Social Rights as a Constitutional Compromise: Lessons from Comparative Experience


Although most democratic constitutions reflect some degree of compromise, the concept of constitutions as compromises has yet to be systematically explored. Drawing on comparative experience, this Article outlines a prescriptive theory that can assist courts in addressing constitutional compromises. This theory rests on a distinction between political and ideological compromises using as case studies doctrines of social rights developed by the South African and German Constitutional Courts. Political compromises such as the social rights provisions in the South African Constitution only formally reconcile conflicting perspectives. In contrast, ideological compromises such as the social state principle in the German Constitution express a normatively desirable substantive balance between conflicting values or interests. This Article identifies a methodological divide between political and ideological compromises in terms of the appropriate role of constitutional text and drafting history in constitutional interpretation.