Decentering or Decentralizing? Economic, Social, & Cultural Rights in Federal Systems

By: Reedy C. Swanson

Economic, social, and cultural (ESC) rights have proliferated in modern constitutional systems, but there has been no serious debate about how they might interact with another key element of constitutional design: federalism. What is more, no country to date has made a strategic choice to make regional, rather than national, governments primarily responsible for enforcing ESC rights. Using Myanmar as a case study, and drawing on lessons from the United States, India, and Brazil, this Note argues that a principled choice can be made to decentralize enforcement of these rights. It identifies three characteristics that may signal a hospitable political environment for making that choice: (1) a resistance to strong central authority, (2) a weak legal system, and (3) a strong history of economic social movements.

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