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[Cass Sunstein (guest-blogging), June 23, 2004 at 11:49am] Trackbacks
Holmes' Haiku

Ok, it's not quite a haiku. But as sentences in Supreme Court opinions go, it's not all that far from that: "Property, a creation of law, does not arise from value, although exchangeable -- a matter of fact." That's from Holmes' 1918 opinion in INS v. AP. (By the way, we're still talking about FDR and his Second Bill of Rights. Also by the way, thanks to Eugene for having me, and also to Randy Barnett for his kind words; how well I remember our fun and great discussions when we lived, more or less, next door to one another here at Chicago.)

What Holmes is saying here is that even though property is exchangeable, it doesn't arise from value; it's a creation of law. And that's simply a matter of fact. With these sixteen words, Holmes captured much of the legal realist critique of laissez-faire -- and a key part of legal thinking between 1890 and 1930. A system of free markets isn't law-free; it depends on law. Property rights, as we enjoy and live them, are a creation of law; they don't predate law.

From his first national campaign, Roosevelt made the same point, though less elegantly than Holmes. In 1932, he emphasized "that the exercise of . . . property rights might so interfere with the rights of the individual that the government, without whose assistance the property rights could not exist, must intervene, not to destroy individualism but to protect it." It's a mouthful, but here is the heart of his proposal for a Second Bill of Rights, twelve years before he made the formal proposal. In that same speech Roosevelt called for a "redefinition of rights," including an "economic declaration of rights," which would recognize that "every man has a right to live."

Roosevelt insisted that no one is really opposed to "government intervention." Those who complain about "government" depend on it every day of every year. Their "property rights could not exist" without its assistance (which costs a lot of money). And he believed that further "intervention," designed to protect decent opportunities (recall the right to education and the right to be free from monopoly) and minimal security, could be necessary to protect not equality but "individualism."

What Roosevelt did was to unsettle the distinction between "negative rights" and "positive rights." He insisted that the right to private property and freedom of contract were, in practical terms, created by government. This isn't at all a criticism of property rights or freedom of contract; Roosevelt strongly believed in both of these. (He despised socialism.) But he thought that any judgment about rights should be based on a sense of what would make human lives go well. In his words, "The thing that matters in any industrial system is what it does actually to human beings . . ." (This from our wheelchair-bound president, Reagan's stylistic role model, who liked to end meetings by saying, "I'm sorry, I have to run.")

Now it might be possible to reject some or all of the Second Bill of Rights on various grounds. (I'll be getting to that.) But it isn't sensible to reject the Second Bill on the ground that rights, to qualify as such, call for government's abstinence rather than government's presence. Holmes' haiku helps to explain why.