What made the Second Bill of Rights possible? Part of the answer lies in a simple idea, one pervasive in the American legal culture during Roosevelt's time: No one really opposes government intervention. Markets and wealth depend on government. Without government creating and protecting property rights, property itself cannot exist. Even the people who most loudly denounce government interference depend on it every day. Their own rights do not come from minimizing government but are a product of government. Political scientist Lester Ward vividly captured the point: "[T]hose who denounce state intervention are the ones who most frequently and successfully invoke it. The cry of laissez faire mainly goes up from the ones who, if really 'let alone,' would instantly lose their wealth absorbing power." Think, for example, of the owner of a radio station, a house in the suburbs, an expensive automobile, or a large bank account. Every such owner depends, every day of every year, on the protection given by a coercive and well-funded state, equipped with a police force, judges, prosecutors, and an extensive body of criminal and civil law. From the beginning, Roosevelt's White House understood all this quite well. In accepting the Democratic nomination in 1932, Roosevelt insisted that "[w]e must lay hold of the fact that economic laws are not made by nature. They are made by human beings." Or consider Roosevelt's Commonwealth Club Address in the same year, where he emphasized "that the exercise of ... property rights might so interfere with the rights of the individual that the Government, without whose assistance the property rights could not exist, must intervene, not to destroy individualism, but to protect it. " The key point here is that without government's active assistance, property rights could not exist at all. . . . Against the backdrop of the Great Depression, and the threat from fascism, Roosevelt was entirely prepared to insist that government should "protect individualism" not only by protecting property rights but also by ensuring decent opportunities and minimal security for all. The ultimate result was his proposal for the Second Bill of Rights.
53 Drake L. Rev. 205-229 (2005)
Scholarly Commons Citation
Barnett, Randy E. and Sunstein, Cass R., "Constitutive Commitments and Roosevelt's Second Bill of Rights: A Dialogue" (2005). Georgetown Law Faculty Publications and Other Works. Paper 35.