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The Second Bill of Rights: FDR's Unfinished Revolution--And Why We Need It More Than Ever

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I won't bore you with all the things that are good about this book (as usual, Sunstein's scholarship is first-rate, his prose is easy on the eyes even as the ideas are challenging to the mind). I'll get straight to my two problems with the substance of his advocacy of Roosevelt's "Second Bill of Rights", which encompass social-welfare rights not included in our actual Bill:

1) While Sunstein is careful to thoroughly review just about all possible objections - political, economic, legal, and moral - that one could throw at the idea of an expanded array of social-economic rights, the one he spends most of his time on is an attack on the "laissez-faire" idea that classic first-bill rights, such as freedom of speech, religion, property rights, and freedom of contract, are cost-free and don't require an active "government".

Sunstein shows that they do. But, the problem here is that he is demolishing a straw-man. I don't know of *any* modern "conservative" thinker who would disagree with the idea that a free market requires a significant amount of government - an elaborate legal system to enforce contracts, remedy fraud, document transactions; police and military forces to protect property, etc. Sunstein even quotes key free-market philosophers, such as Friedrich Hayek, to that effect. The only ones who truly believe in a literal absence of government are anarchists, and most conservative thinkers despise anarchists as much as they do leftists. No, the issue isn't whether we should have government or not have it, the issue is how *much* government we should have. By attacking an opponent who does not (or at least no longer) exists, Sunstein dodges that issue.

2) After addressing several objections to a Second Bill, Sunstein addresses the one of most concern to me: That Roosevelt's plan to "take from those who have large amounts of resources to ensure decent amounts for those who would otherwise be in desperate need" amounts to an immoral theft of property. In my view, the only people that i or any other citizen should be required, at point of bayonet, to support are members of my immediate family. If i am starving and my neighbor has plenty, it may be the right thing for him to give me food, and he may be worthy of condemnation by the community if he refuses to help me, but in my opinion he should not be required, by governmental force, to do so. To make my neighbor responsible for my well being would be morally wrong, a brutal violation of their right to dispose of what they earned as they see fit, with the caveat that they should be taxed to pay for essential government services that benefit everyone, such as police, fire, military, legal- the apparatus needed to protect "first bill" rights.

This is the real rub, because as Sunstein notes, many provisions in the "Second Bill", such as Social Security and a right to public education, have pretty much become law anyway. What hasn't become law, and what Sunstein really wants, is a welfare state that provides expanded housing, food, shelter and medical care for the poor, and not just at a bare minimum, but including enough spending money so that they can participate in the broader culture via purchase of consumer goods, too. Sunstein rejects the notion that people require only the "bare minimum for survival", saying that poverty is "relative", and in our affluent society people will not feel like "whole citizens" unless they have a lot of what they see others enjoying on television.

On pages 205-206, Sunstein addresses "my" point about the morality of "taking from the rich to give to the poor" by arguing that if one is to say that taking from the 'haves' to give to the 'have-nots' violates the rights of the 'haves', one would have to agree that "people have a right to their current holdings, and any dimunition amounts to a rights violation". Sunstein says that this position is implausible, because it is only the existence of laws and public institutions that make those holdings possible. He says "without public support, wealthy people could not possibly have what they own.... those who denounce government largesse as a violation of rights disregard the extent to which their own rights are a product of government".

That's it! That's his reply. In my opinion, it is totally inadequate, because if we take Sunstein's argument seriously, government can diminish any of our rights at any time for any reason, simply because it is government that protects them. If GW Bush wants to enact a law that allows the FBI to wire-tap anyone without a warrant at any time they please, or shut down newspapers that criticize the war in Iraq, one couldn't cry foul about one's rights being violated by an intrusive government, because by gosh it's only by the grace of government that we have any rights at all!

Since to me this was the key issue that Sunstein had to address and in my opinion he failed to do so, i was unconvinced by the thesis of the book.

book does a good job of analyzing many arguments for and against FDR's proposal. Only thing I thought it lacked was a thorough analyses of the consequence of not accepting FDR's bill as law. FDR's bill of rights needs to be realized in order for all Americans to exercise our existing bill of rights. Especially that of the right of pursuit of happiness. Because, in the current system that nurtures individual greed, majority of the people are just too busy pursuing to secure shelter, health care, decent education, job etc and has no time to pursue happiness. these things should be a basic right of all so that people can truly pursue happiness instead of wasting a life time on securing the basics. If FDR's bill of right does not become a reality, sooner or later people will realize that they are in a hopeless situation created by the super rich and start a revolution.....If the super rich are smart, they should work hard to make FDR's bill into law, because this will make it possible for them to enjoy their riches for a long time without the threat of revolution where their amassed riches will be taken away by force as well as make them more rich because it will create more consumers to consume products and services produced by their industries.

The idea of the Second Bill of Rights appeared in the classic State of the Union address by Franklin Roosevelt in 1944, and is an underground current of American culture. It was also in part the inspiration for the Universal Declaration of Human Rights. That this speech, and the real FDR, is so little known tells us something of the times, but the birth of an idea foretells perhaps its future return. The powers that be don't wish that we realize the incomplete nature of our democracy, and the history of this speech mostly explains the apoplexy of the resurgent right wing. This book explores the history and legal background, and the way this second bill almost became a part of the American system in the 1960's. Everything was in place, and then the election of Nixon stopped the momentum as four new conservative judges were placed on the Supreme Court. The conservative tide after that is the story of our generation and the incoherence, reactionary destruction, and inequality it has spawned. An idea whose time has long since come, and whose second coming we can certainly hope and work for.

This was my fist Sunstein book but it won't be my last. Three chapters (2, 6 and 11) alone are worth the book's price. Sunstein's obvious constitutional experience and social acumen offers depth and insight into many social issues of the day. He caused me to critically understand the definition of "government" and "rights" better than ever. His analysis of Laissez-Faire economic philosophy is the most practical I've ever read.

Although I was interested in the conditions for and results of the "New Deal", I was unaware of FDR's 2nd BOR probably I think, because few ever really gave it its proper emphasis and analysis. Sunstein filled in the missing pieces. His writing is well constructed, logical without becoming oppressive, and flowed nicely. It is a quick read.

The book is more than a historical analysis. It challenged my understandings of the role today of government and the constitution. I've been studying these issues for several years now, so Sunstein accomplished what few others could. It was truly a fresh approach that makes me feel like I understand social issues and their complications better than ever.

His treatment of FDR's Second Bill of Rights was fair and reasoned illustrating both sides of the argument. He thankfully made the discussion relevant to the issues of today and provided tools for me to use in discussions with others.

I've added more of his titles to my wish list. You should too.

Although the focus of this book is the FDR era and his particular vision for an explicit extension of the rights of the common person, the topic is especially relevant today. The author lays out authoritatively both the historic rationale and significance of this vision, and its partial adoption in practice, as well as presenting an illuminating discussion of the meaning of Constitutional change. This is discussed theoretically, but also pragmatically and historically. Early on in the book, he presents a useful critique (and one that is especially relevant again today) of the myth of laissez-faire, but his focus on the under-recognized necessity of government in the development of private property, and its particular character and ownership patterns, could have been improved with more particular examples. Occasionally a little repetitious, this book nevertheless presents a cogent argument for reform today along the lines of FDR's second bill of rights' vision, and the many quotations from our "founding fathers" and others added to one's understanding of their Constitutional vision. Finally, I favor the author's pragmatic approach as to what are, or should be, a consensus view on citizen and human rights: rights are what is understood at the time to be the current wrongs that need to be redressed. Thus, the fact that some problems and issues may not be present in one era, is more likely to be responsible for their absence in discourse and documents of guiding principles of governance, and not because the leaders of that time necessarily thought such problems were out of government purview.

Professor Sunstein recovers FDR's 1944 State of the Union address from the dust bin of history. The speech makes a compelling case for the proposition that each of us has inherent economic rights; not just civil and political rights. Among these rights are a right to a useful and remunerative job, and the right to earn enough to provide adequate food, clothing, shelter, health care, and recreation.

In part two of the book Sunstein however argues that these rights are not recognized in the Constitution. Rather they are "constitutive commitments," fundamental aspects of how we understand what America is about. In part three of the book he explains why it is that these now universally recognized human economic rights should not be considered Constitutional rights.

Professor Richard Epstein of the University of Chicago Law School, a Fellow at the Hoover Institute, and a scholar of the Cato Institute argues in his book How Progressives Rewrote the Constitution, almost as a counter-point, that the Supreme Court wrongly embraced FDR's social-economic revolution.

Reading these two together permits one to reflect on the role of the Supreme Court in effecting social change, the meaning and limits of the Constitution, and just what kind of a government the founders envisioned; and better understand the real stake in the debates about appointments to the Supreme Court.

For good measure one might also read Sotorios Barber's Welfare and the Constitution, a compelling case that the Constitution authorizes, even requires positive government. In other words, the government is, in fairness to President Reagan, part of the problem; but at the same time it is also a necessary part of the solution.

My first semi-legalese book. Quick and easy read, and very inspiring. The professor makes an excellent case. Who needs to amend the Second Bill to the Constitution? Just adopt it America. If you will it, its yours.

Franklin Roosevelt left this Earth with unfinished business. In the post-war era, he sought to acknowledge the need for social and economic rights. Although it is often referred to as the Second Bill of Rights, FDR did not intend to amend or change the Constitution. He sought to bring attention to basic human rights. Sunstein correctly asserts that progess was being made toward FDR's goals until Nixon was elected President. When Nixon appointed four conservative judges to the supreme court, the tide changed to rule against cases that sought greater social and economic rights.

Among the issues discussed in the Second Bill of Rights are a right to a job, food and clothing, health care, fair business, education, and a decent home. Some will suggest FDR's ideas reeked of socialism. I think such a phobia is childish. All people depend on the government a great deal. Something as simple as property could not exist without a government.

The wonders a correctly implemented government health care system would make life so much easier and of a greater quality. Why is the United States the richest country in the world, but also has the highest poverty rate of industrialized nations? This does not make sense! It is not a matter of redistributing resources as in communism. This would destroy a free market driven by profit, when FDR was a proponent of free market. The problem is the wealth concentrate in the rich coperations, monopolies, and other unfair business practices. FDR thought all Americans should live at a certain standard.

FDR did not seek to change the system. As Sunstein clearly points out, most modern constitutions provide the rights FDR sought in 1944. While we have made a lot of progress toward FDR's goals, we have a long way to go. Sunstein has written an excellent book that explains what most thinking men and women already know, America still has a long way to go in completely providing life, liberty, and freedom.

In examining the "soft" new rights Sunstein champions, keep these hard issues in mind:

1. Black letter law: how should new rights read? The "affirmative rights" cases of the 1970s expressed rights (for example, the right to housing) as an affirmative duty, or at least the Courts so interpreted it. And they turned down such a right for the usual reason: it tended to bring the Court into the Executive branch, involving it in a supervisory role to determine if the right was being implemented properly. This overstepped the bounds of the separation of powers and the Court would have none of it. Solution: express new rights as negative prohibitions (this is not how the Four Freedoms or the Declaration of Human Rights are expressed, and Sunstein glosses over this vital issue). For two reasons: they tend to avoid fact questions and they tend to be self-enforcing. For example, housing: if two parties are quarreling over whether one should be removed from housing, there isn't any question as to what is housing. So this minimizes the necessity for the Court to step in and answer the question: what, in fact, is housing? Second, a negative prohibition tends to minimize the affirmative need for Government to make sure people aren't being forced out of housing. People tend to know when they're being forced out of housing. If they have an individually enforceable right, they'll squawk and take it to Court and get the threatened removal stopped.

Second area: what rights? This turns on a statement by James Madison constantly cited in the later dissents of Brennan and Marshall. Madison states, in The Federalist, that the Fourth Amendment prevents every assumption of power in the legislative and executive. This creates what I call the fatal anomaly of the Constitution. The Fourth Amendment guards against unreasonable searches and seizures. Reasonableness suggests a balancing approach, which the Court has adopted. However, Madison does not say every unreasonable assumption; he says, EVERY assumption. It suggests that there are rights which are protected in EVERY case, somewhat along the lines of an establishment of religion where, if you find it, you ban it in EVERY case (no such thing as a reasonable establishment of religion). No one can properly address new individual rights without reaching a conclusion on this issue. Sunstein doesn't do this.

The history of English constitutional law suggests that the state makes long-term efforts to impose certain conditions, for example a state religion or violations of what today is regarded by the Court as protected speech. These efforts are made over thousands, sometimes tens of thousands of years, so there is a long history to look at. And the conclusion is that it is simply a history of failure. In the end, governments don't succeed in imposing state religion or in violating protected speech--they simply distort the facts and cause all kinds of grotesque situations. Which suggests that these facts--freedom from state religion and exercise of protected speech--are facts of the individual. That is, they inhere in the individual and are never violated.

Myself, I think there are five about which the logic has been made clear over the centuries, even though there is no political consensus: housing, education, maintenance, liberty and medical care. So, if you were going to formulate new black letter rights, they should read something like (on the model of the 13th amendment): no individual shall be involuntarily deprived of housing, and so on. It's a negative prohibition with respect to a fact to which parties would tend to stipulate, and neither the Government nor the Court would tend to be dragged into a fact-finding or supervisory role. Is that the test for an individual right? What about other ideas, say, transportation? Is that a right? The point is that the process is endless, of discovering facts of the individual.

The third problem area is, even if you know of new rights, how on earth do you get them enforced? Whatever the new facts, it is clear that we are living in a political reaction--and have been for 30 years--which makes it unlikely, barring a crisis, that we will see the promulgation of new rights. Say we sign off on libery and housing as rights. That means the end of incarceration. How can you have a ban on involuntarily deprivations of housing (and remember, Madison says it's in "every" case) and still put people in prison? Test case: the sheriff enforcing an arrest warrant by going up to the door of a building in which both the defendant and the sheriff concede, the defendant is housed. Here you have a flat-out political problem: Joe Sixpack will not currently allow an end to incarceration. Americans ADORE incarceration. For them, it's a sport. And how can you convince them otherwise, when only 10% of Americans ever come into contact with the criminal justice system?

What about eminent domain? No road which would benefit all humanity because Grandma won't take the buyout? And is now standing on her right to housing? I sense the bulldozers waiting, purring.... I can't see the powers that be (politicians, unions, construction companies, and on and on), putting up with such a right. The reason human rights have stalled is because we have indeed reached something like a logical consensus on new facts, which new facts are slamming up against very high institutional and political barriers. Nothing stops us, however, from clearing the doctrinal ground against the time those barriers fall.

Of all the stupefyingly idiotic ideas that, thankfully, never got passed into law, Franklin Roosevelt's "Second Bill of Rights" was one of the all-time worst. Cass R. Sunstein's billowy praise of "St. Franklin" borders on deification and is all at once laughable and nauseating. But underlying it all is the notion that this odious, detestable idea--that it's the government's job to provide people with work, housing, food, etc.--is actually something worth revisiting! That is utterly repugnant to me as it should be to every American. We are a nation of sturdy, self-reliant individuals. We are resourceful, resilient, and industrious. We look only to Almighty God for our daily bread--not almighty government! But unfortunately, history has provided us with enough Karl Marx's, Franklin Roosevelt's and Cass Sunstein's to keep these questions in continued doubt, and urge America Leftward into a European-style socialist gulag. Mercifully, FDR failed to get his attack on American freedom ratified. I can only hope CRS and his ridiculous book will meet with similar failure!