Tuesday, November 16, 2010

The Birth of the Second Bill-excerpts from Cass R. Sunstein's 'The Second Bill of Rights: FDR'S Unfinished Revolution and Why We Need It More Than Ever

Roosevelt sought, and obtained, constitutional change; he wanted the founding document to be interpreted so as to permit his programs. Roosevelt did not argue that the Constitution should be amended to include a second bill of rights. In speaking of the second bill, he did not even mention constitutional amendment. What, then, was Roosevelt proposing? To answer that question we need to distinguish between constitutional rights and what I shall call a nation's constitutive commitments. Roosevelt was attempting to redefine the latter without affecting the former. Some rights can be located in a founding document; they are constitutional rights in the sense that the prevailing interpretation of the document finds them there. Some of these rights, like the right to free speech, are explicitly mentioned in the American Constitution. Other constitutional rights are not mentioned expressly, but they are understood to be encompassed by the Constitution's terms. Consider the right to travel from one state to another or the right be free from discrimination on the basis of sex-neither explicitly in the Constitution, but both found there by way of interpretation...Compare, for example, the right to join a labor union without losing your job-a right created in the Roosevelt administration. Congress could abolish this right tomorrow, since the American Constitution does not protect it. But the right to join a labor union is so deeply ingrained that its elimination would require a large-scale change in public judgments-something akin to a constitutional amendment...

Columbia law professor Louis Henkin notes that 'the United States is not a welfare state by constitutional compulsion'. But he goes on to say, correctly, that the 'welfare system and other rights granted by legislation (for example, laws against private racial discrimination) are so deeply embedded as to have near-constitutional sturdiness...And Americans have begun to think and speak of social security and other benefits as matters of entitlement and right'. This 'near-constitutional sturdiness' and a sense of entitlement and right were what Roosevelt sought. 'We put those payroll contributions there', he explained, 'so as to give the contributors a legal, moral, and political right to collect their pensions and unemployment benefits. With those taxes in there, no damn politician can ever scrap my social security program'. Americans are perfectly able to distinguish between rights and privileges. In 1991 a sample of the nation's citizens was asked whether certain goods were 'a privilege that a person should have to earn,' or instead 'a right to which he is entitled as a citizen'. By strong majorities, the respondents answered that a college education, a telephone, and an annual salary increase are privileges, not rights. But by equally strong majorities, they said that the following were rights: adequate housing, a reasonable amount of leisure time, adequate provision for retirement years, an adequate standard of living, and adequate medical care. Strong majorities endorsed many of the items on the second bill. In 1990 Americans were asked whether the government 'should provide a job for anyone who wants one'. Of those who expressed an opinion, an overwhelming 86 percent agreed. In 1998, 64 percent of Texans agreed that the 'government should see to it that everybody who wants to work can find a job'. Constitutional rights should be seen as a subset of the broader category of constitutive commitments. Some of the nation's constitutive commitments appear in its Founding Document, but many do not...Consider the ban of sex discrimination. Nothing in the Constitution explicitly forbids discrimination on the basis of sex, and it is ludicrous to think that those ratified the bill of rights sought to forbid that form of discrimination. Nonetheless, the due process clause of the Fifth Amendment is now understood to ban government from treating women worse than men. In proposing the second bill, Roosevelt was not arguing for any change in constitutional interpretation but for new constitutive commitments...

In the words of Roosevelt's adviser Charles Merriam, 'Hunger, sickness, unemployment, insecurity, dog-housed dwelling places, inadequate educational, recreational, cultural advantages, unfair shares of production-these are wrongs of our day, which will not in the long run be denied a remedy in the common judgment of mankind. These conditions are wrong, but they have their complementary rights' This was the spirit in which Roosevelt urged the second bill-not as an effort to alter the Founding Document but as a concrete account of the nation's understanding of what citizens were entitled to expect...

In building toward the second bill, Roosevelt emphasized that government was not an enemy of liberty or individualism. All rights, including the rights of property, depend on government. It was necessary to define rights in a way that went well beyond the founding period and provided better protection of human liberty under modern conditions. Above all, the second bill emerged from a synthesis of New Deal reform with an appreciation of the need to develop an account of liberal democracy that would respond to the threats from fascism and communism. In the 1930's, Roosevelt spoke, with increasing firmness, of the need to develop a new conception of freedom with the same level of ambition as the Constitution's founding...

he precursor to Blue Dog Democrats of 2010] were rumored to be mounting their own attack from the right, perhaps as part of a third party. Left-wing forces were setting up their own party. In June, Roosevelt's popularity was dropping.

For whatever reason [and I would say simple Moses generation Political Courage] Roosevelt opted for a crusade...[he said]: 'We hold these truths to be self-evident-that government in a modern civilization has certain inescapable obligations to its citizens, among which are: (1) Protection of the family and the home; (2) Establishment of a democracy of opportunity for all people; (3) Aid to those overtaken by disaster' Roosevelt delivered his acceptance speech at Philadelphia's Franklin Field. Over 100,000 people were in attendance. It immediately became clear to all that this would not be a defensive campaign:

'The rush of modern civilization itself has raised for us new difficulties, new problems which must be solved if we are to preserve to the United States the political and economic freedom for which Washington and Jefferson planned and fought...Philadelphia is a good city in which to write American history...to restore to the people a wider freedom; to give to 1936 as the founders gave to 1776-an American way of life'...The purpose of the Revolution of 1776 'was to win freedom from the tyranny of political autocracy-from the eighteenth century royalists who held special privileges from the crown'. The goal was to put 'the business of governing into the hands of the average man, who won the right with his neighbors to make and order his destiny through his own government'. Hence 'it was to win freedom from the tyranny of political autocracy that the American Revolution was fought'. The victory meant that 'political tyranny was wiped out at Philadelphia on July 4, 1776.' But a new challenge had arisen in the form of economic powers that 'sought to regiment the people, their labor, and their property'. With the industrial revolution, 'economic royalists carved out new dynasties'...a 'new industrial dictatorship' had concentrated 'into their own hands an almost complete control over other people's money, other people's labor-other people's lives...Because of new control, 'the political equality we once had won was meaningless in the face of economic inequality'


President Barack Obama must summon his manhood and his political courage and finish the crusade against avarice, or we will continue to suffer under the tyranny of economic despotism.

And please purchase Cass R. Sunstein's book, in particular, if you are a Muslim for the Second Bill of Rights is in accordance with the Economic Theories of Social Justice in Islam.

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