Social Rights

Social Rights in the United States

Cost of Rights

IN JANUARY 1944, FRANKLIN D. ROOSEVELT delivered the annual State of the Union address. Because the president was sick with a cold, he did not speak to Congress at the Capitol before the assembled worthies of the nation, as is the custom. Instead, Roosevelt read his address over the radio from a room in the White House, as in the “Fireside Chats” he had pioneered.

The speech he gave has since fallen into obscurity, but in the estimation of Cass Sunstein of the University of Chicago it was “the speech of the century.” Its value wasn’t rhetorical. The 1944 address was “messy, sprawling, unruly, a bit of a pastiche, and not at all literary . . . the opposite of Lincoln’s tight poetic Gettysburg address,” Sunstein allows in his new book, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever. The speech wasn’t easily quotable, in contrast to Roosevelt’s far more famous 1941 State of the Union, which introduced his “Four Freedoms”—freedom of expression and religion and freedom from want and fear. Rather, the claim to greatness of the ’44 address lies in the idea it proposes and in the man who proposed it.

Roosevelt’s high tone and sense of optimism that January night echo the spirit of one of Winston Churchill’s great wartime speeches. A few months earlier, in September 1943, the president had been present when Churchill spoke at Harvard. At a moment fraught with the possibility of defeat, the British prime minister was remarkably upbeat. “How proud we ought to be,” he said, “young and old alike, to live in this tremendous, thrilling, formative epoch in the human story.” In Roosevelt’s January ’44 speech, the president similarly lifted his gaze from the immediate preoccupations of war to consider the possibility of an epoch-making victory—not only over foreign enemies but also over the poverty and inequality that he had combatted since taking office in 1933.

The sacrifices being made for the war at home and overseas “impose upon us all a sacred obligation to see to it that out of this war we and our children will gain something better than mere survival,” Roosevelt told the nation. That “something better” was nothing less than a constitutional commitment to a “second Bill of Rights” that would guarantee all Americans a way of life that was worth living. The United States “had its beginning and grew to its present strength under the protection of certain inalienable political rights,” Roosevelt said, “our rights to life and liberty.” But life and liberty alone, he continued, had proved “inadequate to assure equality.” The depredations that the Great Depression had visited, particularly on the economically vulnerable, had shown that “freedom cannot exist without economic security and independence.”

Roosevelt thus proposed “a second Bill of Rights under which a new basis of security and prosperity can be established for all.” Which rights should be recognized? The president ticked off a list: a right to work, a decent home, adequate medical care, a good education, a wage sufficient enough to provide adequate food and clothing and recreation, free trade and protection from monopolies, and protection from the threat of destitution that accompanied misfortunes such as sickness, accident, and unemployment.

Roosevelt’s ideas weren’t novel. By the 1940s, socialist thinkers had for a century and a half promoted the rights he enumerated. Today, many countries have made commitments to smoothing the sharp edges of capitalism by giving their citizens rights to the basic material components of a dignified human existence. The term “social and economic rights” is a not entirely satisfactory shorthand for claims to basic goods, claims that can be pursued against the government in court. The principal international human rights treaty that recognizes such claims is the International Covenant on Economic, Social and Cultural Rights. In the United States, the ICESCR lacks the name recognition of international charters like the Geneva Conventions, but it has been ratified by 149 countries. As interpreted by the United Nations committee that monitors its implementation, the ICESCR binds states to provide to its citizens a set of minimum “entitlements” to health care, shelter, water, food, and social security at a level appropriate to that state’s economic means. The wealthier a country, the more it is expected to do. Several countries—including South Africa, where I live—have also enshrined social and economic rights in a domestic constitution or bill of rights. A study reported by Sunstein of the constitutions of 64 nations found that half provided for a right to housing and health care, 47 for a right to social security, and 51 for a right to education.

Widely accepted though they may be in much of the world, however, social and economic rights have not fared well in the United States. President Jimmy Carter signed the Economic, Social and Cultural Rights Covenant in 1977, but it has never been ratified by the Senate. Earlier this year, a proposal by the U.N. Human Rights Commission to set up a court-like body to hear complaints about the failure of states to meet their ICESCR obligations was met with steadfast opposition by the American delegation.

Undeterred, Sunstein (who is, according to the dust jacket of his handsome book, “the most-cited law professor in the United States”) has for some time sought to defend the thesis that social and economic rights are neither foreign nor antithetical to the political and legal traditions of the United States. The Second Bill of Rights is his latest foray in what may seem an unpromising campaign.

IN SOUTH AFRICA, LAW STUDENTS are instructed that the American Bill of Rights, mostly phrased as a set of prohibitions on governmental interference with rights and freedoms (“Congress shall make no law . . . “) is the foremost model of a charter of negative commitments. It is a set of rights against and not to government action.

Sunstein has challenged this conventional wisdom. In a previous book, The Cost of Rights: Why Liberty Depends on Taxes, he and his co-author, Stephen Holmes, pointed out that an element of all rights is an entitlement to government action. The distinction between negative and positive rights, they argued, is illusory. For example, the First Amendment can be enforced only if a judiciary backed up by enforcement powers is able and willing to guard against state and private intrusion on free speech. All rights have costs, and a state without funds collected through taxes cannot protect them.

By the time of the New Deal, the laissez-faire premise that an economic system functions best when there is no interference by government had been exposed as a myth. Most Americans no longer believed it, if they ever had. Free markets rely on property rights and safeguards against monopolies. All rights need a legal system that enforces them, and the laws that make up that system are human artifacts, not God-given prescriptions. In his acceptance speech at the Democratic Party Convention that picked him to run for president in 1932, Roosevelt took aim at the economic libertarians who justified government inaction in the face of the Depression by declaring that “economic laws—sacred, inviolable, unchangeable—cause panics which no one could prevent.” Economic laws, Roosevelt countered, “are not made by nature. They are made by human beings.” As Sunstein puts it, if those laws allow people to starve, “it is a result of social choices, not anything sacred or inevitable.”

The need for a different set of social choices was the basis for the New Deal. When Roosevelt talked about promoting “security,” he meant using the power of the federal government to guarantee Americans shelter, livelihood, and social insurance. By the end of the 1930s, the programs of the New Deal had coalesced to create what Sunstein calls Roosevelt’s “new regulatory state.” In Sunstein’s summation, that state “altered preexisting understandings of the three pillars of the constitutional order: individual rights, checks and balances, and federalism.” Like the Civil War before it, the New Deal fundamentally changed constitutional thought and interpretation, as Yale law professor Bruce Ackerman has shown. The role envisaged for the federal government by the New Dealers was not the one that the 18th-century founders had envisaged. It was, however, a role endorsed by the majority of Americans.

As Sunstein explains, Roosevelt was trying to redefine the nation’s “constitutive commitments” without affecting the text of the Constitution. No formal amendment was necessary in the president’s eyes because he understood the Constitution as having already come to include these commitments. “We have accepted, so to speak, a second Bill of Rights in which a new basis of security and prosperity can be established for all,” Roosevelt said in his 1944 address, speaking deliberately in the perfect tense. In Sunstein’s words, “This was the spirit in which Roosevelt urged the second bill—not as an effort to alter the founding document but as a concrete account of the nation’s understanding of what citizens were entitled to expect.”

Roosevelt hoped to shift the gains of the New Deal out of the terrain of politics, where an entitlement to, say, a basic level of education would remain contested, and vault them to a higher level, at which the entitlement would be assured, and the argument would be about how it was being provided. Yet by stopping short of cementing his second Bill in the Constitution’s text, the president left his critics room to charge that his interpretation was a delusion. Later, subsequent Republican administrations, beginning with Richard Nixon’s, would employ the same justification in dismantling elements of Roosevelt’s legislative and administrative program.

Still, Sunstein doesn’t argue for the formal enactment of a second Bill of Rights either, at least not with much energy. Perhaps his stance is a pragmatic concession to the politics of contemporary America. Yet without formalization, there seems little point in a second Bill of Rights. Until it is placed on equal footing with the rights protected in the first Bill, Roosevelt’s list remains today as it was 60 years ago: mere slogans. This means that the second set of rights must be written down in the Constitution. It also means that they must be enforceable in the courts.

SUNSTEIN DEVOTES AN INTERESTING CHAPTER to the “question of enforcement.” For lawyers, one difficulty with socio-economic rights lies in their “justiciability”—the extent to which they can and should be enforced by judges. Because these rights are a basis for claims by individuals to the delivery of goods by government, justiciable socioeconomic rights will inevitably require courts to direct how the government distributes the state’s resources. This is not the ordinary province of judicial decision-making. In the conventional account of the doctrine of separation of powers that underlies the U.S. Constitution, allocation of resources is the job of the legislative rather than the judicial branch of the state.

When judges enter the fray, they confront an array of competing interests rather than the traditional clash between two represented parties. Take, for example, Soobramoney, the first case to assert a right to health care under the South African constitution passed in 1996, after the end of apartheid. Forced to live within a tight budget, a provincial health department had decided to ration medical care by making dialysis treatment available in public hospitals only to those patients who were candidates for a kidney transplant. The money saved went to fulfill other pressing needs. In challenging the decision to deny him dialysis, Thiagraj Soobramoney asked the South African Constitutional Court to rearrange the province’s funding priorities. As the justices recognized, if they decided that Soobramoney and others in his position were entitled to treatment, they would call into question a complex web of interlocking government decisions.

Unwilling to take that step, the court denied Soobramoney’s claim. But the applicants in two following cases won important victories. It is these two decisions, Grootboom, which dealt with the right to housing, and Treatment Action Campaign, which dealt with the right to health care, that, for Sunstein, draw the sting from the objections to judicial enforcement. The high court of the land did not say that “every person in South Africa had an individual right to decent shelter or appropriate health care,” Sunstein argues. “But it did say that the government is under an obligation to take the two rights seriously and adopt programs that attempt to ensure them.”

I would quibble with Sunstein’s characterization of Grootboom and TAC. Technically, he is correct that the decisions did not give people an immediately enforceable right to shelter or health care. Still, that is their practical effect. The government was instructed in Grootboom to devise a plan to provide every person in need with access to emergency shelter, and, in TAC, to provide treatment to prevent mother-to-child transmission of HIV. These are unquestionably rights to a tangible benefit. Both decisions have required considerable revision of the government’s housing and health policies, and the budgetary complications have been significant.

But Sunstein is correct in his assessment that the South African example demonstrates the value of inscribing socioeconomic rights into a constitution. The realization of a constitutional right should not be subject to the ebb and flow of ordinary politics, as Roosevelt saw. In the political realm, money and influence rule. The constitutional recognition of socioeconomic rights in my country protects those who are poor and without influence from being shunted aside by the political process. As Sunstein puts it, “Provisions in the second bill of rights can promote democratic deliberation, not pre-empt it, by directing political attention to interests that would otherwise be disregarded.”

But it takes ordinary politics to elevate claims to constitutional status in the first place. In the United States, needless to say, the Second Bill of Rights was never enacted. Roosevelt died in 1945. The sorry tale of the fate of many of his New Deal reforms at the hands of later administrations and the post-Nixon Supreme Court is well told by Sunstein. Not everything has been lost, however. The right to education, Sunstein points out, has been recognized in many state constitutions, and to some extent in decisions of the Supreme Court. The right to be free from corporate monopoly is not seriously contested. The Roosevelt-era Social Security Act has the “essential characteristics of a constitutional commitment,” Sunstein writes. “In public life, no serious person can argue for its abolition.”

As Sunstein sees it, the task for Americans now is to complete “FDR’s unfinished revolution.” But the conservative economic theories and policies that are currently dominant in the United States advocate a sharply reduced role for the state, relying on the market to improve human welfare. From this distance, though I hope I am wrong about this, his campaign seems quixotic, his footing insecure against the high tide of conservatism.

Iain Currie is a professor of law at the University of the Witwatersrand Law School in Johannesburg.

International Covenant on Economic, Social and Cultural Rights

PART IV

Article 16. 1. The States Parties to the present Covenant undertake to
submit in conformity with this part of the Covenant reports on the measures
which they have adopted and the progress made in achieving the observance
of the rights recognized herein.

2. (a) All reports shall be submitted to the Secretary-General of the
United Nations, who shall transmit copies to the Economic and Social
Council for consideration in accordance with the provisions of the present
Covenant.
(b) The Secretary-General of the United Nations shall also transmit to
the specialized agencies copies of the reports, or any relevant parts
therefrom, from States Parties to the present Covenant which are also
members of these specialized agencies in so far as these reports, or
parts therefrom, relate to any matters which fall within the
responsibilities of the said agencies in accordance with their
constitutional instruments.

Article 17. 1. The States Parties to the present Covenant shall furnish
their reports in stages, in accordance with a programme to be established
by the Economic and Social Council within one year of the entry into force
of the present Covenant after consultation with the States Parties and the
specialized agencies concerned.

2. Reports may indicate factors and difficulties affecting the degree of
fulfilment of obligations under the present Covenant.

3. Where relevant information has previously been furnished to the United
Nations or to any specialized agency by any State Party to the present
Covenant, it will not be necessary to reproduce that information, but a
precise reference to the information so furnished will suffice.

Article 18. Pursuant to its responsibilities under the Charter of the
United Nations in the field of human rights and fundamental freedoms, the
Economic and Social Council may make arrangements with the specialized
agencies in respect of their reporting to it on the progress made in
achieving the observance of the provisions of the present Covenant falling
within the scope of their activities. These reports may include particulars
of decisions and recommendations on such implementation adopted by their
competent organs.

Article 19. The Economic and Social Council may transmit to the Commission
on Human Rights for study and general recommendation or as appropriate for
information the reports concerning human rights submitted by States in
accordance with articles 16 and 17, and those concerning human rights
submitted by the specialized agencies in accordance with article 18.

Article 20. The States Parties to the present Covenant and the specialized
agencies concerned may submit comments to the Economic and Social Council
on any general recommendation under article 19 or reference to such general
recommendation in any report of the Commission on Human Rights or any
documentation referred to therein.

Article 21. The Economic and Social Council may submit from time to time to
the General Assembly reports with recommendations of a general nature and a
summary of the information received from the States Parties to the present
Covenant and the specialized agencies on the measures taken and the progres
s made in achieving general observance of the rights recognized in the
present Covenant.

Article 22. The Economic and Social Council may bring to the attention of
other organs of the United Nations, their subsidiary organs and specialized
agencies concerned with furnishing technical assistance any matters arising
out of the reports referred to in this part of the present Covenant which
may assist such bodies in deciding, each within its field of competence, on
the advisability of international measures likely to contribute to the
effective progressive implementation of the present Covenant.

Article 23. The States Parties to the present Covenant agree that
international action for the achievement of the rights recognized in the
present Covenant includes such methods as the conclusion of conventions,
the adoption of recommendations, the furnishing of technical assistance and
the holding of regional meetings and technical meetings for the purpose of
consultation and study organized in conjunction with the Governments
concerned.

Article 24. Nothing in the present Covenant shall be interpreted as
impairing the provisions of the Charter of the United Nations and of the
constitutions of the specialized agencies which define the respective
responsibilities of the various organs of the United Nations and of the
specialized agencies in regard to the matters dealt with in the present
Covenant.

Article 25. Nothing in the present Covenant shall be interpreted as
impairing the inherent right of all peoples to enjoy and utilize fully and
freely their natural wealth and resources.

PART V

Article 26. 1. The present Covenant is open for signature by any State
Member of the United Nations or member of any of its specialized agencies,
by any State Party to the Statute of the International Court of Justice,
and by any other State which has been invited by the General Assembly of
the United Nations to become a party to the present Covenant.

2. The present Covenant is subject to ratification. Instruments of
ratification shall be deposited with the Secretary-General of the United
Nations.

3. The present Covenant shall be open to accession by any State referred to
in paragraph I of this article.

4. Accession shall be effected by the deposit of an instrument of accession
with the Secretary-General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States
which have signed the present Covenant or acceded to it of the deposit of
each instrument of ratification or accession.

Article 27. 1. The present Covenant shall enter into force three months
after the date of the deposit with the Secretary-General of the United
Nations of the thirty-fifth instrument of ratification or instrument of
accession.

2. For each State ratifying the present Covenant or acceding to it after
the deposit of the thirty-fifth instrument of ratification or instrument of
accession, the present Covenant shall enter into force three months after
the date of the deposit of its own instrument of ratification or instrument
of accession.

Article 28. The provisions of the present Covenant shall extend to all
parts of federal States without any limitations or exceptions.

Article 29. 1. Any State Party to the present Covenant may propose an
amendment and file it with the Secretary-General of the United Nations. The
Secretary-General shall thereupon communicate any proposed amendments to
the States Parties to the present Covenant with a request that they notify
him whether they favour a conference of States Parties for the purpose of
considering and voting upon the proposals. In the event that at least one
third of the States Parties favours such a conference, the
Secretary-General shall convene the conference under the auspices of the
United Nations. Any amendment adopted by a majority of the States Parties
present and voting at the conference shall be submitted to the General
Assembly of the United Nations for approval.

2. Amendments shall come into force when they have been approved by the
General Assembly of the United Nations and accepted by a two-thirds
majority of the States Parties to the present Covenant in accordance with
their respective constitutional processes.

3. When amendments come into force they shall be binding on those States
Parties which have accepted them, other States Parties still being bound by
the provisions of the present Covenant and any earlier amendment which they
have accepted.

Article 30. Irrespective of the notifications made under article 26,
paragraph 5, the Secretary-General of the United Nations shall inform all
States referred to in paragraph I of the same article of the following
particulars:
(a) signatures, ratifications and accessions under article 26;
(b) the date of the entry into force of the present Covenant under
article 27 and the date of the entry into force of any amendments
under article 29.

Article 31. 1. The present Covenant, of which the Chinese, English, French,
Russian and Spanish texts are equally authentic, shall be deposited in the
archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified
copies of the present Covenant to all States referred to in article 26.

IN FAITH WHEREOF the undersigned, being duly authorized thereto by their
respective Governments, have signed the present Covenant, opened for
signature at New York, on the nineteenth day of December, one thousand nine
hundred and sixty-six.


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