4 Review of Cass Sunstein the SECOND BILL of RIGHTS.Pdf

July 4, 2004 Sunday Final Edition

SECTION: Book World; T04

A Dream Deferred;

THE SECOND BILL OF RIGHTS: FDR'S UNFINISHED REVOLUTION AND WHY WE NEED IT MORE THAN EVER, By Cass R. Sunstein. Basic. 294 pp. $25

Reviewed by Jamin B. Raskin

In his spirited and perfectly conceived new book, University of Chicago Law Professor Cass Sunstein celebrates what he calls "the speech of the century," Franklin Delano Roosevelt's 1944 State of the Union Address. The address remains unique for having been delivered from the White House as a fireside chat. As Allied forces routed the Axis powers, FDR chose "security" as his theme but shifted attention from military security to the New Deal agenda of "economic security, social security, moral security." Denouncing corporate war profiteers (in the middle of this most just of all wars) for their selfishness, FDR argued for steeper progressive taxation and rene- gotiation of war contracts. Then he turned to his central claim: A "decent standard of living for all" was necessary to save the world from constant war and fear. People abroad who are hungry and unemployed "are the stuff out of which dictatorships are made," and social injustice at home leaves too many "ill-fed, ill-clothed, ill-housed, and insecure." We cannot have security without justice: "Freedom from fear," said FDR, "is eternally linked with freedom from want." Roosevelt sought economic opportunity and security for a nation buffeted by unemployment, depression and war. Like the legal realists who helped build the regulatory state, FDR saw arguments about "laissez-faire" and "the market" as not only self-serving but specious. Property rights themselves exist only because of law, just as corpora- tions are creatures and active beneficiaries of the state. As FDR put it (in words that would make fine graffiti on K Street): "The same man who tells us that he does not want to see the government interfere in business . . . is the first to go to Washington." Roosevelt argued that our political rights alone could not ensure full democratic citizenship. A "second Bill of Rights" was needed to guarantee each citizen a job with sufficient earnings for food, clothing and rec- reation; trade without monopolies; decent housing; adequate medical care; protection against old age, sick- ness, accident and unemployment; and good education. Why did FDR's visionary address influence political developments abroad so much more than at home? The U.N.'s 1948 Universal Declaration of Human Rights, guided by Eleanor Roosevelt, featured FDR's full pack- age. The European Social Charter and many new national constitutions reflect the same sensibility. Yet while Europeans now enjoy free health care and education through college (not to mention a lot more vacation time), we offer meager social protection, go about our business while millions of children live in grinding poverty and assume that constitutions are for political rights only. Sunstein has a curious theory for why FDR's plan did not become part of our Constitution or even a "constitu- tive commitment" -- i.e., a sacrosanct legislative program like Social Security. It is not because we have an old Constitution, he says, or because of American "exceptionalism" rooted in individualism. After all, the Constitution can be amended and reinterpreted, Sunstein argues, and FDR carefully framed his program as protection for indi- viduals in the modern economy. Rather, Sunstein's explanation is this: The second Bill of Rights was almost adopted by the Supreme Court in a series of 1960s-era decisions. The Warren Court gave indigent criminal defendants the right to appointed lawyers and free transcripts, struck down state poll taxes and gave welfare recipients due-process rights against sudden terminations and state policies disfavoring new residents. This wave could have "eas- ily" led the Court to recognize economic and social rights, according to Sunstein. But then a "crucial" event

changed everything: "the election of President Nixon in 1968." Nixon named four conservative justices who considered wealth and poverty natural facts and not problems of constitutional dimension. The flaw in this account is that the Warren Court decisions that Sunstein justly cheers were still galaxies away from the affirmative economic rights that FDR championed. Criminal procedure decisions like Gideon v. Wainwright, which guaranteed appointed counsel to poor criminal defendants, simply imply minimal due-process rights for people facing state prosecution. The welfare cases never came close to defining a right to income or work. Not even the most soaring dicta of the Warren Court would have ever required Congress to provide jobs, housing or health care. Sunstein does not seriously test the possibility that racism defeated Roosevelt's dream or that federalism and other structural features of American government are slowing things down. His thesis implies that, to revive FDR's project, it would suffice to elect a president who would name more liberals to the Supreme Court. That strategy may save abortion rights, for example, but it will never get national health insurance for tens of millions of uninsured Americans. Even if we imagine a Court filled with justices like today's most liberal members -- John Paul Stevens (President Ford's pick) or David Souter (President George H.W. Bush's choice) -- it is fanciful thinking to suppose that the Court would ever find FDR's wish list simply lurking somewhere in the equal protection clause. In any event, you do not have to be Robert Bork to believe that this is not how basic constitutional change does -- or should -- occur in a democracy. Sunstein's opposition to a politics of constitutional amendment looks inexplicably timid in the shadow of such changes elsewhere on Earth. Indeed, his most stirring passages describe the new South African Constitution and its explicit requirement that the state take "reasonable" measures to protect health and housing rights "within its avail- able resources." Sunstein shows that the South African Supreme Court has required a government much poorer than ours to take limited but significant affirmative steps to house displaced homeless people and get medical care to the HIV-positive. Yet for America, Sunstein shies away from the constitutional populism that has been a far more important source of basic human rights than individual justices pulling rabbits out of hats. His vague call for a new "constitu- tive commitment" to economic security ignores how fragile and ephemeral such commitments can be. Ask the labor movement, which thought it had such a deal with the Wagner Act and its federally guaranteed right to organize, both of which have been badly eroded by courts, politics and economics. Changes that endure the push and pull of partisan politics require constitutional grounding. Sunstein argues convincingly that FDR's 1944 State of the Union address should be placed in our hearts next to Lincoln's poetic Gettysburg Address. But the chief reason FDR's speech has been largely forgotten while Lincoln's is still on the tip of our tongues is that Lincoln's cogent reconstruction of the purposes of America was fast embodied in our Constitution. The Reconstruction amendments abolished slavery, made eve- ryone born here citizens, gave us equal protection and due-process guarantees against the states, and banned race discrimination in voting. Though these rights still had to be fought for (and many died in the process), they gave us a coherent framework for the struggle. As Martin Luther King Jr. said right before his death, "All we say to Amer- ica is, 'Be true to what you said on paper.' " (Imagine where we would be if equal protection were just a "constitu- tive commitment.") FDR's vision of a second Bill of Rights was never committed to parchment and still waits to become a flesh-and-blood public agenda. Its day may come. In the meantime, you can find its spirit in Sunstein's well- designed little book, best read perhaps down at the stirring FDR Memorial, where the great man's message is still blowing in the wind. *

Jamin B. Raskin is a professor of constitutional law at American University and currently a visiting professor at Sciences-Po in Paris. He is the author, most recently, of "Overruling Democracy."