Cass Sunstein: The Second Bill of Rights ... FDR's Greatest Speech

Cass Sunstein, in the Chronicle of Higher Education (June 7, 2004):

On January 11, 1944, the United States was involved in its longest conflict since the Civil War. The effort was going well. In a remarkably short period, the tide had turned sharply in favor of the Allies. Ultimate victory was no longer in serious doubt. The real question was the nature of the peace.

At noon, America's optimistic, aging, self-assured, wheelchair-bound president, Franklin Delano Roosevelt, delivered his State of the Union address to Congress. His speech wasn't elegant. It was messy, sprawling, unruly, a bit of a pastiche, and not at all literary. But because of what it said, this address, proposing a Second Bill of Rights, has a strong claim to being the greatest speech of the 20th century.

In the last few years, there has been a lot of discussion of World War II and the Greatest Generation. We've heard much about D-Day, foreign occupations, and presidential leadership amid threats to national security. But the real legacy of the leader of the Greatest Generation and the nation's most extraordinary president has been utterly lost. His Second Bill of Rights is largely forgotten, although, ironically, it has helped shape countless constitutions throughout the world -- including the interim Iraqi constitution. To some extent, it has guided our own deepest aspirations. And it helps us to straighten out some national confusions that were never more prominent, and more pernicious, than they are today.

It's past time to understand it.

Roosevelt began his speech by emphasizing that war was a shared endeavor in which the United States was simply one participant. Now that the war was in the process of being won, the main objective for the future could be" captured in one word: Security." Roosevelt argued that the term"means not only physical security which provides safety from attacks by aggressors," but also"economic security, social security, moral security." He insisted that"essential to peace is a decent standard of living for all individual men and women and children in all nations. Freedom from fear is eternally linked with freedom from want."

Moving to domestic affairs, Roosevelt emphasized the need to bring security to all American citizens. He argued for a"realistic tax law -- which will tax all unreasonable profits, both individual and corporate, and reduce the ultimate cost of the war to our sons and daughters." We" cannot be content, no matter how high that general standard of living may be, if some fraction of our people -- whether it be one-third or one-fifth or one-tenth -- is ill-fed, ill-clothed, ill-housed, and insecure," he declared.

At that point, the speech became spectacularly ambitious. Roosevelt looked back, not entirely approvingly, to the framing of the Constitution. At its inception, the nation had protected" certain inalienable political rights -- among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures," he noted. But over time, those rights had proved inadequate, as"we have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence."

"We have accepted, so to speak, a Second Bill of Rights under which a new basis of security and prosperity can be established for all -- regardless of station, race, or creed."

Then he listed the relevant rights:

The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation.

The right to earn enough to provide adequate food and clothing and recreation.

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living.

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad.

The right of every family to a decent home.

The right to adequate medical care and the opportunity to achieve and enjoy good health.

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment.

The right to a good education.
Having cataloged these eight rights, Roosevelt again made clear that the Second Bill of Rights was a continuation of the war effort."America's own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens. For unless there is security here at home there cannot be lasting peace in the world." He concluded that government should promote security instead of paying heed"to the whining demands of selfish pressure groups who seek to feather their nests while young Americans are dying."....
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John Henry Ryskamp - 7/4/2004

John Ryskamp

Cass Sunstein's book on a second bill of rights, brings to light a continuing debate on the nature and extent of individual rights. When I was in law school, we talked a great deal about them with Myron Moskovitz, who was in on some of the affirmative rights cases brought before the California Supreme Court during the 1970s. The discussion broke down into three areas.

The first area concerned the statement of the rights, or as it is called, the black letter law: how should it read? The affirmative rights cases expressed the right (for example, the right to housing) as an affirmative duty, or at least the Court so interpreted it. And they turned it down 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.

So it appears that, whatever the new rights, they should be expressed in black letter law as negative prohibitions (this is not how the Four Freedoms or the Declaration of Human Rights are expressed). 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.

The second area was the rights themselves: what are they, and how do we know they are rights? Curiously, this turns on a statement by James Madison which was constantly cited in the later dissents of Brennan and Marshall who, in typical Supreme Court fashion, got religion once they were in the minority: this seems to have opened their eyes a little. They cited Madison stating that the Fourth Amendment prevents every assumption of power in the legislative and executive (in the Federalist Papers). This seems to be anomalous. 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. Brennan and Marshall twigged this immediately, although they were hazy on its implications. It suggests that, under the Fourth Amendment, 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).

The invocation of these absolute rights in other provisions of the Bill of Rights, suggests a long look at what the Bill, the Constitution and English constitutional history stand for. It is probably something like the idea that there are certain facts of the individual with respect to which the individual is vindicated in every case. 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.

It took, however, many thousands of years to conclude that protected speech and freedom from state religion, are facts of the individual. This is sort of a warning as to how difficult it is to identify such facts, not to mention vindicate them in law. Nevertheless, such facts do tend to be identified. Obviously, the Four Freedoms were an attempt to identify new facts. But that's just the tip of iceberg. There is an ongoing debate as to what, if any, are new facts of the individual. 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? Of course, there is always SOME role for the different branches with respect to facts of the individual: the Court is constantly hearing cases on establishments of religion and legislatures are constantly legislating with respect to them one way or another. But the consensus seems to be that if you do find an establishment of religion, it is banned in EVERY case. So that tends to square with a very important, probably the most important, statement by a Founder.

Needless to say, there will be discussions as to whether these alleged facts are really facts of the individual. How can you be really sure, since my list tends to look like a laundry list? And what about other ones? A hot one is, transportation. Is that a fact of the individual? Or is it subsumed under other individual rights? The question of whether a fact is subsumed under another fact of the individual, seems to be a pretty good test. In the case of transportation, I just don't know. But somebody does!! And that is the point: the process is endless, of discovering facts of the individual. It is basically political, when the discussion reaches the point at which certain facts are considered facts of the individual, and vindicated in law. Which brings us to...

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. And here I just point out a few of the political difficulties. 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? I think it is pretty clear that that would involve an involuntarily deprivation of housing. I can just see the 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?

Also, what about eminent domain? There is, of course, a huge and swelling legal movement aimed at exposing the egregious human rights abuses carried out in the name of eminent domain, which, it seems, every Tom, Dick and Harry in government at every level, has the right to exercise. But what, 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.

Which doesn't mean we shouldn't pay attention to case developments in these five (or different, or other) areas, because sometimes remarkable changes take place through the political process. For example, it has not been widely noted that the huge growth of homeownership, and of Fannie Mae and Freddie Mac in conjunction therewith, tends to moot the issue of whether there is a right to housing, and tends to establish housing as a fact of the individual, because it tends to make it impossible for the Federal Government ever again to tolerate a high (or any?) level of mortgage defaults and executing of writs of possession. Keeping people in that housing is coming more and more to be a simple fact of the economic structure of the country. One of these days some bright lawyer is going to put the facts together in this area and see that they constitute something like an individually enforceable right to housing--and the Court will agree.

But in general I think 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.

Lawrence Brooks Hughes - 6/18/2004

My nominee for this honor would be the Oklahoma City speech of Thomas E. Dewey that fall.

Dewey aaked a very Republican crowd, "Is there any such thing as an indispensable man?" "No, no," the crowd responded.

Oh yes, I say there IS such thing as an indispensable man! "No, No, NO, NO, NO" the crowd thundered.

Then it was Dewey's turn to roar:
"He is indispensable to Ed Flynn, Jake Arvey, Sidney Hillman, Walter Reuther, Harry Truman, Carmine DeSapio,
Harry Bridges, Earl Browder, Henry Wallace.. (etc)."

Hugh High - 6/11/2004

Cass Sunstein is seldom wrong. However, here is an instance when he is either wrong, or has failed to observed that important component or aspect of Roosevelt's 'Second Bill of Rights' which Sunstein applauds.

The simple fact is that Roosevelt was suggesting there are, indeed, 'rights' -- but the 'rights' of which Roosevelt speaks become a duty for someone else. And it is presumptious in the extreme for Roosevelt, Sunstein, or others to 'instruct' me , and others, as to the 'duties' which I have !! I would never presume to do that to Sunstein or others.

A more honest statement by Roosevelt would have been a statement that : "given my values, and given that I control the levers of government, include the bayonets, right to prosecute for failure to pay taxes, etc., I am going to redistribute income and property from some to those who are objects of my affection and/or interest."

Sunstein knows this. Why, then, he has lauded Roosevelt's willingness to use government to require some to provide 'security', 'jobs', 'incomes to farmers' , etc. is quite amazing.

I would rather argue that, in couching his ideology in such glowing terms, Roosevelt simply served to perpetuate the myth that governments can do things for individuals --when, in fact, it is other citizens.

Continued deception of the body politic does it no favour.

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