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Pragmatic
University of Chicago law school professor Cass Sunstein explores the development of a second bill of
rights over the past sixty years in his new book, The
Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than
Ever. In his 1944 State of the Union address, President Roosevelt proposed
an extension of New Deal policies as a way of defining what social justice
means in a free society. By creating economic rights to employment, adequate
food and clothing, decent shelter, education, recreation and medical care,
FDR thought America
would become stronger, and Sunstein agrees. Each
chapter in The Second Bill of Rights explores how we have moved toward and
away from such rights. Here’s an excerpt from the beginning of Psrt III,
“Constitutions and Commitments, Chapter 10, “Citizenship,Opportunity,
Security,” pp. 175-182:
Are we going to compel [people] to live
under slum conditions? . . . Has
society as a whole no obligation to these people? Or is society as a whole
going to say we are licked by this problem? . . . I wish that you would give me a
solution.
Franklin Delano Roosevelt
So
far we have seen that Roosevelt
introduced a new set of rights into American understandings; that his plea
for a second bill had an enormous international influence; that some aspects
of the second bill have a home in American constitutional law; and that our
constitutional order, largely because of a single closely contested election,
does not truly recognize such rights. But the biggest questions remain.
Should America
have a second bill? In what sense?
I believe that Roosevelt
was right. The second bill should count among our constitutive commitments;
it should be similar to the Declaration of Independence in status. But the
Constitution should not be amended to include the second bill. A major reason
is that it would be difficult for courts to enforce the rights Roosevelt cataloged. Other nations, writing
constitutions from scratch or without our distinctive traditions, would do
well to take either the “directive principles” approach followed by India or the intriguing alternative followed
by South Africa
(explored in Chapter 12). But even in America, there is an argument
for constitutional change, and one of my goals is to suggest that this
argument is far more plausible than it might seem at first glance. And even
in America, there is an
argument, not forjudicial interpretation of the
existing constitution to incorporate the second bill, but for more narrow
rulings, akin to those in Goldberg, Shapiro, and Moreno, that take seriously
the most serious forms of human deprivation.
THEORY AND PRACTICE
In philosophical circles, the
foundations and nature of human rights are the
subject of intense debate. The utilitarian tradition, for example, sees
rights as an outgrowth of ideas about what will promote human welfare,
understood as “utility.” Jeremy Bentham, the
founder of utilitarianism, proposed that the goal of legal rights should be to
maximize pleasure and minimize pain. Other utilitarian philosophers have
argued that the ingredients of human welfare extend well be-~ yond pain and
pleasure. On any utilitarian account, rights should be assessed in terms of
whether they are likely to make human lives, taken in the aggregate, to go
better. The right to freedom of speech can be easily justified in the
utilitarian framework. A society with free speech is likely to be more
capable of avoiding blunders and governing itself well. In addition, such a
society will be able to enjoy more in the way of material and scientific
progress.
Many people reject the utilitarian
account of rights. Some insist that human beings should be treated as ends
rather than means, and that government must treat its citizens with respect.
On this view, government cannot act in ways that use people as mere
instruments. For those who reject utilitarianism, the right to free speech is
not best justified as a way of ensuring against blunders or producing progress.
That right has intrinsic rather than merely instrumental value: Human beings
have the right to speak freely simply because they are entitled to be treated
respectfully. An alternative view, emphasized by Amartya
Sen and Martha Nussbaum, holds that accounts of rights
have everything to do with an understanding of human capabilities—of what
human beings are able to do and to be. For example, human beings have the
capability to reason and engage in self-governance, and free speech is
indispensable to both of these. Under the “capabilities approach,” the right
to free speech is protected because of its connection to central human
capabilities.
I do not intend to
take a stand here on the foundations of rights. I believe that the rights
listed in the second bill, like the right to free speech, can command support
from people with diverse and even incompatible views about how rights are
best justified. The broader point is that for many purposes, it is
unnecessary to resolve the deepest disputes in order to make a great deal of
progress in political and social life. People often agree on practices even
when they disagree on theories. They concur about what to do even amid
disagreement or uncertainty about why they ought to do it. In the domain of
constitutional provisions and social commitments, it is often possible to
set aside questions about philosophical foundations and agree on such
provisions and commitments despite disagreements or uncertainty about the
foundational issues. In America,
for example, the right to religious liberty is firmly entrenched, and diverse
people accept it. We lack consensus on the grounds for the right; we have a
consensus on its existence. What is true of religious liberty is true for
most of the rights enshrined in the Constitution and cherished today. The
right to protection of freedom of speech might be justified as a way of protecting
personal autonomy in matters of conscience, or a way of ensuring correction
of social errors, or a way of safeguarding democracy itself, by putting some
of the most contentious issues off-limits to politics. A nation’s
constitutional rights are often respected without anything like agreement
about what best justifies them.
Consider the
experience of those who designed the Universal Declaration of Human Rights,
which was written and adopted by the United Nations in the aftermath of World
War II. The philosopher Jacques Maritain played a
significant role in the deliberations that led to the declaration.
Astonishingly, people of radically opposed views had been able to agree on
fundamental human rights. Maritain liked to say,
“Yes, we agree about the rights but on condition that no one asks us why.”
According to Maritain, the only feasible goal was to
reach agreement “not on the basis of common speculative ideas, but on common
practical ideas, not on the affirmation of one and the same conception of the
world, of man, and of knowledge, but upon the affirmation of a single body of
beliefs for guidance on action.”
Maritain was speaking in practical terms—the
same terms used by Roosevelt himself. Roosevelt
described his own philosophical position in a comically unhelpful way:
“social-mindedness.” But it is often possible to do what Roosevelt
sought, which is to obtain incompletely theorized agreements on both
rights and practices—agreements on what to do amid disagreements or
uncertainty about why to do it.
The framers of the United States
Constitution followed exactly this path. They themselves did not share a
clear account of its foundations. Today most people who accept the original
bill of rights do not share any such account, with some stressing democratic
goals, others referring to liberty, others emphasizing utilitarian
considerations, and still others stressing theology. Roosevelt
thought that the second bill could be accepted by people with diverse views
about the basis of rights, and without any clear view about how rights are
best justified. I believe that he was right to do so. If there is a good
argument for a second bill, it does not rest on contentious theoretical
claims. Instead the bill can receive support from many disparate positions.
To put the argument in its simplest
form: The most fundamental legal rights should be seen as pragmatic
instruments designed to protect important human interests, however they are
defined. The second bill protects two such interests: basic opportunity and minimal
security, which on any account are exceedingly important. A decent society is
committed to safeguarding them. The second bill attempts to specify the
rights that are necessary to ensure basic opportunity and minimal security.
We can certainly quibble about the details, and our second bill need not
exactly track Roosevelt’s. But a decent
nation is committed, at the most fundamental level, to protecting the kinds
of rights Roosevelt cataloged.
PRINCIPLES
AND AMENDMENTS
Let us now
return to the earlier distinction among constitutional rights, constitutive
commitments, and mere policies. Roosevelt emphatically
did not seek a constitutional amendment. But he also believed that the
second bill went far beyond a statement of current policies. He wanted
Americans to understand the second bill as part of their defining principles
and their heritage—as setting out the basic principles to which the nation is
committed. Roosevelt was walking directly
in the path set out by James Madison. Madison
urged the original bill of rights as a set of commitments that would define
the citizenry’s own values, not as a lawyer’s document or a code for judicial
enforcement. We have seen that Madison
supported the original bill with the suggestion that it would become a
central part of the nation’s culture and operate for that reason as a
safeguard of liberty. In this regard he was remarkably prescient. I have
emphasized that the very meaning of the bill of rights often derives from
widely held cultural commitments. The protection now accorded to free
speech, for example, owes everything to the fact that Americans prize that
freedom in a way that has led to a far more robust free speech principle
than anything favored by the founding generation.
At a minimum,
the second bill should be seen as part and parcel of America’s constitutive
commitments. Roosevelt’s speech proposing
the second bill deserves a place among the great documents in the nation’s
history. Indeed, it can be seen as occupying a place akin to the Declaration
of Independence, or perhaps somewhere between the Declaration and the
Constitution. While it lacks the legal status of the latter, it has more
specificity and concreteness, as a catalog of existing tights, than the
former. As we shall see, parts of the second bill already have the status of
constitutive commitments. But what has happened is far short of what Roosevelt sought. We have yet to recognize the second
bill as an account of some of the nation’s deepest aspirations and its
understanding of rights themselves.
Does it make sense to go further? This
is a hard question without a simple answer. Consider the explosion of
constitution making all over the world following the fall of communism. As a
general rule, modern efforts at constitutional design include parts of the
second bill. It is a strong candidate for inclusion for nations writing their
constitutions from scratch. But what about America, where the courts’ power
to interpret and enforce the Constitution is taken for granted? Should our
founding document be amended or understood to contain some version of the
second bill? Might Roosevelt have been too unambitious in this regard?
Roosevelt did not argue for constitutional
change as such because he believed the second bill would and should be
implemented through democratic processes, not the courts. In Roosevelt’s view, the nation had already accepted the
second bill, at least as a general commitment. What remained was the task of
implementation. This required action by Congress, which would occur if the
public demanded it. Roosevelt wanted to spur
that demand. From Roosevelt’s point of
view, the idea of constitutional change must have seemed quite unattractive.
The first problem is the sheer difficulty of obtaining it. Any effort at
altering the nation’s founding document takes years of sustained effort, with
no hope of ultimate success. By contrast, the nation obtained the Social
Security Act and the National Labor Relations Act—both now constitutive
commitments-without any change in the Constitution itself. Evidently Roosevelt believed that the second bill could be
approved and implemented in the absence of a formal amendment, which would therefore
be a waste of time. From his perspective, judicial enforcement of the second
bi might do little or no good. In his era, as so often in American history
the courts were the enemy and not the agent of desirable social change. In
these circumstances, the benefits of constitutional amendment were small and
the costs high.
I agree with Roosevelt.
But from a modern point of view’ matter is not entirely clear. For those
concerned about the rights recognized in the second bill, it might well be
hazardous to rely on ordinary political processes. Consider the mixed and in
some ways disgraceful record of the United States, permitting
violations of those rights to persist amid great plenty. For example, tens of
millions of children receive inadequate education; tens of millions of
citizens lack decent health care. This record attests to the hazard of depending
on political processes alone. It is reasonable to argue that a constitution
should be understood, not as a place to set out aspirations or goals, or even
the rights to which human beings are entitled in principle, but as a
safeguard against the concrete problems that are likely to arise in the
particular nation for which a constitution is being designed. Good
constitutions are, in a sense, countercultural; they work to reduce
the distinctive problems that will predictably arise in any particular
nation. If this is a useful way to think about constitutional provisions, the
argument for adopting the second bill in the United States is far from
implausible.
In nations
escaping from communist rule there was a strong argument for aggressive
constitutional protection of private property and freedom of contract,
precisely to ensure the preconditions for a market economy. In the aftermath
of communism, it was (and remains) exceedingly important to create a social
and legal culture that respects free markets. But the argument for the
second bill was relatively weak because a cultural commitment to protect to
those in economic need already existed. In other words, some nations have
less need for a second bill because the rights it recognizes are already
constitutive commitments.
The United States
is different. Notwithstanding our astonishingly high per capita income—by far
the highest in the world—the country does far less than it might to protect
those at the bottom of the economic ladder. A second bill, of the sort
recognized in either India
or South Africa, might do
a great deal of good for citizens of the United States. If constitutional
change were not so difficult to obtain, and if a second bill could be
ratified relatively easily, there would be a legitimate argument on its
behalf. Engage in the following thought experiment: Suppose that after
extended social deliberation, the citizens of the United States have used the
ordinary legal forms to ratify something like the second bill and make it
part of our Constitution. The amendment has been ratified after extended
debate about its contents and about the issue of judicial enforcement. We
could imagine a provision that would either eliminate a judicial role (as in India’s directive principles) or reduce it,
so as to allow courts to respond only to large-scale violations (as in South Africa,
discussed below).
Would the
Constitution be better, or worse, after this amendment? Beware of an easy
negative answer. True, an India-style change would be in tension with our
traditions of judicial enforcement, and it might be regarded as less than
meaningful. And the South African approach would certainly strain judicial
capacities. But if the result of the change ensured more in the way of basic
opportunity and security for those who lack it, there would be a real
argument in its favor.
For
many of the reasons that America
is polarized today, there’s polarization about the need for economic rights.
Readers will find a pragmatic approach on the pages of The
Second Bill of Rights, and will come away from this book with a greater
understanding of what it takes to build a strong and just society.
Steve
Hopkins, September 25, 2004
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