The Second Bill of Rights
FDR's Unfinished Revolution and Why We Need It More than
Ever
By Cass R. Sunstein 
Basic Books
HC, 294 pg. US$25/C$39
ISBN: 0-4650-8332-3

Reviving Roosevelt's agenda

By Steven Martinovich
web posted September 13, 2004

Up until the mid-1960s conservatives regularly declared that
Franklin D. Roosevelt's New Deal program was un-American.
Since then, however, even as they continue to despise Roosevelt
they seem to have made peace with the New Deal itself. Not out
of philosophical realignment, though few conservatives would
seriously argue for eliminating the social safety net, but rather out
of recognition that the New Deal's programs have assumed a
sacred status with Americans.

Of course, few today proclaim the New Deal an economic
success. For decades a growing body of work from both the left
and the right has concluded that the New Deal likely prolonged
the Great Depression and exacerbated some of its worst
aspects. Indeed as Jim Powell pointed out in a recent analysis of
Roosevelt's economic policies, some legislation, such as the
1935 Banking Act, caused another recession in 1938, the third
worst economic collapse in American history.

Roosevelt's primary goal with his New Deal, however, was to
protect Americans from want. It was his belief that a person
cannot be free or an equal citizen if they were living in desperate
circumstances. His ultimate objective though was more than
simply provide economic protection; it was to expand the
constitution's political rights to include social and economic
rights. In The Second Bill of Rights: FDR's Unfinished Revolution
and Why We Need It More than Ever, constitutional scholar
Cass R. Sunstein attempts to build the case that Roosevelt's aims
are still relevant and his agenda must be completed for the
United States to fulfill its promise to Americans.

As Sunstein details, Roosevelt knew that amending the
constitution to include those rights was next to impossible so he
concentrated his efforts on legislating those rights into existence.
Through a series of bills and thousands of Executive Orders,
Roosevelt expanded the power of the presidency and built a new
system predicated on the belief that security was a necessary
precondition to freedom. America's wealthy already had this
right thanks to protection of property rights, the application of
which Sunstein argues sometimes didn't serve to concept of
freedom, so it was necessary to create economic and social
rights for balance.

The basis for those rights was created through programs and
institutions such as Social Security, the National Labor Relations
Board and the Works Progress Administration. In 1944 during
his State of the Union address, Roosevelt went further and
proposed a new bill of rights that included the right to a job,
decent homes, adequate health care, education, and protection
from economic problems related to age, sickness, accident and
unemployment.

Sunstein believes that America was fully on its way to expanded
constitutional protections until Richard Nixon's 1968 election.
For decades the Supreme Court had been acknowledging these
new rights until the four appointments Nixon made during his
presidency changed the make-up of the court. Since then the
high court has shot down any attempts to expand economic and
social rights though it has issued a number of rulings solidifying in
place many of Roosevelt's earlier goals.

The apparent popularity of government programs might lead
some to ask why Roosevelt's second bill of rights hasn't become
a reality. Sunstein explores this question and comes up with a
number of explanations, the most convincing of which is cultural;
Americans are traditionally hostile to class conflict theories and
wealth redistribution. Sunstein admits that "compared to
Europeans, Americans are less likely to believe that government
should provide a minimum income guarantee, a job for everyone,
or a decent standard of living for the unemployed ... If
Americans were committed in principle to the second bill, the
existing Constitution would move toward such a commitment
too."

Despite all of his effort, however, The Second Bill of Rights
contains some large gaps in its scholarship. He rarely mentions
that Roosevelt was firmly in favor of people being responsible for
their own welfare and amazingly never explores how taxpayers
are expected to pay for the extraordinary growth in government
that would be needed to fulfill the agenda's promises. The fact
that Sunstein doesn't treat conservative and libertarian concerns
seriously – he clearly fails to appreciate the nuances of their
arguments – undermines his effort to make The Second Bill of
Rights an appeal to all sides in the political debate.

Of course the success of Sunstein's arguments depends on what
role you believe the government should play in society -- a
political variation of the chicken-egg debate. If, like Sunstein,
you believe that liberty and prosperity only continue to exist
because of government intervention then you'll likely be
amenable to his arguments while those on the political right
would find that argument appalling. Although The Second Bill of
Rights is an incomplete work that is ultimately unconvincing, it is
one of the better and accessible efforts in exploring why
Roosevelt embarked on his radical agenda to change what
Americans should expect from their government.

Steven Martinovich is a freelance writer in Sudbury, Ontario,
Canada

Enter Stage Right -- http://www.enterstageright.com