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The Second Bill of Rights
Reviving Roosevelt's agenda
By Steven Martinovich
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.
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