FDR's Second Bill of Rights Turned Freedoms Into Claims on Neighbors

Folks, I want you to consider the most successful rebranding in the history of American politics. It did not involve a logo or a jingle. It involved a single word. Take an old claim, that you are entitled to your neighbor's labor, and call it a "right." Overnight the person who objects is no longer a skeptic about spending. He is an enemy of human rights. Argument over. Everybody go home.

That was the genius of Franklin Roosevelt's State of the Union message of January 11, 1944, and it is why we still live inside its vocabulary. Every time somebody says that housing is a human right, or that medical care is a right, or that a job is a right, he is quoting a speech given eighty-odd years ago. I want to do the fair thing. I will give Roosevelt's case the best hearing I can, and then I will answer it in numbered points. That order matters. You cannot beat an idea you have not understood.

The case, stated fairly

Roosevelt delivered the 1944 address in a nation at war, in the third year of America's involvement in World War II, and he used it to look past the fighting. His argument went like this. The political rights of the Constitution, the freedoms of speech, press, worship, trial by jury and the rest, were essential, he said, but they had "proved inadequate to assure us equality in the pursuit of happiness." In their place, or rather beside them, he proposed what he called "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."

He then listed eight rights:

1. The right to a useful and remunerative job in the industries, shops, farms or mines of the nation.
2. The right to earn enough to provide adequate food, clothing and recreation.
3. The right of every farmer to raise and sell his products at a return that gives him and his family a decent living.
4. The right of every businessman, large and small, to trade in an atmosphere free from unfair competition and domination by monopolies.
5. The right of every family to a decent home.
6. The right to adequate medical care and the opportunity to achieve and enjoy good health.
7. The right to adequate protection from the economic fears of old age, sickness, accident and unemployment.
8. The right to a good education.

Roosevelt's emotional core was a phrase he borrowed from an earlier era: "Necessitous men are not free men." True individual freedom, he said, cannot exist without economic security and independence. A man who is hungry and out of work is not meaningfully free to speak his mind or vote his conscience, because he is at the mercy of whoever will feed him.

That is a serious argument and I will not insult it. Anyone who has seen a family one paycheck from the street understands the intuition. And the idea had roots. In his Commonwealth Club address in San Francisco on September 23, 1932, while he was campaigning for the presidency, Roosevelt had argued that the old economic frontier was closed, that the task of government was to assist in developing "an economic declaration of rights," and that every man has a right to life, "and this means that he has also a right to make a comfortable living." The 1944 message was the finished version.

The Social Security Act of 1935 had been the first big step, and later in 1944 Congress passed the Servicemen's Readjustment Act, the GI Bill, which paid for education and housing loans for returning veterans. Roosevelt died in April 1945 and never saw the whole program, but its logic shaped the next eighty years of American domestic politics: first the program, then the rhetoric of right, then the claim that any limit on the program is a violation.

That is the best case: a good society should guarantee a floor, and the language of rights is the strongest language we have for a guarantee. Now let me answer it.

Defining the terms

A good argument starts by defining its words, so let me do that. A negative right is a limit on what others, especially the government, may do to you. The First Amendment says "Congress shall make no law." The Second says the right "shall not be infringed." The Fourth bars unreasonable searches. Each one is a wall that the government may not cross. It costs the government nothing to honor a negative right except restraint. If you leave me alone, you have honored my right to speak.

A positive right, or an entitlement, is a claim on goods or services that someone must supply. A right to medical care is not satisfied by leaving me alone. It is satisfied only when a doctor, a hospital and a payer deliver the care. A right to a job is satisfied only when an employer is found. A right to housing is satisfied only when someone builds the house, or pays for it.

That difference is the whole argument. Everything below follows from it.

Answer one: someone has to provide it

Here is the first and plainest problem. Rights in the old sense, to speech, conscience, property and a fair trial, can be held by every person at once without any person being worse off. My free speech takes nothing from yours. All of us can exercise them all day, every day.

Not so with the second bill. A right to medical care means a doctor's time, a nurse's training, a hospital's capital. A right to housing means lumber, labor and land. These are goods that someone produces, and every unit consumed is a unit not available to somebody else. The "right" is therefore a claim against particular persons: the taxpayer, the employer, the doctor.

You can check this with a simple hypothetical. Picture a town of ten thousand people that declares a right to a decent home. The town has no apartment buildings. Who builds them? The builders, who must be paid, either by the residents who will live there or by other taxpayers, or else compelled to work. If the answer is that they will be paid from taxes, then what began as a right of the poor is a claim on the earnings of everyone else. If the answer is that they will be compelled, we have reinstated an old and ugly arrangement. Either way the word "right" has quietly conferred a claim on other human beings, which is precisely what the Founders' list of rights was designed not to do.

Answer two: what the government must provide, the government must ration

The second problem follows from the first. Because a positive right requires scarce goods, somebody has to decide who gets how much, of what quality, and when. In a market, prices and the choices of millions of buyers and sellers do that work. In a system of entitlements, officials do it.

So the "right" to medical care means, in practice, a set of rules written by administrators about what is covered, what is not, how long you wait, and who is first in line. A right to a job means a bureaucracy deciding which jobs, at what wage, in which place. A right to education means a school assigned by address.

Notice how the vocabulary changes. The first Bill of Rights says: the government may not tell you what to do. The second says: the government will tell you what you get. Hayek's famous warning in The Road to Serfdom (1944, the same year as the speech) was that the more government plans the distribution of goods, the more it must decide whose needs count, and the closer it moves to ruling a people instead of serving them. See Why the Worst Get on Top, Hayek's Most Uncomfortable Chapter.

Answer three: the old rights and the new rights compete

Roosevelt spoke as if the second bill would sit politely beside the first. It cannot, because the new rights are paid for by the old.

Suppose Congress enacts a right to housing and finances it by taxing property. Property rights, which the Fifth Amendment protects, get smaller. Suppose it enacts a right to medical care and requires doctors and insurers to follow a federal schedule. The doctor's freedom to contract with a patient on his own terms gets smaller. Suppose it guarantees a job and sets wages. The freedom of the employer and the worker to bargain gets smaller. Every positive right is funded by a diminishing of some negative one, usually property or contract, and the Bill of Rights ranks those among the people's defenses against the state.

This is not an accident of Roosevelt's list. It is the nature of the thing. And it is why the Constitution's text has so few positive rights. The Sixth Amendment gives an accused person the right to counsel, which is one of the few real examples, and notice that it is a narrow entitlement, attached to a case in which the government is the one bringing force against the individual. That is a limit on state power, dressed as a service.

The Supreme Court said as much in DeShaney v. Winnebago County (1989), holding that the Due Process Clause "is a limitation on the State's power to act, not a guarantee of certain minimal levels of safety and security." A conservative reading of the Constitution is not stingy. It simply notes that our Founding document is a charter of limits on government, not a menu of provisions from it.

Answer four: who defines the good life?

The fourth problem is quieter. A list of entitlements embeds a view about what people need and how they should live. Roosevelt's list included "recreation" and a "decent home." But whose standard of decency governs? The family that wants to live on a farm and the family that wants a downtown apartment have different ideas. The worker who wants to start his own business and the one who wants a union job have different priorities.

When these questions are answered by individuals spending their own money, the answers vary. When they are answered by a legislature, there is one answer, and everyone must accept it. Once a service is a right, the supplier is protected from competition, since you cannot let the poor go without, and from the discipline of choice, since the customer cannot leave. Public schools assigned by zip code and subsidized housing built to a federal template have both shown it.

The strongest objection, answered once more

The reader may say: all right, but Americans already accept some positive rights. We fund public schools. We have a system of Social Security. We have police and fire departments. Why are those acceptable and the rest not?

Fair question. Here are four points.

1. The Constitution allows government to provide some services; the question is whether a service is a right or a program. A program is something the legislature may fund, modify or end, as the voters' representatives think best. A right is something no legislature may touch. The distinction matters, because a right placed beyond the reach of voters cannot be adjusted when the money runs out. The Supreme Court held in Flemming v. Nestor (1960) that a Social Security beneficiary had no "accrued property right" in his benefits, which left Congress free to adjust them. See Social Security is not your property, and Flemming v. Nestor said so.
2. Public order, courts and defense are classical functions of government, the things the Founders thought a government exists to provide. Food, housing and medicine are goods that free people produce and trade.
3. A genuine safety net is a matter of charity and prudence, which conservatives support, with the strongest part of it provided by families, churches and local communities; see Before the welfare state, Americans insured each other through lodges. The question is who is best placed to meet a need, and a federal entitlement is the most distant from the person in need.
4. Calling a program a right hardens it. Once the benefit is a right, any reform is an attack, and the program grows with no end.

What the Founders would have said

Think of the Declaration. It speaks of unalienable rights to life, liberty and the pursuit of happiness. Not the attainment of happiness: the pursuit of it. The Founders knew that government cannot hand out happiness. What government can do is protect the person who goes after it. Roosevelt's list reverses that. It starts at the end, with the outcomes, and works backward to the claims on other people.

Compare how Roosevelt's contemporaries in other countries wrote down such rights. The Soviet constitution of 1936, adopted only a few years after the famine that followed forced collectivization, guaranteed its citizens the right to work, to rest and to maintenance in old age. The list was long and sounded wonderful, and it was worth the paper it was printed on, because the same document left the state with unlimited power. A right without a limit on the government is a promise, and a promise is only as good as the promiser. For more on the family of ideas, see Equity Versus Equality, Why Swapping One Word Changes Everything and Friedman's Four Ways to Spend Money Explain Every Government Budget.

The case in brief

1. Roosevelt's 1944 second bill proposed eight economic rights, from a job to medical care, and its stated aim was security for ordinary people, a goal that deserves respect.
2. The Founders' rights are limits on government; the second bill's rights are claims on goods that someone must produce, and so on someone's labor or money.
3. Goods that must be supplied must be rationed, and rationing by officials replaces the choices of individuals.
4. Entitlements compete with the older rights, especially property and contract, because they are paid for out of them.
5. Programs the legislature can adjust are one thing; rights placed beyond adjustment are another, and calling a program a right is usually a way of ending the debate over it.

What you can do: read the full text of the 1944 message and compare its list to the Bill of Rights on the Constitution page, underlining every sentence that says what government may not do; then see how many in Roosevelt's list say the same.