March 01, 2005,
The Second Bill of Rights: FDR's Unfinished Revolution and
You owe your life and everything else to the sovereign. The rights of subjects are not natural rights, but merely grants from the sovereign. There is no right even to complain about the actions of the sovereign, except insofar as the sovereign allows the subject to complain. These are the principles of unlimited, arbitrary, and absolute power, the principles of such rulers as Louis XIV. Intellectuals have assiduously promoted them; think of Jean Bodin and Thomas Hobbes.
A new intellectual champion of absolutism has now emerged. Mild-mannered University of Chicago law professor Cass Sunstein has been advancing the radical notion that all rights including rights usually held to be "against" the state, such as the right to freedom of speech and the right not to be arbitrarily imprisoned or tortured are grants from the state. In a book co-authored with Stephen Holmes, The Cost of Rights, he argued that "all legal rights are, or aspire to be, welfare rights," that is, positive grants from the state. There is no difference in kind between the right not to be tortured and the right to taxpayer-subsidized dental care.
In his new book, The Second Bill of Rights, Sunstein seeks to give constitutional status to welfare rights. The title comes from Franklin Roosevelt's 1944 State of the Union address, in which he proclaimed that "necessitous men are not free men" and proposed a "second Bill of Rights under which a new basis of security and prosperity can be established for all." Among the rights FDR proposed were the rights to "a useful and remunerative job," "a decent home," "adequate medical care and the opportunity to achieve and enjoy good health," "adequate protection from the economic fears of old age, sickness, accident, and unemployment," and "a good education."
The mere assertion of those rights isn't enough for Sunstein; he wants to endow them with constitutional status, like the rights that are actually mentioned in the Constitution. He admits that "the founding document does not refer to them, and it is not seriously argued that they are encompassed by anything in the Constitution" yet on the next page he states that "if the nation becomes committed to certain rights, they may migrate into the Constitution itself" (emphasis added). Later on, he asserts that "at a minimum, the second bill should be seen as part and parcel of America's constitutive commitments. Roosevelt's speech proposing the second bill deserves a place among the great documents in the nation's history. Indeed, it can be seen as occupying a place akin to the Declaration of Independence, or perhaps somewhere between the Declaration and the Constitution."
Article V of the Constitution, which specifies how it may be amended, doesn't include "migration," but perhaps "migration of amendments" has itself migrated into the Constitution. As a theory of constitutional law, that is remarkably thin. But let's pass on to other problems with Sunstein's approach.
First, Sunstein's fundamental insistence that all rights are grants from power is incoherent. In The Cost of Rights, Sunstein and Holmes argued against the idea of "moral rights," or rights that are valid by virtue of something other than force: "When they are not backed by legal force . . . moral rights are toothless by definition. Unenforced moral rights are aspirations binding on conscience, not powers binding on officials." Thus, "the right against being tortured by police officers and prison guards" is simply another welfare right, a right that the state hire monitors to monitor the police and guards, for "duties are taken seriously only when dereliction is punished by the public power drawing on the public purse." This theory generates an absurdity, for it rests on an infinite regress. For me to have a right not to be tortured, the police would have to fear punishment by monitors above them. But for me to have a right not to be tortured, I would have to have a right that the monitors punish the police if they torture me. Do I have that right? I would have it only if the state hired monitors above the monitors, to punish the monitors if they failed to punish the police if the police tortured me. Do I have a right that the monitors of the monitors punish the monitors? Only if there were monitors to monitor the monitors who monitor the monitors who monitor the police, and so on, ad infinitum. The flaw is entirely internal and completely fatal to the theory: If we were to accept the theory, all it would show is that no one has any rights, for the demands of the theory could never be satisfied.
Second, Sunstein insists that without government protection no one would enjoy anything of value, and therefore that all value must be attributed to the action of the state: "Government is 'implicated' in everything people own. . . . If rich people have a great deal of money, it is because the government furnishes a system in which they are entitled to have and keep that money."
Third, the ethical implications Sunstein draws from his theory of value do not withstand scrutiny. He says that "to believe that people have a right to their current holdings, so that any diminution of those holdings amounts to a violation of their rights . . . is an utterly implausible position. Those who possess a great deal do so because laws and institutions, including public institutions, make their holdings possible. . . . In the state of nature freed from the protection of law and government how well would wealthy people fare?" Let's see what else this theory would entail: If a doctor were to save my life, then, since the doctor would be responsible for my existence, and therefore for all of the liberty and wealth that I might enjoy or create henceforth, the doctor would have the right to decide what should happen with that liberty and that wealth, since without the doctor neither I, nor the liberty, nor the wealth would exist. In short, Sunstein's ethical theory is just silly.
The Second Bill of Rights may rest on a logical fallacy, a primitive economic theory, and a silly ethical claim, but it is instructive nonetheless. Sunstein's treatment of the problem of how to use the judiciary to enforce welfare rights shows what a radical departure they are from the rule of law, how they introduce arbitrariness into government policy, and how, ultimately, the contradictions and incompatibilities generated by welfare rights undermine the very idea of rights itself for when "rights" conflict, the state must decide whose "rights" are to be respected, but, since it has been stipulated that both of the conflicting parties are in the right, the state's decisions must be on the basis of something other than right.
Sunstein's work represents a return to the governmental theories of absolutism of power, rather than of right. Welfare rights are incompatible, not only with property rights, but with law and with the very concept of rights. Professor Sunstein, meet Louis XIV.