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Abstract
As the country’s most populous state and the world’s fifth largesteconomy, California has often been characterized as a “nation-state,”historically independent in its governing priorities. Yet even as thestate’s political identity coalesces in favor of recognizing greatersocial welfare provisions for its inhabitants, formal enactment inpolicy often falls short. This hesitancy persists despite constitutionalsupport for state-level leadership in areas of social welfare—fromeducation to criminal justice to social services—through the exerciseof state police power. This structure also applies to the domesticationof international human rights norms.
This Note proposes that California look to international humanrights law to build a forward-looking framework for rightsentitlements in the state—specifically, to the International Covenantfor Economic, Social and Cultural Rights (ICESCR). Through stateconstitutional amendment, California’s electorate should guaranteethe economic, social, and cultural rights (ESC rights) enumerated inthe ICESCR. This adoption should include the ICESCR’s principle ofprogressive realization merged with a standard of adequacy rooted inthe provision of social welfare. Part I of this Note will examine theICESCR’s background, the tension between state and federal power ininternational human rights, the mechanisms by which state power istraditionally exercised with respect to human rights, and how statesmight participate in international human rights jurisprudence. In PartII, the Note will explore the extent to which positive rights already existin state constitutions and identify two major obstacles to California’spositive rights efforts. Part III will propose a solution to overcomethese obstacles: a state constitutional amendment recognizing ESCrights in the California Constitution, including a standard of adequacyrooted in progressive realization. The Note will model this standardfor application by the California Supreme Court, and conclude byexploring potential public policy benefits engendered by this proposalat both local and international levels.