One of the most common assumptions about the United States Constitution is that it protects negative rights. Yet the International Covenant on Economic, Social, and Cultural Rights, as well as many foreign constitutions, require governments to affirmatively provide socio-economic necessities. The theory is that liberty at least presumes subsistence.

International human rights experts actually speak of three “generations” of rights. First generation rights are political and civil, and are usually negative rights. Second generation rights involve the government’s socio-economic obligations, and are frequently positive rights. Finally, third generation rights are exemplified by the right to a clean and healthy environment, and are commonly called “green” rights.

The United States Constitution is the oldest written nation-governing charter in the world. Many Americans probably assume it is the best constitution possible. Yet perhaps it is time that we Americans become less self-centered. Many countries, like South Africa, have adopted truly modern constitutions. These documents typically contain a comprehensible, detailed list of enumerated rights based on generally accepted international human rights norms, unlike the United States Constitution. The judiciary in these countries has been entrusted with interpreting these new provisions. The United States Supreme Court and American scholars could learn much from the South African Constitutional Court’s socio-economic decisions. Now seems like a particularly good time for the Court to open itself to well reasoned foreign jurisprudential approaches.

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