The Second Bill of Rights: Securing Economic and Social Freedoms

by: glendenb

Sat Sep 26, 2009 at 13:04

Aspects of the Second Bill of Rights are found in such documents as the Universal Declaration on Human Rights and the Constitution of South Africa.  Sunstein explores the obvious limitations that would adhere in attempting to enforce the second bill of rights and then turns to the example of post-Apartheid South Africa.  In South Africa, the constitution adopted after the fall of the Apartheid regime included a variety of social and economic guarantees including things like housing and medical care.  A variety of cases made their way to the South African courts in which citizens argued that the government had failed to meet its constitutional duties by failing to provide housing or medical care.  The South African courts navigated a reasonable path - requiring that the government was obviously limited by available resources and could not guarantee the economic rights through a welfare state system but that it had an obligation to create a reasonable program aimed at reaching as many persons as possible.  The key concept was the creation of a program within available resources.  <!--more-->

Sunstein explores, in addition, some ways in which in the US we have established what he deems constitutive commitments to certain aspects of the Second Bill - for instance a series of court decisions which have not been overturned have held that every one is entitled to a public education and that the state as a duty to provide equal access and quality of education to all persons.  Equally, Social Security in the US is treated very nearly as a constitutionally guaranteed right - what Sunstein calls a constitutive commitment.

At the core of the Second Bill of Rights lays the idea that dire economic want is at odds with freedom.  To put it other terms - a person suffering from crushing poverty is not free to participate in the democratic processes of the nation.  To quote Sunstein:

Roosevelt also meant to remind the nation that citizens cannot be free from fear unless they have some protection against the most severe forms of want; minimal security, coming from adequate education and decent opportunity, is itself a safeguard against fear.

Roosevelt's view arose from a school of thought Sunstein deems the legal realism.  This school of thought says that there is no such thing as a true laissez faire capitalism.  The wealthy are wealthy because they live in and benefit from a system of laws which guarantee them things like property and contract rights, that provide things like roads and sewer systems, that provide them political and legal protections which result in their ability to accumulate and sustain their wealth.  If our system of government has done this for the wealthy, then in the interest of creating a stable society, it had an obligation to do so for the not so wealthy.  Roosevelt's famous phrase about a nation in which a portion of its population is "ill-fed, ill-clothed, ill-house and insecure" called attention to the fact that we as a nation cannot be secure if a portion of our population is insecure.  

To that end, Roosevelt proposed the Second Bill of Rights - which aim to do one thing - create security for a broad swath of Americans who do not have that security.  

• 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.

From the perspective of creating a stable society, it makes sense.  During the dark days of the early Depression when the Hoover administration believed in letting the "free market" sort out the economic problems of the nation, countless Americans ended up living in Hoovervilles - shanty-towns constructed over night where men, women and children lived in squalor and despair.  At several points, those Hoovervilles threatened to explode into contagious violence against the government's inaction and society's apparent apathy toward those suffering from economic hardships.

The First New Deal - the myriad of programs launched in Roosevelt's first term - had the sole aim of alleviating that hardship, of putting people to work and food on their tables and roofs over their heads.  The not so unforeseen outcome of the New Deal's work programs was the creation of a society in which people had a way through hard times.  The WPA and CCC put millions of Americans to work on worthwhile and worthy projects which improved the nation (Nick Taylor's American Made is a GREAT book about the WPA, its projects and leaders.)  Despite claims to contrary, the New Deal did not extend the Great Depression and did a great deal to alleviate the suffering it caused.  Unemployment fell from almost 25% when Roosevelt took office to around 14% by 1936, still far too high but a huge improvement (to get an idea of how deep the economic hole was at the time, in the current Great Recession, the official unemployment rate has yet to reach 10%; if you include those who are undermployed or who have given up looking, right now our rate is about 16%; in the darkest days of the Great Depression, actual unemployment was one in four workers; the actual crash of the financial system we managed to avoid last fall took place during the Great Depression; interestingly, though GDP recovered to pre-Depression levels in the mid 1930s, employment did not recover until the massive government spending project known as World War Two kicked in).  

In 1944, Roosevelt delivered his state of the union in which he laid out the Second Bill of Rights; he was looking forward at that time, predicting the end of the war and planning for the kind of society we as a nation should construct.  

The nations of western Europe have largely constructed the society Roosevelt predicted; their comprehensive social safety nets have created a broadly shared economic security; highly progressive tax codes have created middle class societies in which there are relatively few wealthy and few poor people and in which there is little of the economic inequality the US currently experiences.  Sunstein offers a vision of a society adopting the South African approach - government wouldn't guarantee you a job but it would follow an approach of creating programs that would support your ability to get a job, government wouldn't necessarily guarantee you a house, but it would enact economic policies that would support making decent housing available to as many people as possible (think the TVA as one example of a gov't program that helped create better housing).  

I recommend Sunstein's book - it's worth reading and engaging his ideas honestly.

My reaction to Sunstein's ideas is mostly positive.  I believe as a society we would benefit from committing ourselves to realizing the vision of the Second Bill.  An attempt to do so would greatly reduce inequality in our society.  Creating greater opportunities for more people to work and life themselves out of poverty and hardship would have a host of positive consequences; not for nothing, I think we'd see lower crime rates and lower rates of addiction and drug abuse.  Access to affordable universal health care would reduce infant mortality and address the problem of low infant birth weights.  Broader access to affordable educational opportunities would increase social mobility (I know it's old-fashioned of me, but the model of the vocational school seems like a good one; why not let someone at age 16 who has no interest in going to college get job training so they can get a halfway decent job; if they decide when they're 40 they want to become a teacher or nurse, let's make college accessible and affordable; I'd love to see education at public colleges and universities be free except for books, entertainment and housing and even then campus housing being heavily subsidized).  

Roosevelt's emphasis was on work, not welfare.  It's an emphasis I share; I believe working a job, supporting yourself, paying your own way, has the inherent effect of increasing individual dignity and I'm a big fan of dignity.  But that work has to pay enough to allow you to afford to live.  Right now, a huge percentage of people who are poor actually work more than full time but can't afford housing, utilities, food, medical bills, clothing.  This state of affairs cannot be allowed to continue.  At some point, push will become shove and we'll face the kind of social instability that is bad for everyone.  Those affluent gated communities will not be secure against an angry, perpetually starve underclass that has nothing to lose.

Creating the kind of economic security envisioned in the Second Bill of Rights may very well mean we have to face facts.  We cannot continue to pour untold billions down the rathole of the military industrial complex (and yes, engaging in a sane discussion about whether we need to spend $300 billion a year on overseas bases and whether we need a standing army of some 3 million is party of a healthy democratic process), we need to rationalize our health care system, we probably need to raise taxes in the interest of getting our fiscal house in order.  That final challenge - putting our fiscal house in order - is going to require something we as a nation have failed to do since the 1980s - engage in a sane public discussion about taxation and the federal budget.  If nothing else, the failed economy of the Bush years should prove that tax cuts aren't the solution; despite massive cuts heavily favoring the wealthy, the 8 years of Bush II produced the worst economic track record of any president since Herbert Hoover.  

Creating an economically secure population - which the Second Bill envisions - would pay dividends for decades to come.  It would not exempt us from facing tough decisions or from dealing with economic downturns.  However, if we as a nation agreed that the economic security and resulting human dignity were worth it, I believe we would be able to realize greater economic equality, sustainable growth, and an overall healthier and stronger nation.