The Second Bill of Rights: A Reconsideration

Abstract

This paper revisits the so-called Second Bill of Rights, proposed in passing in Franklin Delano Roosevelt's State of the Union address for 1944. Contrary to a well-known earlier appraisal of the speech that elevated it to far more significance than it had in its time, the paper argues that the second bill for economic and social entitlements matters primarily because it marked the death-knell of hopes for the reform of American market capitalism. It was not just that it came at the end of a war that hardly reached American soil, and thus confirmed the country's divergence from the European path to the welfare state, nor that the American war economy had ratified the unique role of business interests in circumventing the otherwise transatlantically victorious planning state. Rather, with its late timing the speech simultaneously memorialized and truncated the egalitarian and institutionalist approaches to market relations that had made the earlier phases of the New Deal genuinely significant. The paper ends its reconsideration of the speech by examining the politics of its neoliberal reclamation by Cass Sunstein, who shared neither the egalitarian nor the institutionalist aspirations of the New Deal, but could rally to a second bill because it anticipated a politics of minimalist judicial enforcement he was then separately championing.