FDR's unfinished revolution

Today, constitutional amendments are like Hallmark cards -- there's one for every occasion: gay marriage, flag burning, prayer in schools, balanced budgets, and the list goes on and on. Why didn't Roosevelt simply propose constitutional amendments that would have guaranteed the right to a job, to an education, to healthcare?

There's not much evidence of what Roosevelt was thinking. But I have some speculations. First, he thought that if great things were going to be done to help people, the democratic process was going to be how it was going to happen. He just didn't think it was very likely the courts would be much involved in that. This was before the Warren court, and before Brown vs. Board of Education.

He was skeptical that the judges would be willing to do this. But there was also probably the thought that the judges wouldn't be able to do this. He was a pretty pragmatic guy. The notion that the judges could guarantee a right to an adequate job -- I think he would have been very puzzled by that. He was also, I remind you, a democrat with a small "d" perhaps more than anything else. So even for rights that he most prized, he was hopeful that the democratic process, not the judiciary, would vindicate those rights.

And yet, to the extent that the rights articulated in the Second Bill have been implemented, it was largely the judiciary -- and, more specifically, Earl Warren's Supreme Court -- that did it.

Roosevelt was much more a fan of judicial restraint than of something like what the Warren court ended up doing. We can't put Roosevelt in a time machine and ask Roosevelt what he'd think about the Warren court. I'm sure he'd be sympathetic to their goals. But there's a big difference between what Roosevelt insisted on, which was the expression of the will of the people, and what many liberals in the '60s and '70s thought, which was that the judiciary would be the repository for democratic values.

And the justices did start going in Roosevelt's direction [in the 1960s]. This is how things often happen. The political commitments of a president in one generation became the constitutional commitments of the Supreme Court of the next generation. We can see that a little bit in Reagan's appointees [to the Supreme Court] from the mid and early '80s. They are, to some extent, carrying forward Reagan's constitutional vision now. So the justices on the Warren court, many of them, were either nominees of Roosevelt's or nominees who came to adulthood under his presidency. And they went forward, to an amazing degree, with what he cared about.

How close did they get?

Not very close to all of what Roosevelt wanted. But if Nixon had lost to Humphrey, there would be a lot of constitutional protection for people at the bottom. What we'd surely have is very strong procedural protections if people who are entitled to minimum guarantees and need them are being denied them. And we're not so far away from that, actually, but they'd be stronger. And it's not at all inconceivable that the court would have held effectively that everyone has a right to a decent minimum. I don't think we came close to the court saying there's a right to a job. But the court was edging up to the idea that everybody had a right to food, shelter and the minimum you need to survive.

But there was still a huge leap to make -- the leap from saying the government has to be fair when it provides benefits and saying what benefits it must provide in the first place.

Next Page: If Nixon's appointees killed progress on the Second Bill of Rights, what can we expect if Bush wins?

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