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Sunstein: Obama Pushing Second Bill Or Rights

From an Op-Ed in Bloomberg:

Obama, FDR and the Second Bill of Rights

By Cass R. Sunstein | January 28, 2013

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.

Not really. Obama made it clear that he believes government is the solution to all of our problems. And that is why he is going to give us more of it.

In these respects, Obama is updating Franklin Delano 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.

And to think back in October 2008 we were mocked for noting that Obama’s campaign operatives like Marcy Kaptur were talking about this ‘Second Bill Of Rights’ during the 2008 campaign, and predicting that Obama would try to implement it.

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.”

This is what is now called ‘social justice’ and ‘fairness.’

Drawing on Thomas Jefferson, Roosevelt insisted that “these economic truths have become accepted as self-evident.

Which sure beats having to make a rational argument for them.

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.”

The Rights then he listed them:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation.

Unless you are a non-union worker in a state that doesn’t have right to work laws.

The right to earn enough to provide adequate food and clothing and recreation.

And the right to free food and clothing if you can’t. And, thanks to your EBT card, free recreation at casinos and strip joints in Vegas.

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living.

AKA government price supports.

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.

Unless that monopoly is a friend of the administration, like Google.

The right of every family to a decent home.

Hence, ‘free’ government housing.

The right to adequate medical care and the opportunity to achieve and enjoy good health.

Hence the tax on the uninsured brought to you by Obama-Care.

The right to adequate protection from the economic fears of old age, sickness, accident and unemployment.

Hence, Obama’s efforts to defund Social Security through the payroll tax holiday. And his taking of at least $700 billion from Medicare for Obama-Care.

The right to a good education.

And never mind that unions prevent bad teachers from ever being fired or even tested.

“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.”

If the words of our founders are to be ignored, why should we care about the words of some long dead President?

It is important to be clear about what FDR meant. He did not propose to amend the Constitution.

In other words, FDR didn’t want this done out in the open through legislation by the representatives of the people. He wanted to do it through the back door, through executive action. And Obama feels the same way.

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.

Oh, our sides. If FDR wasn’t a socialist he was the only person in his administration who wasn’t.

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.

But Obama isn’t committed to promoting economic conditions that would reduce unemployment. Or we wouldn’t have so many new regulations or Obama-Care or amnesty.

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.

What has not been accomplished on FDR’s laundry list? In fact, it has all come to pass. But, of course, Obama and the rest of the Left will never be satisfied.

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.”

Actually, what it mostly does is tax people who don’t have insurance.

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.

We suspect even Sunstein doesn’t believe a word of this.

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 Roosevelt’s 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.”

Which Obama is destroying.

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.

Why should we care about the thoughts of people who died 70 years ago? Isn’t that in effect the Left always says about the framers?

By the way, the author of this op-ed, Cass Sunstein, isn’t just some radical leftist crank. He is a major guru for Obama. His ‘ideas guy.’ — But, of course, he is also a radical leftist crank.

This article was posted by Steve on Tuesday, January 29th, 2013. Comments are currently closed.

3 Responses to “Sunstein: Obama Pushing Second Bill Or Rights”

  1. canary says:

    Ruling: President Obama’s “recess” appointments to the National Labor Relations Board (NLRB) were unconstitutional


    January 25, 2013

    Washington, D.C. – U.S. Sen. Jim Inhofe (R-Okla.) issued the following statement in response to the U.S. Court of Appeals for the D.C. Circuit’s ruling that President Obama’s “recess” appointments to the National Labor Relations Board (NLRB) were unconstitutional:

    “The President knowingly tested the limits for making these controversial NRLB recess appointments, and I applaud the U.S. Court of Appeals’ ruling today that reaffirms his actions were unconstitutional,” said Inhofe. “The President knew his nominees did not have the support of the Senate and took matters into his own hands. This is not how to go about fulfilling a campaign promise for more government transparency. In the future, I hope the President and the NLRB will see the importance of allowing its future members be approved by the people’s elected officials.”

    On September 26, 2012, Inhofe joined 41 Republican colleagues in filing an amicus curiae brief with the U.S. Court of Appeals for the D.C. Circuit in support for the lawsuit filed by Noel Canning (Canning v. NLRB). The brief argues that by declaring the Senate to be in a continual period of recess when it had determined to be in session regularly, the President usurped the Senate’s authority to establish the Rules of its own proceedings. It also argues that by appointing high-level federal officers (National Labor Relations Board and Consumer Financial Protection Board members) without the Senate’s consent and when it was not in “recess” within the meaning of the Recess Appointments Clause, he took away its right to review and reject nominations.

    Before the U.S. Senate adjourned for the end of 2011, Senate Republicans also sent a letter to President Obama warning him to not appoint controversial nominees during recess. However, the Senate never adjourned and instead conducted a pro forma session of Congress. During a pro forma session, the President does not have authority to make recess appointments.



  2. Petronius says:

    Cass Sunstein: “[FDR] did not propose to amend the Constitution.”

    Actually that’s right. Amending the Constitution would have been too much bother and unlikely to succeed. So FDR proposed to pack the Supreme Court instead.

    As things turned out, FDR didn’t need to implement his court-packing plan. Justice Owen Roberts, a Republican appointee and swing vote, went over to support the New Deal legislation (“the switch in time that saved nine”).

    And three of the conservative Four Horsemen retired or died, enabling FDR to replace Willis Van Devanter with Hugo Black (1937), George Sutherland with Stanley F. Reed (1938, and always a weak reed to lean on), and Pierce Butler with the gay blade, Frank Murphy (1940). By 1940, the last remaining Horseman, Justice James C. McReynolds, was deaf and effectively retired from the bench.

    FDR was also able to appoint Felix Frankfurter (1939, replaced Benjamin Cardozo) and William O. Douglas (1939, replaced Louis Brandeis).

    As a result, by 1941 FDR had placed sufficient appointees on the Supreme Court to amend the Constitution for him. The New Deal Court was FDR’s instrument to amend and rewrite the Constitution.

    In U.S. v. Darby Lumber Co., 312 US 100 (1941), FDR’s New Deal Court basically struck down the Ninth and Tenth Amendments, granted Congress virtually unlimited powers over the economy and private property under the commerce clause, reversed several longstanding Supreme Court decisions that had set limits to Federal power, and overturned John Marshall’s dictum in McCulloch v. Maryland, 17 US 316 (1819), wherein Marshall had written that the Court could find a law of Congress unconstitutional even when it was enacted under one of the enumerated powers, if the enumerated power had been used by Congress as a pretext to reach into unauthorized areas. (Marshall’s famous principle would have been useful to strike down ObamaCare, had the principle itself not been struck down in Darby Lumber.)

    As a result of Darby Lumber, Congress could thereafter use the commerce clause as a pretext to impinge on liberties protected by the Ninth Amendment, and intrude into areas reserved by the Tenth Amendment to the States and to the people, thereby effectively nullifying the Ninth Amendment, the Tenth Amendment, States Rights, and any remaining barriers to the expansion of Federal power.

    In effect, after Darby Lumber, the Bill of Rights (less the Ninth and Tenth Amendments) became the only remaining limit to unlimited Federal powers.

    We have FDR and his Liberal justices to thank for this.

    We should also note that the divine Nerobama is now embarked on a program to whittle away the last remaining protections of the Bill of Rights. The twelve suits brought by the Roman Catholic bishops against ObamaCare under the First Amendment will be the acid test; if the First Amendment’s protection of religious liberty is swept aside, then all is indeed lost.

    In that event there would be nothing left of the Constitution to stop him.

    • captstubby says:

      In 1937, Franklin Roosevelt attempted to add six more justices to the Supreme Court. He felt the court was obstructing much of his New Deal policies and adding more members who would agree with his views would help. This was termed the “Court Packing Plan.” However, Congress did not agree and the number remained at nine.

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