Cass Sunstein and the "Second Bill of Rights"
Following up on Matt Welch's post on the reaction to Cass Sunstein heading up the Office of Information and Regulatory Affairs, it's also worth revisiting Tom Palmer's dissection of Sunstein's 2004 book The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More than Ever:
The title comes from Franklin Roosevelt's 1944 State of the Union address, in which he proclaimed that "necessitous men are not free men" and proposed a "second Bill of Rights under which a new basis of security and prosperity can be established for all." Among the rights FDR proposed were the rights to "a useful and remunerative job," "a decent home," "adequate medical care and the opportunity to achieve and enjoy good health," "adequate protection from the economic fears of old age, sickness, accident, and unemployment," and "a good education."
[Sunstein] says that "to believe that people have a right to their current holdings, so that any diminution of those holdings amounts to a violation of their rights… is an utterly implausible position. Those who possess a great deal do so because laws and institutions, including public institutions, make their holdings possible…. In the state of nature—freed from the protection of law and government—how well would wealthy people fare?" Let's see what else this theory would entail: If a doctor were to save my life, then, since the doctor would be responsible for my existence, and therefore for all of the liberty and wealth that I might enjoy or create henceforth, the doctor would have the right to decide what should happen with that liberty and that wealth, since without the doctor neither I, nor the liberty, nor the wealth would exist. In short, Sunstein's ethical theory is just silly.
The Second Bill of Rights may rest on a logical fallacy, a primitive economic theory, and a silly ethical claim, but it is instructive nonetheless. Sunstein's treatment of the problem of how to use the judiciary to enforce welfare rights shows what a radical departure they are from the rule of law, how they introduce arbitrariness into government policy, and how, ultimately, the contradictions and incompatibilities generated by welfare rights undermine the very idea of rights itself—for when "rights" conflict, the state must decide whose "rights" are to be respected, but, since it has been stipulated that both of the conflicting parties are in the right, the state's decisions must be on the basis of something other than right.