword is to study the CA as a framework for understanding the foundations of political entitlements and constitutional law, to sketch its history, and to measure against this norm some salient aspects of our tradition of constitutional interpretation, both formerly and in the 2006 Term. My contention is that the United States has had an inconstant relation to the CA, protecting some entitlements very effectively, but shying away from the protection of entitlements in the area of what are usually called social and economic rights – that is, welfare rights. This reluctance (which distinguishes the United States from most of the nations of Europe and the developing world) is made more complicated by disputes over institutional competence and the proper scope of judicial action. Sometimes, when courts refuse to protect a given entitlement (refusing, for example, to give education the status of a fundamental right), the reason may be that judges do not believe that the existing constitution is plausibly interpreted to protect a certain entitlement. At other times, judges may simply oppose the recognition of such a right.

At present, some aspects of the CA are deeply entrenched in our legal traditions and well protected by the courts; in such cases, the CA can provide a useful template against which to assess our achievements. In other areas, the CA provides a norm against which to assess what we have neglected and failed to protect.

The 2006 Term provides examples of different kinds: examples that illustrate our success in protecting central human capabilities and other examples (perhaps more striking because of the shift in thinking that they would appear to embody) that show an ominous failure to protect the capabilities of citizens. These latter cases also show a failure to use the sort of reasoning recommended by the CA – a realistic, historically and imaginatively informed type of practical reasoning that focuses on the actual abilities of people to choose and act in their concrete social settings. Although it is too soon to judge the achievements of the Roberts Court in any overall way, the 2006 Term, in its most divisive and controversial cases, seems to show a marked turn away from the CA’s understanding of constitutional principles toward a much weaker understanding of the protections such principles offer. In some cases, this turn spells a reversion to selective imprisonment.

This is a new Court, and many people are thinking about its nature and identity. At such a time it would be easy to be drawn to specifics and to the study of emerging judicial styles, particularly of the Court’s new members. But it is precisely at such a time that we do best to turn, instead, to first principles, pausing to ask about the deeper goals and ideals embodied (and sometimes not embodied) in our constitutional tradition. This approach gives us a deeper understanding of judicial styles and their relation to larger goals; it also gives us a benchmark for assessing how our legal and constitutional system performs when held up against persuasive norms of justice.