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

Washington Monthly, Sept, 2004 by Daniel Farber

Part of the problem is precisely that Sunstein is an academic--too good an academic to conceal some of the weaknesses of his proposal. He admits that state constitutional efforts to equalize educational financing have had mixed results and may not have done much for poor children. He also tells us that since 1938, the New York state constitution has mandated public support for the poor. Although the state courts have provided some enforcement for this provision, this doesn't seem to have done much to abolish poverty in New York. International studies, Sunstein reports, show that welfare rights do increase transfer payments, but constitutional rights to education seem to have negative effects, and the right to health services has at best a weak positive effect. Thus, constitutional economic rights might do some good--but enough good to be worth a constitutional revolution?

Another weakness of his book, considered as political advocacy rather than academic scholarship, is that it relies so heavily on FDR and the New Deal. For better or worse, Franklin Delano Roosevelt no longer carries the emotional heft in American society that it once did. Even a great president is likely to fade from memory some 60 years after his death, even if he is assassinated like Lincoln or Kennedy. Indeed, even among liberals, an appeal to the legacy of Martin Luther King Jr., would probably carry more rhetorical punch than an invocation of FDR.

The Biggest flaw in Sunstein's analysis, however, is that he recalls only Roosevelt's unfinished revolution, shrugging off the more recent unfinished revolution of Ronald Reagan. Although Sunstein obviously understands that the political climate of the past two decades has been adverse to the goals he advocates, he seems to regard this merely as a practical obstacle rather than as a possible sign that American society has moved to a more individualistic vision. Sunstein's ideas about policy implementation are much more sophisticated than those of old-fashioned liberals, but his basic goals stem from the New Deal and the Great Society. He recognizes that the "administrations of Ronald Reagan, George H.W. Bush, and George W. Bush have included many who are skeptical of the New Deal." But Sunstein doesn't seem to attach much significance to this observation. He takes a little too much comfort from the idea that his program would have been adopted if only the 1968 campaign had lasted for the few additional weeks needed for the Humphrey wave to crest. That may or may not be true, but there have been a lot of elections since 1968, and his vision has not fared well in them. Our society is more deeply divided than he recognizes, and the New Deal is no longer a unifying political creed.

Of course, presidential elections do not always reflect national mandates (as the outcome of the 2000 election amply illustrates). But in some important ways, these conservative Republican presidents have indeed been in tune with the zeitgeist. Sunstein himself provides some striking supporting evidence. Far from embracing welfare rights, "only 23 percent of Americans accept the view that government has a duty to 'take care of very poor people who can't take care of themselves.'" Even among the less affluent, he reports, only a bare majority agree that the "government should provide a decent standard of living for the unemployed," and two-thirds of the more affluent reject this proposition. Moreover, even among the less affluent, there are those who are alienated from public institutions, particularly the evangelicals.