Confusing rights: a reply to Hocutt.

• Author: Sunstein, Cass R.
• Position: Human rights

On January 11, 1944, Fraklin Delano Roosevelt delivered one of the most influential speeches of the twentieth century. With victory in World War II on the horizon, he contended that "the one supreme objective for the future," the objective for all nations, was captured "in one word: Security." This term meant "not only physical security which provides safety from attacks by aggressors," but also "economic security, social security, moral security." Building on this claim, Roosevelt contended that the United States had come to accept "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." This Second Bill of Rights would include, among other things, the right to a good education; the right to freedom from unfair competition and domination by monopolies; the right to a decent home; the right to adequate medical care; the right to adequate protection from the fears associated with old age, sickness, accident, and unemployment; and the fight to a useful and remunerative job.

The influence of Roosevelt's speech can be seen in its impact on the Universal Declaration of Human Rights, which includes the rights he championed. The same influence appears in dozens of the world's constitutions, which borrow directly from Roosevelt's Second Bill of Rights. Even the interim Constitution of Iraq, written with a great deal of American influence, shows Roosevelt's influence, boldly proclaiming that "the individual has the right to security, education, health care, and social security."

In The Second Bill of Rights: FDR's Constitutional Vision and Why We Need It More Than Ever (New York: Basic, 2004), my first goal was to recover a lost part of U.S. history--to trace the origins of social and economic rights in American culture and to understand the historical background that led Roosevelt to propose his Second Bill. Too often, Americans (and Europeans) see the United States as committed to a form of individualism that is incompatible with rights of the sort that Roosevelt championed. Simply as a matter of history, this understanding is a blunder; one of America's greatest presidents sought those rights precisely in the name of individualism. Indeed, he saw those rights as a supplement to and compatible with what he described as the "sacred possessive rights" of property and freedom of contract, which preceded them.

In recovering Roosevelt's Second Bill, I had two other goals. I wanted to give a sympathetic account of the early-twentieth-century American attack on the distinction between negative and positive rights--an attack that found its way into the White House. Over a period of years, many people argued that the so-called negative rights, including the right to private property and the right to freedom of contract, depended for their existence on law, legal institutions, and aggressive government. Without government protection of property, people cannot enjoy property, in the way that a capitalist society requires. In this sense, property is itself a positive right, and so too is contractual liberty. It is all very well to say that people should be able to make contracts as they choose (subject to the limitations of the criminal law), but without a legal system to enforce contractual agreements, contractual liberty is often meaningless. Those who made these arguments did not mean to attack capitalism, to which they were...