FDR and the Second Bill of Rights

Nonetheless, the concept of economic and social rights did not gain much traction in the United States until the election of a President (FDR) who fervently believed in them coincided with circumstances (The Great Depression) that made their need glaringly apparent to a large proportion of American citizens.

Sunstein points out that new "rights" need not take the form of amendments to our Constitution. They also occur through reinterpretation of our Constitution by our courts or when a general consensus develops among large majorities of our citizens as to what constitutes a "right". Roosevelt's preferred method for establishing a Second Bill of Rights was the latter, and he accomplished this through more than twelve years of advocating for these rights and putting them into practice through executive orders and pushing Congress to enact legislation.

Some of the most concrete results of FDR's efforts were the Social Security Act of 1935, the creation of several agencies that produced greatly needed jobs, labor protection laws that created the right for workers to organize into unions and a federal minimum wage, antitrust policies, the GI bill of rights, and to help pay for some of those programs, record tax rates on wealthy corporations and individuals. But perhaps more important than these concrete accomplishments, by the end of FDR's Presidency large segments of the American population accepted many aspects of his Second Bill of Rights as legitimate rights – for example, the right to a good education.

International acceptance of economic and social rights

Following FDR's death in 1945, his wife, Eleanor, led the effort towards international acceptance of numerous elements of FDR's Second Bill of Rights, incorporated into the Universal Declaration of Human Rights, which was adopted by the United Nations in 1948. These rights were then expanded further by The International Covenant on Economic, Social, and Cultural Rights, which was ratified by 142 nations as of 2003. Paradoxically, the United States, where the Second Bill of Rights originated, has not yet signed that Covenant.

Furthermore, the commitment to economic and social rights throughout the world is manifested by their inclusion in the constitutions of numerous countries. And the European Social Charter, signed by 24 European countries, establishes such rights as the right to work for fair remuneration, health care and social security.

Why does the United States lag so far behind other nations in establishing economic and social rights for its citizens?

Sunstein considers several answers to this crucial question, and dismisses them as incomplete explanations. Incomplete explanations include: The United States created its constitution at a time long before economic and social rights were recognized; the United states has a cultural aversion to economic and social rights; and, the constitution of the United States is enforced through its courts, which would find it very difficult to enforce economic rights. Sunstein points out that the date of origin of our constitution has limited relevance to rights that we recognize today, since rights can and do evolve over time. He notes that, though economic rights may be difficult to enforce, that doesn't disqualify them from being recognized as rights. And most important, he notes that the U.S. Supreme Court was well on its way to recognizing a large number of economic and social rights until Richard Nixon's election in 1968, with his subsequent appointment of four conservative Supreme Court justices, who sharply reversed that trend.