ABSTRACT
The "right" of citizens to live a life that is enriched by the basic capabilities, Nussbaum is suggesting, ought to be recognized as a constitutional right. This chapter discusses Martha Nussbaum's general claim – that the right to capabilities should have constitutional grounding – by responding to – rather than cabining – the apparent counter-example of United States constitutional law. It argues that the "negative rights only" thesis so widely embraced in American constitutional law is by no means a necessary feature of even American constitutionalism, much less constitutionalism generally. Although rooted in the American experience that conception of constitutionalism has legs: it is one that is transportable to nascent constitutional governments elsewhere. United States political history likewise is filled with examples of both individual patriots and large political movements employing the language and rhetoric of the Constitution to urge that states are obligated to act in accord with the mandates of social justice.
