Sunstein on rights.

• Author: Hocutt, Max
• Position: CONTROVERSY - Cass Sunstein

In The Second Bill of Rights (2004b), Cass Sunstein, distinguished professor of jurisprudence at the University of Chicago, argues that economic security should be made a governmentally protected right, along with the right to own property and speak one's mind. (1) Quoting Franklin Delano Roosevelt's "Second Bill of Rights" and referring to the United Nations Universal Declaration of Human Rights, which it inspired, Sunstein proposes that government should guarantee everybody a rewarding job, decent housing, medical care, maintenance in old age, and other good things. In his view, the desire to assure such benefits to all citizens should become part of our "political culture," if not be written into the Constitution, like the original Bill of Rights. Sunstein disclaims any intention to promote economic equality, but he avers that government provision of basic needs--including not just food, water, and shelter, but also education and gainful occupation--is necessary if all citizens are to be afforded the "decent opportunity" that, he claims, both the left and the right regard as desirable. Like his hero Roosevelt, Sunstein insists that a "decent" standard of living is a prerequisite for "freedom," meaning not freedom from the threat of physical aggression and political oppression, but freedom from want and economic anxiety.

Acknowledging that adding economic security to the usual list of civil rights blurs the line, beloved of believers in limited government, between negative and positive rights, Sunstein contends that this venerable distinction is "tangled in a massive confusion"--namely, a failure to appreciate that all rights need legal protection. "Private property depends on property rights, which do not exist without law.... If rich people have a great deal of wealth, it is because the government furnishes a system in which they are entitled to have and keep that wealth." Given that even property rights cannot exist without government protections, Sunstein argues that the libertarian ideal of economic laissez faire is untenable. If he is right, government guarantees of economic security and well-being should become as integral to "America's principles and understandings" as motherhood, baseball, and apple pie. In short, if X is desirable, Sunstein sees no good reason why government should not provide X. In his view, pragmatic questions of economic efficiency are in order, but philosophical debates about the kinds of rights to be favored are to be ruled out of court as irrelevant distraction from serious issues.

I maintain that Sunstein's argument rests on a faulty understanding of the distinction between positive and negative rights. Sunstein mischaracterizes that distinction when he says, "Many people believe they support 'negative rights,' or rights against government interference, but not 'positive rights,' or rights to government help" (197-98) This characterization is wrong. The distinction between negative and positive rights lies not in the presence or absence of government action, but in the distinction between duties not to do things and duties to do things. Grant that no effective rights exist without protection, and no legal rights exist without legal protections. It does not follow that the case for government guarantees of economic well-being is as compelling as the case for government protections of political rights, much less that government protections of economic rights will enhance liberty.

Because everything here turns on defining rights properly, I must begin by doing so, which will require me to define duties, and before I am through, I will say little something about the meaning of freedom. Sturdy pragmatism is a good thing, and I am all for it, but sometimes there is no practical alternative to philosophy.

Sunstein's Case for Economic Rights: Part 1

Before turning to philosophy, however, I fill out Sunstein's argument a little more fully in order to make clear how it depends on his views about the distinction between negative and positive rights.

Although Sunstein's characterization of this distinction does not occur until late in his book, the issue makes an appearance right at the beginning in his description of the New Deal, which Roosevelt described as a program to ensure "security," meaning not security from invasion by foreign enemies or aggression by domestic criminals, but security from want and fear (13). In Roosevelt's view, which Sunstein endorses, the main opposition to measures to assure this highly metaphorical form of "security" came from advocates of "the myth of laissez-faire," which Sunstein takes to refer to belief that government should leave people alone to enjoy their God-given rights. Quoting the legal realists, Sunstein asserts that no rights, including the "negative" right to property (28), exist without legal protection. "We can speak as confidently as we like of natural or God-given rights, but ... legal protection is indispensable to make rights real in the world" (24). "In this sense, the notion of laissez-faire stands revealed as a myth" (26). By way of contrast, says Sunstein, Roosevelt's approach to the question of rights was admirably empirical and experimental; for Roosevelt, rights were merely tools (27).

Who believes in laissez-faire? Who has ever believed in it? Sunstein does not say, making one suspect that the real myth here may be belief that anyone has ever believed in complete laissez-faire. Too busy explaining Roosevelt's Second Bill of Rights to consider the matter, Sunstein goes on to say that Roosevelt offered economic rights as correctives to economic wrongs (35-60) and meant not to write them into the Constitution, but to encourage legislators to regard them as "constitutive commitments," or ideals (61-66). Remarking approvingly that "Roosevelt was a public official; not a philosopher" (66), Sunstein alleges that his novel conceptualization of rights was rooted in the hardships of the Great Depression. Thus, Roosevelt reconceived Locke's right to life as "a right to make a comfortable living" (71).

Declaring that Roosevelt was no egalitarian, Sunstein claims that the motive of the New Deal was not to eradicate inequality, much less to destroy wealth, but to increase freedom, which Roosevelt defined broadly to include freedom from fear and freedom from want (78-84). Quoting Roosevelt's observation that "Necessitous men are not free men," Sunstein comments that the statement's meaning "depends on our conception of freedom" (90), which he seems to think we are free to define as we please--a Humpty-Dumpty attitude toward words. (2)

Sunstein's Case for Economic Rights: Part 2

Halfway into his book, Sunstein asks rhetorically why the U.S. Constitution does not include a bill of economic rights along with its bill of political rights. Averring, somewhat questionably, that James Madison, the most influential voice among the Founders, would not have objected to such a bill, Sunstein adds more plausibly that Thomas Jefferson, who was in France, would have approved and that Thomas Paine, the radical populist, would have been wildly enthusiastic (118).

Furthermore, because "[a]s a practical matter, the Constitution means what the Supreme Court says that it means," a modest shift in the Court's personnel might have given a bill of economic rights constitutional force without requiring changes in the original document's wording (108). In fact, as Sunstein emphasizes in a separate chapter on the topic, the Court almost did approve a program of economic rights during the Warren years and was stopped only by Nixon's appointment of four conservative judges (149-71). Because the Constitution is open to interpretation, which can vary with the political winds, Sunstein declares that there is no real constitutional bulwark to a Second Bill of Rights, nor anything in the political culture that stands immovably in its way (122-26). So why don't we have one (140-42)?

The answer, Sunstein eventually suggests, is confusion about rights. This confusion leads to laissez faire thinking, blinding people to the fact that "[t]he most fundamental legal rights are just pragmatic instruments designed to protect important human interests" (178). Asking why anyone would oppose making such rights part of our political culture, he considers two possible objections. One objection is that a bill of economic rights might encourage sloth and related social maladies by authorizing the government to give away what people otherwise would have to work to get (194-97). Sunstein admits, as did Roosevelt, that this problem is a real and serious one, but he thinks, as did Roosevelt, that it is soluble, although his argument is less than reassuring. Another possible objection is that enforcing a bill of economic rights might prove too difficult for the courts. In reply to this objection, Sunstein offers the recent experience of the Supreme Court of South Africa and concludes that it "has provided the most convincing rebuttal yet to the claim that judicial protection of the second bill could not possibly work in practice" (228-29)--a proposition that is...