We Need to Reclaim the Second Bill of Rights

We Need to Reclaim the Second Bill of Rights By CASS R. SUNSTEIN 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, illhoused, 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 1

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." Roosevelt, dead 15 months after delivering his speech, was unable to take serious steps toward putting his Bill of Rights into effect. But his proposal, now largely unknown within the United States, has had an extraordinary influence internationally. It played a major role in the Universal Declaration of Human Rights, completed in 1948 under the leadership of Eleanor Roosevelt and publicly endorsed by American officials at the time. The declaration proclaims that everyone has the "right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control." The declaration also provides a right to education and social security. It proclaims that "everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment." 2

By virtue of its effect on the Universal Declaration, the Second Bill of Rights has influenced dozens of constitutions throughout the world. In one or another form, it can be found in countless political and legal documents. The current constitution of Finland guarantees everyone "the right to basic subsistence in the event of unemployment, illness, and disability and during old age as well as at the birth of a child or the loss of a provider." The constitution of Spain announces, "To citizens in old age, the public authorities shall guarantee economic sufficiency through adequate and periodically updated pensions." Similarly, the constitutions of Ukraine, Romania, Syria, Bulgaria, Hungary, Russia, and Peru recognize some or all of the social and economic rights cataloged by Franklin Roosevelt. We might even call the Second Bill of Rights a leading American export. As the most recent example, consider the interim Iraqi constitution, written with American help and celebrated by the Bush administration. In Article XIV it proclaims, "The individual has the right to security, education, health care, and social security"; it adds that the nation and its government "shall strive to provide prosperity and employment opportunities to the people." In fact, the United States itself continues to live, at least some of the time, under Roosevelt's constitutional vision. A consensus supports several of the rights he listed, including the right to education, the right to social security, the right to be free from monopoly, possibly even the right to a job. In the 1950s and 1960s, the U.S. Supreme Court started to go much further, embarking on a process of giving constitutional recognition to some of the rights that Roosevelt had listed. The court suggested that there might be some kind of right to an education; it ruled that people could not be deprived of welfare benefits without a hearing; it said that citizens from one state could not be subject to "waiting periods" that deprive them of financial and medical help in another state. In a 1970 decision, the court said: "Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community." Public assistance, the court added, "is not mere charity, but a means to 'promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.'" By the late 1960s, respected constitutional thinkers could conclude that the Supreme Court was on the verge of recognizing a right to be free from desperate conditions -- a right that captures much of what Roosevelt had cataloged. But all that was undone by the election of Richard Nixon in 1968. President Nixon promptly appointed four justices -- Warren E. Burger, William H. Rehnquist, Lewis F. Powell Jr., and Harry A. Blackmun -- who showed no interest in the Second Bill of Rights. In a series of decisions, the new justices, joined by one or two others, rejected the claim that the existing Constitution protects the kind of rights that Roosevelt had named. Roosevelt himself did not argue for constitutional change. He wanted the Second Bill of Rights to be part of the nation's deepest commitments, to be recognized and vindicated by the public, not by federal judges. He trusted democratic processes, not judicial ones. Having seen many of his reforms struck down by the Supreme Court, he feared that judges would be unwilling to protect rights of the sort he favored. He thought that his bill should be seen in the same way as the Declaration of Independence -- as a statement of the fundamental aspirations of the United States. In fact, Roosevelt's speech echoed Thomas Jefferson's famous language with its own declaration: "In our day these economic truths have become accepted as self-evident." 3

But Roosevelt's hopes have not been realized. Much of the time, the United States seems to have embraced a confused and pernicious form of individualism, one that has no real foundations in our history. That approach endorses rights of private property and freedom of contract; it respects political liberty, but claims to distrust "government intervention" and to insist that people must largely fend for themselves. Its form of so-called individualism is incoherent -- a hopeless tangle of confusions. As Roosevelt well knew, no one is really against government intervention. The wealthy, at least as much as the poor, receive help from government and from the benefits that it bestows. Roosevelt himself pointed to the essential problem as early as 1932. In a campaign address in San Francisco, he said that the exercise of "property rights might so interfere with the rights of the individual that the government, without whose assistance the property rights could not exist, must intervene, not to destroy individualism but to protect it." The key phrase here is "without whose assistance the property rights could not exist." Those of us who are doing well, and who have plenty of money and opportunities, owe a great deal to an active government that is willing and able to protect what we have. Once we can appreciate that point, we will find it impossible to complain about "government interference" as such or to urge, ludicrously, that our rights are best secured by getting government "off our backs." The same people who object to "government intervention" depend on it every day of every year. Remarkably, the confusions that Roosevelt identified have had a rebirth since the early 1980s. Time and again, politicians argue that they oppose government intervention, even though property rights themselves cannot exist without such intervention. Time and again, American culture is said to be antagonistic to "positive rights," even though property rights themselves require "positive" action and even though the Second Bill of Rights helped to define our nation's political reforms for much of the 20th century. In recent years, we have been seeing the rise of a false and ahistorical picture of American culture and history, a picture that is increasingly prominent not just in America but also in Europe. Unfortunately, that picture is far from innocuous. America's self-image -- our sense of ourselves -- has a significant impact on what we actually do. We should not look at ourselves through a distorted mirror. Amid the war on terrorism, the problem goes even deeper. America should have taken the attacks of September 11, 2001, as the basis for a new recognition of human vulnerability and of our collective responsibilities to those who need help. Recall that threats from abroad led Roosevelt to a renewed emphasis on the importance of "security" -- with an understanding that the term included not merely protection against bullets and bombs, but also against hunger, disease, illiteracy, and desperate poverty. Hence President Roosevelt supported a strongly progressive income tax aimed at "unreasonable profits" and offering help for those at the bottom. By contrast, President Bush has supported a tax cut giving disproportionate help to those at the top. President Roosevelt saw the relationship between freedom from fear and freedom from want. Most important, he saw external threats as a reason to broaden the class of rights enjoyed by those at home. To say the least, President Bush has utterly failed to do the same. 4

Roosevelt was right. Liberty and citizenship are rooted in security. In a sense, America lives under the Second Bill of Rights. But in another sense, we have lost sight of it. It should be reclaimed in its nation of origin. Cass R. Sunstein is a professor of political science at the University of Chicago and a professor of jurisprudence at the university's law school. His most recent book is The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever, to be published next month by Basic Books. http://chronicle.com Section: The Chronicle Review Volume 50, Issue 40, Page B9 5