The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever

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Franklin Delano Roosevelt's State of the Union Address of 1944 was arguably the most important political speech of the twentieth century. By giving form and specificity, for the first time, to the idea that human beings have inherent economic rights, it embodied a new ideal and aspiration for modern government. But these rights were never enacted, and the speech itself largely faded from public view. In The Second Bill of Rights, Cass R. Sunstein brings back from obscurity the greatest speech of the greatest ...
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The Second Bill of Rights: FDR's Unfinished Revolution--And Why We Need It More Than Ever

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Franklin Delano Roosevelt's State of the Union Address of 1944 was arguably the most important political speech of the twentieth century. By giving form and specificity, for the first time, to the idea that human beings have inherent economic rights, it embodied a new ideal and aspiration for modern government. But these rights were never enacted, and the speech itself largely faded from public view. In The Second Bill of Rights, Cass R. Sunstein brings back from obscurity the greatest speech of the greatest president of the twentieth century, and shows that many of the landmark legislative achievements of the past seventy years stem from Roosevelt's proposal for a second Bill of Rights. Yet these remain the subject of passionate debate.

Using FDR's speech as a launching point, Sunstein examines the "legal realist" school of thought, embodied most clearly in the work of the legal theorist Robert Halen, who decisively refuted laissez-faire economics by showing that no one really opposes "government intervention." Sunstein then describes how Roosevelt gradually developed the idea of a second Bill of Rights; and asks why these rights, which were almost quietly adopted under the Warren Court, have never attained the status FDR sought for them. The reason, Sunstein maintains, is not anything unique to American culture or temperament but a particular historical accident: the very narrow election of Richard Nixon to the presidency in 1968, and the conservative Supreme Court appointments that resulted. Sunstein contends that the Second Bill of Rights deserves to be treated as a statement of the nation's deepest commitments -- a twentieth-century analogue to the Declaration of Independence. This is an ambitious, sweeping book that argues for a new vision of FDR, of constitutional history, and our current political scene. The Second Bill of Rights is an integral part of the American tradition and the starting point for the contemporary political reform that is so urgently needed today in our economically challenged times.

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Editorial Reviews

David M. Kennedy
The crucial importance of the links between social rights and effective citizenship is the theme of Cass R. Sunstein's provocative new book. He boldly addresses the central question vexing democracies for the last century or more: what is the legitimate role of the state in providing for social and economic welfare? Writers like Friedrich Hayek and Milton Friedman have loudly denounced the exercise of state power for those ends. The Second Bill of Rights is meant as a rebuttal to their libertarian ideas.
The New York Times
Jamin Raskin
FDR's vision of a second Bill of Rights was never committed to parchment and still waits to become a flesh-and-blood public agenda. Its day may come. In the meantime, you can find its spirit in Sunstein's well-designed little book, best read perhaps down at the stirring FDR Memorial, where the great man's message is still blowing in the wind.
The Washington Post
Simon Callow
The book is an absolute winner. —The Mail
Daily Telegraph
At last Dolly Wilde...has found a biographer with the intelligence, sensitivity and flamboyance to write the work of art that was her life.
Publishers Weekly
While it doesn't succeed in making Franklin Roosevelt into a constitutional innovator, this disheveled book does bring into focus FDR's forgotten effort to address domestic "security," as WWII neared its climax. Roosevelt's inaugural address of January 11, 1944, asked Congress to adopt a "second Bill of Rights": guarantees of work, adequate housing and income, medical care and education, among others-promises designed to extend the New Deal (and thwart the appeal of communism). The indefatigable Sunstein (Why Societies Need Dissent, etc.) sketches Roosevelt's domestic policies and the logistics of the inaugural address (included in full in an appendix), then debates the never-adopted bill's merits, historically as its ideas kicked around in the post WWII-era, and as it might be taken up today. He tends to be scanty on the bill's potential budgetary toll and on the responsibility for one's own welfare that FDR thought the bill's beneficiaries ought to bear. Sunstein roams widely over legal history and precedent, but is focused and clear in showing how FDR sowed the seeds of the Universal Declaration of Human Rights (in whose 1948 drafting Eleanor Roosevelt played a crucial role) and energetic in discussing this proposal's further possible legacy. Agent, Sydelle Kramer. (July) Copyright 2004 Reed Business Information.
Publishers Weekly - Publisher's Weekly
Dolly Wilde, born the year Oscar Wilde went to prison, bore a striking resemblance to her famous uncle and spent her life both burdened and animated by his legend. She inherited much of his charm, a portion of his wit and none of his genius. Consequently, she left behind little of substance save the fond recollections of her friends and lovers, among them salon hostess Natalie Clifford Barney, New Yorker Paris correspondent Janet Flanner and Russian actress Alla Nazimova, and several bundles of love letters. Such a dearth of achievement leaves a biographer at a considerable disadvantage. The playwright Joan Schenkar, who appears to have fallen as much under Dolly's spell as any of her contemporaries, resolves these difficulties by approaching Dolly's life thematically, inventing and dramatizing in the absence of fact, interpreting what facts there are from a variety of perspectives. Such an approach requires her to ignore chronology and with it whatever impact the larger historical and political context may have had on Dolly's development. What emerges is a flamboyant sketch of that glittering, often frantic, sometimes brilliant society of rich lesbians that flourished between the wars in London and Paris. In this milieu, Dolly seems a kind of lesbian Zelda Fitzgerald, self-destructive, addicted, often foolish and, by the end of her brief life, quite sad. Schenkar strives valiantly to make of Dolly's life a tragic work of art. While she is able to convey Dolly's charm and attractiveness, she is not quite as successful in convincing the reader that her subject is sufficiently consequential to merit a full-length biography. Illus. (Nov. 30)
Library Journal
Continuing his analysis of post-New Deal constitutionalism (see, e.g., Designing Democracy), Sunstein (Karl Llewellyn Distinguished Professor of Jurisprudence, Univ. of Chicago Law Sch.) suggests expanding basic democratic ideas to restructure how government treats citizens. This revision of rights "attempts to protect both opportunity and security, by creating rights to employment, adequate food and clothing, decent shelter, education, recreation and medical care." President Franklin Roosevelt proposed this new conception of rights in 1944 as an extension of his New Deal policies and as a means of defining America's commitment to social justice in a free society. Sunstein calls for a broader definition of freedom in which the Constitution and legislation will insure that rules favor broad segments of the populace rather than representatives of interest groups or officials. He further argues that many societal problems can be solved by expanding the ideals of the U.S. Constitution without violating the constitutional limits of the rule of law. A thoughtful and provocative analysis; strongly recommended for both public and academic libraries. Steven Puro, St. Louis Univ. Copyright 2004 Reed Business Information.
Sarah E. Chinn
Schenkar's biography is a terrific introduction to the life of a remarkable women.
The Advocate
Kirkus Reviews
All Americans-all citizens of the world, for that matter-have a right to a decent income, a good education, adequate health care, and freedom from economic domination. So argues liberal stalwart Sunstein (Law/Univ. of Chicago;, not reviewed), who notes that such guarantees are expressed or at least endorsed in the constitutions of South Africa, India, and the European Union, but not in that of the US. The omission owes to many causes. Franklin Roosevelt, writes Sunstein, considered freedom from want to be an essential element of world peace and progress, and his "Four Freedoms" speech of 1941 "connected the war against tyranny with the effort to combat economic distress and uncertainty." In another speech of 1944, FDR revisited this theme, enumerating what he called "a second Bill of Rights under which a new basis of security and prosperity can be established for all, regardless of station, race, or creed"; Sunstein characterizes the later speech as marking "the utter collapse of the (ludicrous) idea that freedom comes from an absence of government." Yet Roosevelt did not press for constitutional amendments to secure these rights, apparently in the belief that American society was headed toward accepting them as self-evident and that the courts would interpret the laws accordingly. The 1960s saw promise of these guarantees becoming law through the sweeping social reforms under LBJ's administration, but Richard Nixon's election by the slenderest of margins in 1968 undid half a century's progress; Nixon, argues Sunstein, appointed four Supreme Court justices "who promptly reversed the emerging trend, insisting that the Constitution does not include social and economicguarantees." So it is, he suggests, that today millions of Americans go hungry, without medical attention, unemployed, and illiterate-matters toward which the current president seems supremely indifferent. Sunstein's case suffers from repetitiousness, but it raises many good points worth arguing over as reformists seek to reshape American liberalism-and recapture its former power. Agent: Sydelle Kramer
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Product Details

  • ISBN-13: 9780465083329
  • Publisher: Basic Books
  • Publication date: 6/28/2004
  • Pages: 304
  • Product dimensions: 6.46 (w) x 9.54 (h) x 1.08 (d)

Meet the Author

Cass R. Sunstein is Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School and a contributing editor at The New Republic and the American Prospect. He has testified before Congress on numerous occasions and has contributed as well to such publications as the New York Times, the Los Angeles Times, and the Washington Post. His numerous books include, Risk and Reason, Laws of Fear, and The Second Bill of Rights. He lives in Chicago, Illinois.

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Table of Contents

1 The speech of the century 9
2 The myth of laissez-faire 17
3 Rights from wrongs : Roosevelt's constitutional order 35
4 The birth of the second bill 61
5 A puzzle and an overview 99
6 The oldest constitution on earth 109
7 American culture and American exceptionalism 127
8 America's pragmatic constitution 139
9 How the Supreme Court (almost) quietly adopted the second bill 149
10 Citizenship, opportunity, security 175
11 Objections : against the second bill? 193
12 The question of enforcement 209
Epilogue : Roosevelt's incomplete triumph 231
App. I Message to the Congress on the state of the union address, January 11, 1944 235
App. II The universal declaration of human rights (excerpts) 245
App. III International covenant on economic, social, and cultural rights (excerpts) 247
App. IV Excerpts from various constitutions 253
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Customer Reviews

Average Rating 3.5
( 4 )
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Sort by: Showing 1 – 3 of 4 Customer Reviews
  • Anonymous

    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

    2 out of 2 people found this review helpful.

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  • Posted March 12, 2013

    more from this reviewer

    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.

    1 out of 1 people found this review helpful.

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  • Anonymous

    Posted April 19, 2009

    No text was provided for this review.

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