Rights Stuff

The Second Bill of Rights: FDR's Unfinished Revolution -- and Why We Need It More Than Ever
By Cass R. Sunstein • Basic Books • 294 pages • $25.00

Most of the world's constitutions include three kinds of rights: civil, political, and social. The U.S. Constitution, however, makes no mention of “social rights,” and the Supreme Court says the Constitution's “majestic generalities,” such as “equal protection of the laws,” confer no “affirmative rights” -- no right to housing, for example, or to a minimally adequate education. Still, state constitutions and specific pieces of legislation do create such rights (particularly to education), and many liberals often claim that health care or a living wage ought to be a matter of right. But are rights the right way to carry out these goals?

The prolific liberal constitutional scholar Cass Sunstein has written a book to convince us that rights are the right stuff, and to make his case he reaches back to what he calls the “greatest speech of the twentieth century”: Franklin Delano Roosevelt's 1944 State of the Union address, which proposed that Americans recognize a Second Bill of Rights. As FDR conceived it, every American would have the right “to a useful and remunerative job,” “good education,” “adequate medical care and the opportunity to … enjoy good health,” and “adequate protection from the economic fears of old age, sickness, accident, and unemployment.” Every family would be entitled to “a decent home,” every businessman to “freedom from unfair competition,” and every farmer “to raise and sell his products” at a decent return. FDR's account of Americans' social rights was not chiefly about what we call “welfare.” It centered on government's duty to ensure everyone decent work and remuneration, and behind that, a system of universal social insurance.

Eminently readable and thought-provoking, Sunstein's The Second Bill of Rights is part history, part theory, and part survey of social-rights jurisprudence around the globe. At a time when progressives are pressed to think small, Sunstein encourages us to think large, about a remarkably robust vision of social and economic rights that once was ours, and how we might regain it. But his arguments in favor of social rights are curiously vague and ambivalent.

Like Roosevelt, Sunstein does not propose to amend the Constitution to provide for social and economic rights. He argues that these rights should be seen as commitments that legislators, not courts, must bring to earth. In other words, they must be achieved politically rather than judicially. And instead of conceiving of them as constitutional rights, he calls them “constitutive commitments,” claiming that history has made them constitutive of our national identity.

Borrowing from recent scholarship, Sunstein paints a convincing portrait of FDR as a serious constitutional visionary and educator. According to the conventional historical wisdom, FDR was a pragmatist with no theoretical principles and, regarding constitutional change, a cynical opportunist. After all, faced with a conservative Supreme Court majority striking down key New Deal reforms, didn't Roosevelt try to increase the number of justices on the Court and pack it with his nominees? FDR was consistent about certain goals, however, and these included what he termed a “re-definition of rights in terms of a changing and growing social order.”

The Framers, FDR argued, knew that personal liberty and political freedom were inseparable from a measure of economic independence and material security. But in their day, land was plentiful, and even laborers owned some property. So, for a century or more, the old common-law rights “involved in acquiring and possessing property,” along with the ballot and freedom to live by one's “own lights,” ensured the liberty of ordinary Americans. By the end of the 19th century, however, “our industrial combinations had become great uncontrolled and irresponsible units of power within the State.” These new conditions robbed the old rights of their ability to secure the “welfare and happiness of ordinary Americans.” The “political tyrants” of the 18th century had been replaced by “economic royalists.” But “freedom is no half-and-half affair.” “Necessitous” people are not “free.” To remain a constitutional democracy, a mature industrial America needed an “economic constitutional order” and a “declaration of social and economic rights.”

FDR offered his Second Bill of Rights to the world -- and the world bought it. During the 1940s, Sunstein observes, it became a “leading American export,” shaping the United Nation's Universal Declaration of Human Rights and influencing dozens of new constitutions. But the United States did not embrace the Second Bill, and today it exports an anti-social-and-economic rights dogma sometimes called the Washington Consensus. So how can the Second Bill be a statement of America's constitutive commitments when the United States has abandoned the very idea of social and economic rights?

In explaining why the Second Bill didn't get carried out, Sunstein overlooks some well-known political reasons for the defeat of Roosevelt's vision. By the 1940s, southern Democrats had joined with conservative Republicans to block a broad social-rights agenda, including bills to enact national health insurance, to remedy the many gaps in the Social Security Act, and to achieve full employment. No doubt, congressional Democrats from the South would have supported these measures if they had voted the wishes of the region's disenfranchised black and poor white majority. The same influences that led to federal acceptance of Jim Crow undercut Roosevelt's vision of a Second Bill of Rights.

The main legislative embodiments of Roosevelt's vision were the Wagner, Fair Labor Standards, and Social Security acts of the 1930s, and the industrial unions became the only powerful, organized constituency for social and economic rights. Blocked by the Dixiecrats at every legislative crossroads, however, the unions gradually abandoned efforts to complete the New Deal and bargained instead for private entitlements to job security, pensions, and health insurance for their own members.

Social rights were reborn in the 1960s as “welfare rights,” a shift that Sunstein largely ignores. FDR's Second Bill spoke to and for a majority coalition that, in principle, included disenfranchised blacks along with whites. In practice, however, the limited system of social provision and labor rights bequeathed by the New Deal failed most African Americans. For urban blacks, public assistance stood as the primary federal protection against poverty, and many of the new social programs of the '60s were targeted at minorities. Many civil-rights and labor leaders tried to craft a broader agenda -- including jobs, housing, and health care -- as rights of all Americans. But the mass constituencies and organizations for such an agenda weren't there.

The war on poverty and the struggle for welfare rights in the courts advanced some social rights, as Sunstein notes. As in its decisions desegregating the schools, the Court cast itself as countermajoritarian guardian of rights on behalf of racial minorities, the poor, and the dispossessed. Indeed, the Court seemed to be verging on judicial recognition of minimum rights to welfare and education when the Republican victory in 1968 deprived the Court's liberals of the votes they needed to carry the process forward. If not for Richard Nixon's razor-thin victory, Sunstein argues, “significant parts” of the Second Bill “would probably be part of our constitutional understandings today.” Certainly, he goes on, they'd be part of “the nation's constitutive commitments, which is where they belong.”

But here is where Sunstein's use of the term “constitutive commitments” becomes especially tricky. Carrying out such commitments requires broad political support, and it is doubtful that there would have been such support for substantially expanding welfare rights for the very poor. FDR's Second Bill promised each American the realistic opportunity to earn a decent livelihood, with leisure, recreation, good health, and the assurance of adequate social provision for everyone unable to work. “Welfare rights” did not evoke that shared destiny of work and opportunity.

The broad reach of FDR's Second Bill appealed -- and still may appeal -- to the needs and aspirations of a vast swath of Americans. Sunstein ends up with a sparser proposal that offers the nation's poor good education, health insurance, and a minimum subsistence in the form of welfare checks or earned income tax credits for those employed at poverty-level wages. Sunstein spurns Roosevelt's notion of a right to decent work, and even laments that FDR favored “efforts to increase the minimum wage,” which Sunstein deems inefficient because such efforts may increase “the income of many people who are not poor.”

With globalization and dire changes in American labor markets, no one knows just how government today could make good on Roosevelt's vision of well-paid work for every American. If Sunstein were calling for judicial enforcement of social rights, one could understand why he would leave FDR's right to decent, remunerative work off his list. But Sunstein underscores that social rights can, and often should be, understood as rights that lawmakers must honor as much as they practically can. The principle that everyone willing to work hard should earn a decent livelihood remains popular and compelling, and there is a lot that government can do to broaden the base of decent work -- even if remunerative work can't be made an individual entitlement.

In contrast, the provision of decent subsistence, shelter, and health care are not so fraught with practical uncertainties as to be beyond government's capacity to address or the courts' abilities to help secure. It's puzzling why Sunstein thinks that rights to these basic conditions of life have no place in the Constitution and the courts. Many constitutional scholars hold that because social rights are costly and implementing them involves complex resource allocations, the courts should leave the entire business to the other branches. But Sunstein offers a cogent critique of these views. Obviously, courts can't enforce social rights to the hilt, but, as Sunstein acknowledges, courts can prod legislatures to ensure that “basic needs receive a degree of legislative priority and that the most conspicuous forms of neglect are corrected.” He also agrees that “a judicial interpretation of the Fourteenth Amendment that called for much of the second bill” would be perfectly sound. Rather than argue straightforwardly for making social rights a matter of constitutional law, however, he calls for recognizing them as constitutive commitments, perhaps because he believes that approach would draw wider support.

FDR made an eloquent, popular case for the proposition that we simply cannot have a constitutional democracy in modern America without social rights. People who are ill-fed, ill-clothed, uneducated, and shelterless cannot realistically enjoy an equal footing in the political world of ordinary citizens. The logic of FDR's position remains strong, perhaps stronger than even Sunstein allows. Let's hope his book helps send this case back for public reargument.

William Forbath is the Lloyd M. Bentsen Professor of Law at the University of Texas at Austin and the author of Law and the Shaping of the American Labor Movement.