FDR's unfinished revolution

No matter who wins in November, author Cass Sunstein says, the country has moved far from Roosevelt's vision of a second Bill of Rights -- and a brand of liberalism that is no longer in fashion.

Tim Grieve
June 26, 2004 12:46AM (UTC)

Franklin D. Roosevelt's 1944 State of the Union address was "messy, sprawling, unruly, a bit of a pastiche and not at all literary." It wasn't even delivered in the conventional sense. Too ill to appear before Congress, Roosevelt sent copies of the speech to Capitol Hill, then read it aloud over the radio from inside the White House.

No one much remembers the speech today, and the country hasn't come close to living up to the ideals Roosevelt set forth in it. But if University of Chicago law professor Cass Sunstein has his way, Americans someday will come to think of the address as the greatest of the 20th century and -- like the Declaration of Independence -- a model for a more perfect union.


In the 1944 speech, Roosevelt proposed a Second Bill of Rights. Unlike the original, which contained mostly "negative" rights -- the right to be free of government restriction on speech, the establishment of religion, searches without warrants and convictions without trials -- Roosevelt's Second Bill of Rights promised "positive" guarantees for all Americans.

In his new book, "The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need it More than Ever," Sunstein argues that the nation should embrace Roosevelt's rights -- just as many in the international community have -- and strive to become a country that provides not just "equal opportunities" but a guaranteed minimum standard of living for all citizens.

The country has strayed far from Roosevelt's aspirations, Sunstein says. The Supreme Court inched close to adopting Roosevelt's vision in the 1960s, but Richard Nixon's slim victory over Hubert Humphrey in 1968 -- and the four Supreme Court appointments that came with it -- ended that progress. With another election approaching, and a slew of Supreme Court appointments likely awaiting the victor, Sunstein says, it is time for the country to take another look at Roosevelt's Second Bill of Rights -- and at itself. Salon recently spoke to Sunstein about his book and Roosevelt's vision.


As much as Roosevelt wanted to see his "Second Bill of Rights" take effect, he didn't want to amend the Constitution to include these rights, did he?

No, he really loved Jefferson's Declaration of Independence. And at crucial moments, when he was doing something very important, that was his model. The Declaration of Independence doesn't have any legal status, it's not in the Constitution, but it sets out the nation's major aspirations. There was a big cultural effect. Roosevelt wanted [the Second Bill of Rights] to be a catalog of what the nation itself was deeply committed to -- and something the people could hold their elected representatives responsible for -- without thinking that the Constitution should be changed.

Today, constitutional amendments are like Hallmark cards -- there's one for every occasion: gay marriage, flag burning, prayer in schools, balanced budgets, and the list goes on and on. Why didn't Roosevelt simply propose constitutional amendments that would have guaranteed the right to a job, to an education, to healthcare?


There's not much evidence of what Roosevelt was thinking. But I have some speculations. First, he thought that if great things were going to be done to help people, the democratic process was going to be how it was going to happen. He just didn't think it was very likely the courts would be much involved in that. This was before the Warren court, and before Brown vs. Board of Education.

He was skeptical that the judges would be willing to do this. But there was also probably the thought that the judges wouldn't be able to do this. He was a pretty pragmatic guy. The notion that the judges could guarantee a right to an adequate job -- I think he would have been very puzzled by that. He was also, I remind you, a democrat with a small "d" perhaps more than anything else. So even for rights that he most prized, he was hopeful that the democratic process, not the judiciary, would vindicate those rights.


And yet, to the extent that the rights articulated in the Second Bill have been implemented, it was largely the judiciary -- and, more specifically, Earl Warren's Supreme Court -- that did it.

Roosevelt was much more a fan of judicial restraint than of something like what the Warren court ended up doing. We can't put Roosevelt in a time machine and ask Roosevelt what he'd think about the Warren court. I'm sure he'd be sympathetic to their goals. But there's a big difference between what Roosevelt insisted on, which was the expression of the will of the people, and what many liberals in the '60s and '70s thought, which was that the judiciary would be the repository for democratic values.

And the justices did start going in Roosevelt's direction [in the 1960s]. This is how things often happen. The political commitments of a president in one generation became the constitutional commitments of the Supreme Court of the next generation. We can see that a little bit in Reagan's appointees [to the Supreme Court] from the mid and early '80s. They are, to some extent, carrying forward Reagan's constitutional vision now. So the justices on the Warren court, many of them, were either nominees of Roosevelt's or nominees who came to adulthood under his presidency. And they went forward, to an amazing degree, with what he cared about.


How close did they get?

Not very close to all of what Roosevelt wanted. But if Nixon had lost to Humphrey, there would be a lot of constitutional protection for people at the bottom. What we'd surely have is very strong procedural protections if people who are entitled to minimum guarantees and need them are being denied them. And we're not so far away from that, actually, but they'd be stronger. And it's not at all inconceivable that the court would have held effectively that everyone has a right to a decent minimum. I don't think we came close to the court saying there's a right to a job. But the court was edging up to the idea that everybody had a right to food, shelter and the minimum you need to survive.

But there was still a huge leap to make -- the leap from saying the government has to be fair when it provides benefits and saying what benefits it must provide in the first place.


That's right. What the court said is, if you're going to be deprived of welfare benefits, and you say you qualify, you have to have a hearing. The court also said you have a right to a lawyer, at least in criminal cases and in cases where you're trying to get divorced. What else that would entail was left unclear; it hasn't come to entail much. But the court was requiring state subsidy of poor people, at least in that domain. The court also said that, if you go from one state to another, the state can't have an extended period before you can get welfare benefits or even medical services.

If the state was offering such benefits at all.

If it's offering them, that's right. The court didn't say there's a constitutional right to benefits if the state isn't offering it. So these were pretty narrow rulings. The court wasn't there yet. But it was the sort of thing where respected commentators wrote, "This is the way the court is going." The court had some pieces of at least a minimal version of the Second Bill of Rights in place. And if other justices had been appointed by Humphrey, we don't know what would have happened.


It's often said that there was amazing continuity between the Berger court and the Warren court. The Berger court expanded the right of privacy, decided Roe vs. Wade, and it didn't, in most contexts, scale back dramatically on the Warren court precedents. But this is one area where they did. The precedents that were protecting people on the bottom -- where the court was starting to recognize the right not to be discriminated against if you're poor -- those cases basically had no legs under the Berger court.

And that's because Nixon just barely beat Humphrey in 1968..

Yes, that's what did it. It's speculative to say that the court would have gone very far in Roosevelt's direction [if Humphrey had won the election]. But what's noteworthy is that there was an episode in our history, from about 1962 to about 1969, in which many of the justices showed a lot of interest in minimal welfare guarantees.

Of course, the justices Nixon appointed -- Warren Berger, Harry Blackmun, Lewis Powell and William Rehnquist -- were, on balance, not nearly as conservative as those who appear to be on George W. Bush's short list. If Nixon's appointments killed progress on the Second Bill of Rights, what can we expect if Bush wins in November? Will there be another sea change on the Supreme Court?


There could be. The most dramatic thing is that Roe vs. Wade really could be overruled. It's not likely, but it could happen if Bush is elected president. It's not quite hanging by a thread, but if he gets to appoint two or three justices, the right to privacy could be out the window. I think another thing that would be quite dramatic is that affirmative action could be abolished.

We already have a very conservative court, but it could become one that would give extremely strong protection to commercial advertising, as [Clarence] Thomas would like to do, and it could be one that would strike down parts of the Endangered Species Act and the Clean Water Act on the ground that that they're beyond Congress' power under the Commerce Clause.

And the most radical thing we could expect is -- there has been talk in Federalist Society circles of the "Constitution-in-Exile," which is the pre-Roosevelt Constitution. The Constitution-in-Exile is thought by many Bush supporters to be the real Constitution. That's why it's the Constitution-in-Exile, and why it has to be restored to the throne.

The Ahmed Chalabi Constitution?


Right. If you look at the pre-Roosevelt Constitution, which had very limited powers for Congress, no protection against sex discrimination, no right of privacy, no civil rights statutes -- and, probably, those would be viewed as beyond Congress' power in 1928 or so -- movements in that direction are certainly sought by many prominent people in the Bush administration. And while I doubt that Bush himself has heard of the Constitution-in-Exile, I don't doubt that he would have at least some sympathy for it.

And what if John Kerry wins? Is there a sea change in the other direction?

The sea changes would come from Bush, because we know Bush has some extremism in him. Kerry, I would expect, would be a moderate in the mold of Clinton. We would probably expect appointments like Breyer and Ginsburg, who are by no means liberals; they're just liberal as compared to Scalia and Rehnquist.

I would expect that Kerry would probably prefer people like that. And even if he didn't, because he'd have to work with Republicans -- whether or not there's a Republican majority in the Senate, there would be a very influential and somewhat angry Republican Party to contend with -- he'd probably be forced to appoint moderates. So that's what we'd have, and we'd have probably a more modest shift under Kerry toward the center.


And that leads to a larger point about Roosevelt's speech and your book. In arguing for government-guaranteed rights to a job, to education, to healthcare -- even to recreation -- both the speech and the book espouse a brand of liberalism that isn't particularly fashionable today. Even if Kerry wins in November, and even if he gets to appoint a few Supreme Court justices, it still seems unlikely that we'll see a major push toward these rights.

That's right. The candidate who was speaking most in Roosevelt's terms in the election was John Edwards. He often sounded like Roosevelt when he talked about there being "two Americas" and 43 million people who lack healthcare. Roosevelt said, you know, "I see one-third of the nation ill-clothed, ill-nourished and ill-housed," and this is unacceptable.

But Edwards didn't win the Democratic nomination. As compelling as his stump speeches were, there just doesn't seem to be much of a market for this kind of cooking.

It needn't be a form of left-wing liberalism. Roosevelt himself was famously against the more radical elements of his party, and the idea that we want to provide a decent opportunity for every citizen of America, and minimal security for people for whom opportunities aren't enough -- that oughtn't be a form of radical thinking. Even very conservative people claim to be committed to equal opportunity, and equal opportunity is a much more demanding idea than what Roosevelt wanted, which was just minimal opportunity.

In the end, what Roosevelt wanted was for these rights to become what you call "constitutive commitments" -- rights that are widely accepted in American society and cannot be eliminated without a "fundamental change in social understanding." If that was the goal for the Second Bill of Rights, how well are we doing?

Well, I guess I'd say that we're much more committed to it in principle than we are in practice, and we're less committed to it in principle than we ought to be. The leader of the "Greatest Generation" had an idea which the country hasn't lived up to.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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