In a 2001 interview on Chicago public radio, Obama lamented that “the Supreme Court never ventured into the issue of the redistribution of wealth.” The problem, he said, was that the court “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution… that generally the Constitution is a charter of negative liberty.”
In this perhaps unguarded moment, Obama became one of the few liberal politicians candid enough to admit that the Constitution poses a fundamental obstacle to their agenda.
This is a popular theory in academic circles. It is the fundamental argument of Cass Sunstein, a colleague of Obama’s at the University of Chicago Law School (now on his way to Harvard), who is often mentioned as an Obama adviser and potential Supreme Court nominee, and the author of The Second Bill of Rights: FDR’s Unfinished Revolution and Why We need it More than Ever.
The second bill of rights idea derived from two famous speeches that Franklin Delano Roosevelt gave—one at the San Francisco Commonwealth Club during the 1932 campaign and his 1944 annual message to Congress. In the Commonwealth Club address, he spoke of the advent of “enlightened administration,” which would redistribute resources in accordance with an “economic declaration of rights.” In his 1944 message to Congress, Roosevelt said that “our rights to life and liberty”—the negative liberty to which Obama referred, had “proved inadequate to assure us equality in the pursuit of happiness.” He claimed that “In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights.” This bill of rights included the right to a job, the right to food and recreation, the right to adequate farm prices, the right to a decent home, the right to medical care, and the right to a good education.
Of course, these are not “rights” at all—not in the sense that the framers and ratifiers of the Declaration of Independence and Constitution used the term--but entitlements. From the founding until the twentieth century, the American regime assumed that government’s purpose was to secure pre-existing natural rights—such life, liberty, property, or association. Everyone can exercise such rights simultaneously; nobody’s exercise of his own rights limits anyone else’s similar exercise. Your right to life or to work or to vote does not take anything away from anyone else. We can all pursue happiness at once. Entitlements, on the other hand, require someone else to provide me with the substantive good that the exercise of rights pursues. The right to work, for example, is fundamentally different from the right (entitlement) to a job; the right to marry does not entitle me to a spouse; the right to free speech does not entitle me to an audience.
The New Deal is often described as a “constitutional revolution.” In fact, it was much more than that. It involved a rejection not just of the structure and principles of the Constitution, but those of the theory of natural rights in the Declaration of Independence—that, as Jefferson put it, governments are instituted in order to secure our rights. Roosevelt envisioned not a new constitution, but a new idea of what Sunstein calls “a nation’s constitutive commitments.”
As to this problem, Sunstein says that “The best response to those who believe that the second bill of rights does not protect rights at all is just this: unembarrassed evasion.”
Roosevelt anticipated no constitutional problem for the New Deal, for “Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form.”
Of course, there were severe constitutional problems with the New Deal, and Roosevelt ended up in a nasty campaign to “pack” the Supreme Court, the political reaction to which effectively ended the New Deal.
The economic bill of rights agenda has proceeded in fits and starts ever since, under the labels Fair Deal, Great Society and, it may be, whatever slogan will attach to “spreading the wealth around.”
Obama and academic liberals lament that the Supreme Court, once under the control of liberals in the Warren years, didn’t do more to advance economic equality. And most observers think that Obama will only have the chance to replace retiring liberals with new liberals on the current Court. The larger point is that liberals won’t need the court to implement the economic bill of rights, so complete will their majority be in the political branches.
Thus the real “change” for the American people, as Obama so candidly put it, is whether we want to repeal not just the Constitution, but the Declaration of Independence, in order to establish an entitlement state, or not.