Care as a constitutional value

Abstract This article explores the potential of regarding care as a constitutional issue, rather than addressing it solely through legislation, the family, or the market. It is argued that care is best regarded as a constitutional value, reflecting the reality of our interdependence, and functioning as a crucial counterweight to the fiction that individual freedom can be constituted independently of our social relations. Care as a constitutional value should be regarded as complementing express constitutional commitments to freedom, dignity, and equality, recognizing that relationships are constitutive of the self, and that individuals are partly constituted by society. Just as freedom, dignity, and equality perform important expressive functions in a constitution, so the recognition of care, implicit or explicit, signals the foundational importance of care to everyone throughout our lives and to society’s ability to reproduce itself. Care as a constitutional value should permeate the interpretation of constitutional and other provisions, and enhance accountability for care-related decisions, encouraging decision-makers to pay attention to care, and prompting courts to interpret constitutional and legislative measures with the value of care in mind. In this way, the gaps in welfare law, labor law, and free market regulation can be addressed to face the challenges of care. Equally importantly, care as a constitutional value can act as a catalyst for political activism, legitimizing grassroots campaigns for better recognition of care. This article is normative and exploratory. At the same time, its propositions are tested against constitutional jurisprudence in India, South Africa, Canada, and the United Kingdom.