Thanks to Randy Barnett, and assorted emailers, for excellent questions and comments about constitutive commitments and FDR’s Second Bill of Rights. Constitutive commitments first: They’re not part of the formal constitution and they’re certainly not for judicial enforcement. They nonetheless matter, because they have sufficiently wide and deep political support that they’re effectively binding — unless and until there’s a major transformation in public values.
It would be nice to have a clear sense of necessary and sufficient conditions for constitutive commitments, but lacking these, let’s make a rough first cut: A constitutive commitment is in place if over a significant period of time, a presidential candidate could not seriously question that commitment without essentially disqualifying himself. This means that the commitment must have both wide and deep support (and not just among academics, elites, or the media; a strong political majority is needed). We can imagine hard intermediate cases and the definition leaves ambiguities; but the prohibition on racial discrimination in employment, the antitrust laws, and some kind of social security program are evident examples — and so too, I think, with a ban on the nationalization of industries and on federal taxes above a certain rate (eg Kennedy-era levels). Any nation will have some constitutive commitments that some reasonable people will reject; and reasonable people sometimes get those commitments to change over time.
On the sense in which FDR meant his Second Bill to contain “rights”: He wasn’t much of a theorist (Trotsky famously criticized him for just that reason; “Your President abhors ‘systems’ and ‘generalities'”), and he saw (positive, in the sense of legally protected) rights as instruments for protecting the most important human interests. Randy asks whether the Second Bill should be seen as protecting “natural rights.” To say the least, the natural rights tradition has multiple strands; a good contemporary version is elaborated by Amartya Sen (see his Development As Freedom). A possible position: If we believe that human beings have certain rights by virtue of their humanity, it’s plausible to say that those rights include a decent chance to achieve well-being by their own lights and also a minimal level of security if, for one or another reason (eg disability, illness, atrocious luck), that chance is not enough. Roosevelt’s focus was on decent opportunities and minimal security, and while his Second Bill of Rights was an innovation, he can claim clear antecedents in Montesquieu, Blackstone, and even Madison.
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