America's Second Bill of Rights
Extra Security or Slow, Steady Demise of the People's Freedom?
While researching my article “Treason, Sedition, Insurrection — Walking a Fine Line,” I came across a curious thing.
There is a “second” bill of rights. No lie.
The difference is that unlike the original Bill of Rights (the first ten amendments to the Constitution ratified in 1791), this second bill of rights (1944) “was proposed not to amend the Constitution, but rather as a political challenge, encouraging Congress to draft legislation to achieve these aspirations” (Historic Documents: The Economic Bill of Rights). Curious.
Purpose and Importance of the Original Bill of Rights — Laying a Foundation
Why did the Founding Fathers include a Bill of Rights as part of the Constitution? Not all of them were on board. In fact, after months of deliberations culminating in the completion of the Constitution, delegate George Mason of Virginia proposed adding a bill of rights and was unanimously rejected. Some delegates argued that most state constitutions had a bill of rights which would suffice at that level. On the signing of the Constitution, Mason and two other delegates refused to sign because of a lack of a bill of rights. Once signed and the ratification debates began, the bill of rights issue took center stage and became a condition of ratification (Eight Basic Facts About the Bill of Rights).
In Antifederalist 84 - On the Lack of a Bill of Rights, author “Brutus” explains how the mutual interests of people led to the formation of societies and that the protection and defense of those interests necessitated instituting government. He writes:
The mutual wants of men at first dictated the propriety of forming societies: and when they were established, protection and defense pointed out the necessity of instituting government. In a state of nature every individual pursues his own interest; in this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to the views and designs of another; thus the weak were a prey to the strong, the simple and unwary were subject to impositions from those who were more crafty and designing. In this state of things, every individual was insecure; common interest, therefore, directed that a government should be established, in which the force of the whole community should be collected, and under such directions, as to protect and defend every one who composed it. The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order that what remained should be preserved (The Federalist and Antifederalist Papers, 552).
People tend to focus on the goal of “the common good” but give little notice to the all important foundation of “common consent.” I am reminded of the oft-used statement for why officials institute a law, policy, etc., and that is “We are doing this so that X never happens again!!!!!!” As noble as that statement is, it is completely unrealistic.
First, it is an absolute statement that cannot be achieved because human nature is involved. “Never happens again” can be a goal toward doing something better or getting something more right, just as the Constitution was created the way it was with the goal of achieving a “more perfect” not “a perfect” union. The idea was to use as minimal national (federal) government intrusion as possible to provide a base of security common to all. Under that, the states and localities could operate as they saw fit within their communities.
Government, ideally, is a necessary evil. Some semblance of order and process is needed, but the goal is to be as minimalist as possible upon the intrusion of the individual liberties of the People. The problem lies in the inescapable fact that power is inextricably and inescapably involved, and a thirst (often a greed) for power always lurks, looking for ways to grow. Once obtained, power is not willingly or easily relinquished (I often think of the movie The Exorcism here).
The solution? The mechanism of checks and balances to avoid any one person or group from becoming too powerful and, therefore, tyrannical. The challenge lies with the individual to practice restraint, grace, and to follow a strong moral compass. Without these qualities, the leviathan called Power cannot be checked let alone restrained.
The central purpose of the Bill of Rights was to safeguard individual liberty, to spell out clearly what government was not allowed to do in order to protect that liberty, but it is a slippery slope. Over time and generations, it becomes a death-of-a-thousand-cuts situation where the body is the People and the blood drain is liberty ending in the trap of tyranny, all under the virtue-signaling banner of “for the common good,” whether it truly is or not.
Human nature, for all humanity’s advances, remains what it is, which is why the Founders wrote the Constitution (and the Bill of Rights and the all-important amendment process) as a way to strive for a more perfect union.
“Brutus” goes on:
…in forming a government on its true principles, the foundation should be laid…by expressly reserving to the people such of their essential rights as are not necessary to be parted with. The same reasons which at first induced mankind to associate and institute government, will operate to influence them to observe this precaution. If they had been disposed to conform themselves to the rule of immutable righteousness, government would not have been requisite. It was because one part exercised fraud, oppression and violence, on the other, that men came together, and agreed that certain rules should be formed to regulate the conduct of all, and the power of the whole community lodged in the hands of rulers to enforce an obedience to them. But rulers have the same propensities as other men; they are as likely to use the power with which they are vested, for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries (552-3).
As “Brutus” states, if man were “immutably righteous,” there would be no need to institute government because every person would conduct himself morally and justly, but because this is not the case, there needed to be a way to level the playing field to better insure general proper conduct and a redress of abuses. So the Founders looked at human nature and the history of oppression by individuals and by governments, striving to get at the basic rights common to all — rights that would not pit categories of classes within society against each other breeding constant friction and discord, but rather rights that covered all regardless of station.
I have to insert a critical note here. There are some who argue against the Constitution as being a rich, white man’s document, failing to understand (or recognize) that the Founders had to contend with the cultural conditions of their time in order to gain full support by 13 colonies — they needed all of them to even have a chance against Great Britain’s king. Proof of their foresight and understanding that a time would come where issues like slavery and even women’s rights would need to be addressed, bore out in history. They created the amendment process for just such eventualities, designed to correct these problems during times where the climate was more favorable to do so.
Additionally, they understood that some issues were best addressed at more local levels than at federal levels, again, recognizing that states — while held together by similarities — contained a myriad of unique characteristics and points of view that had to be recognized, respected, and honored. It could not be presumed that all states would agree on certain issues. This is why ratification of a federal amendment comes from the state level and is an arduous process. As with the Electoral College, each state has a voice.
The issue continues to be human nature. A desire for power leveraged through appealing to the emotions of the People in order to coax a little more liberty away from them, increases the power of those few in government for as long as possible. Conditions will never be perfect, but can be made more perfect. Establishing a just government (and laws) lies in how much individual liberty one is comfortable relinquishing or entrusting to government (federal, state, local) in exchange for a sense of personal security.
Take a moment and ask yourself this question:
Am I going along with this latest policy, side, proposal, law (whatever) because it is right and proper that is should be taken care of at that governmental level…OR…am I going along because I’m tired and it’s just easier?
Let me press you further in your soul-searching with this question:
Is the thing I’m wishing to be protected from something that I can (and should) do myself, or do I really need the government (or someone else) to do it for me?
Once you enlist someone else, you have to trust they will do the right thing in your best interest, not in their own. In your daily life, you see you have a need, research who to enlist to help you solve that need, check reviews or talk to people who have used that person’s services, and make your decision based on your own legwork. The further removed you are from the one you are placing your trust in, the greater the risk of diluting and even breaking that trust.
Think about the self-reliance of the generation of the Founding Fathers even the generations up to and just after WWII. People learned how to do many things for themselves, and if they couldn’t, family was there to lend a hand. If family couldn’t quite do it, then the church and the community helped. It was all very local, very intimate, among people who knew each other well and who had a vested interested in the success and well-being of their fellow community members because these members likewise contributed to the success and health of the community. That is not to say there weren’t power-hungry louts at this very local level, but everyone knew them. Bearing the above questions in mind, let’s look at this second bill of rights.
The Difference is in the Adjectives (Economic, Political, Industrial…and more)
Franklin Delano Roosevelt based his bill of rights on the premise that America had become so big that the original Bill of Rights could no longer accommodate for a high standard of living. He argued along the “never happen again” premise that not one person “whether it be one-third or one-fifth or one-tenth — is ill-fed, ill-clothed, ill-housed, and insecure.” While noble, it is unrealistic. There will always be those as he described as long as there will always be those who take advantage, and this does not exclude government.
Think about this: regardless of financial status, insecurity (about many things) is a feeling common to all. It never goes away completely because life happens and things change often. Living this way, with this as the constant focus is unproductive and anathema to the pursuit of happiness, whatever that looks like, for the individual. Then there are those who have realized that because of government interventions, it’s “better” or easier to choose such circumstances as this homeless man in San Francisco recently explained.
Not too many years ago, the average annual welfare payout per government-defined poor family was approximately $65,000. That amount has increased to $76,400 per year. Depending on what is included in arriving at a per family total, in “2018, the total combined resources of the average family defined as poor by the government came to $83,300 per year. Earnings plus cash aid, food and housing benefits, and medical care alone came to more than $55,900 — more than twice the official poverty level for that family.” At $83,300, that is an average middle class salary for a job with a college education (bachelor’s/master’s). “This total government support system consists of government spending on cash, food, housing, medical care, direct social services, and public education…Expanding government benefits and support to over $76,400 per family while scrapping work requirements would trap many families in costly and harmful dependence.” Given this information, it’s hard to argue with the homeless man from San Francisco.
FDR further pressed:
This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights — among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.
As our nation has grown in size and stature, however — as our industrial economy has expanded — these political rights proved inadequate to assure us equality in the pursuit of happiness.
His wording here bears careful scrutiny. The addition of “political” to the phrase “certain inalienable political rights” is problematic and already signals his set-up for what he proposes by making unalienable, God-given rights political and thereby starting to transition thinking away from God-given to Government-given. His reason is that a developed and dominant industrial economy needed a new bill of rights — implying that the original Bill of Rights was better suited to the once more prevalent rural, agrarian economy.
But think about this. People are people no matter what their background, station, or location. That is the fundamental truth the Founding Fathers worked from — humanity, the People, not the industrial city people or the pastoral rural people, or the filthy rich people or the dirt poor people. They started with one truth that is common to all — just people (no limiting adjectives), created by God as equal and deserving to live their lives free — no matter their own choices or the circumstances thrust upon them.
The Declaration of Independence was very clear on how these rights are derived as those no man can violate, or for that matter diminish:
We hold these truths to be self-evident that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness — that to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed…
Government is instituted to secure, preserve, and protect these basic rights, but only by consent of the People, not by the consent of the government official. End of story. It is up to the individual as to how they live their lives and pursue their happiness, or not.
God created mankind on equal footing. This is not to say that there are not injustices and inequalities in life, or that there are those who cannot fend for themselves, but whose responsibility is it? Who do I entrust to make sure I am treated equally? I have the right to pursue any job I want (or need). Necessity and circumstances may dictate that I take something not to my liking but that still pays the bills and puts food on the table. My individual liberty, God-given, not Government-given, allows me to decide to work toward obtaining a better job so that I can achieve the things I deem for my happiness, or to take a job that may not pay as well but makes me happy.
Regardless, ask yourself yet another soul-probing question:
Is my happiness for me to determine and for me to choose those who can help me achieve my goal, OR is it the government’s responsibility/duty to first, make a judgment about me and what my happiness should be (quantitatively) and then to define it for me and to pay me what they think I should get to take that path?
In short: Whose responsibility is my happiness?
What FDR begins here is the erosion of rugged individualism, the erosion of the family and the church and the community in favor of the larger, more remote federal government and its agencies as the far removed, faceless, socially disconnected Nanny of the People. FDR argues that the Bill of Rights are political and cover life and liberty but are woefully “inadequate to assure us equality in the pursuit of happiness.” Equality, due to human nature, cannot be assured 100%, no matter how many rules, decrees, or laws are put in place. How one personally deals with it is the key, and the redress of it might better be served at as local a level as possible where people are more known to each other, and therefore more connected and more invested.
FDR’s Second Bill of (Economic) Rights — More Adjectives
The premise of FDR’s Second Bill of Rights is this, noting that he’s turned straightforward self-evident truths into economic truths: “In our day these economic truths have become accepted as self-evident. 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 focus of his appeal is a compartmentalization of the People based on certain characteristics. Even though he says “regardless,” history has shown that the criteria for these economic programs does the exact opposite focusing very squarely on just those characteristics. Look up qualification criteria for any kind of government aid.
As you read these rights, you have the advantage of history having played out over 80 years. See how we shape up today in light of these, all of which FDR claims “spell security” [NOTE: I have “highlighted” adjectives for a reason]:
The right to a useful and remunerative job in the industries or farms or mines of the nation.
The right to earn enough to provide adequate food and clothing and recreation.
The right of every farmer to raise and sell his products at a return which will give him and his family a decent living.
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home and abroad.
The right of every family to have a decent home.
The right to adequate medical care and the opportunity to achieve and enjoy good health.
The right to adequate protection from economic fears of old age, sickness, accident, and unemployment.
The right to a good education.
Questions that come to mind include, but are by no means limited to:
Who determines (and quantifies) what is: useful, remunerative, enough, adequate, unfair, decent, and good?
What happens if all do not agree with the measures determined for the above adjectives (how does one avoid any perceived unfairness/disenfranchisement in these measures)?
What food, clothing and recreation is considered to be adequate and by whom? How much is adequate — for each?
What is considered a decent living for a farmer given the high cost of farming/ranching?
Are farmers paid to dump milk, cull livestock, or not grow anything at all?
How is unfair competition defined, and who determines what’s unfair?
Whose responsibility is it to level the playing field for businesses, large and small, to eliminate monopolies? Some of us recall the break up of “Ma Bell” back in the day, so what about today’s big tech company, for example?
What constitutes a decent home, how is the criteria derived, and who decides?
What comprises adequate health care and how does one know they have achieved “good health”?
How exactly is one protected from fearing conditions and situations such as old age, sickness, accident, and unemployment?
What constitutes a good education and who decides?
These are just a handful of questions each of these economic rights raises. You may very well come up with several of your own. Unlike life, liberty and the pursuit of happiness, these economic rights are not unalienable. They are not God-given. Instead, these rights are dependent upon someone (actually several someones) determining definitions and quantities in an effort to (theoretically) accommodate every person because isn’t the goal fairness for all, or to re-quote FDR, to make sure that not one person “whether it be one-third or one-fifth or one-tenth — is ill-fed, ill-clothed, ill-housed, and insecure”? Through FDR’s Bill of Economic Rights, the arbiter becomes government, often through a dizzying myriad of agencies of unelected officials.
The original Bill of Rights is actually very simple and straightforward — despite how much entities fight to reinterpret and restrict them. In those rights regarding crimes and trials, they are somewhat dependent on someone else but someone easily identifiable, predominantly judges, to determine parameters (Amendments 4, 5, 6, 7 and 8):
The People are free to speak, write (press, written word, not just reporters as in The Press), assemble, practice religion, and to petition the government for a redress of grievances.
The People have the right to keep and bear arms. Period.
The People do not have to allow troops to stay in their homes if they don’t want them there.
The People have the right to be secure in their persons and property. They cannot be unreasonably searched or their property seized. No warrant can be issued without probable cause, and that warrant must describe the place to be searched and the persons or things to be seized. Transparency.
The People cannot be tried twice for the same crime or be a witness against themselves (self-incrimination), or be “deprived of [their] life, liberty, or property without due process of the law. The private property of the People cannot be taken for public use without just compensation (eminent domain).
The People have the right to a speedy and public trial by an impartial jury, to be told the nature and cause of the crime they are accused of, and to be confronted by their accusor(s).
The People have the right to a trial by jury.
The People shall not be subjected to excessive bail, fines, or cruel and unusual punishment.
The list of certain rights in the Constitution shall not be interpreted in a way that denies or diminishes other rights that the People hold.
Any powers not given to the United States (federal level) through the Constitution, nor any prohibited by the Constitution to the states are powers reserved to the states or to the People themselves.
The beauty of the Bill of Rights is that they do not require any classification or compartmentalization of people, so no one is left out. Yes, some will continue to argue that old, white men wrote it for old white men. However, the fact that there is no language within the Constitution that specifies (“men” also refers to mankind of which women/races can be included), it serves as a universal document covering all — if not culturally at the time of its writing, then later as history has proven. Again, I highlighted the adjectives for comparison. Notice how the adjectives used would generally be decided by a judge, keeping it within a very slender, specific, transparent, and manageable scope.
What’s the Result?
It is often argued that the Constitution and the Bill of Rights are solely about what the Government is NOT allowed to do, that is it negative and restrictive — a wagging finger. Such criticism reveals the sense of unhappiness of those who seek to gain and hold power because that power is restricted. It is that restriction that provides the People with a foundation of security. FDR sought to create what he saw as “positive” rights, but under the auspices (help and support) of government agencies, and he used ambiguous adjectives, the definition and measurability of which would be dependent upon many, many faceless government agents. God cannot give you these rights, but Uncle Sam can.
How has that been working out for the People?
Think about all the pitches you’ve encountered in everyday life that appeal to your sense of security. ADJECTIVES!! People want to feel safe and secure, and this takes many forms. Over time, self-reliance becomes partial or total reliance on someone else (often far away) for your security.
Ask yourself: How well do I know my Congressman or Senator compared to my local policeman, doctor, banker, or car mechanic, for example? The problem comes back to trust, which is developed through rapport over time by continuous just (or trustworthy) acts. There must be trust in the one providing the security, and if there is even one kernel of doubt in that trust, then you are back to square one — not feeling very secure. What to do then? The reality is that life itself is a never-ending cycle of various levels of security (or insecurity). It comes down to your own self-reliance as well as who beyond you has your best interests at heart, and who pays for all of this promised security.
Government budgets for economic rights programs are funded primarily through the taxpayer (the People). So, while the People are providing support to their fellow man, the Government is the convener, the proxy, the middle man, distributing (or rather re-distributing) the support monetarily as they see fit, often attached with a myriad of requirements, conditions, and hoops to jump through. Support is taken away from the individual, the church, the community — traditional local support for those who struggle — and it is put in a national pool to go anywhere.
So, while FDR’s Bill of Economic Rights never went through the arduous amendment process for discussion and ratification by all states in the Union, his political challenge to Congress to draft legislation based on these rights was heard loud and clear. If you look at where we are today, just perusing the list of government agencies alone, you start to see the pattern. Many of them link with FDR’s list. Through decades of federal legislation, circumventing the people (through the amendment process), his bill of economic rights may not have been ratified, but it has been implemented. This raises the question of whether or not FDR’s proposed economic rights wouldn't have been better off created and developed at the state or even more local levels, putting the decisions more firmly in the hands of the People of those communities.
As you go about your daily business and encounter opportunities for increased security, think about the questions raised here. Ask yourself what kind of security is being pitched, who is it you’re being asked to trust with your security, and at what price (both monetarily and in terms of giving away freedom). What are the adjectives being used to appeal to me (my emotions) to accept this kind of security?
And then ask yourself if that price is truly worth it.
Additional Information & Resources
Expansive Rights: FDR’s Proposed “Economic” Bill of Rights Memorialized in the International Covenant on Economic, Social, and Cultural Rights, But with Little Impact in the United States (Patrick J. Austin)
“The FDR Myth” - (Thomas DiLorenzo presentation)
The National Industrial Recovery Act (1933) - summary & transcript
CRS Report: Welfare Spending: The Largest item in the Federal Budget (2020)
Largest Welfare Increase in U. S. History Will Boost Government Support to $75,400 per Poor Family (Robert Rector & Jamie Hall)
Public Welfare Expenditures — State & Local Backgrounds & Per Average Taxpayer (varies by state)
Farm Subsidy Primer - explains 2014 Farm Bill
Examining America’s Farm Bill Problem - farm bill & food stamps (Scott Lincicome)