Book by Cass R. Sunstein
Review by Thom Hartmann, originally published at buzzflash.com on April 19, 2006.
In his recent book, The Shield and the Cloak, Gary Hart notes that "When every child in America is secure, then America will be secure." He frames social and economic security as not only equal to national military security, but as the foundation of national security. Hart is right. But he is not the first to have suggested this concept.
The path to that security was laid out in 1944 by Franklin Delano Roosevelt when, in his January 11th State of the Union address to the nation, he laid out his "Second Bill of Rights":
It is our duty now to begin to lay the plans and determine the strategy for the winning of a lasting peace and the establishment of an American standard of living higher than ever before known. We cannot be content, no matter how high that general standard of living may be, if some fraction of our people.whether it be one-third or one-fifth or one-tenth.is ill-fed, ill-clothed, ill-housed, and insecure.
This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights.among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.
As our nation has grown in size and stature, however.as our industrial economy expanded.these political rights proved inadequate to assure us equality in the pursuit of happiness.
We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. 'Necessitous men are not free men.' People who are hungry and out of a job are the stuff of which dictatorships are made.
In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all.regardless of station, race, or creed.
Among these are:
The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
The right to earn enough to provide adequate food and clothing and recreation;
The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
The right of every family to a decent home;
The right to adequate medical care and the opportunity to achieve and enjoy good health;
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
The right to a good education.
All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.
America.s own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens.
By 1937, Roosevelt had even convinced the US Supreme Court that there was merit to his ideas, as they began famously undoing decisions of the previous 32 years that had struck down minimum wage, maximum hour, unemployment insurance, and right-to-unionize laws. The Court picked up the pace of following through on Roosevelt's Second Bill of Rights with the appointment of Chief Justice Earl Warren and, notes Cass Sunstein, had Hubert Humphrey beat Richard Nixon in 1968 (in the tightest election in American history), Roosevelt's Second Bill of Rights would probably now be "settled law" in the United States (as it is in many other developed industrialized nations).
As it was, however, Nixon appointed four members to the Court, and the most conservative of them, Rehnquist, began an aggressive process of dismantling the pro-rights decisions of the Court's previous thirty-plus years. That "conservative" court is with us today - and growing more conservative - and so, Sunstein suggests in his seminal book "The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever," we the people of this nation should begin a strong push at all levels to pass FDR's vision into law, and perhaps even into the Constitution.
There is hardly a chapter of this book that shouldn't be required reading in this nation - particularly in our schools and in the halls of government. Chapter Two, for example, "The Myth of Laissez-Faire," Sunstein notes:
"In a nutshell, the New Deal helped vindicate a simple idea: No one really opposes government intervention. Even the people who most loudly denounce government interference depend on it every day. Their own rights do not come from minimizing government but are a product of government. The simplest problem with Laissez-faire is not that it is unjust or harmful to poor people, but that it is a hopelessly inadequate description of any system of liberty, including free markets. Markets and wealth depend on government.
"The misunderstanding is not innocuous. It blinds people to the omnipresence of government help for those who are well-off and makes it appear that those who are suffering and complaining are looking for handouts. The New Deal vindicated these basic claims about our dependence on government, and the second bill of rights grew out of them. Unfortunately, under an onslaught of confused rhetoric about government as a 'necessary evil,' we have lost sight of these claims today."
Sunstein points out that there are no "natural" rights - all rights are the product of government, defined by government, enforced by government, and protected by government. The "right" to ownership of property, for example, which most people think of as a primal right inherent to all who are born into society, is actually a product of law. The law determines who owns what, defines the boundaries of that ownership, and protects that ownership with courts and police. Without government defining ownership of property (from land to the shirt on your back) the "right" evaporates. Those who most loudly want "the government out of my business" very much want the government protecting their business.
As Sunstein notes: "Economic value does not predate law, it is created by law." (Emphasis Sunstein's.) He adds:
"Of course many people work hard and many others do not. But the distribution of wealth is not simply a product of hard work; it depends on a coercive network of legal rights and obligations. ...[T]he laws of property, contract, and tort are social creations that allocate certain rights to some people and deny them to others. These forms of law represent large-scale government 'interventions' into the economy. They are coercive to the extend that they prohibit people from engaging in desired activities. If homeless people lack a place to live, it is not because of God's will or nature. It is because the rules of property are invoked and enforced to evict them, if necessary by force. If employees have to work long hours and make little money, it is because of the prevailing rules of property and contract. ... Sometimes those rules disserve liberty."
This reveals the "myth" of Laissez-faire. Those who most demand "no" government intervention in the marketplace because of their wealth and power owe the vast majority of their wealth and power to the specific intervention of the government in the marketplace by enforcing one particular set of rules and laws of property and contract. What these "free market" advocates are really saying is that they want the rules to continue to be set and stacked in their favor, rather in ways that may better serve both society and liberty for all.
"...Roosevelt believed that the real questions were the pragmatic ones: What form of intervention best promotes human interests? What form of regulation makes human life better? If a new regulatory system is superimposed on another, we should evaluate the new system for its effectiveness in diminishing or increasing human liberty. A system of private property is good for individuals and for societies, and the fact that it is created by law does not suggest otherwise.
"But in the face of the Great Depression, it seemed a kind of cruel joke to maintain that free markets were sufficient to ensure either liberty or prosperity. As Roosevelt pointed out, people in desperate conditions lack freedom."
Roosevelt was the ultimate pragmatist in this regard. He was fond of quoting an old English judge who pointed out that "necessitous men are not free men," as he notes in the SOTU speech which opens this review. Some of the programs he started were failures or worked to diminish liberty, and he discarded them. Others, like Social Security and the 1935 laws that enshrined the right to unionize worked and he kept them.
It may appear that the primary frames Roosevelt (and Sunstein) use are "welfare," "domestic tranquility," or even "justice." The opening sentence of the US Constitution, after all, says that the reason it was instituted was "in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity..." But the frame used both by Roosevelt through the four terms he won as President, and by Sunstein in this book, is "Liberty."
While cons argue that progressive taxation, minimum wage laws, and right-to-unionize laws limit their "liberty," Roosevelt pointed out that without the liberty of others being limited by the Laissez-faire economic system that brought us the Robber Barons (who brought us the Republican Great Depression) they would not have the wealth and power they enjoy. Indeed, as Roosevelt famously said in his 1936 acceptance speech for his second term of office:
"These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power. Our allegiance to American institutions requires the overthrow of this kind of power. In vain they seek to hide behind the flag and the Constitution. In their blindness they forget what the flag and the Constitution stand for. Now, as always, they stand for democracy, not tyranny; for freedom, not subjection; and against a dictatorship by mob rule and the over-privileged alike."
Sunstein writes in his chapter "The Birth of the Second Bill" that in Roosevelt's mind, "Private economic power would have to be seen as holding a public trust," in large part because it was public laws of property ownership and business organization that made it possible to acquire and maintain that economic power.
"Here Roosevelt emphasized two rights that would be central to the new system. The first was the 'right to life,' which means 'also a right to make a comfortable living.' It followed that the government 'owes to everyone an avenue to possess himself of [its] plenty sufficient for his needs, through his own work.' The second right was to property, 'which means a right to be assured, to the fullest extent attainable,' of the safety of savings. This safety was necessary to assure people that they could live through situations that 'afford no chance of labor: childhood, sickness, old age.'"
The result was an increase in liberty for all, since without economic security a person has very limited liberty. Roosevelt's assertion - very much like Theodore Roosevelt's a generation earlier - was that if a citizen plays by the rules, works hard, and is an active participant in citizenship, then s/he shouldn't have to fear economic disaster because of unemployment, illness, or family problems like divorce.
Today, fully half of all bankruptcies are the result of a serious illness wiping out a working class family. Another third of all bankruptcies are the result of divorce leaving a woman with children and bills but lacking the earning power of a two-income family. Forty years of a conservative Supreme Court has swung us hard-right away from Roosevelt's dream and back toward the feudal society overseen by McKinley, Coolidge, and Hoover.
In "The Second Bill of Rights" Sunstein addresses all the arguments put forward against Roosevelt's vision, and refutes them one by one.
Is it constitutional? Yes. Sunstein points out, however, how the ultimate Supreme Court answer to that question will depend both on public opinion and the makeup of the Court, which itself is a consequence of the politics of the presidency.
Is it consistent with capitalism and free enterprise? If anything, it will extend capitalism and invigorate free enterprise (in a very real way, Roosevelt rescued capitalism from its own excesses).
Is it in line with the vision of the Founders of this nation and the Framers of the Constitution? Absolutely, says Sunstein, and extensively cites Madison, Jefferson, and Paine to demonstrate his point.
What about the so-called "negative liberties" like the rights to free speech, contract, and accumulation of personal or corporate wealth through the use of "free markets"? Sunstein puts it in context elegantly:
"For free markets to work, governments cannot possibly stand aside. They need to set out a great deal of contract law. They also need to hold buyers and sellers to their contractual obligations, through courts and possibly the police; otherwise, too many people will fair to carry out their promises. If contractual commitments cannot be enforced by government, free markets will not operate. A strong and active government is indispensable. The supposedly negative right to contractual liberty is positive in character, requiring governmental involvement rather than absence.
"The same points hold for all of our so-called negative liberties. Consider freedom of speech. In the United States, as in most democracies, free speech requires the streets and parks to be open and safe for political dissent. For streets and parks to be open, government must act; it is not enough to abstain. It is expensive to maintain public streets and parts. But government must do even more; it must expend effort to protect and manage public protests. In fact the most negative of liberties require an affirmative government. The basic right to be free from torture and police abuse requires that government take action to monitor the acts of its own agents to ensure that torture and abuse do not occur. If they do, government must prosecute the torturers as criminals. We can describe the right to be free from government abuse as a 'negative' right if we wish, and in a sense the description is intelligible. But we should not overlook the extent to which protection of this 'negative' right requires an array of (well-funded) 'positive' protections."
Sunstein goes on to show how the same is true of other so-called "negative" rights (those that "protect" us from government abuse) such as the Fifth, Sixth, Seventh, and Eighth Amendments which guarantee protections from abuse of legal process against us by government (through fair trials by jury, etc.). All are expensive, require extensive government apparatus to enforce, and represent "a significant fraction of the federal budget."
"Once these points are understood, it becomes impossible to oppose the second bill [of rights] on the ground that rights are properly limited to protection 'against' government. Even for those who reject the second bill, freedom requires government's presence, not absence."
Although he doesn't say so in this brilliant and eminently readable book, one gets the sense that if a Democratic candidate for the presidency in 2008 were to take up Sunstein's modern update of Roosevelt's Second Bill of Rights, he or she would certainly both win the election and poise America for a great renewal of liberty and justice.
Sunstein's "Second Bill of Rights" is one of the most important books of this decade (and a vital addition to your personal library), because it informs us about the past (from the Revolutionary era to today), provides an understanding of how we got where we are, and lays out a roadmap to a future in which the core founding principles of this nation - liberty and citizenship - are expanded.
