If I am right that the conflict between progressivism and rights presents a serious ideological difficulty for the Democrats, and if the Democrats wish to regain their position as a party of intellectual vigor and constitutional principle, a new vision is required—a vision of a constitutional politics that reconciles our commitment to rights with our commitment to the common good.
Cass Sunstein, one of our most thoughtful constitutionalists, may have the answer. Sunstein’s recent book, The Second Bill of Rights, offers a liberal constitutionalism that may reconcile Democratic progressivism with Democratic rights consciousness and, along the way, forge a new constitutional understanding that can command broad political support.
One could be forgiven for arching an eyebrow at the suggestion that the Democratic Party’s crisis of principle can be solved by a book the full title of which is The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever. Roosevelt’s revolution today is associated with bloated government and the welfare state—exactly the heritage, good progressives might think, that the Democrats must renounce to regain their status as the majority party.
Sunstein isn’t George McGovern, though, and part of the importance of his book is its careful rehabilitation of the New Deal and its legacy. Roosevelt was not, Sunstein reminds us, a radical egalitarian. He “despised socialism” and was “committed to free markets, free enterprise, and private ownership of property.” He believed in individualism and in “freedom, not equality.”
If Roosevelt’s commitment to social and economic rights seems to contradict his ostensible dedication to markets, commerce, and liberty, Sunstein says, that’s because we don’t understand how markets, commerce, and liberty actually work. We have been seduced by a half-century of propaganda (born out of anticommunist fervor) that has led us to embrace a “confused and pernicious form of individualism” that is incoherent and, contrary to right-wing mythmakers, “has no roots in the American founding period.” The great and forgotten lesson of the New Deal, Sunstein says, is that the conceptual dichotomy between law and liberty, and between markets and government, is false. Law makes liberty possible. Markets are products of government. Without government to draw lines and enforce rules, neither markets nor liberty would be possible at all. Government provides laws to structure our relationships, courts to adjudicate disputes, and police to enforce their decisions. Our freedoms, economic and otherwise, rest on a massive foundation of government intervention. That, Sunstein hopes to establish, is the true legacy of the New Deal.
It is with this background in mind that Sunstein discusses Roosevelt’s 1944 speech calling for a “second bill of rights”—rights that included the right to gainful employment, adequate food and shelter, freedom from monopoly, decent housing, adequate health care, a social safety net, and education, but that Sunstein distills into two broad categories: a right to “security” and a right to “opportunity.” Along the way, he offers a fresh and provocative way of thinking about rights and the role they play in the constitutional system—and how progressive Democratic values like health care, education, and the social safety net can be conceived of both as rights and as social, rather than individual, goods. Roosevelt’s Second Bill, as interpreted by Sunstein, takes the Democratic rights culture and Democratic progressive politics and fuses them into a powerful, constitutional politics. This constitutional progressivism, I believe, offers the best hope for a newly vigorous Democratic Party in the twenty-first century.
For Sunstein’s program to work, we would have to change the way we think about rights. There are many ways to think about rights, but the conventional American approach is to think of rights as having three basic elements. First, rights are individual—they protect me against community transgressions. Second, rights are enforceable by individuals in the courts. Third, the enforcement of an individual’s rights by courts can change the meaning of that right for everyone else: if Norma McCorvey claims that her right to privacy encompasses a right to have an abortion in the first two trimesters of pregnancy, and the Supreme Court agrees, then everyone, or at least every woman, gains that right.
None of these qualities of rights is inevitable, and part of Sunstein’s project is to suggest that the first two elements aren’t always necessary to achieve what we want rights to achieve. I think we could go further still, and suggest that the third element may not be necessary, either, and that a conception of rights that apply not individually but socially, that are not always enforceable, and the content of which may sometimes differ from state to state, could actually serve to reinforce and enhance Democratic commitments to individual freedom and collective democracy.
So what are rights, anyway? It’s a difficult question, fraught with ideological conflicts, so Sunstein—rightly—sidesteps it. It doesn’t matter, Sunstein says, what we think rights are or why we think we have them. There’s considerable disagreement about the philosophy of rights, but much less about the work they do. There are as many theories of the First Amendment, for example, as there are First Amendment scholars, and they emphasize many different principles—personal autonomy, political process, anti-orthodoxy, civic courage, dissent, and so on—but just about everybody agrees that the freedom of speech is a good thing, that it’s a deeply important American value, and that the First Amendment protects it. We have what Sunstein calls an “incompletely theorized agreement” about our basic rights: we agree that we should have them despite disagreeing about why.
This incomplete but practical agreement, Sunstein says, marks basic rights as “pragmatic instruments designed to protect important human interests, however they are defined.” And his proposed second bill of rights protects two human interests—“basic opportunity and minimal security”—that are by any measure not just important but fundamental to a decent society. If all rights do is identify and protect fundamental interests; and if Americans as a people broadly agree that basic economic security and opportunity are fundamental elements of the American way of life; then why shouldn’t we conceive of them, and protect them, as rights?
It is at this point that our conventional view of rights betrays us, and where a modest revision of Sunstein’s vision may be useful. The obvious objection to creating constitutional rights to education, health care, social welfare, gainful employment, and housing is that such rights would require a staggering and probably ruinous investment by the nation—if rights behave as we expect them to. An individual right to, say, health care would create a massive new class of plaintiffs seeking to improve their own lot; a commensurately massive wave of litigation; and, eventually, a series of Supreme Court decisions determining, probably to no one’s satisfaction, the required content of free medical care. Courts might end up running the clinics as they've ended up running the schools, and with similarly woeful effects. Worse, the national nature of the right would require a giant federal bureaucracy to implement and protect it. It would be Great Society paleoliberalism with a vengeance.
But what if the rights of the second bill didn’t work that way? What if the rights in the second bill gave rise, not to an individual right to receive a particular benefit, but to a general obligation on the part of the government to adopt policies that seek to ensure it? A right so conceived would not mandate protection of the right for every possible beneficiary. It would instead force government to set legislative priorities in accordance with constitutional requirements, and take reasonable measures, within available resources, to implement those priorities. As Sunstein describes it, such a right would constitutionally obligate the government “to maintain a system of a certain kind rather than fully individualized protections.” The details of that system, its methods and its implementation, would be subject to judicial review only at the highest level of generality: is the system reasonably geared to achieve progress toward the constitutional goal? If so, the courts have nothing more to say. The government, which is to say the people, may set about advancing the goal by any available means—including, without question, the use of market mechanisms.
This brings to mind something that Sunstein doesn’t propose, but that fits with his approach to social rights and may mitigate some of our natural trepidation at the increase in the scope of constitutional rights that his theory would require: the decentralization of rights determinations. If all the right requires is the creation of systems of general compliance, and if we are genuinely interested in identifying and perfecting the most effective such systems, then a federalist approach to social rights has much to recommend it. State-level implementation of constitutional rights would permit democratic experimentation with the scope and form of the rights. Such an approach would at once reinforce progressive goals and enhance the role of democratic processes—both core Democratic goals.
There is another, more provocative possibility that might arise from progressive constitutionalism’s approach to rights, although Sunstein does not raise it. What if we were to re-conceive our other rights in the same fashion?
It seems clear that some existing rights may not be able to perform their constitutional function if limited to traditional, individual enforcement. Voting rights provide a timely example. The Supreme Court has fiercely protected the individual’s right to vote, but it has declined to correct systemic abuses of the electoral system that make individual voting rights less and less meaningful. The current rage for partisan gerrymandering, for example, makes Congressional districts all but invulnerable to political change, but the courts’ focus on the individual nature of voting rights prevents them from taking action. Voting is a right that serves social and political functions that do not accrue solely to the voter but also to the system in which she votes and the outcomes it produces. Re-conceived in light of the second bill of rights as a collective as well as an individual right, the right to vote might be construed to require that government take affirmative steps to ensure nonpartisan redistricting.
The voting-rights example highlights the critical foundation of Sunstein’s whole project: the effect of an approach to rights protecting society’s interest in voting would be to enhance the existing individual right to vote. My vote means more, and my interests qua voter are better served, in a political system that isn’t rigged by incumbents. The collective right protects and enhances the individual right. The rights to security and opportunity are not ends in themselves but means to a familiar end. By creating a baseline of minimal security and opportunity, social rights create circumstances in which individuals have greater freedom to exercise their traditional rights. The point of the exercise is not an egalitarian or collectivist society but one that is more truly free.
Sunstein offers what the Democrats lack: a constitutional progressivism. His vision reconciles the superficial tension between progressive politics and individual freedom by recognizing that progressivism, far from being the antithesis of individualism, is its prerequisite and its protector. Constitutional progressivism offers Democrats a rich tradition running through Franklin Roosevelt and Theodore Roosevelt to the Founding Fathers themselves, whose philosophy of civic republicanism emphasized the necessity of the common good and the primacy of the public interest over private wants. That tradition provides an anchor in our most hallowed heritage, and with it a rhetoric powerful enough to combat the Republicans’ crude and ahistorical laissez-faireism.
Sunstein’s vision makes compelling politics. Does it make good constitutional law? I believe it can. Strict textual or historical reading of the Constitution, of course, does not support the existence of social and economic rights, but that is not the end of the question. Many of our most fundamental commitments—what Sunstein calls our “constitutive commitments”—have no textual constitutional basis. There is, for example, no constitutional right to vote in federal elections, but everyone agrees that voting is the very center of the constitutional system. We honor the right to vote because without it the rest of the constitutional structure doesn’t work. There is considerable dispute about what the First Amendment protects, but everyone agrees that it must protect political speech, because without political speech our constitutional institutions can’t function. In short, there are some value commitments that are prerequisite to the constitutional system—whether they appear in the Constitution or not.
Democrats can, and should, make the same argument about the right to basic security and opportunity: without them, the rest of our most deeply held constitutional commitments cannot be fully realized. The sick and the impoverished cannot effectively participate in government, cannot fully exercise their constitutional rights – cannot, in short, enjoy the life, liberty, and pursuit of happiness that the Republic was born to guarantee. Republican constitutionalism denies that the deprivation of basic rights effected by poverty, illness, and chronic unemployment is a matter of constitutional significance. Democrats need a high politics that acknowledges that basic economic security and opportunity are not just desirable but fundamental—that they are, in short, matters of constitutional importance.
Identifying and legitimating a method of constitutional interpretation that’s consistent with such a vision is harder. Such an interpretive strategy is available, and it is legitimate: the tradition of what constitutionalist Phillip Bobbitt calls “ethical argument” is deeply entrenched in our constitutional jurisprudence. It refers to constitutional arguments grounded not in text, structure, history, or doctrine, but in the character, or ethos, of the American people, polity, and institutions. A progressive constitutionalism in politics can be advanced by courts committed to the jurisprudence of that ethos—an ethos, dating to the founding itself, that calls not for radical individualism and personal gain but for civic virtue and the common good. The challenge for progressive constitutionalists is the creation of a strain of ethical argument that permits progressivism without appearing to permit constitutional “free play” among whatever values the Supreme Court happens to favor.
John Kerry nearly won in November without such a constitutional vision (although his convention speech’s reference to health care as a right, not a privilege, perhaps hinted at a tilt in this direction). It is probably true that individual elections rarely turn on constitutional questions. But in the long term the Democratic Party will have to offer up a vision of what America and its ancient Constitution are meant to be, or concede to the Republicans the high constitutional ground. The next time the Democrats are faced with something like the Federal Marriage Amendment they will have to answer not just “this is mere politics,” but “this is the wrong politics,” and explain why. To do that, they will have to offer coherent vision of what the Constitution is, and there is reason to believe that as of today, they can’t.
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