Constitution and social rights: avoiding disappointment

Felipe Bravo

During the second part of the mandate of the Constitutional Convention, its members will direct their gaze to fulfill the citizen expectation of a constitutional text with greater rights and guarantees for citizens.

Both in periods of constitutional change and of institutional stability, the existence of citizen pressure towards legislative or constitutional changes has become common. Although the reasons for the pressure on State institutions are different in situations of economic growth than those derived from economic crises, in general, citizen demands seek to translate into greater material benefits from the State.

The Constitutional Convention is the current institutional way of channeling this citizen need. It is evident that ensuring rights at the constitutional level has strong incentives: preventing or hindering their elimination or regression, endowing them with a supra-legal power that transcends contingent majorities and protection mechanisms at the constitutional level.

But nevertheless, The pressure that social demands may generate in the future judicial system often escapes analysis. This is happening today – we see it on a daily basis with constitutional actions on drugs or high-cost medical benefits – with a powerful but concise constitutional basis: the right to life and physical and mental integrity of people. But what basis will exist in a new Constitution for the future interpreter, we still do not know.

Constitutional texts, by their nature, contain principles and rules generally written in a broad way that, although the best intention of the drafter has been to make clear a certain will, future interpreters may understand something different; If the line that we have known in the current judiciary is followed – and probably, with its same members -, the trend is directed towards its jurisprudential expansion.

If this criterion of interpretation of constitutional norms is maintained, endowing them with a maximalist content in the protection of social benefit rights, it is not enough to pay attention to the text of the norms on fundamental rights approved by the Convention, but also to the way in which these guarantees They will foreseeably be expanded to areas not foreseen by their editors, with the consequent fiscal burden for their provision.

That the social rights of provision can have a jurisdictional guarantee does not mean that they do not depend on the economic conditions of the State. The same with respect to the rights that, through jurisprudence, are creating the courts of justice. The above incubates a future problem: the material impossibility of ensuring rights that, in theory, are constitutionally protected, will be proof for the citizen that the Constitution does not then have the power it claims to have, nor do the courts, which had to well to recognize rights that cannot be satisfied.

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