A review of The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever, by Cass R. Sunstein
Welfare and the Constitution, by Sotirios A. Barber


In the real world of law and politics the constitutional right to welfare benefits is an idea whose time has come and gone. But in the wonderful world of academia it refuses to die. With conservative Republicans now controlling the presidency and Congress, it is probably no surprise that those who consider the American welfare state too small, decentralized, and miserly would once more turn their lonely eyes to the Constitution and the courts.

Two very able professors have recently produced books arguing that we should interpret the Constitution to guarantee not just "negative rights" such as freedom of speech and the press, but "positive rights" ranging from "child care for the working poor" to "an adequate level of material well-being." Sotirios Barber and Cass Sunstein devote page upon page to abstract arguments on such topics as the difficulty of distinguishing between positive and negative rights, the extent to which the American public has embraced the welfare state, and the way South African courts have expanded welfare programs. Noticeably absent from these works is any serious attempt to examine the consequences of previous efforts to constitutionalize welfare rights in the U.S. Also curiously missing is any sustained attention to the welfare reform legislation of 1996, which is both a frontal assault on the very idea of legal entitlements and the most successful anti-poverty effort in recent history. One would think that Barber and Sunstein would spend time wrestling with America's decades of practical experience with welfare rights. They don't—which probably explains why they remain so enthusiastic.

Beneath the surface similarities of these books lie three significant and revealing differences. First, Sunstein's book is designed to appeal to the general reader. To his credit he eschews both footnotes and extended discussion of the academic literature. Indeed he is so intent upon making a popular hero of brave, principled, pragmatic Franklin Roosevelt that his storytelling occasionally descends to the maudlin. Barber, in contrast, spends far more time pointing out the weaknesses in the articles of his academic foes than explaining his own position. The reader who is not familiar with current scholarly debates over the nature of individual rights will find his book a long hard slog.

The second difference is that while Barber constantly bemoans what he sees as America's continued commitment to the "nightwatchman state," Sunstein presents a compelling description of how American political culture has come to embrace the expansive role of government espoused by FDR in his 1944 speech on the "Second Bill of Rights." Roosevelt's "economic bill of rights" includes, among other things, "the right to a useful and remunerative job," "the right to earn enough to provide adequate food and clothing and recreation," "the right to adequate medical care," "the right to adequate protection from the economic fears of old age, sickness, accident, and unemployment," and "the right to a good education." Sunstein does an excellent job explaining how these rights have become part of the nation's "constitutive commitments." They are now "so deeply embedded as to have near-constitutional sturdiness." Anyone who doubts this should remember that the current president, frequently described by liberals as extremely conservative, is responsible for enactment of the most prescriptive federal education law in American history and the creation of a prescription drug entitlement that will cost hundreds of billions of dollars more than the administration was willing to admit. Sunstein throws in a few dark warnings about "powerful private groups" bent upon undermining the nation's commitment to the welfare state, but does not bother to name them. His main message—that the New Deal welfare state is deeply embedded in our political culture—remains sound.

* * *

Barber, in contrast, is so consumed by academic debate over constitutional interpretation that he seems oblivious to this transformation of American politics. Ignoring such mundane matters as skyrocketing government spending on Medicaid, Supplemental Security Income, and the Earned Income Tax Credit—as well as the fact that African-American poverty levels hit an all-time low in 2000—he blithely opines that "middle- and upper-class and mostly white America is unwilling to support the programs …[necessary] to give reasonable hope of economic integration to a significant part of black America." Indeed this alleged failure to provide for the welfare of American citizens is so profound that it raises doubts in Barber's mind about whether the Constitution remains "effective law." It is a sign of the quirkiness of Barber's analysis that only twice does he mention FDR in this book, and in both instances he simply identifies Roosevelt as a follower of Thomas Hobbes. We can only hope that reading Sunstein's book will lift Barber out of his constitutional despair.

The third difference between Sunstein and Barber concerns the role of courts in interpreting and enforcing these new rights. Sunstein admits that in proposing his second bill of rights "Roosevelt was not arguing for any change in constitutional interpretation, but for new constitutive commitments." FDR explicitly asked Congress, not the court "to explore the means for implementing this economic bill of rights—for it is definitely the responsibility of Congress to do so." After spending a hundred pages expounding upon Roosevelt's political wisdom, Sunstein devotes the final two-thirds of his book to explaining why we should jettison Roosevelt's well-founded distrust of judicial activism.

Barber is primarily concerned with creating a public philosophy that understands the Constitution as a "charter of benefits," and he is more troubled than Sunstein by an expanded role for the courts. He sensibly concludes that "the complex, contingent, and unpredictable character of policies for facilitating any conception of well-being, together with the time-sensitive balance of needs involved in concrete funding decisions" should lead us to "place most of the responsibility on legislators and their voting constituencies." Although he harshly chastises the Rehnquist Court for not going far enough in recognizing the constitutional responsibilities of government, he makes no effort to help us understand just how far the Court should have gone. Explaining "how the charter of benefits should influence the judicial definition of 'welfare rights' under the Fourteenth Amendment" is for Barber a mere practical matter "of lesser importance" than the great theoretical work of giving a wholly new meaning to the Constitution.

Sunstein finds it very puzzling that we have not formally added the Second Bill of Rights to our Constitution and that the courts have been hesitant to expand existing welfare programs or to create new ones. "The puzzle is heightened," he declares, "by the fact that the international community has reached a firm consensus in favor of the second bill of rights." Any argument that uses the words "international community" and "consensus" in the same sentence needs to be regarded with skepticism. Sunstein points out that nations such as Syria, Bulgaria, Russia, Peru, Paraguay, Singapore, Nigeria, South Africa, and Papua New Guinea (I am not making this up) include economic and social rights in their constitutions. So why can't we be more like Syria and Peru? Of course some of these countries don't really consider their constitution legally binding, which is a bit different from us. Indeed, some of the countries on Sunstein's list have not risen much above the level of gangster-state. Moreover, Sunstein fails to mention that the countries in Western Europe with the strongest welfare states do not have courts that are willing or able to mandate new programs or second-guess administrative decisions. His comparative analysis is really limited to showing that South African courts have used that country's constitution to initiate new publicly funded benefits.

Sunstein looks far and wide for inspiring examples of judicial recognition of economic rights. About the only place he doesn't look is in the United States. Other than a three-page discussion of a New York state court decision on Medicaid, he avoids examining the consequences of our many judicial experiments with health, welfare, and education policymaking. State courts in the U.S. have issued scores of important rulings on the right to education. In the 1960s and 1970s the federal courts virtually remade the Aid to Families with Dependent Children (AFDC) programs of the 50 states. Courts have been nearly as important as Congress and the president in shaping disability policy. Given this wealth of American experience, why does Sunstein lavish so much attention on South Africa? The answer, I think, is that the results in the U.S. have been at best mixed and at worst disastrous. American courts helped to create an AFDC program that was massively unpopular and in many ways counterproductive. Their school finance rulings have brought years of discord but no improvement in educational achievement. Quite frankly, if I were Sunstein, I'd change the subject, too.

* * *

Sunstein points out that in the late 1960s the Supreme Court came close to constitutionalizing a right to welfare, but quickly backed away once Nixon's appointees took the bench. It is politically convenient to attribute this reversal to the reviled Richard Nixon. (We should not forget, though, that Nixon was the only president to propose a nationally-uniform guaranteed income.) Sunstein doesn't mention that two revered liberals, Justice Black and Chief Justice Warren, didn't join the welfare rights bandwagon. Black had the foresight to understand that if courts made it more difficult to take recipients off the welfare rolls, legislators and administrators would make it harder for them to get on in the first place. Warren warned that preventing states from paying higher benefits to long-time residents than to recent arrivals would discourage states from paying generous benefits, lest they become "welfare magnets." They understood that welfare policy involves a plethora of paradoxes and trade-offs that often lead well-meaning judges to produce results they neither intend nor are willing to take responsibility for.

After devoting several chapters to extolling judicial activism, Sunstein suddenly concedes, "I believe that difficulties with judicial enforcement suggest the enduring wisdom of Roosevelt's suggestion that the second bill was the responsibility of legislatures, not courts." He quickly adds, "But the problems should not be overstated. In the United States itself, state constitutions protect social and economic rights, and some courts are willing to enforce them to some degree." "To some degree," aye, there's the rub. According to Sunstein, "conventional rights are and can be fully protected at the individual level." But not welfare rights: "By their very nature, social and economic rights are different. No one thinks that every individual has an enforceable right to full protection of interests catalogued on the second bill." One can see why a First Amendment absolutist such as Justice Black would be reluctant to recognize a new set of constitutional rights that would be expanded or restricted according to the current mood of judges. The farther Sunstein departs from Roosevelt, the less persuasive his argument becomes.

* * *

Cass Sunstein's goal is straightforward: he wants the Supreme Court to revivify the eligibility- and benefit-expanding constitutional doctrines advocated by Justices Brennan, Douglas, Fortas, and Marshall (for whom he once clerked) in the halcyon days of the late Warren Court. What Barber wants remains something of a mystery. If Sunstein favors adding a new set of rights, Barber seems intent upon eliminating everything in the Constitution after the preamble. To understand his argument you need to throw away everything you thought you knew about constitutional government.

We usually think of a constitution as establishing (a) institutional structures that govern the political community (i.e., Articles I-VI) and (b) individual rights that place some limits on the government's power (i.e., Amendments 1-10 and 13-15). Barber maintains that "sounder assumptions would elevate constitutional powers and ends over institutional principles and negative liberties." Constitutional structures are merely instrumental, with the emphasis on "merely." The Constitution's institutional forms are to be judged by how well they achieve the Constitution's purposes. The purpose of government is not simply to protect the negative liberties in the Bill of Rights. No, we can find the ends of government only by looking at the beginning of the Constitution—the preamble, or at least Barber's favorite part of the preamble. 

The opening of the Constitution establishes a number of purposes for the new government: insuring domestic tranquility, providing for the common defense, securing the blessings of liberty, establishing justice, and promoting the general welfare. Now these are pretty broad goals, and they might at times conflict with one another. Providing for the common defense, for example, might require a draft that would limit the blessings of liberty. The purpose of the representative government established by the body of the Constitution, it would seem, is to give concrete content to these very abstract goals.

Barber claims that our institutional structure has failed to promote the general welfare. How can he be sure? Well, because he knows what "the general welfare" means: "A government that would promote the general welfare would be a government that would do what it reasonably could to maximize the capacities of its people to pursue reasonable wants." Government must cultivate citizens' "capacity for laudable pursuits." In a previous work Barber wrote, "At the center of the constitutionally ideal state of affairs is a typical citizen who is governed by an attitude that places the highest social and political value on the activity of reasoning about how one ought to live." This is pretty high fallutin' stuff—not to mention a tough job for a national government that has little control over either family law or the content of public education. But at least Barber directs our attention to matters beyond maximizing the GDP or minimizing the Gini coefficient.

* * *

So what does Barber teach us about this "constitutionally ideal state of affairs"? Mainly that it requires sending bourgeois liberalism to reeducation summer camp. Barber can barely contain his contempt for bourgeois liberalism, which he equates with "the culture of self serving incentives" that is "becoming increasingly indifferent to the chronically poor." Promoting the public welfare requires cultivating "virtues such as those associated with academe, which justifies itself in terms of the disciplined and self-critical pursuit of truth, and the regulatory bureaucracy, which justifies itself in terms of public-spirited competence in delivering public goods." 

The ordinary reader might be surprised to learn that the Constitution requires us to make business entrepreneurs think more like regulatory bureaucrats. As one who has spent most of his adult life in academia, I find particularly perverse Barber's suggestion that American citizens should strive to emulate the citizens-of-the-world who frequent the Modern Language Association. "Search for truth"? How passé! Only in academia is "truth" routinely put in quotation marks. Self-critical? Disciplined? How about smug, arrogant, self-indulgent, faddish, self-promoting, and willing to deride every element of conventional morality in the relentless pursuit of summer grants and moral superiority? Somehow, I don't think this is what the founders had in mind.

In Barber's highly abstract discussion of the type of character-formation required by the preamble's "general welfare" clause, one finds on open display one of the most disturbing traits of modern intellectuals: contempt for religion. Although Barber doesn't discuss many court cases in detail, he mounts a fierce attack on the Supreme Court's recent Zelmandecision on school vouchers. He condemns Zelman and vouchers because they "permit the state to subvert the regime of public reasonableness." How do they do that? Vouchers allow states to "subsidize children being programmed not to think for themselves." This "opens the way to a regime where non-knowers justly submit to the power of the one who unerringly knows the good." In other words, vouchers promote religious education, which is the first step down the slippery slope of indoctrination toward theocratic totalitarianism. 

Barber probably has in mind fundamentalist Protestant schools, but he must realize that most vouchers will be used at Catholic schools. Do these schools "program" students "not to think for themselves"? Professor Barber and I both teach at Jesuit colleges, where many of the students come from Catholic high schools. My students might be a little too deferential at times, but I haven't found them "programmed" in this terrible way. Perhaps Notre Dame students are different, but I doubt it. Does anyone seriously believe that kids who walk by drug pushers on their way to school will have their minds addled by a few nuns in their classroom? This falls in the category of things that are so crazy that only an intellectual could believe them. The preamble of the Constitution does not relegate poor black and Hispanic kids to unbelievably lousy public schools simply because some supposedly forward-looking people don't want them to be subjected to the corrupting influence of religion. 

Both of these books address very serious problems: for Sunstein, grinding poverty and growing economic inequality; for Barber, liberalism's persistent reluctance to address the question, What kind of citizens do we wish to cultivate? As different as these two works are, they share the vice of excessive abstractness. The more closely one looks at the real world of entitlements, the less likely one is to think that federal judges will be able to design programs better than the ones we have now. Sitting at a desk musing about the inherent meaning of "the general welfare" is not likely to help us understand how to teach children of the urban underclass to read and write. Among Franklin Roosevelt's greatest virtues was knowing when to listen to his "Brains Trust"—and when to ignore them altogether.