In The Second Bill of Rights, Cass Sunstein, a University of Chicago law professor who is one of today’s academic stars, reopens this debate. He makes a surprisingly plausible case for resurrecting this idea with some modern twists. Recalling FDR’s proposal for a “second of bill of rights” protecting basic human needs, Sunstein urges Americans to recognize a new list of constitutional rights, including access to a good education and health care, and the opportunity to work at a fair wage–in essence, economic rights in addition to the largely political rights enshrined in the country’s founding documents.
But Sunstein is ambiguous on the nature of these proposed new rights. It’s not clear whether these rights would be enforceable in court; in any event, the “Second Bill of Rights” is only a metaphor because Sunstein does not advocate an actual constitutional amendment. If they aren’t enforceable and aren’t written, what they amount to is a conscious commitment to make these rights part of our conception of America, with the expectation that doing so will force the political system to make good on that commitment.
Like the vast majority of Americans, Sunstein takes it for granted that it would be good for every American to have the opportunity to obtain health care, an education, a job, and other basics of life. That seems reasonable enough: A few Social Darwinists may survive to urge that the unsuccessful should starve to death and their children should remain illiterate, but if they are to be found at all, it is on the most lunatic fringe. As Sunstein recognizes, the real question isn’t about the desirability of satisfying basic human needs; it’s about whether we should guarantee government assistance in satisfying these needs by making them into a right, constitutional or otherwise. (After all, we might think that other institutions–the market, families, churches, and so forth–would do a better job of satisfying these needs if the government didn’t get involved. Or we might think that the government does have such a responsibility, but that constitutional process has little to contribute.) The conventional wisdom is that constitutionalizing economic rights would be pointless, counter-productive, or impossible in our society. Sunstein devotes most of his efforts to rebutting the common arguments in favor of that conventional wisdom.
One such argument is that the welfare state is contrary to the essential American character. Sunstein points out that recognizing these needs as rights has not always been outside the American mainstream. His main evidence comes from the New Deal, and particularly from FDR’s thinking about social goals. In a now-forgotten speech that Sunstein spotlights, FDR called for a new Bill of Rights along the lines that Sunstein advocates. Twenty years later, the Warren Court flirted with recognizing constitutional rights to food, shelter, and other necessities. If Nixon hadn’t squeaked out a victory in 1968 and appointed four conservative justices, Sunstein contends, the court might well have heeded the advice of liberal constitutional law scholars and recognized economic constitutional rights.
Thus, as Sunstein puts it, one can easily imagine an alternative universe in which the Warren court trends were continued, by new justices appointed by President Hubert Humphrey. (One could call this the “Sliding Doors” version of constitutional history, in honor of the Gwyneth Paltrow movie.) So, Sunstein maintains, it can hardly be said that such a Second Bill of Rights is an utter impossibility in America.
Second, there is nothing about American constitutional law that would preclude the recognition of these rights. True, these rights are not mentioned in the Constitution. But the Constitution also has nothing to say about gender equality, and as originally understood, it did not prohibit segregated schools. This has not prevented the Supreme Court from recognizing these rights. Despite conservative arguments for narrow constitutional interpretation, Americans do not seem ready to tolerate segregated schools or limits on the rights of women merely because they were accepted at the time of the Fourteenth Amendment. Thus, it would not be necessary to actually amend the Constitution in order to give economic rights constitutional status.
Indeed, our legal system does recognize a number of economic rights–notably, the right to a free public education, the right to a public defender in a criminal case, and the right to emergency medical care. Given the public consensus that exists in favor of these rights, it isn’t hard to imagine that they might receive constitutional status as might other similar rights (like the right to employment opportunities). Surely, what Sunstein is advocating would be a major step, but our constitutional system has grown in similar ways in the past.
A third argument against constitutional economic rights is that courts are not suited to enforcing them. Here, Sunstein is at his best. He observes that a number of other countries have added welfare rights to their constitutions but made them non-enforceable. The goal is not to empower judges but to announce a serious national commitment. Other countries, notably South Africa, have made such rights judicially enforceable, but the courts have been careful to intervene only in extreme cases. The rights are defined in a way that acknowledges limited funds and requires only that the government make progress toward the goal.
Yet another option would be to make cautious modifications in current constitutional doctrines, giving special procedural protection to critical human needs or demanding better justifications for curtailing them than for other economic interests. Rather than demanding that the government establish programs to satisfy critical human needs, the courts would simply try to prevent arbitrary exclusions from those programs or unequal distribution of benefits. For example, courts could demand justifications for unequal funding for different groups. The Warren court may have been moving in this direction, but the Burger court put an end to this trend. Notably, the critical Burger made an effort to use the federal Constitution to equalize educational funding in Texas. But that case could easily have gone the other way. Like a number of other state courts, the Texas Supreme Court later interpreted the state constitution to require more equal funding. Americans seem to have adapted to these state court rulings without suffering any fundamental trauma. A similar decision from the Supreme Court would not have been out of the question had its makeup been different.
A fourth argument is that economic rights would be counterproductive. Some of the adverse effects suffered by European welfare states are well known, and many economists believe that measures like the minimum wage and rent control actually hurt the poor. Acknowledging these criticisms, Sunstein nevertheless argues in a somewhat Clintonian mode for smarter programs–for example, he favors the earned income credit over minimum-wage laws.
The Second Bill of Rights makes a good case for giving greater heed to the special status of certain human needs in constitutional law. Perhaps the Warren court decisions deserve a more generous application than they have received. Sunstein provides a credible argument for some doctrinal modifications. Accomplishing this is no mean achievement. But he wants more than some modest fine-tuning of Supreme Court doctrine. He wants a more fundamental orientation of social goals: a Second Bill of Rights, not just federal court involvement in school finance cases or the like. Though he makes a reasonable argument for this outcome, it’s an argument that seems curiously academic and unlikely to influence the national agenda.
Part of the problem is precisely that Sunstein is an academic–too good an academic to conceal some of the weaknesses of his proposal. He admits that state constitutional efforts to equalize educational financing have had mixed results and may not have done much for poor children. He also tells us that since 1938, the New York state constitution has mandated public support for the poor. Although the state courts have provided some enforcement for this provision, this doesn’t seem to have done much to abolish poverty in New York. International studies, Sunstein reports, show that welfare rights do increase transfer payments, but constitutional rights to education seem to have negative effects, and the right to health services has at best a weak positive effect. Thus, constitutional economic rights might do some good–but enough good to be worth a constitutional revolution?
Another weakness of his book, considered as political advocacy rather than academic scholarship, is that it relies so heavily on FDR and the New Deal. For better or worse, Franklin Delano Roosevelt no longer carries the emotional heft in American society that it once did. Even a great president is likely to fade from memory some 60 years after his death, even if he is assassinated like Lincoln or Kennedy. Indeed, even among liberals, an appeal to the legacy of Martin Luther King Jr., would probably carry more rhetorical punch than an invocation of FDR.
The biggest flaw in Sunstein’s analysis, however, is that he recalls only Roosevelt’s unfinished revolution, shrugging off the more recent unfinished revolution of Ronald Reagan. Although Sunstein obviously understands that the political climate of the past two decades has been adverse to the goals he advocates, he seems to regard this merely as a practical obstacle rather than as a possible sign that American society has moved to a more individualistic vision. Sunstein’s ideas about policy implementation are much more sophisticated than those of old-fashioned liberals, but his basic goals stem from the New Deal and the Great Society. He recognizes that the “administrations of Ronald Reagan, George H.W. Bush, and George W. Bush have included many who are skeptical of the New Deal.” But Sunstein doesn’t seem to attach much significance to this observation. He takes a little too much comfort from the idea that his program would have been adopted if only the 1968 campaign had lasted for the few additional weeks needed for the Humphrey wave to crest. That may or may not be true, but there have been a lot of elections since 1968, and his vision has not fared well in them. Our society is more deeply divided than he recognizes, and the New Deal is no longer a unifying political creed.
Of course, presidential elections do not always reflect national mandates (as the outcome of the 2000 election amply illustrates). But in some important ways, these conservative Republican presidents have indeed been in tune with the zeitgeist. Sunstein himself provides some striking supporting evidence. Far from embracing welfare rights, “only 23 percent of Americans accept the view that government has a duty to ‘take care of very poor people who can’t take care of themselves.’” Even among the less affluent, he reports, only a bare majority agree that the “government should provide a decent standard of living for the unemployed,” and two-thirds of the more affluent reject this proposition. Moreover, even among the less affluent, there are those who are alienated from public institutions, particularly the evangelicals.
These attitudes are also reflected at the governmental level: The United States is one of the five nations that has refused to ratify the International Covenant on Economic, Social, and Cultural Rights, which embodies much of Sunstein’s “Second Bill.” This is not to say that Americans are unremittingly hostile to government assistance for the disadvantaged, and Sunstein also reports some differently phrased surveys that tend to support rights to full employment and medical care. Still, it is clear that Reagan was tapping into some deeply held American beliefs.
We do not live in FDR’s America anymore, and we also don’t live in Reagan’s. Important parts of his vision failed to take hold or have been repudiated by the American people, like his anti-environmentalism. But it is a mistake to believe that the aspirations of the New Deal define our national political identity. Many Americans do share Sunstein’s vision of government responsibility to ensure economic rights. Many others have a more individualistic vision, or believe that private institutions such as churches have the primary responsibility for providing services. The real question is not whether, as Sunstein advocates, we should translate a national commitment toward economic rights into a constitutional mandate. It is whether we as a nation actually do have such a commitment. Should the government be responsible for ensuring the opportunity to satisfy basic human needs? At present, that is an open question–and a political question rather than a philosophical or legal one.