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Posted July 4, 2004
The Skinny on Sunstein's New Rights
In examining the 'soft' new rights Sunstein champions, keep these hard issues in mind: 1. Black letter law: how should new rights read? The 'affirmative rights' cases of the 1970s expressed rights (for example, the right to housing) as an affirmative duty, or at least the Courts so interpreted it. And they turned down such a right for the usual reason: it tended to bring the Court into the Executive branch, involving it in a supervisory role to determine if the right was being implemented properly. This overstepped the bounds of the separation of powers and the Court would have none of it. Solution: express new rights as negative prohibitions (this is not how the Four Freedoms or the Declaration of Human Rights are expressed, and Sunstein glosses over this vital issue). For two reasons: they tend to avoid fact questions and they tend to be self-enforcing. For example, housing: if two parties are quarreling over whether one should be removed from housing, there isn't any question as to what is housing. So this minimizes the necessity for the Court to step in and answer the question: what, in fact, is housing? Second, a negative prohibition tends to minimize the affirmative need for Government to make sure people aren't being forced out of housing. People tend to know when they're being forced out of housing. If they have an individually enforceable right, they'll squawk and take it to Court and get the threatened removal stopped. Second area: what rights? This turns on a statement by James Madison constantly cited in the later dissents of Brennan and Marshall. Madison states, in The Federalist, that the Fourth Amendment prevents every assumption of power in the legislative and executive. This creates what I call the fatal anomaly of the Constitution. The Fourth Amendment guards against unreasonable searches and seizures. Reasonableness suggests a balancing approach, which the Court has adopted. However, Madison does not say every unreasonable assumption; he says, EVERY assumption. It suggests that there are rights which are protected in EVERY case, somewhat along the lines of an establishment of religion where, if you find it, you ban it in EVERY case (no such thing as a reasonable establishment of religion). No one can properly address new individual rights without reaching a conclusion on this issue. Sunstein doesn't do this. The history of English constitutional law suggests that the state makes long-term efforts to impose certain conditions, for example a state religion or violations of what today is regarded by the Court as protected speech. These efforts are made over thousands, sometimes tens of thousands of years, so there is a long history to look at. And the conclusion is that it is simply a history of failure. In the end, governments don't succeed in imposing state religion or in violating protected speech--they simply distort the facts and cause all kinds of grotesque situations. Which suggests that these facts--freedom from state religion and exercise of protected speech--are facts of the individual. That is, they inhere in the individual and are never violated. Myself, I think there are five about which the logic has been made clear over the centuries, even though there is no political consensus: housing, education, maintenance, liberty and medical care. So, if you were going to formulate new black letter rights, they should read something like (on the model of the 13th amendment): no individual shall be involuntarily deprived of housing, and so on. It's a negative prohibition with respect to a fact to which parties would tend to stipulate, and neither the Government nor the Court would tend to be dragged into a fact-finding or supervisory role. Is that the test for an individual right? What about other ideas, say, transportation? Is that a right? The point is that the process is endless, of discovering facts of the individual. The third problem area is, even if you know of new rights, how on earth
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Posted March 12, 2013
Relevant for our Economic Times and Capitalist Society
This book was well done. Although the book is labeled as a politics/history book, it covers quite a bit on law, including theoretical law.
That said, this book was not a light reading, it took me an extra day to get through it.
The author discusses the little known Second (Economic) Bill of Rights that Franklin Roosevelt proposed in 1944. That bill, in a basic sense, was to offer a simple form of economic security for the citizens of the United States obviously inspired by the Great Depression.
The bill was never implemented but it set the stage for the creation of the Universal Declaration of Human Rights which has influenced the creation of constitutions around the world that carry the Roosevelt legacy of economic security for those countries citizens and is mentioned in the book.
Because of the failure to pass the Economic Bill of Rights, people in the United States still do not make a decent living, lack access to a good education, etc.
With overwhelming evidence, the author discusses why this Bill of Rights should be implemented and how, as the author claims, it came close to being established. Regardless of the fact that some people will claim the program is socialist it is not, according to Cass Sunstein.
Something to think about after reading this book regards the economy itself. What if we had a Second Bill of Rights? Would we have had to deal with the current Great Recession?
This book probably is not for people with a right-leaning political preference.
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Posted April 19, 2009
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