Discussing "A Bill of Rights for the 21st Century"
A panel discussion on “A Bill of Rights for the 21st Century,” which took place at ACS’s National Convention, included a fascinating progressive policy discussion. Professor Nina Pillard of Georgetown University Law Center, who moderated the discussion, laid out the panel topic — which was inspired by Cass R. Sunstein’s book, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever. In the book, Sunstein noted that President Roosevelt’s 1944 State of the Union Address asked Congress to adopt a “second Bill of Rights” to address issues of domestic economic security, including guarantees of work, healthcare, education, and adequate housing.
Professor Pillard explained that our country is still working to address Roosevelt’s agenda, which seems as timely as ever with a current housing crisis, clamor for universal health care, perpetual education issues, and the need to help American workers compete in a global economy.
A Right to Health Care
Alan Jenkins, the Executive Director of the Opportunity Agenda, said that the time is ripe to achieve a right to adequate healthcare. Pointing to recent polling data, he explained that Americans are ambivalent about economic rights — believing that such rights exist, but shying away from excessive government involvement. That attitude and misunderstanding is best encapsulated by the phrase “keep government hands off my Medicare!”
Jenkins posited that the public is ready for the notion of a right to health care that includes an acknowledgement of personal responsibility. He noted that many state constitutions include a right to adequate health care, which may provide an avenue for achieving meaningful opportunities to challenge the current system’s inequities.
A Constitutional Amendment for Equal Access to Quality Education
Lynn Walker Huntley, President of the Southern Education Foundation (and former ACS Board member), made an impassioned plea for education reform, proposing a constitutional amendment to ensure equal access to quality education. Huntley acknowledged that there are other education reforms that can and should be adopted in the near term. She argued, however, that the United States must eventually come to terms with the structural inequalities in the way that education is funded, and that by striving for the farthest goal, even if it is never actually attained, we will spur much greater reform.
Second Bill of Rights Embodies the “Pathology of Modern Progressive Thought”
Michael S. Greve, the John G. Searle Scholar at the American Enterprise Institute for Public Policy Research, offered a critique of Sunstein’s book, contending that the concept of a “second Bill of Rights” undermines security, entrenches special interests, and creates problems with transparency and accountability. He argued that FDR’s speech represented the “pathology of modern progressive thought” and led to “an addiction” to constituency politics.
Greve noted that each of the elements in FDR’s speech was designed to appeal to a specific constituent group, including farmers, unions, and industrial workers, and that by creating a sense of rigid entitlements, the government lost the ability to be flexible and achieve real solutions. Ultimately, he said, the creation of “economic rights,” which may or may not be justiciable, will result in courts and special masters administering federal programs.
Discussion of the Role of the Courts in Determining Economic Rights
The panel had a vigorous exchange — or, what in Washington is sometimes termed a “full and frank discussion” — about the role of the courts in determining economic rights. Does the creation of an economic “bill of rights” inevitably lead to involvement by the courts? Would judicial review regarding the adequacy of a healthcare or education program necessarily mean that there is no transparency? Aren’t transparency and accountability provided at the political level?
Greve argued that transparency and accountability are not provided at the political level — the courts will blame the legislature and executive branch, both of whom will blame the courts. Alan Jenkins countered that courts adjudicate constitutional issues often and frequently remand; why should economic rights be differently from other rights? Lynn Walker Huntley noted that intervention by the courts can be salutary, as was the case with the integration of education.
Professor Pillard posed a final question to the audience and perhaps to Professor Sunstein, who was scheduled to be on the panel, but could not attend: What is gained by a “second Bill of Rights” beyond what can be achieved by the general engagement in politics supporting legislation that promotes progressive economic policies? It is fertile ground for further discussion.