Constitutions and Capabilities: A (Necessarily) Pragmatic Approach

I. INTRODUCTION Professor Nussbaum has thrown down the gaundet in her Foreword:1 do countries have a moral obligation to develop and abide by constitutional principles that will lead to the full development of all human beings? Or is it either necessary or appropriate to take a more laissez-faire approach to the nurturing of human potential, perhaps because of the risk that governments might be too intrusive, or because of a concern about diverting enough resources from private control to governmental control to get the job done? There is a great deal to admire in Professor Nussbaum's Capabilities Approach (CA). Human beings are fundamentally social creatures. Before it is anything else, human history is the tale of groups of people and how they have chosen to live together and to interact with other groups. As the Foreword notes, the Founders of the United States drew on a rich intellectual history when they wrote the federal Constitution.2 Someone reading the Constitution for the first time, however, is not likely to think immediately of the CA. That suggests two questions: First, is Professor Nussbaum right when she argues that a society's constitution ought to include provisions designed to develop human capabilities? And second, even if this is a worthy goal, is there anything useful that judges can or should do to further that goal? II. CAPABILITIES AND THEIR PLACE IN LAW A. Generally It is helpful to begin with a quick review of the CA. In footnote 15 of the Foreword, Professor Nussbaum sets out the specific capabilities that she has identified (in the Foreword as well as in other work) as "necessary conditions of a life worthy of human dignity."3 Here is the list: 1. Life 2. Bodily Health 3. Bodily Integrity 4. Senses, Imagination, and Thought 5. Emotions 6. Practical Reason 7. Affiliation (both with respect to associations with others and with respect to one's personal dignity with worth equal to that of others) 8. Respect for Other Species 9. Play 10. Control over One's Environment4 Law intersects with these capabilities in numerous ways - even more ways than Professor Nussbaum identifies in the Foreword. At a very practical level, law authorizes the employment of police, who must assure public safety and security and restrain those who do not respect the rights and autonomy of others. It protects freedoms to speak, to associate, and to choose and follow a religion. It forces those who might pollute the environment to internalize the costs they are imposing on all around them. It provides for mechanisms through which things like health care and education are delivered. But law is capable of doing more than this. One can see a glimpse of that potential in the two great international covenants on human rights: the International Covenant on Civil and Political Rights (ICCPR), to which the United States is one of 165 states parties,5 and the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which the United States is not among the 160 states parties.6 The two covenants entered into force in 1976.7 They are expressly designed to operate together (in spite of the fact that nations may subscribe to one but not the other, as the United States has). Thus, the third paragraph of the ICCPR recognizes "that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights."8 The ICESCR says exacdy the same thing, just reversing die final two phrases.9 The ICCPR calls on states parties to refrain from discriminating on a variety of grounds, including "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. …