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The Social Constitution: Embedding Social Rights Through Legal Mobilization
Social rights—such as those to healthcare, housing, and education—are a near-ubiquitous feature of constitutions drafted in the past thirty years, particularly those of the transformative variety.1 Defensible on the basis of, inter alia, democratic legitimacy, international law, and morality, few voices contest the desirability of the real-world goals to which these rights are linked.2 Less clear is whether and how their entrenchment in constitutional documents gives them effect.3 Focusing on the 1991 Colombian Constitution, The Social Constitution speaks directly to this gap, adding substantial depth to our understanding of how constitutional guarantees become more than law in books by offering a theoretically driven, empirically backed account of how social rights can matter.
The primary theoretical argument of the book is that for the rights contained in social constitutions to become more than simply parchment promises, the broader constitutional vision must be “embedded.” Constitutional embeddedness in this sense refers to “the degree to which something has become part of what shapes social and legal expectations and behavior” (p. 28). It has both social and legal components, is not a foregone conclusion, and in order for rights to become “real,” both types of embedding are required—although not necessarily to the same degree. Full embedding, argues Taylor, leads to both acceptance of the constitutional vision and stability. This is because the relevant constitutional vision will become a taken-for-granted element of popular and legal discourse that shapes thinking, frames debates, and serves as a standard against which state actions are evaluated (pp. 9–12, 27–28). In the absence of such embedding, on the other hand, “the possibilities of social change—whether for the individual or broader society—are severely limited and vulnerable to backlash and regression”
