The second Bill of Rights

As the actions of his first term made clear, and as his second inaugural address declared, President Barack Obama is committed to a distinctive vision of American government. It emphasizes the importance of free enterprise, and firmly rejects “equality of result,” but it is simultaneously committed to ensuring both fair opportunity and decent security for all.

In these respects, Obama is updating Franklin D. Roosevelt’s second Bill of Rights. To be sure, his second term has barely started, and his precise place in history remains to be established. Yet we can’t appreciate the arc of American politics, or the nation’s current situation and prospects, without understanding the “second bill.”

Roosevelt announced the second Bill of Rights in his State of the Union address in 1944. With the Great Depression over, and the war almost won, FDR declared that we “have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.” Drawing on Thomas Jefferson, Roosevelt insisted that “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.”

Then he listed them:

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.

“All of these rights,” Roosevelt said, “spell security.” He added, “I ask the Congress to explore the means for implementing this economic bill of rights, for it is definitely the responsibility of the Congress so to do.”

It is important to be clear about what FDR meant. He did not propose to amend the Constitution. He did not think that the Supreme Court should enforce the second Bill of Rights. He believed in free markets and free enterprise; he had no interest in socialism. The nation’s wheelchair-bound president hardly thought that the national government could eliminate sickness, accident, unemployment or homelessness. He did not mean that every American was necessarily entitled to a job; he did mean that the national government would commit itself to promoting economic conditions that would reduce unemployment. This was a political speech, not a lawyer’s document.

Roosevelt’s purpose was to give a fresh account of the nation’s defining aspirations. With the idea of security at its foundation, and with an insistence on fair opportunity, the second bill was meant to specify the goals of postwar America, hardened by its emergence from an economic crisis and its imminent victory in World War II. With the second Bill of Rights, the leader of the Greatest Generation sought to cement his legacy. And while Roosevelt said that it was Congress’s responsibility to carry out the Second Bill, of course it did not do so, though various presidents and Congresses have taken significant steps (including Medicare and Medicaid) in this direction.

In his first term, Obama took more such steps. The most visible, of course, is the Affordable Care Act, which goes a long way toward safeguarding “the right to adequate medical care and the opportunity to achieve and enjoy good health.”

Expansion of the earned income tax credit, designed to assist the working poor, is helping to give people “enough to provide adequate food and clothing and recreation.” Efforts to extend unemployment insurance have softened the impact of the recession. The Race to the Top program, alongside numerous other reforms, is improving education for millions of Americans.

Obama’s second inaugural did not refer explicitly to the second Bill of Rights, but it had an unmistakably Rooseveltian flavor. Just after a serious economic crisis, Obama emphasized “that a great nation must care for the vulnerable, and protect its people from life’s worst hazards and misfortune.” Recalling his central theme, Obama said that “every citizen deserves a basic measure of security and dignity.”

He added that in the U.S., we “recognize that no matter how responsibly we live our lives, any one of us, at any time, may face a job loss, or a sudden illness, or a home swept away in a terrible storm.” Recognition of human vulnerability helps to justify the “commitments we make to each other - through Medicare and Medicaid and Social Security.”

Almost 70 years ago, the occupant of the Oval Office safeguarded the nation’s basic institutions, including the system of free enterprise, while also insisting on the defining commitments to fair opportunity and security for all. Having helped America to survive its greatest economic challenge since the 1930s, the current occupant of that office is giving new meaning to those commitments, and making them his own.

*The author, the Felix Frankfurter professor of law at Harvard University, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of “Nudge” and author of “Simpler: The Future of Government,” forthcoming in 2013.

by Cass R. Sunstein