How economic rights almost became part of the Constitution

President Franklin D. Roosevelt’s Second Bill of Rights has come back into vogue as a lodestar for the modern progressive imagination. And while FDR’s vision of robust social and economic rights has inspired progressive policymakers for generations, many have forgotten just how close the U.S. Supreme Court came to incorporating many of those rights into our existing Constitution.

Roosevelt proposed a Second Bill of Rights during his State of the Union address in 1944. He said that the country had come to recognize that economic security is a prerequisite for true individual freedom; that certain inalienable economic rights were necessary to buttress the inalienable political rights protected by the nation’s Founders.

FDR 2nd Bill

Roosevelt’s Second Bill of Rights included:

  • The right to a useful and remunerative job.
  • The right to earn enough to afford food, clothing, and recreation.
  • The right to be free from unfair competition and monopolization.
  • The right to housing.
  • The right to health care.
  • The right to security from the economic fears of old age, sickness, accident, and unemployment.
  • The right to a good education.

While these rights have long served as normative aspirations for various progressive movements, they never have been adopted into the Constitution to sit along side the actual Bill of Rights. Nor have they been otherwise transformed into enforceable legal rights, for the most part.

But there was a time when much of the Second Bill of Rights looked like it was on track to become part of our constitutional order. As Cass Sunstein explains in his book on the Second Bill, there was a brief period in the 1960s when the Supreme Court came very close to embracing much of FDR’s constitutional vision.

Much of the credit goes to Justice Robert Jackson, a close adviser to the New Deal before he was named to the Supreme Court. In the 1941 case Edwards v. California, a plaintiff challenged the constitutionality of a California law that criminalized bringing an indigent non-resident person into the state of California. The Supreme Court struck down the law as a barrier to interstate commerce.

In a concurring opinion, Justice Jackson argued that the law actually violated Edwards’ Fourteenth Amendment rights because it discriminated on the basis of his wealth status. “We should say now, and in no uncertain terms, that a man’s mere property status, without more, cannot be used by a state to test, qualify, or limit his rights as a citizen of the United States,” Jackson wrote. “The mere state of being without funds is a neutral fact—constitutionally an irrelevance, like race, creed, or color.”

Jackson considered laws that classify people by income level to be comparable to those that classify based on race, religion, or ethnicity. That’s a big deal, because those latter distinctions receive the highest degree of protection under the Constitution – what’s known as “strict scrutiny.” Laws that discriminate on those bases are almost invariably struck down by courts.

Jackson’s opinion was not the Court’s majority opinion, and his concurrence remained siloed for years. Until 1956, when a majority of the Court began to faintly echo Jackson’s reasoning in the criminal law context. In Griffin v. Illinois, the Court held that the Fourteenth Amendment’s Equal Protection Clause requires states to provide trial transcripts at no cost to indigent criminal defendants appealing their convictions. “In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color,” the Court held.

Then, in the landmark 1963 case Gideon v. Wainwright, the Warren Court held that the Constitution requires the states to pay for legal assistance for indigent criminal defendants. That is, the Court held that the Constitution contains a positive right requiring the government to provide an affirmative benefit to people too poor to obtain it on their own.

The Court built on Gideon to expand the state’s affirmative obligation to the poor twice more. In Douglas v. California, the Court held that the Constitution also requires the state to provide defense counsel to indigent defendants appealing a criminal conviction. And in Boddie v. Connecticut, the Court held that the state has a similar affirmative obligation to ensure poor people have legal counsel in divorce proceedings.

In 1966, the Court held that discrimination against the poor was unconstitutional when it infringed upon the fundamental right to vote. In Harper v. Virginia Board of Elections, the Court struck down a $1.50 poll tax. The Court held that “Lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored.” It cited Justice Jackson’s concurring opinion in Edwards, along with the Court’s criminal justice opinion in Griffin. “Notions of what constitutes equal treatment for purposes of the Equal Protection Clause,” the Court observed, “do change.”

The Court also seemed to find that the Constitution provides some level of protection from destitution. In Shapiro v. Thompson, Sunstein writes, “the Court seemed to come close to saying that the Constitution conferred a right to welfare benefits.” That case involved a California law that restricted welfare benefits from those who had lived in the state for less than one year.

The Court struck down the law on the grounds that it penalized people exercising their constitutional right to travel. It penalized travelers by denying them “welfare aid upon which may depend the ability of the families to obtain the very means to subsist — food, shelter, and other necessities of life,” the Court wrote, in apparent recognition of welfare’s importance to sheer human survival.

For similar reasons, the Court invalidated an Arizona law that denied new arrivals publicly funded non-emergency medical care until they had lived in the county for a full year. In Memorial Hospital v. Maricopa County, the Court applied its precedent in Shapiro and held that it is “clear that medical care is as much ‘a basic necessity of life’ to an indigent as welfare assistance.”

The high-water mark of the Court’s constitutional protections for the poor came in Goldberg v. Kelly. In that case, the Court held that the poor had property rights to welfare benefits, and such benefits could not be withdrawn without a due process hearing. “From its founding,” the Court held, “the Nation’s basic commitment has been to foster the dignity and wellbeing of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty.”

The Court held that welfare benefits were essential for the poor to realize full citizenship and participation in their communities. “Public assistance . . . is not mere charity, but a means to ‘promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,’” the Court said, tying the provision of welfare to the very preamble of the Constitution.

Goldberg was decided in 1970. Yet the budding constellation of constitutional rights for the poor was already about to roll back. In 1968, Richard Nixon edged out Hubert Humphrey by about 500,000 votes to win the presidency. As luck would have it, Nixon was able to appoint four new Supreme Court justices in just five and a half years in office.

That was enough to halt the momentum toward broader social and economic rights under the Constitution. In Lindsay v. Normet, for example, the new, more conservative Supreme Court rejected a constitutional challenge against Oregon’s state eviction law, ruling that the Constitution provided no guarantee of decent housing. “[T]he Constitution does not provide judicial remedies for every social and economic ill,” the Court held. “We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality[.]”

The decisive turning point came in the 1973 case San Antonio v. Rodriguez. There, the Court rejected a constitutional challenge to grave funding disparities in Texas’s school financing system, where per-pupil expenditures were significantly higher in wealthy districts than poorer districts. The Court rejected the argument that this system discriminated against the poor, and rejected the notion that education is a fundamental right under the Constitution.

The Court was troubled by the unstoppable implications of calling education a fundamental right. “How, for instance,” the Court asked, “is education to be distinguished from the significant personal interests in the basics of decent food and shelter?”

A different Court might have followed that train of logic to decide that, yes indeed, all of the above are constitutionally-protected rights. Anyone who is deprived an education, housing, food, or shelter has been denied full citizenship and equal protection under the law.

But the lesson here is that elections have consequences. Had Humphrey eked out a half million more votes in a few key states in 1968, we could be living under a very different set of constitutional interpretations today. “It is not too speculative to suggest,” Sunstein writes, “that if Humphrey had been elected, aspects of the second bill would have been a solid part of the constitutional landscape.”

A Humphrey-inflected Court could have pieced together a mosaic of decisions like Edwards, Shapiro, and Goldberg to recognize a right to the “basic necessities of life”—like healthcare, a non-poverty income, decent housing, and sustenance—flowing from the Constitution’s guarantees of citizenship and equal protection, and its commitment to “foster the dignity and wellbeing of all persons within its borders.” Those decisions had all the makings of building blocks for something much bigger.

Instead, that unfinished constitutional project has largely languished in a jurisprudential no-man’s-land under nearly half a century of conservative dominance on the Supreme Court. But not entirely. In the 1982 case Plyler v. Doe, Justice William Brennan cobbled together a Supreme Court majority to hold that undocumented immigrant children have a right to public education. And in 1996, Justice Ruth Bader Ginsburg wrote for the Court in M.L.B. v. S.L.J. holding that the Constitution prevents states from denying an appeal from an order terminating a parent’s custody rights to parents too poor to pay a court fee.

These decisions are still out there. They have been neglected, but not reversed. Progressives should pick them up to be resurrected for another day, perhaps far in the future, when the Court is more amenable to expanding the constitutional rights of the poor. After all, conservatives and libertarians have long been at work rehabilitating a long-abandoned line of cases that would do the opposite, enhancing the rights and power of the wealthy and corporations.

Absent a major act of political hardball, the project of incorporating FDR’s Second Bill of Rights into constitutional law will likely remain frozen in time for years, if not decades. But old theories of constitutional law never truly fade away. They hibernate, waiting for the moral spirit of the times to swing their way.

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