Obama’s Constitution

Yesterday the Obama campaign called on University of Chicago law professor Cass Sunstein to tamp down the furor over Obama’s advocacy of “redistributive change” and overcoming of the Constitution’s “negative rights” in his 2001 radio interview. Politico’s Ben Smith reliably channelled Professor Sunstein’s spinning on behalf of Obama.

Professor Sunstein was actually the right man to call on to explain Obama’s remarks. They derive directly from Sunstein’s advocacy of Roosevelt’s so-called second Bill of Rights. Sunstein devoted a book to the subject in 2004 — The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever. Roosevelt set forth his “second Bill of Rights” in his January 1944 State of the Union Address:

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, 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.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

Tom Palmer usefully explicated the political thought underlying Sunstein’s argument in his review of the book. By contrast with the doctrine of rights conferred by God and nature set forth in the Declaration of Independence, Sunstein holds:

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.

Thus Palmer deems Sunstein a “new intellectual champion of absolutism” who advances “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.”

At the American Constitution Society’s “Constitution 2020” jamboree at Yale Law School in 2005, according to my daughter’s notes, Sunstein explained:

* With growth and change, political rights enshrined in Constitution are inadequate.

* Need economic bill of rights. Ingredients of Second Bill of Rights–only with these rights will we have security

* Long tradition of American political thought–states owe to every citizen a degree of subsistence. Second Bill of Rights made possible by attack on distinction between negative and positive rights. Effort to separate them is unfit for the American legal framework.

* Roosevelt . . . did not favor return to narrowly construed judgments of those who drafted the Constitution.

* By 2020, it’s going to be about time for the Second Bill of Rights to be reclaimed. . . . Beauty of Roosevelt’s Second Bill of Rights is its concreteness–right to education, etc.

The debate on the left, alluded to in Obama’s remarks and addressed in Sunstein’s book, has been whether Congress or the courts should promulgate the welfare state agenda. Three years ago Sunstein et al. modestly posited the fulfillment of their welfare state dreams in 2020. With left-wing Democratic majorities in both houses of Congress, and with Obama’s ascendance, it looks like the future is now..

UPDATE: Via RealClearPolitics I see that Professor Sunstein is also spinning directly on behalf of Obama over at TNR. Maybe he’ll explain some time after the election, if candor ever becomes the order of the day, what Obama meant when he referred to “the tragedies of the civil rights movement.”

And from the Buckeye state, a reader reports:

I live in Toledo, Ohio. Prior to Obama’s trip here in which he met Joe the Plumber, the October 12 issue of The Toledo Blade had a signed statement by the co-publisher and editor-in-chief on the first page asking Obama whether he would agree with FDR’s “Second Bill of Rights” guaranteeing “the right to a job, the right to a decent home, the right to adequate medical care, and the right to a good education.” The statement includes a link to the audio clip and transcript of FDR proposing it.

The letter was accompanied by a front page article discussing it, claiming “many” believe these ideas should be invoked, including Sen. Sherrod Brown (D-Ohio). The article stated that an answer from Obama as to whether he supports the idea is important to all Americans. The Blade claimed Obama agreed in principle to the ideas expressed in the second Bill of Rights: “Mr. Obama declined to give a simple yes or no answer, but in a written response and in an answer to the same question shouted at him, Mr. Obama appeared to agree in principle.”

Here’s the article in the Blade detailing Obama’s visit, noting: “U.S. Rep. Marcy Kaptur (D., Toledo) whipped the crowd up before Mr. Obama took the stage yesterday telling them that America needed a Second Bill of Rights guaranteeing all Americans a job, health care, homes, an education, and a fair playing field for business and farmers.”

This is scary stuff, but it obviously has the support of the Blade, Sen. Brown and Rep. Kaptur. I’ve frankly been surprised this hasn’t received more attention as I think it sounds nutty to most Americans. At least I hope so.

Hope! Maybe that’s the missing ingredient in the McCain campaign.

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