To begin, it bears emphasis that Sunstein's book is not about amending the Constitution. FDR did not set out to amend the text of the Constitution through the process set out in Article V. Nor does Professor Sunstein propose to do the same.
But FDR did submit to the Congress a Second Bill of Rights that he hoped would be the platform for an ambitious extension of federal entitlements. And it is for these very same entitlements that, according to Sunstein, we should continue to fight today. But Sunstein fails to make a convincing case that this outcome is what a majority of the American people actually desires or that it would make a concrete difference in people's lives..
FDR's "Second Bill of Rights": What It Would Have Guaranteed
The Second Bill of Rights, as authored by FDR, stated that "Every American is entitled to" a number of specific things.
They included -- and here I depart a bit from FDR's own ordering -- a decent paying job, a decent home, adequate medical care, old age and disability insurance, a good education, and a marketplace free from monopoly. (An additional provision spoke directly to the domestic agricultural economy, but I have followed Professor Sunstein's lead and folded that in it among the first three.)
To What Extent Is The Second Bill Of Rights Already Part of American Law?
Interestingly, although these entitlements never became part of the U.S. Constitution, they did make their way into the constitutions of many, many other countries.
Eleanor Roosevelt got the ball rolling in her work on the Universal Declaration of Human Rights, which included much of the same substance as the Second Bill. Constitution drafters abroad have been cribbing the language ever since.
Many countries -- as was done in the old Soviet constitution -- have documents larded with substantive rights but silent to how or by whom they might be made enforceable. But there are thought-provoking hybrids.
India, for example, set Second Bill type rights in a subdivision of its charter which is explicitly directed to the legislature and textually insulated from judicial enforcement. South Africa, after substantial debate on its new Constitution, leavened entitlement language with, in effect, a "best efforts" clause -- but left those efforts susceptible to judicial review. On the whole, the practical effect of this constitutional language in improving poor people's lives has been slight.
At least other countries have signed onto the language of the Second Bill, however. Against that backdrop, Professor Sunstein poses a provocative question: If the Second Bill is so widely established abroad, why is it not also established here -- where the problems it aims to address persist and where, after all, it had its debut?
One answer is simple: In fact, large chunks of the Second Bill have been implemented in the United States.
Consider the last three items. For old age and disability insurance, we have Social Security. We honor the right to a free public education - though, sadly, not always the good education FDR hoped every child would enjoy. Finally, antitrust enforcement aims to guarantee a marketplace free from monopoly.
But what about the first three guarantees of FDR's Second Bill - the entitlements to a decent paying job, a decent home, and adequate medical care?
Some commitments on these issues have been made in our statutes. Yet we fall far short of offering a full, statutory or constitutional government guarantee of employment, housing and healthcare.
The Warren Court's Ironic Role: Did It Enact Part Of FDR's Second Bill of Rights?
Professor Sunstein's argues, however, that while FDR and his followers failed to enact these ides through legislation, as they had planned, their work continued. It was taken up by the Supreme Court, under the leadership of Chief Justice Earl Warren. According to Sunstein, the Warren Court used Equal Protection and Due Process concepts to lay the groundwork for the employment, housing and healthcare guarantees the Second Bill envisioned.
If Sunstein is right, however, the Warren Court's actions are classically ironic. FDR, we are told, distrusted the courts -- probably because he knew well, from his own experience, that the law is what judges say it is, and that it can make a great deal of difference who picks the judges.
So FDR might not have been thrilled to learn that the commitments of his Second Bill of Rights - which he had hoped to enshrine in legislative entitlement programs - would reside in judicial decisions instead.
After all, a single judicial decision can overrule a whole set of earlier decisions: FDR himself accomplished it with his "switch in time" that allowed the New Deal to take effect. But statutory entitlements created ingrained expectancies that are far harder to reverse: The political costs of retrenchment become unacceptably high.
Consider FDR's own description of the political firebreaks around the social security and unemployment systems: "We put those payroll contributions there so as to give the contributors a legal, moral, and political right to collect their pensions and unemployment benefits. With those taxes there, no damn politician can ever scrap my social security program." Unfortunately, judicial decisions lack the same type of firebreaks.
They also lack the same kind of popular mandate. The Warren Court's actions sparked the kind of criticism from which statutory entitlements would have been immune: The critique that -- as with the Lochner Court before the New Deal -- the Court was out of step with the current political dynamics of the day, and was taking the country into terrain that it had no desire to visit.
And that might still have been true, had this country gone through the alternative history Professor Sunstein considers. As Sunstein points out, had Nixon lost the 1970 election, and had he lost - along with it -- the extraordinary opportunity to appoint four Supreme Court justices, then the Warren Court revolution might have continued for at least four more years - if not far longer. The fashioning of social and economic rights out of Due Process and Equal Protection clauses thus might have continued. And the Second Bill might be part - if not of our Constitution - at least of our constitutional doctrine.
But even under this alternative history, a problem remains: Without enduring popular support, those "new" rights would not have gained the legitimacy and longevity that Sunstein believes they deserve.
The Powerful Argument Sunstein Wants to Explain Away: The People Don't Want the Second Bill
In the end - once one recalls some history -- it is unsurprising that the Second Bill's more ambitious entitlement guarantees have not made their way into American law.
The Second Bill landed with a thud when it was delivered to Congress for consideration. Although FDR claimed the country had already accepted the Bill, in fact there is no evidence that the population was -- then or now -- crying out for what was offered. Indeed, Professor Sunstein recounts that no more than a third of the less well-off of Americans surveyed in a recent study supported such entitlement mandates.
Many pages of this book are devoted to an examination of why the Unfinished Bill has not been enacted. There is straightforward answer: the people do not want it.
The controversy over government health care played itself out in the Clinton Administration - with Americans offering a clear answer as to what they think of a health care entitlement. As to an entitlement to jobs, Americans do not seem to want to go further than welfare (and in an increasingly limited form) and limited-term unemployment. Finally, as to an entitlement to housing, government-built and government-maintained public housing has generally been a disaster.
Meanwhile, even voucher solutions that would help the poor afford to rent privately-owned housing have not yet taken off; instead, welfare offers help with rent, as well as other expenses. Americans are interested in a financial safety net, but not in these specific entitlements. And lately, they have been interested in a more modest safety net.
The best evidence that the American people do not want a Second Bill of Rights is that now, after over seventy years, it is not part of our law. Let's face facts: If FDR and the other proponents of the Second Bill could have run the gantlet of Article V, to make the Second Bill part of the U.S. Constitution, they certainly would have done so. If they could have passed statutes representing all of these guarantees, they would have done so - and when they could, they did. In light of these failures, the fact that judicial embroidery did not fill the gap is not the tragedy that Sunstein makes it out to be.
Professor Sunstein speculates at one point as to whether an "easier" Article V process would have improved the chances for the Second Bill to have become part of the Constitution. But that question misses a fundamental symmetry: If Article V were different, and if it were easier to install a Second Bill into the text of the Constitution, then it would also be just as easy to get rid of the Second Bill later.
In the end, the Article V club was not open to the Second Bill because it lacked deep and enduring popular support. And if the constitutional club were easier to get into, it wouldn't be a club worth joining in the first place.
A final point is that a frustration for me was the absence of any hard evidence to back up Professor Sunstein's apparent conviction that ambitious and ambiguous constitutional guarantees of things like healthcare and a good job can actually serve a purpose. Indeed, what data there are give cold comfort.
We read on page 122 that significant elements of the Second Bill have made there way into State Constitutions, but that "considerable" state innovation in this field "has not made much difference in the actual lives of poor people." If actual textual guarantees have proven of little or no use, is there really much point to debating whether and what form amorphous constitutive commitments should take?