The Second Bill of Rights: FDR'S Unfinished Revolution and Why We Need It More than Ever

The Second Bill of Rights: FDR'S Unfinished Revolution and Why We Need It More than Ever | Cass R. Sunstein | FDR's vision

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The Second Bill of...

	The Second Bill of Rights: FDR'S Unfinished Revolution and Why We Need It More than Ever Cass R. Sunstein, 2004 - 294 pages average customer review:based on 7 reviews view larger image
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highly recommended

In 1944, Franklin Delano Roosevelt gave a State of the Union Address that was arguably the greatest political speech of the twentieth century. The speech began what Cass R. Sunstein calls the Second American Revolution by giving form and specificity, for the first time, to the concept of human economic rights. Many of the great legislative achievements of the past sixty years stem from Roosevelt's proposal for a Second Bill of Rights. Yet these rights have never been written into the Constitution, and they remain the subject of passionate debate. In recent years they have even lost ground.Using FDR's speech as a launching point, Sunstein examines the "legal realist" school of thought, which decisively refuted the idea of laissez-faire economics; describes how Roosevelt gradually developed the idea of a Second Bill of Rights; and asks why the Second Bill, which was almost enacted under the Warren Court, has never attained the constitutional status FDR sought for it. The reason, Sunstein maintains, is not anything unique to American culture or temperament but a particular historical accident: the election of Richard Nixon as President in 1968.This is an ambitious, sweeping book that argues for a new vision of FDR, of constitutional history, and of our current political scene. The Second Bill of Rights is an integral part of the American tradition and the starting point for contemporary political reform.

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Let the Sunstien!

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.

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FDR's vision

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.

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Powerful challenge to Federalist Society view of Constitution

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.

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Sunstein advocates an expanded Welfare State?

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.

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reviews: page 1, 2

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