GUEST: Cass R. Sunstein
I’m Richard Heffner, your host on The Open Mind. And when he last joined me here in the 1990’s, I described today’s guest as a prime example of the fact that the New Deal thinking I grew up with a half century before, while not yet widely current again, was surfacing once more, and that the holy mantra of the Reaganish 1980’s and early 1990s – “deregulation, deregulation, deregulation” – was clearly less and less widely embraced by young legal scholars like him.
Now Cass R. Sunstein, Professor of Jurisprudence at the University of Chicago Law School, and author of Basic Books’ “The Second Bill of Rights … FDR’S Unfinished Revolution, and Why We Need It More Than Ever”, demonstrates that all the more.
Now, of course it was in his dramatic January 11th, 1944 State of the Union message that Franklin Delano Roosevelt set forth what he called America’s “Second Bill of Rights under which a new basis of security can be established for all – regardless of station, race or creed.”
He had earlier told Americans that war with the Axis powers required that “Dr. Win-the-War” supplant “Dr. New-Deal” for the duration.
But now victory was closer, and it was time to look again to the nation’s long future with what FDR called the clear realization … that true individual freedom cannot exist without economic security and independence.
“‘Necessitous men are not free men.’ People who are hungry and out of a job are the stuff of which dictatorships are made.
“In our day,” continued President Roosevelt, “these economic truths have become accepted as self-evident.”
And I want to ask my guest today if, these days he thinks that is quite so true.
SUNSTEIN: Less true than in Roosevelt’s time. Under the assault of some Conservative thinkers and under some of the political pressures of the 1980’s many Americans have embraced an anti-government theology, I would say, which fortunately doesn’t fit our practices, but which makes it hard to think that the right to education; the right to a chance at a good job; the right to a home; the right to eat; that these things are … a part of human rights.
HEFFNER: But in a sense, in this wonderful book of yours, you say … stop me if I’m wrong, that that is almost a European concept; not an American concept.
SUNSTEIN: Yeah. Roosevelt’s Second Bill of Rights has turned out to be lost in the United States. So very few Americans even know about this extremely important part of our history. But the Second Bill of Rights has turned out to be one of the best American exports.
So in Europe and even in Iraq now, the Constitutional understandings often include a right to a decent chance at economic well-being and the right to education and the right to basic opportunity. So European Constitutional thinking really is inspired by Roosevelt, that’s our export, but we’ve lost it at home.
HEFFNER: You say, “lost it at home”. Yet if you were to look at the years right before Roosevelt …
HEFFNER: … you would say that it wasn’t really part of more than the protest movements in this country, wouldn’t that be true?
SUNSTEIN: In the years before Roosevelt?
SUNSTEIN: I think Roosevelt’s Presidency had an arc and an arc which is in its way even more important and more dramatic than Lincoln’s Presidency’s arc and then George Washington’s. Those are our three great Presidents. And what Roosevelt started even in his campaign in 1932 to do was to say people have a right to work and a right to live. And he organized those two central rights …the right to work and the right to live … under the idea of security.
And so before Roosevelt’s great Second Bill of Rights speech, he himself had been speaking in these terms for well over a decade and it was very much within American culture to think of these things in terms of rights. He made it more concrete and vivid and dramatic with the Second Bill of Rights proposal, but it didn’t come as a “bolt from the blue”.
HEFFNER: Now you distinguish between the First Bill of Rights, obviously, and the Second. And you give … well, not second class citizenship …
HEFFNER: … to the Second Bill of Rights, but you look at it differently.
SUNSTEIN: Yeah. Well, Roosevelt didn’t want to change the text of the Constitution. So he didn’t want to add the right to a good education or the right to a home or the right to Social Security in the text of the Constitution. In that sense he was a Conservative, and he liked to say “I am that kind of Conservative, because I am that kind of Liberal” and what that means is a Liberal who respects our Constitutional tradition and our text and doesn’t tinker with it a whole lot.
What Roosevelt wanted to do was not to put the Second Bill in the Constitution, but to follow the model of his hero Thomas Jefferson, who was responsible for the Declaration of Independence, a declaration which isn’t part of our legally binding text, but which helps animate our self understanding of the Declaration of Independence … in many newspapers every July 4th.
What Roosevelt wanted to do was say the Second Bill of Rights, including education, a chance at a job, a right to be free from domination by monopolies, a right to a home, a right to Social Security … that that’s a kind of promise or commitment that helps define who we are as a people, just like the Declaration of Independence.
It doesn’t mean that it has lower status than the original Bill of Rights, but it means that it’s not fundamentally for judges and the Supreme Court, it fundamentally for the public, something the public can point to and hold it representatives to account.
HEFFNER: You mean you can’t even use the word “penumbra” here.
SUNSTEIN: Well, you know, Roosevelt was President in an era in which the Supreme Court was very aggressive and in directions that Roosevelt himself despised. So Roosevelt’s Presidency was operating against the background of a Supreme Court which was more interventionist than the Warren court and to protect Conservative interests.
So, what Roosevelt was nervous about was putting these things in the Constitution partly because that would give increased judicial power, he was very nervous about judicial power. But it wouldn’t be odd, and to some extent it’s happened, for the … our, our current understanding of the Constitution to build at least to some degree on Roosevelt’s understandings of rights and there’s a tale to be told about how the American Supreme Court in a way Roosevelt’s children, did some of that in the period between 1950 and 2004.
HEFFNER: Well you, you make the point and it’s so interesting that in a sense had the Nixon/Humphrey battle election gone differently and it would have required a very, very few votes to have made Humphrey President rather than Nixon, that the Humphrey appointees to the Supreme Court would have enabled, maybe made it necessary for the court to move in the direction that your talking about.
SUNSTEIN: Yeah, the Supreme Court is often governed by the President of 20 or 30 years before. And the Supreme Court of 2004 is very much working against the background of the Reagan Presidency 20 years previously.
The Supreme Court in the mid-1960s started to think that if people are being kicked off of the welfare roles and they haven’t gotten a hearing, they have a Constitutional right to get a hearing. The Supreme Court also said that if people are desperately poor and they leave from one state to go to another, then the new state can’t have a long waiting period before it gives them medical services or something that enables them to live.
So the Supreme Court was moving in its cautious narrow way toward recognizing some of what Roosevelt wanted to protect. The Court came very close to saying that the right to education is a Constitutionally protected interest and there was movement in that direction. What stopped it was the election of Nixon and, as you said, it was super close, could easily have gone the other way, and then Roosevelt’s thinking with respect to social and economic opportunity and security got eliminated from Constitutional law.
HEFFNER: You know, there’s a … forgive me for putting it this way, but I, I see, or feel, in The Second Bill of Rights something of a contradiction …
HEFFNER: … and it has to do with your saying in a sense you don’t think that what Roosevelt spoke of as being included in the second bill, the economic rights, should be in the Constitution.
SUNSTEIN: Yeah. Well, I’m following Roosevelt here. Not following Europe or Iraq. And reasonable people can differ. The Iraq Constitution, Article 13 of the Interim Iraq Constitution supported by the United States, borrows directly from Roosevelt’s Second Bill of Rights. It says “Every citizen of Iraq has the right”, and it’s the word “right”, “to education, security, health care” and more. It grows directly out of Roosevelt. So, it’s a, it’s a plausible call that would say that modern constitutions should come to recognize that necessitous men are not free men, as Roosevelt said. And should protect opportunity and security in the interest of individualism, which is what Roosevelt thought.
HEFFNER: Making them Constitutional Rights.
SUNSTEIN: Giving them Constitutional status, putting them in the text of the document. And the vast majority of modern Constitutions actually embody Roosevelt’s Second Bill of Rights, which is why we have an American export here that Americans don’t know about.
It’s as if there was some fantastic product, like sneakers or ties that were being worn by everyone in Europe and they were really good and working well and Americans didn’t know, even know about them. So that’s a reasonable call.
With respect to Constitutional change, I think Roosevelt was a kind of Conservative. That is he didn’t like changing the text of the document and that was partly because he thought “it’s a flexible document, it allows the people to govern themselves; it isn’t rigidly hidebound” and that’s partly because he trusted democracy and he thought that to put things in the Constitution would limit democracy.
So his view of the Second Bill of Rights, which I share, is that what we should think of this as, is very much like Jefferson’s Declaration. Part of what we’re committed to, part of what defines our self-understandings, but we’re going to keep the judges out of it.
Now, a reasonable other view is that the second bill should be included either in State Constitutions or in national Constitutions. And there are some state constitutions in the United States that do include the Second Bill of Rights and there’s debate now … you mentioned recovery of the New Deal; there’s debate now in various states of the union … just starting … about putting in the State Constitution some of the things that Roosevelt spoke for.
If, if we are excited about judicial protection of individual rights, then we might want the Second Bill of Rights in our Constitution. I, myself, am nervous about that, because I’m nervous about the judges. I’d much prefer that we recover this aspect of our history, that we understand that this is what we’ve been about, rather than the post-Reagan blunder of thinking America is opposed to government intervention. Which is a ridiculous and false characterization of our history.
HEFFNER: Well, taking what you say there … what do you think would happen if we were … and there are frequent calls … not frequent … more infrequent now than maybe 20 years ago … for a Constitutional Convention. If we were to re-write the Constitution …
HEFFNER: … what do you think would happen?
SUNSTEIN: Well, it’s a great question and we’d probably end up with a very different document from the text of our Constitution.
HEFFNER: For good or for bad?
SUNSTEIN: I think what would emerge would probably be worse and the reason is that our Constitutional understandings now don’t map perfectly on to the Constitutional text that the framers gave us.
Example, under our Constitutional understandings now the President doesn’t need a formal declaration of war to go to war. We’re adapted our practices so that if we get an authorization to go to war that’s okay … even though it’s not a declaration.
Another example is that the Constitution protects a pretty broad right to privacy, including a right to reproductive liberty. A lot of people don’t like that. All I’m saying is that that’s not in the text of the Constitution, but it’s in our Constitutional understandings so what we think the Constitution entails isn’t identical, and I think this is good, to what the framers a long time ago put in the text.
If we were to try to generate it now, we might be able to improve some on the text they gave us, and I think we would have some of the social and economic rights that Roosevelt gave us. We might even put the right to Social Security, the right to a good education, the right to freedom from monopoly … all of those would be candidates for inclusion in the Constitution, surely. But we might screw it up a lot.
HEFFNER: Freedom from monopoly. You return to that theme again and again in the book. And you particularly emphasize the communications industry.
HEFFNER: Why so?
SUNSTEIN: Well, a system of free expression requires that there be lots of communications outlets and if you have something like a monopoly in communications, as every tyrant knows, you can just, by virtue of doing that, prevent freedom of expression from occurring. So freedom requires, I think, a lot of competition.
And on this point, Ronald Reagan was right. In the domain of communication its not just about freedom in particular, it’s about democracy more generally. If you have anything like a monopoly or near-monopoly in the world of communication, then the system of free expression can’t work.
HEFFNER: Well … do we or don’t we?
SUNSTEIN: I think it’s a mixed bag. What’s … let me tell you the good side and then the bad side. The good side is with the proliferation of, of channels because of cable and other forms of television and because of the Internet. The number of voices that you can have access to, if you have a computer, and a, a TV that gives you a lot of channels, the number of options you get is fantastic. So that’s the good side. You can get every point of view under the sun available.
HEFFNER: You think numbers count.
SUNSTEIN: Well, it matters.
HEFFNER: Rather than diversity?
SUNSTEIN: Well …
HEFFNER: Or that numbers are automatically to be equated with diversity?
SUNSTEIN: No, that … no, I’m with you on that. That’s why I think it’s a mixed bag. The, the other side is that, you know, Bruce Springsteen had a, a song, “57 Channels and Nothing On”. And that’s a dated song because you can have a lot more than 57 channels, but partly because of, of ownership practices. We often have less diversity in terms of what people are actually seeing and hearing than would be good for a system of free expression.
So I think we have an odd situation here where there is something like monopolistic practices in terms of ownership and that … and concentration of … in the private sector. And that creates problems in terms of diversity of ideas so the Federal Communications Commission for a long time has had restrictions on ownership, which is not about preventing censorship, but it’s about insuring that there’s diversity.
And the Federal Communications Commission under President Bush has tried to back off from the ownership restrictions. And I think from the stand point of the anti-monopoly position for which Roosevelt spoke, when the Federal Communication backs up from the restrictions on ownership, it’s backing off from what freedom of expression requires. So I don’t think we’re anything like at the ideal position in terms of a flourishing diversity of ideas.
And if you look at TV often you’ve got some range, some channels have a different perspective than others. But it’s often kind of public debate by bumper sticker and that’s a … a system of diversity probably won’t have that.
HEFFNER: You know the other thing … one of the other things that struck me … and I keep coming back to it … ah, I made a note here, something you wrote … back on the subject of Social Security. “I have suggested that the right to Social Security … an important part of the second bill … has also attained that status.” And that status means something that you call “constituent commitment”. You even carry further with Social Security. It feels to me, if I may be so bold …
HEFFNER: … that we haven’t gone past the point where Social Security can, indirectly, perhaps be challenged. Something that was so basic to the New Deal.
SUNSTEIN: Yeah. I don’t think we’re at the point yet where Social Security can be challenged. I think Roosevelt has won on that and that most people think of the right to Social Security as having the same status as a Constitutional guarantee. It’s not in the text of the Constitution … I bet you that if you ask Americans if the right to Social Security is part of the Constitution. Millions would say “yes”. If you ask them whether it should be part of the Constitution, at least half would say “yes”. That’s my guess.
So I think you can say about Social Security, as President Bush has, we should think of other methods for guaranteeing people their savings. But you can’t say that we should abandon the Social Security system.
HEFFNER: Yeah, but you know that’s so interesting …
HEFFNER: … for you to say that because there have been so many things over the past Presidential term in which words have been used that sound very much like the New Deal and when you examine what is behind the words, you find something very, very different. You find Herbert Hoover.
SUNSTEIN: Right. Well, there is a strand in current Right Wing thought that isn’t much on public display, that is very radical. And I’ve actually heard it discussed and the term for it that many people are using is “the Constitution in exile”. And what they say is the Constitution is like a deposed monarch, and it’s in exile and the real Constitution … and this is explicitly said by people of influence and distinction … the exiled Constitution was the 1930 Constitution, Hoover’s Constitution.
And on this view, and many people who support and work for President Bush believe it, though they don’t say it publicly very often, “we have to restore Hoover’s Constitution, either through activist judges or through changing our practices”.
And these people, let’s call it Hoover’s heirs, they want to restore the Constitution of 1930. They don’t like the Social Security act; they don’t like the National Labor Relations Act, they don’t like minimum wage legislation, they don’t like maximum hour legislation. They want to go … they don’t like the Civil Rights Acts. They … and Roosevelt helped inspire, incidentally the Civil Rights Acts, he talked very clearly that these rights are to be enjoyed on a non-discriminatory basis. So there is a prominent strand in political thought which is radical. I like to think that the dominant strand in the Republican Party thus far is more cautious and less extreme. But it’s too early to know for sure.
HEFFNER: You would like to think. Do you think?
SUNSTEIN: I do. I think that most of the Republican leaders are accepting … certainly of the right to a good education; certainly of some kind of Social Security program … probably some kind of social safety net.
President Reagan himself was committed to a social safety net. So I think this still … things are changing. You know the country is not where it was twenty years ago, either both Conservative and Liberal thought and moderate thought are all shifting constantly. But so far those aren’t compromised.
I guess the one thing I would say is some of President Bush’s nominees to the federal courts have been very extreme and they have been people who think that Hoover’s vision of the Constitution was correct and that Roosevelt … far from being a great leader … betrayed America’s essential self and those judicial appointments I think are extremists and radicals, not conservatives. They are in the grip of a dogma. They have a theology which has not a thing to do with God, has to do with a weird notion of what freedom entails.
And what makes it particularly weird is that people who have a lot of property and resources, unless they also have a lot of guns owe their property and resources to government. And to property law which ensures that the police will come and help them if people without property or resources try to take what they own.
So the people who attack government and say that government intervention is bad, those people depend on government and government intervention every day of every year.
HEFFNER: I’m getting the signal that we have two minutes left. I want to ask a question in those two minutes. I pick up, from the book and from what you’ve said that judges aren’t your favorite people. Now, by and large that’s a ridiculous statement, but I have the feeling that you’re concerned about the judiciary.
SUNSTEIN: Yeah. I think we have excellent judges and people of good faith, but that we are a democracy and we should be allowed to rule ourselves for the most part. Now the Constitution is there to provide a back stop especially for democracy. So if freedom of speech is compromised then by all means the judges should step in. And if some people are being disenfranchised then the judges need to protect them to ensure that the democratic process is well functioning. And in the case of extreme abuses, then a judicial role is appropriate if the Constitution, fairly read, forbids those abuses.
But I, I follow Roosevelt really more than Earl Warren. Earl Warren was a great man, a great protector of liberty and equality in the name of the Constitution. But I think the real hero of rights in the twentieth century, for the United States, was not Earl Warren, but was Roosevelt who was a democrat with a small “d” and thought that a self-governing public was the basic foundation for the protection of rights.
HEFFNER: And it’s at that point that our time is up and I want to thank you so much for joining me today once again on The Open Mind and for writing The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever. Cass Sunstein, thanks again.
SUNSTEIN: Thank you very much.
HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.
Meanwhile, as an old friend used to say, “Good night and good luck.”
N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program. -