And welfare for all? Cass Sunstein's case for inalienable economic rights

Washington Monthly, Sept, 2004 by Daniel Farber

Three decades ago, young stars of constitutional law like Larry Tribe were advocating a constitutional right to welfare. For reasons that are probably obvious, the idea has faded from sight over the past 20 years. A right to welfare sounds out of place in a world in which a Democratic president has successfully campaigned to "end welfare as we know it." Admittedly, advocates of constitutional welfare rights did not merely; or even primarily, mean the right of single unemployed mothers to receive government stipends; they had in mind a broader set of rights to protect basic "welfare" in the general sense of human needs. But constitutional welfare rights do appear to be out of rune with the zeitgeist, and arguments on their behalf have been scarce.

In The Second Bill of Rights, Cass Sunstein, a University of Chicago law professor who is one of today's academic stars, reopens this debate. He makes a surprisingly plausible case for resurrecting this idea with some modern twists. Recalling FDR's proposal for a "second of bill of rights" protecting basic human needs, Sunstein urges Americans to recognize a new list of constitutional rights, including access to a good education and health care, and the opportunity to work at a fair wage--in essence, economic rights in addition to the largely political rights enshrined in the country's founding documents.

But Sunstein is ambiguous on the nature of these proposed new rights. It's not clear whether these rights would be enforceable in court; in any event, the "Second Bill of Rights" is only a metaphor because Sunstein does not advocate an actual constitutional amendment. If they aren't enforceable and aren't written, what they amount to is a conscious commitment to make these rights part of our conception of America, with the expectation that doing so will force the political system to make good on that commitment.

Like the vast majority of Americans, Sunstein takes it for granted that it would be good for every American to have the opportunity to obtain health care, an education, a job, and other basics of life. That seems reasonable enough: A few Social Darwinists may survive to urge that the unsuccessful should starve to death and their children should remain illiterate, but if they are to be found at all, it is on the most lunatic fringe. As Sunstein recognizes, the real question isn't about the desirability of satisfying basic human needs; it's about whether we should guarantee government assistance in satisfying these needs by making them into a right, constitutional or otherwise. (After all, we might think that other institutions--the market, families, churches, and so forth--would do a better job of satisfying these needs if the government didn't get involved. Or we might think that the government does have such a responsibility, but that constitutional process has little to contribute.) The conventional wisdom is that constitutionalizing economic rights would be pointless, counter-productive, or impossible in our society. Sunstein devotes most of his efforts to rebutting the common arguments in favor of that conventional wisdom.

One such argument is that the welfare state is contrary to the essential American character. Sunstein points out that recognizing these needs as rights has not always been outside the American mainstream. His main evidence comes from the New Deal, and particularly from FDR's thinking about social goals. In a now-forgotten speech that Sunstein spotlights, FDR called for a new Bill of Rights along the lines that Sunstein advocates. Twenty years later, the Warren Court flirted with recognizing constitutional rights to food, shelter, and other necessities. If Nixon hadn't squeaked out a victory in 1968 and appointed four conservative justices, Sunstein contends, the court might well have heeded the advice of liberal constitutional law scholars and recognized economic constitutional rights.

Thus, as Sunstein puts it, one can easily imagine an alternative universe in which the Warren court trends were continued, by new justices appointed by President Hubert Humphrey. (One could call this the "Sliding Doors" version of constitutional history, in honor of the Gwyneth Paltrow movie.) So, Sunstein maintains, it can hardly be said that such a Second Bill of Rights is an utter impossibility in America.

Second, there is nothing about American constitutional law that would preclude the recognition of these rights. True, these rights are not mentioned in the Constitution. But the Constitution also has nothing to say about gender equality, and as originally understood, it did not prohibit segregated schools. This has not prevented the Supreme Court from recognizing these rights. Despite conservative arguments for narrow constitutional interpretation, Americans do not seem ready to tolerate segregated schools or limits on the fights of women merely because they were accepted at the time of the Fourteenth Amendment. Thus, it would not be necessary to actually amend the Constitution in order to give economic rights constitutional status.