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

Washington Monthly, Sept, 2004 by Daniel Farber

These attitudes are also reflected at the governmental level: The United States is one of the five nations that has refused to ratify the International Covenant on Economic, Social, and Cultural Rights, which embodies much of Sunstein's "Second Bill." This is not to say that Americans are unremittingly hostile to government assistance for the disadvantaged, and Sunstein also reports some differently phrased surveys that tend to support rights to full employment and medical care. Still, it is clear that Reagan was tapping into some deeply held American beliefs.

We do not live in FDR's America anymore, and we also don't live in Reagan's. Important parts of his vision failed to take hold or have been repudiated by the American people, like his anti-environmentalism. But it is a mistake to believe that the aspirations of the New Deal define our national political identity. Many Americans do share Sunsteins vision of government responsibility to ensure economic rights. Many others have a more individualistic vision, or believe that private institutions such as churches have the primary responsibility for providing services. The real question is not whether, as Sunstein advocates, we should translate a national commitment toward economic rights into a constitutional mandate. It is whether we as a nation actually do have such a commitment. Should the government be responsible for ensuring the opportunity to satisfy basic human needs? At present, that is an open question--and a political question rather than a philosophical or legal one.

Daniel Farber, the Sho Sato Professor of Law at the University of California at Berkeley, is the author of Lincoln's Constitution.