William Voegeli has an interesting article in the National Review, “Why Liberalism Is Dangerous.” The beginning is somewhat obscure as Voegeli responds to criticism of his book by Michael Lind, which itself is based on a review of Voegeli’s book by George Will. However, Voegeli’s article becomes much more readable as he explains his book’s arguments. His second point explores how Roosevelt cloaked his social democratic endeavors in the language of the founders and how such a broadening of rights actually erodes constitutional rights:
Lind’s insistence on the New Deal’s adaptive fealty to the natural rights of the American Founding rests on the perception of a guileless Franklin Roosevelt, a quality undetected by the overwhelming majority of FDR’s critics and admirers. This willed credulity allows Lind to declare that if FDR said his purpose was to preserve the freedoms that animated the Founding, it’s simply not possible that he had anything else up his sleeve. This argument leaves no room for the possibility, advanced by Sidney Milkis of the University of Virginia, that FDR gave “legitimacy to progressive principles by embedding them in the language of constitutionalism and interpreting them as an expansion rather than a subversion of the natural rights tradition.” Roosevelt agreed with Jefferson and Madison, but only in the sense that Roosevelt insisted Jefferson and Madison agreed with him, that the Founding was a proto–New Deal.
In 1932, FDR stated that under the social contract laid out in the Declaration of Independence, “rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights. The task of statesmanship has always been the re-definition of these rights in terms of a changing and growing social order.” Unlike the rights described in the Declaration, however, there is nothing natural or inalienable about the ones described by FDR: They’re not yours to begin with, and statesmen and historical changes can always alter, augment, or rescind them.
By 1944, the social order had changed and grown enough for the statesman Roosevelt to explicitly redefine Americans’ rights to include jobs, housing, medical care, education — in short, a “Second Bill of Rights,” all of which “spell security.” That can’t be the last word, however; the prospect of future changes in the social order causes FDR to urge the recognition of “these and similar rights.” The governmental right to discover new rights could, for instance, someday lead to the development endorsed by FDR’s National Public Resources Board in 1943, when it called for recognizing the right to “rest, recreation and adventure.”
Who among us would disdain citizenship in that Club Med polity where safaris and sea cruises are guaranteed as a matter of right, where we might awaken any day to find that the changing social order has left us yet another shiny new entitlement in the driveway? The problem is that it turns out to be impossible to elevate every social-policy goal to a right without reducing every right to just one more policy goal. In 1994, the Clinton Department of Housing and Urban Development’s (HUD) enforcement of the Fair Housing Act was so zealous that it demanded that groups opposed to new homeless shelters or drug-treatment facilities in their neighborhoods turn over to federal investigators (who were seeking evidence of discriminatory motives or attitudes) every article, flier, or letter to the editor their leaders had written, as well as the minutes of every public meeting they addressed. The HUD assistant secretary called upon to defend this thuggery compressed six decades of liberal rhetoric into a single op-ed, which explained how the department had to “walk a tightrope between free speech and fair housing. We are ever mindful of the need to maintain the proper balance between these rights.”
The HUD quotation exemplifies the danger of elevating public policy to the level of constitutional rights—it flattens out our legal landscape. The American regime benefits immensely from having a hierarchical system of law, with the constitution as the supreme written law of the land, but such annoys leftists who treasure other goals much more than the classical liberal values found in a document of a less socialist age.