MARTHA NUSSBAUM: It just happened that Judge Wood and I had an exchange at the American Philosophical Association, where we talked about the role of my capabilities theory in law And it was apropos of my 2006 Harvard Law Review Supreme Court forward So what we did then– Frank Michelman was also involved in that occasion But this time it was just the two of us And so I will do a brief introduction to what I actually did in the Supreme Court forward and how I think that my philosophical theories might have a role to play in law And then Judge Wood will say much more about how judges can or can’t use theories And then we’ll open it up for discussion So, OK, for many years, I’ve been working on an account of the basis of a theory of social justice, really, which is based on the idea of human capability or opportunity, where the central question that really needs to be asked, is what are people actually able to do and to be? Do they have more than nominal opportunities? Are there just fine words on paper, or are they really able to actually choose and act in a number of important areas? Now I’ve worked on this with the economist Amartya Sen as a foundation for the ethics of global development So that was the original context But then more recently I put it to work thinking about a domestic theory of social justice, where, of course, there’s a very close link to constitutional law So if the fundamental principle is that society is minimally just, only if these central human opportunities are guaranteed for all citizens, well, then the idea is one way, anyway, to make that real is to put it down in a written constitution and then to empower courts with the task of upholding and interpreting that So in the Supreme Court forward, I decided to try to go into more detail about that, focusing, of course, on the United States and not so much on other nations, such as India or South Africa, which probably have gone a good deal further in making a notion like this real But so the project was to think about this capabilities approach as a basis for constitutional law with particular reference to the US So the view is that basic justice requires at least a minimum threshold level of 10 central entitlements or opportunities And that in each of these areas what’s important is that people should actually be put in a position where they can actually choose those things So the central question should always be, how are the people actually able to function? And the list is actually linked the background to a notion of human dignity The 10 are selected on the grounds that they are inherent in the idea of a live that’s worthy of human dignity Now, of course, that notion is used very explicitly in a number of other constitutions around the world, not so explicitly in ours Philosophically, the view is an alternative, on the one hand, to utilitarianism with its focus on satisfaction or pleasure And the claim is that that should not be the central focus so much as actual opportunities for choice and action And on the other side, it’s contrasted with libertarianism, which it’s closer to, because both focus on an idea of core entitlements or liberties But the difference is that my approach has a longer list It protects liberties, not only in the area of political and civil rights, but also in the area of social and economic rights But more particularly that it calls that division itself into question by saying that all entitlements have an institutional and material aspect You can’t protect any entitlements without taking some government action and without spending government money, not even the freedom of speech and the right to vote So in the first part of the forward, I actually go into those philosophical details But then, I look at the history of this notion in the history of Western political thought, which I think played a great role actually in the founding, starting with Aristotle and the Stoics, but then going through some early modern thinkers about religious liberty, who used notions of capability in fleshing out that notion But then, moving to the 18th century, I argue that this idea of human capability, the opportunity to unfold your human powers had a serious influence on some thinkers who were very influential at the time of the founding, particularly Adam Smith talking about the reasons why we should guarantee free public education And Smith was a thinker that particularly influenced Madison in his undergraduate days at Princeton as we know and then Tom Paine, who really goes to great lengths

to talk about welfare provisions in a way that focuses on notion of human opportunities or capabilities I then look at the 19th century where this was developed much further in debates internal to British liberalism where T H Green argues that the freedom of contract should be understood in a way that guarantees people genuine, as it were, material freedom, freedom to really choose central human opportunities And he drew on Aristotle to make this point to the British Liberal party, who were debating a thinner, more libertarian notion of freedom of contract And Green basically says that compulsory education, maximum hours laws, health protections in the workplace, all these things are part of the meaningful notion of real human freedom that he wants to defend So anyway, I’m trying to do all that history, not just for its intrinsic interest, but to say that even an originalist could grant that such ideas were around in our own tradition and certainly particularly the ones in the 18th century So then, I look at that question what kind of judge does this approach need if these entitlements are going to be made real by judicial interpretation, at least in part? Well, we need a kind of judge who can ask that question– what are people actually able to do and to be? And that kind of judge cannot be a lofty formalists So my subtitle was “Perception Against Lofty Formalism.” And the judge who has what Aristotle calls perception is the one who can get into a particular context, seeing it in all its historical and contextual dimensions in order to understand whether the people really have that choice available to them or not so then I illustrate this going through some historical cases in u.s. law let me just for these purposes focus on one strand of that namely the cases involving separate but equal facilities If you look at all those cases in Brown, Loving, and US v. Virginia, what you see in each case is that there is a formalist aspect There are people who say, well, just because the facilities are similar, then justice has been done, the equal protection of the laws is guaranteed And then there’s this other side that I’m interested in that says, well, you know, if you really get into it, it’s not equal at all And, of course, Brown got into the experience of the African-American children in the separate schools and says it’s full of stigma and feelings of inferiority, so it’s not equal at all But that approach was countered by my arch-formalist, who is Herbert Wechsler, who said, well, you know, if you just look at it formally, that’s what a judge is supposed to do You shouldn’t get too deeply into it, because illicit politics will contaminate your judicial contemplation So there I illustrate the two types And then you see this also in Loving where the laws against miscegenation were defended on the grounds that the arrangements were formally symmetrical Blacks can’t marry whites Whites can’t marry blacks But the Supreme Court said, look, if you look at it in the historical reality that it embodies, there is no equality there because it’s a device to uphold white supremacy Most particularly I think that Justice Ginsburg’s majority opinion in US v. Virginia illustrates this approach because again the state said, oh, well, we have this alternative program for women at Mary Baldwin College, so there is a form of symmetry And Justice Ginsburg said, well, let’s look at what the women can actually do who graduate from this alternative program Do they have the same training from the same kind of faculty? No Do they have the opportunity to network with alums in this powerful institution? No So she goes through in the way that I recommend, what a person can actually do So that gives you an idea of what I’m after But then I turn– and my assignment was to write about the 2006 term And it was a very rich one for my purposes And so I found there a retreat to formalism, particularly in two famous cases, Ledbetter, which, of course, has been in the news recently because of the legislation, and then parents involved the affirmative action case in Seattle And in both of those cases, the facts are complicated And to really see how to think about the constitutional principles, I claim, you really need to burrow into the facts and bring out things like the fact that the pay of males and females was secret in that workplace So how could she know in time to file her claim and so? The legal issues in both are complex And I think the cases, just on the legal technicalities, could possibly go either way So what you need to do in asking which analogies are more significant, which cases are relevant precedents, which

ones can relevantly be distinguished, is a rich sense of relevance And that you can only get that by getting into the context and asking what the people are actually able to do So that’s basically in a nutshell what I’m after And what I would say in summary is that the US is far from protecting all the capabilities on my list in its constitution to the same degree that other nations, like South Africa and India that have made a much more robust commitment to social and economic rights But if you really go into it, I think you find more strands of this than initially you think you would find, that you find this whole style of thinking, at least, embodied in quite a long line of cases and showing what difference that makes to delivering the real promise of constitutional entitlements So now to talk about the reality of that, I’ll turn it over to Judge Wood DIANE WOOD: Good afternoon After reading Martha’s foreword, I asked myself the question is there any way that one could take these thoughts and do anything with them as a judge who’s obviously bound to the limitations in the judicial role as well as the possibilities in the judicial role? And on top of that, there is a moral question Somehow or other, whether from judges or from somebody else, does our society have a moral obligation to adopt and implement constitutional principles that will lead to the full development of human beings? It’s very hard to argue with the proposition that somebody who is too ill to go to school is getting a free and adequate public education if you can’t even show up there or if they don’t have a house to live in or if they’re hungry or anything else like that On the other hand, at the constitutional level, at least as it filters through to the courts, in our country we’ve been very cautious, I’ll say, about overtly talking about these kinds of things And what I’m really speaking of right now are the underlying elements of Professor Nussbaum capabilities approach There is another strand of her foreword, which as she was just describing, urges judges to take a very contextual, heavily fact-based approach to the cases before the court, so perhaps broadening the scope of relevance in some ways And there you can see a very interesting dichotomy among the judges who have sat on the Supreme Court The person for whom I worked, Harry Blackmun, was famous for his delving into the facts of a record and making sure that he understood everything Other people have tended to be, as Professor Nussbaum says, more formalist So let me say right away I don’t think there’s any structural impediment to a judge immersing him or herself in the facts as much as the judge wants to What you can do with those facts, though, once you have finished immersing yourself is another matter And that’s what I really want to talk about So just to summarize, as Professor Nussbaum said, her list of essential conditions of a life worthy of human dignity includes some things that are quite uncontroversial– bodily health, bodily integrity, education is part of it in the broadest sense of the term, control over one’s environment Law, of course, intersects with these things in many ways It authorizes the employment of police who keep the public safety, so that people can, in fact, go about and conduct their business It protects the various freedoms that we’re familiar with from the Bill of Rights, freedom to speak, to associate, to follow religion But law in some places does much more than that And I’ll just give you the example, because it’s a very convenient one, of the two great human rights conventions that exist today in the world One of them is called the International Covenant on Civil and Political Rights The United States is one of the states party to that convention It has 152 parties And it protects things that we would find very familiar from the Bill of Rights, again this normal list The other is the International Covenant on Economic, Social, and Cultural Rights, signed the same day, 149 states party, but not the United States And there in hangs a big part of this tale because whether or not it makes sense at the final analysis to separate rights into these two different kinds of categories, the people who

drafted these conventions I suspect were realist enough to know that they would probably miss a few countries if they insisted on putting it all under one umbrella So they separated And then in the preambles they made it clear they thought each was fully dependent on the other So the third paragraph of the Civil and Political Rights Convention says it recognizes that in accordance with the Universal Declaration of Human Rights the ideal of free human beings enjoying civil and political freedoms 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 And the economic convention says the same thing just reverses it So the conventions try to say these are interlinked sets of rights But they do it in a way that politically made it possible for the United States anyway to be a party to one and not a party to the other Now the interesting thing about the economic convention, which I’ll jump to, is that it picks up on what we often call affirmative rights It recognizes that states may not have all of the resources necessary to achieve full compliance But it says you need to take steps to the maximum of your available resources So it creates a vector, creates a direction for states And then it gets into something that we would think is incredible detail and something that, frankly, we would see as in the legislative arena, not the arena of courts So a right to technical and vocational guidance and training programs, policies, and techniques A right to equal wages for equal work A right to fair wages, an absolute level A right to a safe and healthy working conditions A right to social security A right to education All kinds of things, you can see the theme there And you can also see probably why the United States didn’t sign it There’s a certain mindset in the United States that if you call something a right that means somebody can go into federal court and file a lawsuit under 1983 or under Bivens or under some theory and get the court to order that right to be delivered to you And other countries don’t worry about that quite as much for interesting reasons But nonetheless, those are our international recognitions And many of the countries, including India, including South Africa, including many of the countries that were formed after the breakup of the Soviet Union, interestingly wrote their constitutions after both of these covenants were in place And they did include a lot of the economic and social and cultural rights in their constitutions So I want to make a couple of points about why that’s not true here in the United States One point is a very important one, which is that some of these rights are in fact covered by constitutional law in the United States It just doesn’t happen to be federal constitutional law The right to education appears in almost every state constitution Now some state constitutions phrase it in a more elaborate way There’s very flowery section of the Constitution of Massachusetts that goes into all sorts of things like inculcating the principles of humanity in general benevolence, public and private charity, industry and frugality, honesty and punctuality So they’re really setting the bar high in Massachusetts Kentucky, on the other hand, the other extreme, just says in its constitution, the General Assembly shall by appropriate legislation provide for an efficient system of common schools throughout the state And you see everything in between But the states have taken this on And the states have provided at the constitutional level that education is going to have this kind of fundamental part in the legal order So maybe you don’t need it at the federal level It’s already there And so I think it’s important for us to remember what the relative roles of the federal government and the state government are, although I will say occasionally people try to enforce in federal court these state educational provisions And I had an amusing case quite some time ago where the parents and also a young man who had been kicked out of school in Illinois sued and said that the state of Illinois was depriving him of his right to a free public education because the reason that they had kicked him out of school was a deeply foolish reason And indeed it was, because what he had done in the school band program was against the directions of the band

director He had decided to perform the Jimi Hendrix version of “The Star Bangled Banner.” And for that, he was kicked out of school And I remember sitting there during the argument just overwhelmed with the stupidity of all of this actually But we couldn’t quite see our way forward saying that a federal constitutional right had been violated by this inane step, that this sometimes we say, you know, South of I-80 school district in Illinois had done So anyway, you can do what you can do moving to the federal constitution, though, and I think that’s where Professor Nussbaum has focused, one can certainly look at a number of provisions in the federal constitution as directives or guides to Congress or the president, telling them what kind of legislation ought to be passed, telling them in what spirit that legislation ought to be enforced The preamble itself begins by saying the Constitution is created to promote the general welfare and secure the blessings of liberty You all know that And we have, of course, the Necessary and Proper clause We even have– and I’m probably the first person to resuscitate this clause in years– the titles of nobility clause And it’s an interesting– from the late 18th century point of view, it was a strong statement about equality actually You weren’t going to give titles of nobility to a certain small group of favored people We were going to be a country that embraced an egalitarian principle The fact that the original Constitution– I’m speaking now entirely of the Constitution before the Bill of Rights– said no religious test shall be required for a public office Again, a strong statement for that time and a statement reinforcing the fact that all people were going to be equal before our law and also in our public service Now those clauses and the Republican form of government laws are not the sort of thing that you’re going to be reading about too often in your com law classes I’ve never seen a case bringing a justiciable claim under any of them But they’re important nonetheless They are directives They’re guides to legislation Now for the rest of what I have to say about Professor Nussbaum’s CA, her capabilities approach, what I’m going to say is, how far can we push it in a way that would actually be workable in the courts? And so I’m calling that a strong version of the CA, a version which allows somebody who feels aggrieved to bring a lawsuit I think it’s difficult. But there may be some possibilities The first thought that I had was one could see the capabilities approach, oddly enough, as rather similar to the question of customary international law That is to say it’s out there but you’re not really sure how you translate it into concrete cases now the Supreme Court, in 1994, decided a very famous case for international lawyers, Murray v. The Schooner Charming Betsy It’s called the Charming Betsy case And the court addresses this question of how does international law factor into our courts And its conclusion in the Charming Betsy, practically anyone who does international law could probably recite word for word, the court writes through Chief Justice John Marshall, “An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” So I thought, well, what if we substituted for the words “the law of nations,” the “capabilities approach”? Suppose we said, you should never construe an act of Congress in a way inconsistent with the capabilities approach if there is any other possible construction Now that still leaves Congress entirely able to say when it doesn’t want to follow this sort of approach But it’s an interpretive guide So one question you might ask is, do we have the same kind of general consensus that the capabilities approach is something that we want to follow that you might say exists with respect to public international law, particularly customary international law? Well, that’s a two edged question, because actually customary international law has been under surprisingly vigorous attack–

surprising to me, because I’ve spent a lot of my career doing it At one point there were some– they never went anywhere, but there were resolutions passed in Congress that actually would have made it an impeachable offense to cite to customary international law in your opinions And I thought, wow, you know, I could cite Shakespeare if I wanted to, but not public international law apparently Now it went away And I’m hoping that that rhetoric has calmed down But I mention this only to say that customary international law is certainly respected The Supreme Court has never turned back on the Charming Betsy presumption But on the other hand, there are some people who really aren’t sure what this stuff is So you could say the same thing, there is in fact probably a fairly good level of support for this underlying notion of capabilities Surely, Congress, if asked, wouldn’t want the opposite They wouldn’t want people to be uneducated Congress has regularly, through Republican and Democratic administrations, continue to support the various entitlement programs Think of all the attacks on Social Security, Medicare, Medicaid, and Congress year in and year out says this is simply something we have to do And as I say, this has been through every constellation of party control and presidential party that you can think of So there is some concrete evidence out there to suggest that Congress may indeed feel comfortable with that kind of an interpretive approach So I throw it out as a possibility Another way that you could look at this is really instead of as a canon of interpretation, which is my first thought, is really is the methodological thing And I think that’s what Professor Nussbaum was stressing toward the end of her remarks this afternoon It really just requires careful approach, not the lofty formalism Now today, as through most courts I can think of, you have two different schools of thought at least on the Supreme Court And those who argue for strict construction, originalism, plain meaning, whatever you want to call it, are probably less likely to worry about what’s the context of a particular problem Even they, however, do look to context If you have recently read District of Columbia v. Heller, Justice Scalia’s opinion delves into 18th century dictionaries and to phrases elsewhere in the Constitution So there’s a type of context that even he thinks is relevant to unpacking those very few words of the Second Amendment Other people, though, I’ve mentioned Justice Blackmun a minute ago, I think Justice Breyer, certainly Justice Ginsburg in her many decisions, have urged a different kind of contextual approach, one which defers to the judgments of the democratically elected branches of government Justice Breyer explicates all of this in his book, and focusing on what was the problem the law was designed to solve How is it going to apply in the current case, the case before the court? What are the full dimensions of this problem? I mean, as we’ve seen over and over again, trying to see what we mean by equality actually is much harder than meets the eye So one could certainly see a tradition into which anyone committed to a capability’s approach would fall if that person just said, before I come to the final conclusion, which, of course, has to satisfy constitutional strictures, legislative strictures, if there are any, I’m going to make sure I really understand how this law is operating and how its operation matches what Congress thought it was going to do Now, as a source of individually enforceable rights, though, I think we have a very difficult task in front of us And what I want to remind you before I sit down is the line of cases exemplified by the Supreme Court’s decision in DeShaney v. Winnebago County Department of Social Services The question before the court in DeShaney came closer to invoking that kind of affirmative duty on the part of government than anything else I can think of in recent years And the court turned away from it Remember, that case is the one in which the little boy, Joshua, was beaten severely by his father The Department of Family Services people

knew that this was happening, basically did nothing And a beating finally occurs that left him permanently and severely impaired So the parents sued the Department of Social Services and said you fell down in your job You knew this was happening You were visiting You turned back And the Supreme Court said there is no duty to help There is no constitutional violation It’s a shame, no nobody would have debated that for a minute, but there’s no constitutional violation So two things are kind of interesting in that respect One is that the courts have obviously– the Supreme Court has never turned back on DeShaney And the lower federal courts are bound by DeShaney So there’s a recent case from the Seventh Circuit, a case called Sandage v Board of Commissioners of Vanderburgh County, which was decided November 24 of this past year, which was another case where you might have thought that there would be a strong argument for saying the state actually had an affirmative obligation to step in, because the state had already begun to act in this case The plaintiffs are relatives of three people who have been murdered by a man named Moore while Moore was on work release from a four-year prison term he was serving for robbery One of the victims a woman named Sheena Sandage-Shofner had contacted the sheriff’s department twice to complain that Moore was harassing her But the sheriff’s department people just sat around and did nothing So her estate essentially brings the action saying that the sheriff’s department failed in their duty And the Seventh Circuit in an opinion written by our own Richard Posner rejected the estate’s claim, rejected the claim of the victim’s relatives And he writes– I’m just going to read a little bit of this because it’s very interesting to see what problem he sees in any event with taking this approach all the way to the point of these affirmative duties He writes, “We assume, given the procedural posture, that the defendants were reckless in failing to act on the complaint of harassment.” And then he says, “There is no federal constitutional right to be protected by the government against private violence in which the government is not complicit.” He cites DeShaney And then he goes on to say, “There is no constitutional right to be protected by the state against being murdered by criminals or madman The constitution is a charter of negative liberties It tells the state to let people alone It does not require the federal government or the state to provide services, even so elementary service, as maintaining law and order There is a moral right to such services,” he concedes,” “and a government that fails in this duty invites well-deserved political retribution But there is no enforceable federal constitutional right.” Very strong statement And then he has a paragraph, which is the parade of horribles paragraph “Such a right would be impractical,” he says “The federal courts would have to decide how much money each state and every local community would be required to allocate to protection of life, limb, and property They would have to decide how much money must be appropriated for police and prosecutors and prisons, how police resources should be deployed across neighborhoods, the minimum length of state prison sentences,” and on and You can certainly see the direction this is going in Fixing speed limits on state highways is on his list, prescribe the lighting on state streets, and so on So one question is, is this parade of horribles real? I mean, would there have been a way to give Sandage-Shofner’s survivors relief without having the federal courts next deciding that the speed limit ought to be 50, not 55, on the interstate highways? Arguably yes I mean they had been given notice I mean that’s one line you could draw Now another interesting thing about some of these cases, like DeShaney, like this one, is that there tends to be incremental shaving when the principle is a troublesome, when the facts are so troublesome So one step the lower courts have taken is to say once the state really fully does become engaged in the problem, then liability can follow So if the state has placed a child in foster care in a home, then the state has entrusted that child to the foster parents Liability can follow Certainly in the schools, if you have a mandatory school attendance rule, again the state is engaged in it And you can see lots of examples

It’s your favorite little Socratic line drying problem How much does the state have to become involved in order to trigger that possible liability? And I think that it’s only these cases where the state is so grotesquely negligent, as the sheriff’s people were, as to do absolutely nothing in the face of these kinds of complaints would you find this result My guess is had they gone the next step and gotten an order of protection, at that point, the police department is under a court order to do something affirmative to protect the person I suspect the outcome might have been different But I think we shouldn’t underestimate the fact that if you go down this capabilities line, you may be asking judges to do some things that judges are very ill suited for So the way I concluded my remarks along these very lines in Philadelphia, I will do again today, and I’m hoping that Professor Nussbaum will tackle this in her next article or articles or book or whatever format she wants to use– I think it’s a fascinating subject And again, it goes back to this fundamental fact that no one really can ignore which is that all of our wonderful sounding rights are not going to be worth very much if we are not put in the basic position that we need to be in order to enjoy them MARTHA NUSSBAUM: Now I’m going to take a few minutes in order to respond And first of all, I just want to put in your minds the thought that the distinction between positive and negative liberty is one of the most confused and confusing and useless distinctions that ever was introduced into philosophy And this is why, because any freedom is a freedom to do something It has a positive aspect But it also isn’t freedom if other people aren’t kept somehow from stopping you from doing that thing And this is certainly true in the areas of property and contract, where the talk of negative liberty is most beloved, because obviously if the state doesn’t maintain and protect the system of property rights, if other people can just trespass at will and so on, then there are no property rights worth the name So beware of that one Now, in lots of areas I would be ready to grant to Diane that the US Constitution would have to be changed in order to make real all the items on my list However, I think it’s worth noting what resources are actually there First of all, a lot of the things on my list are actually just there Freedom of religion, let’s take that example And they’re there in a way that belies Judge Posner’s contention that it’s just state inaction that is wanted If you think about the interpretation of the Free Exercise clause, the court has rejected the idea that all we are after here is just making sure that the state doesn’t stop somebody from maintaining their own religion In a case like Sherbert, they ask what equal entitlement to religious liberty really means And what it means is that the state needs to bend over backwards to accommodate Mrs. Sherbert in her nonstandard religious observances by making sure that it administers its system of unemployment compensation in a way that gives an exemption for her to the general idea that you won’t get it if you refuse suitable work So there’s a much more interventionist conception of religious freedom that we’re all very used to and rightly attached to Second, as I said, the doctrine of equal protection of all laws is understood in a way that, again, invites the thought what are people really able to do and to be But then third, what I didn’t say before, is that there is a way in which in the early 1970s the Court got right up to the door of recognizing a whole lot more as inherent in the Constitution And the way it did it was through the idea of fundamental rights as inherent in the Equal Protection Clause of the 14th Amendment Obviously, the right to vote and the right to travel are such fundamental rights They are not enumerated in the Constitution But they are now securely recognized as constitutional rights The right to an adequate education was defined by a minority of the Court as such a right Justice Marshall eloquently wrote in San Antonio School District v. Rodriguez that it was such a right However, he lost Despite his having lost, subsequent cases still built on the idea that education has a fundamental status in American life and deserves some sort of special protection and some sort of special scrutiny as to whether there are inequalities in it because of its status as facilitating all the capabilities of US citizens, and not only citizens but also immigrants, including illegal immigrants– Plyler v. Doe, a case concerning a law the debarred the children of illegal immigrants

from going to the public schools And they struck that law down Justice Brennan wrote, “Illiteracy is an enduring disability The inability to read and write will handicap the individual deprived of a basic education each and every day of his life The inestimable toll of that deprivation on the social, economic, intellectual, and psychological well-being of the individual and the obstacle it poses to individual achievement make it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause.” Now, of course, all he was doing was saying these children couldn’t be disbarred in this unequal way He couldn’t go further and say that a positive right to a certain level of education was inherent in the Constitution But he was doing what he could within the framework that the court had already– the box that the Court had already put him in and things might have turned out otherwise And Justice Brennan went on– and in welfare rights cases, similarly working within the constitutional framework that he had to work with But in a case, Goldberg v. Kelly, involving welfare rights, he again, although it was Due Process Clause, so what was the actual holding was that the procedure was unfair to a group of recipients But he still used this very resonant capabilities language to say that what we’re after– and he was interpreting the Preamble to the Constitution– is a country that supports the capabilities of all “From its founding, the nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders We have come to recognize that forces not within the control of the poor contribute to their poverty Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community” and so on and so on. “Public assistance then is not mere charity but a means to quote ‘promote the general welfare and secure the blessings of liberty to ourselves and our posterity’.” So saying, at least in the opinion, although as I say, the holding itself is much narrower, that the Preamble of the Constitution is quite rightly read to make a certain level of economic support for human capabilities part of the project And I think historically that that is correct So we might have gone in another direction Sometime we may yet do so So I just think that we shouldn’t think that this is a way of thinking alien to our tradition It’s not at all alien historically And it’s not fully realized But nonetheless, we’re not as far from the rest of the world as the Judge Wood has suggested I don’t think she means to suggest that totally But I think it’s well to notice that this idea of a right, an entitlement to a life worthy of human dignity And that is a meaningful way of unpacking the idea of promoting the general welfare is very much a part of our constitutional tradition Now we should open it up to questions How shall we– shall I just call on people? Do want to call on people? DIANE WOOD: Why don’t you just call on people MARTHA NUSSBAUM: Alex AUDIENCE: My is question to both of you I’m wondering first what you think about what the capabilities approach requires with respect to the treatment of prisoners and what would need to be done to bring our law in line with some would call cruelty but not what violation of capabilities would be cruel? MARTHA NUSSBAUM: Well, I’ve been very worried about things like the deprivation of the right to vote, I mean, the convicted Certainly from convicted felons, I think that’s a very major incursion into the capabilities that any citizen should have As to voting while you’re in prison, well, I guess I think that’s a part of making the punishment compatible with respect for the person as a dignified human being And then beyond that, there’s a whole range of issues about privacy rights within prison, right to personal property All of those things are among the things that I would certainly want to think about DIANE WOOD: Yes You’re describing a great deal of my life worrying about prisoner conditions There are a couple of places where I think one could ask again whether we have found the right line One of the issues that comes up frequently is a prisoner will complain about a certain deprivation that affects his or her– it’s usually his– daily life, maybe exercise time in the yard, maybe the temperature in the cell is only 45 degrees Maybe he doesn’t have his mattress Maybe he isn’t getting enough medical care

Maybe he can only take one shower a week or something And you’ll frequently see in judicial opinions the phrase, either the thing that you’re complaining about isn’t one of those basic necessities of life that must be given to you– so you know, here in Chicago heat in the cell in the middle of winter is one of those basic necessities of life And people win cases when there is no heat in the cell Or you’ll see somebody saying you’re complaining that your blanket was too thin, but that’s just the way it is So you could look more specifically at the facts of those cases and ask the question whether we have drawn the line in the right place I actually think that the line may be that a shower a week is enough, which strikes me as a little grim But anyway though those questions certainly come up Now there are real problems for the prisons And the mattress example is one that I will offer, because the prison warden and the guards in the prison are faced with trying to regulate some pretty awful behavior too So people have been known to take their mattress and stuff it into the toilet in their cells so that the toilet will overflow so that trouble will be caused Just to be a pain in the neck really, I mean that’s what they’re doing So those people may be deprived of their mattress And so you have to have some concept within this approach of what measures are acceptable to discipline people like that And that’s a rich area for inquiry also in my opinion So there’s that And then on the privacy point, definitely some forms of privacy, but I think that’s one area where prisoners have forfeited the most in the way of rights that those of us who are not in prison enjoy And I will never forget when I made a visit to the maximum security prison in Joliet, Stateville, one of the things the warden set out on a table, much bigger than this table, was all of the weapons that they had confiscated from cells that the prisoners had made from materials available at hand And it was really quite a chilling display I mean, I think he was trying to obviously make the political point to me as a judge, you really got to give us a little leeway here But you know, I knew that And just seeing them was something So have we correctly defined the basic necessities of life, have we drawn the right line between the security needs and the needs of the prisoners as human beings are both ever present subjects AUDIENCE: I was wondering, though, when you’re talking about judges, Judge Posner’s line drawing problem, I think when you’re talking about judges, enforcing even classic civil and political rights, like for example, school desegregation after Brown, how the enforcement of that took decades I mean it took 10, 20, 30 years, maybe more So I’m wondering whether we’re not exaggerating the line drawing problem with respect to social and economic rights in the sense that civil and political rights are actually no less problematic They can take just as much effort as to maybe Judge Posner’s justification And also, I mean couldn’t the ultimate way of putting it just be that social and economic rights aren’t found in the text of the constitution so much rather saying that’s it’s not to judicial role? DIANE WOOD: No, it’s an interesting point And I think I suggested in my remarks that there was at least one place you could have drawn a line if you thought this was satisfactory, which is the line between problems in the home of which the public authorities have notice and problems of which they have no knowledge OK, well, I mean that I at least can comprehend as something that could be proven in court, could be shown Now maybe we don’t like that line And maybe it’s not there And I think the other thing you mentioned is terribly important And it’s one of the issues we’re constantly dealing with with the Constitution How much are we entitled to read into these very broad guarantees? So freedom of speech, even Martha’s example of the Free Exercise clause– at least we have a Free Exercise clause, so we can take that and we can ask, does that mean you have to have Saturdays off? Or does that imply an accommodation duty? And does that imply other kinds of things? We don’t have anything in the federal constitution that talks about public welfare and social security and education and medical care– I mean, the right to medical care, what could be a more salient issue right now? I expect once they bail us out from the economic crisis, Obama administration will be turning itself to the medical care issue

I hope they don’t have to be completely finished with the economic task But I think that for the judicial role, you need– if you’re not talking about legislation, if you’re really talking about the Constitution– you need to have a pretty robust theory of where in the Constitution it’s found MARTHA NUSSBAUM: Let me just say something general about that I think that there was an older center for comparative constitutionalism that existed here about 15 years ago that was advising some of the Eastern European nations that were making their new constitutions They all wanted to put social and economic rights in the constitution And people here– this is before I got here– were giving them the advice not to do that because these were unenforceable There was this terrible line drawing problem And so it would bring the whole constitution into disrepute if you put that in there They could think that it’s just an aspirational document that’s not enforceable Then reality caught up with it because South Africa started doing it Canada started doing it All in ways that involved complicated forms of cooperation between the courts and the legislatures because, of course, when the expenditure is required, then you have to have a complicated story to tell But Justice Albie Sachs, who was here last week, was the one who wrote one of the landmark decisions in this area showing that you could do it And you can do it just by starting with the most egregious abuses, such as raising the dwellings of the homeless Then you build on that and incrementally you build up to some shared understanding of what that involves And I think that’s just as possible there as it is in the case of freedom of religion, where we know, if you look at the history of that, the Mormon cases in the 1870s, are terrible judgments because they had no idea what the free exercise of religion really meant And it took 100 years to get an adequate understanding of that one or a more adequate understanding So I think there too Now as to Diane’s point, and of course it’s not in the text as it is now– of course, neither is the right to vote or the right to travel So those things came in by the back door and so might the right to have education have come in by the back door, but it didn’t So right now, we’re left without that hook But that doesn’t mean that at some future time it might not happen DIANE WOOD: I wanted to add one point just before we move on to the next question, which is there is in fact one area of US jurisprudence where the courts have vast experience with affirmative obligations And that’s in the area of remedial decrees when violations have been found So the courts have run everything from prison systems to mental health systems to obviously school systems, one of the first, and down to very minute levels And every time the school system or the prison system wanted to do something, they risked being found in contempt of court if they failed to comply with the affirmative injunction So it’s an interesting point to make simply if you’re talking about judicial capabilities Now the other thing that the Supreme Court has done over the last 20, 30 years is they have tried to narrow the range of judicial remedial orders They’ve increasingly strongly enforced the proposition that the remedy needs to be tailored to the scope of the violation And they’re even really at this point quite unsympathetic to arguments that statutes are unconstitutional on their face They want a very specific thing But I will say there is a lot of experience and a lot of law out there with affirmative measures AUDIENCE: I wonder what you think about Justice Kennedy’s opinion in Lawrence has to say about the capabilities approach, whether it mostly tests success, maybe illustrates some issues for your approach MARTHA NUSSBAUM: Why don’t you– DIANE WOOD: Oh, sure, I mean I think the Lawrence opinion is quite consistent with this because it insists on looking at human beings as human beings It recognizes that the interests in intimate relations is the same among all people It’s actually in many ways a completely nondiscriminatory opinion I mean it just says one group that has been singled out for particular discrimination can’t be singled out in that manner And you know, it’s a step It’s obviously not the last or the only step along those lines But I find it quite consistent MARTHA NUSSBAUM: Yeah, I mean, I have got some problems with it, because I think the very confusing way uses notions of privacy involving the decisional, the privacy involving the spatial There are lots of confusing things that remain to be sorted out People don’t know whether the home is a protected sphere or isn’t it And he said things on both sides of that

But in general, yeah, I mean I think the whole– I talked about Equal Protection fundamental rights, but there is also this Due Process tradition of recognizing certain liberties as inherent in the Due Process Clause, not just the ones that come under the name the right to privacy, but a bunch in the area of family, intimate association And that’s another way in which human capabilities get recognized in a way that often does invoke notions of human dignity And then over time that’s built upon until we get this understanding that it protects the right of intimate association in sexual matters, even when it’s the narrower description of that right, a right to sodomy, which is, of course, the way Bowers described it, is something that isn’t protected in our tradition So I think it’s a very important, resonant opinion It’s going to be interesting to see what happens with the privacy aspect of it because there have been two cases involving the sale of sex toys in Fifth Circuit and in the 11th Circuit, where they come down on opposite sides as to whether Lawrence protects that, because it seems that it has a commercial aspect Well, but then Griswold seemed to protect the right of the counselors, the contraceptive counselors and contraceptive providers, says the Fifth Circuit, as well as the people who are actually using the contraception in their home So the whole question of how do you further unpack this notion of privacy, what rights of intimate association there are, do they involve the protection of some certain kinds of commercial transactions involving that, all of that’s indeterminate And it will remain indeterminate for a long time because Texas decided not to seek cert And so the conflict in the circuits is just sitting there for some time now But anyhow, I think Lawrence was indeed a very good example of what I’m talking about DIANE WOOD: It is But I think there’s– I just want to caution I think those who favor a capabilities approach will be on firmer ground any time they can find something other than Substantive Due Process on which to base it, because that has been a very troubled doctrine and one that from time to time the Supreme Court really tries to pull it on, because it’s so– you know, what’s implicit in the concept of ordered liberty? What does belong in that list? We have– AUDIENCE: Lochner DIANE WOOD: Well, Lochner, I know Well, they thought it– there was language in Lochner But they thought it wasn’t My only point is in a world where perhaps you can get Congress moving in the same direction so that you are beyond just sending judges out there trying to decide whether the right to decide when your life should be terminated is something that fundamental or your sexual relations or where you live, I think you’ll be on stronger ground AUDIENCE: That point gets sort of gets at my question I guess the question is for either on of you How big is the role for a capabilities minded judiciary in moving toward all these things? I mean even thinking of a case like Ledbetter where if it had come out the other way with a capabilities minded judge they might have said, here we have someone who is being denied an important capability involving the right to work with equal being And then going forward that action wouldn’t change much in society if it’s coming from the judiciary instead of legislative or social norm side about equal pay I mean are we procedurally limited if we’re only capabilities from the judiciary? MARTHA NUSSBAUM: Of course, I said that it has both sides And you would like to see both branches get involved I mean, so my project was just to look at the court But Ledbetter, which I do talk about in some detail, I think is a very interesting test case for this in the sense that it is a legally quite hard case, because there are precedents that appear to fall on both sides And so which ones are you going to say are relevant precedents, which ones are you going to distinguish requires an exercise of analogical reasoning There’s no way around it The judge has to ask which are the most pertinent And in the process of asking that, they’ve got to ask what is the case all really about? What is this woman actually able to do? And what was disturbing I thought about Justice Alito’s opinion in that was really that he stood so far back from the facts that they didn’t really even acknowledge that the woman could not have found out the pay differential and so on And so to him it didn’t look relevantly like these race discrimination cases that, in fact, Justice Ginsburg said it is like And it looked more like these other cases, which in the end, when you get close to the fact that

doesn’t really, I think, look so much like at all Now, of course, it would have had direct consequences where legislation wouldn’t have been I think needed in the way that, at least not as urgently, if indeed the women had been permitted to file for cumulative pay discrimination, if the last act had been taken to be the last in a series of cumulative discriminatory acts Then lots of women could have filed who couldn’t have filed otherwise So I think the courts can do quite a lot Then if you think about the Parents Involved, the other one where there was this face-off between the pro-capabilities and the anti-capabilities There, of course, huge social consequences are potentially involved, not so clear because Justice Kennedy’s opinion is very narrow And that controls for the time being But a whole bunch of programs that states have come up with to foster the human development of minority children are now just wiped out or potentially could be DIANE WOOD: Yeah, I would make a comment about each one of those cases I think it’s tempting to focus on the fact that Ledbetter didn’t know when it first happened But I think we can even take that off the table, because there had been this case, Bazemore v. Friday, which had been on the books for a long time, which had said every paycheck is a new violation But the problem was in the meantime the Supreme Court had developed a broader body of jurisprudence that said if the only thing you’re complaining about is the consequence of an original discriminatory act, the statute of limitations runs from when that act took place If you’re complaining about something like harassment that no one act completes the offense, they’ve always recognized the idea of a continuing offense So you found yourself in this metaphysical debate, you know, well, what’s act and what’s consequence? And so each paycheck could be conceptualized as Justice Alito did it as the consequence of the original discrimination And she could have even known that it was going on, but let’s suppose she just didn’t feel empowered to bring a lawsuit Maybe she was afraid of losing her job because she’s raising her children I mean, there are all kinds of reasons why people don’t file lawsuits And so they could have done different things Now that Congress has spoken, it’s actually a far stronger foundation because Bazemore was a very split decision And all this act-consequence stuff is now off the table for these things So that’s my comment there The other thing I’m just going to throw out and the brief because we’re near the end is the thing that’s so interesting about Parents Involved is that this was in a sense legislative action that’s overturned These were the school districts who were trying to have these remedial programs, people through their elected representatives on the school districts And the court steps in and says, even through the legislature, the democratic process, as you will, we’re going to see this is one of these instances where the rights of the minority– that is to say people who didn’t like the affirmative action program– are going to be stressed And I do think Justice Breyer emphasizes this a lot, but I think it’s an important line to draw if through the democratic process people have chosen something, one would think that you’d give it some weight MARTHA NUSSBAUM: I’m afraid we have to stop now since we’re chairing ourselves But thank you very much And we’ll look forward to any questions you have So bring them up later