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The Implementation of Constitutional Rights: Insights from Law The Implementation of Constitutional Rights: Insights from Law
and Economics and Economics
Gerald Rosenberg
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The
Implementation
of
Constitutional
Rights:
Insights
from
Law
and
Economics
Gerald
N.
Rosenbergt
The
study
of
Law
and
Economics
focuses
most
often
on
issues
of
efficiency
and
growth. The
economic
approach
has
made
major
contributions,
for example,
in the
areas
of
regulation,
liability,
and
contract.
But
an
economic
approach
to
the
study
of
courts
and
law
can
also
shed
light
on
an
area
that
is
seldom
investigated
by
traditional
legal
scholars:
the
implementation
of
judicial
deci-
sions.
In this
essay I
demonstrate
the
relevance
of
the
economic
ap-
proach
to
the
implementation
of
constitutional
rights.
In
par-
ticular,
I
show
that
the
economic
analysis
of
law
is central
to
un-
derstanding
the
efficacy
of
judicial
decisions
supportive of
the
in-
terests
of
relatively
powerless
groups
within
society.'
Supreme
Court
decisions
are
not
self-implementing.
As
Alex-
ander
Hamilton
pointed
out
long
ago
in
The
Federalist Papers,
courts
are
particularly
dependent
on
the
actions of
others.
Hamil-
ton
argued
in
Federalist
78
that
the
judiciary
"has
no
influence
over
either
the
sword
or
the
purse
. . .
and
must
ultimately
de-
pend
upon
the
aid
of
the
executive
arm
even for
the
efficacy
of
its
judgments."
2
Without
external
support-from
the
other branches
of
government
or
directly
from
the
citizenry-Court
decisions
an-
nouncing
constitutional
rights
are
unlikely
to
affect
or
change
people's
lives
in
important
ways.
In
contrast
to
traditional
legal
analysis,
the
tools
of
economic
analysis
can
help explain
how
Court-mandated
constitutional
rights
of
relatively
powerless
groups
are
actually implemented.
In
particular,
economic
analysis
suggests
that
implementation
is
more
likely
to
occur
if
at
least
one
of
three
conditions
is
present:
t
Associate
Professor,
Department
of
Political
Science
and
the
College
and Lecturer in
Law,
The
University
of
Chicago.
'
Relatively powerless groups
are
those
groups
which,
due
to
both
past
and
present
discrimination,
have
limited
access
to
basic
goods
in
American
society
defined
to include
"rights
and
liberties,
powers
and
opportunities,
income
and
wealth"
and
"self-respect."
John
Rawls,
A
Theory
of
Justice
42,
440
(Harvard
1971).
In
mid-
and late-twentieth
cen-
tury
America,
such
groups
include,
at
the
very
least,
ethnic
and
racial minorities,
and
women.
2
Federalist
78
(Hamilton)
in
Clinton
Rossiter,
ed,
The
Federalist
Papers
464,
465
(Mentor
1961).
1215
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The
University
of
Chicago
Law
Review
(1)
non-court
actors
offer
incentives
for
compliance;
(2)
non-court
actors
impose
costs
for
non-compliance;
(3)
court
decisions
allow
for
market
implementation.
3
The
explanatory
power
of
this
eco-
nomic
analysis
can
be
illustrated
by
examining
two famous
Su-
preme
Court
decisions
finding
constitutional
rights
that
favor
the
claims
of
relatively
powerless
groups
within
society,
Brown
v
Board
of
Education
4
and
Roe
v
Wade.'
I.
CIVIL
RIGHTS
6
In
1954,
the
Supreme
Court
in
Brown
found
that
state
laws
requiring
race-based
segregation
in
public
elementary
and
secon-
dary
schools
violated
the
Equal
Protection
Clause
of
the
Four-
teenth
Amendment.
Overturning
nearly
sixty
years
of
Court-
sanctioned
racial
segregation,
Brown
is
heralded
as
one
of
the
Court's
greatest
decisions.
In
particular,
Brown
is
the
paradigm
of
the
Court's
ability
to
protect
rights
and
bring
justice
to
minori-
ties.
7
But
a
decade
after
Brown,
little
had
changed
for
most
Afri-
can-American
students
living
in
the
eleven
states
of
the
former
Confederacy
that
required
race-based
school
segregation
by
law.
For
example,
in the
1963-64
school
year, barely
one
in
one
hun-
dred
(1.2
percent)
of
these
African-American
children
was
in
a
nonsegregated
school.'
For
nearly
ninety-nine
of
every
one
hun-
dred
African-American
children
in
the
South
a
decade
after
Brown,
the
finding
of
a
constitutional
right
had
changed
nothing.
However,
by
the
1972-73
school
year,
over
91
percent
of
these
Af-
rican-American
children
were
in
nonsegregated
schools.
9
The
traditional
legal
explanation
for
the
lack
of
desegrega-
tion
in
the
first
decade
after
Brown,
and
the
dramatic
change
in
the
second
decade
after
Brown,
is
that
the
Court's
initial
stan-
'
These
points
are
developed
in
Gerald
N.
Rosenberg,
The Hollow
Hope:
Can Courts
Bring
About
Social
Change?
ch
1
(Chicago
1991).
4
347
US
483
(1954).
410
US
113
(1973).
For
further
development
of
the
argument
in
this
section,
see
Rosenberg,
Hollow
Hope
at
ch
2-3
(cited
in
note
3).
To
the
human
rights
activist
Aryeh
Neier,
Brown
is
the great
"symbol"
of
courts'
ability
to
protect
rights
and
produce
significant
social
reform.
Aryeh
Neier,
Only
Judg-
ment:
The
Limits
of
Litigation
in
Social
Change
57
(Wesleyan
1982).
For
Jack
Greenberg,
long-time
civil
rights
litigator, Brown
is
the
"principal
inspiration
to
others"
who
seek
change
and
the
protection
of
rights
through
litigation.
Jack
Greenberg,
Litigation
for
So-
cial
Change:
Methods,
Limits
and
Role
in
Democracy,
29
Record
of
the
Assn of
the
Bar
of
the
City
of
New
York
320, 331
(1974).
See
Table
1.
See
id.
1216
[64:1215
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1997]
Constitutional
Rights
1217
dard
of
"all
deliberate
speed"
°
was
too
loose,
allowing
school
dis-
tricts
to
procrastinate."
This
changed,
it
is
argued, as
the
Court
came
to
require
more
of
school
districts
in
cases
like
Cooper
v
Aaron,'
Goss
v
Board
of
Education
of
Knoxville,
3
Griffin
v
Prince
Edward
County,'
4
Green
v
County
School
Board
of
New
Kent
County,
Va.,
5
Alexander
v
Holmes
County,
6
and
Swann
v
Char-
lotte-Mecklenburg
Board
of
Education.
7
By
itself, this
legal
explanation
fails
to
persuade
because
it
neglects
fundamental
changes
in
political,
social,
and
economic
contexts.
8
In
particular,
it
overlooks
a
set
of
economic
incentives
and
costs
created
by
Congress
and
applied
with
the
cooperation
of
the
Departments
of
Health,
Education,
and
Welfare
("HEW")
and
Justice.
Change
came
to
Southern
school
systems
in the
wake
of
congressional
and
executive
branch
action.
Title
VI
of
the
1964
Civil
Rights
Act
permitted
HEW
to
cut
off
federal
funds
to
pro-
grams
in
which
racial
discrimination
was practiced,
and
the
1965
Elementary
&
Secondary
Education
Act
9
provided
a great
deal
of
federal
money
to
generally
poor
Southern
school
districts.
As
Ta-
ble
1
shows,
by
the
1971-72
school
year,
federal
funds constituted
between
12
and
27.8
percent
of
Southern
state
school
budgets,
up
10
Brown
v
Board of
Education,
349
US
294,
301 (1955)
("Brown
IF').
For
example,
as
late
as
1963,
Briggs
v
Elliott,
103
F
Supp
920
(E
D
SC
1952),
and
Davis
v
Prince
Edward
County,
103
F
Supp
337
(E
D
Va
1952),
two
of
the
original
school
desegregation
cases,
commenced
in
1951
and
1952
respectively,
were
still
being
litigated.
Other
school
desegregation cases
noteworthy
for
seemingly
interminable
litigation
include
Singleton
v
Jackson
Municipal
Separate
School
District,
348
F2d
729
(5th
Cir
1965),
in
which
approximately
thirty
opinions
and
orders
were
issued
over
a
seven-year
period,
and
United
States
v
Montgomery
County
Board
of
Education,
395
US
225
(1969),
in
which
there
were
77
docket
entries
between
1964
and
1969.
=
358
US
1,
16
(1958)
(holding
that
suspension
of
desegregation
not justified
by
vio-
lence,
or
threat
of
violence,
in
response to desegregation
and
resulting
turmoil
that
dis-
rupts
the
educational
process).
373
US
683, 688
(1963)
(invalidating
one-way
student
transfers
from
schools
where
transferee's
race
is
a
minority
to
one
where
it
predominates).
14
375
US
391
(1964)
(invalidating
the
closing
of
Prince
Edward
County
public
schools
to
avoid
desegregation
and
the
use
of
state tuition
grants
and
tax
credits
to
support
pri-
vate
segregated
education for
white
children).
391
US
430, 439
(1968)
("The
burden
on
a
school
board
today is
to
come
forward
with
a plan
that
promises
realistically
to
work,
and
promises
realistically
to work
now.").
16
396
US
19,
20
(1969)
(holding
that
"continued
operation of
segregated
schools
under
a
standard
of
allowing
'all deliberate
speed'
for
desegregation
is
no
longer constitutionally
permissible").
17
402
US
1,
30
(1971)
(upholding
the
power
of
district
judges
to
include
busing
as
part
of
a
remedial
decree).
"For
example,
by
1963,
nine
years
after Brown
and
five
years
after
the
confrontation
at
Central
High
School
in
Little
Rock,
Arkansas
that
resulted
in
the
Supreme
Court
or-
dering
immediate
desegregation
in
Cooper, only
69
of
7,700
students
(1
percent)
at
Little
Rock's
formerly all-white
junior
and
senior
high
schools
were
African-American. Rosen-
berg,
Hollow Hope
at
84
(cited
in
note
3).
"20
USC
§§
2701
et
seq
(1994).
HeinOnline -- 64 U. Chi. L. Rev. 1217 1997
The
University
of
Chicago
Law
Review
from
between
4.6
and
11.1
percent
in
the
1963-64 school
year.
This
combination
of
federal
funding
and
Title
VI
gave
the
execu-
tive
branch
a
tool to
induce
desegregation
when
it
chose
to
do
so.
When
HEW
began
threatening
to
cut
off
funds
to
school
districts
that
refused
to desegregate,
dramatic
change
occurred. By
the
1972-73
school
year,
over
91
percent
of
African-American
school
children
in
the
eleven
Southern
states
were
in
integrated
schools,
up
from
1.2
percent
in
the
1963-64
school
year.
With
only
the
constitutional
right
in
force
in the
1963-64
school
year,
no
more
than
5.5
percent
of
African-American
children
in
any
Southern
state
were
in
school
with
whites.
By
the
1972-73
school
year,
when
economic
incentives
were
offered
for
desegregation,
and
costs
imposed
for
failure
to
desegregate,
in
no
Southern
state
were fewer
than
80
percent
of African-American
children
in
inte-
grated
schools.
Federal
funding
was
not the
only
economic
inducement
for
desegregation
in the late
1960s
and
early
1970s.
Another
power-
ful
factor
at
work
was
the
desire
of
many
Southern
communities
to
attract
industry,
and a
peaceful,
desegregated
school
system
was
seen
as
an important
inducement.
2
'
Hungry
for
new
indus-
try,
the
less
industrialized
South
had
a
strong
economic
incentive
to desegregate.
The
courts, therefore,
had
extra-judicial
tools
that
increased
the
power
of
their
decisions.
School
districts
that
violated
court
orders
risked
not
only
the
loss
of
federal
funds
but
also
an
impor-
tant
competitive
advantage
in
attracting
new
industries
to
their
communities.
On
the
other
hand,
school
districts
that
did
deseg-
regate
maintained
eligibility
for
federal
funds
and
their
commu-
nities
could
make
a
stronger
pitch
for
new
industry.
School de-
segregation
occurred
in
the
years
1968-72
because
a
set
of
condi-
tions
provided
incentives
to
desegregate
and
imposed
costs
for
failing
to
do
so.
When
those
conditions
were
lacking, as
in
the
first
decade
after Brown,
constitutional
rights
were
flouted.
Thus,
an
economic
analysis sheds
considerable
light
on
the
implemen-
tation
of
the
constitutional
right
announced
in
Brown.
II.
ABORTION
An
analysis
of
the
Supreme Court's
1973
landmark
abortion
decisions,
Roe
v
Wade
21
and
Doe
v
Bolton,
2 2
provides
an illumi-
Rosenberg,
Hollow
Hope
at
101-02
(cited
in
note
3).
410
US
113
(1973).
410
US
179
(1973).
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