A 21st Century Economic Bill of Rights: A Scorecard and a Proposal

A 21st Century Economic Bill of Rights: A Scorecard and a Proposal

by Gertrude Schaffner Goldberg and Sheila D. Collins

In his State of the Union message to Congress in 1944, President Franklin D. Roosevelt called for a Second or Economic Bill of Rights:

This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights… As our Nation has grown in size and stature, however — as our industrial economy expanded — these political rights proved inadequate to assure us equality in the pursuit of happiness.  We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men,’ they are the stuff of which dictatorships are made.  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.

In alluding to dictatorship, FDR no doubt had in mind the terrible economic conditions in post-World War I Germany that contributed to the rise of Hitler and National Socialism.  Lack of economic rights, moreover, had left the United States powerless to cope with a Great Depression and on the brink of economic and political collapse. Roosevelt’s New Deal had already extended some economic rights to the American people: some protection against unemployment and poverty in old age, some guarantee of collective bargaining rights, and minimal wage and working hour standards.

Among the new rights FDR included in his Economic Bill of Rights were:  the right to a useful and remunerative job; the right to earn enough to provide adequate food and clothing and recreation; the right of every family to a decent home; the right to adequate medical care and the opportunity to achieve and enjoy good health; the right to adequate protection from the economic fears of old age, sickness, accident, and unemployment; and the right to a good education.

The Interdependence of Economic and Political Rights

The interdependence of economic, civil and political rights is an outstanding characteristic of Roosevelt’s Second Bill of Rights:  He was not the first to recognize their interdependence: “… true individual freedom cannot exist without economic security and independence.”  Tom Paine’s Rights of Man included both, and the British economic historian R.H. Tawney held that, “a large measure of equality, so far from being inimical to liberty, is essential to it.”[1]    Though he was not the first to recognize their interdependence, Rooseveltwas not a social philosopher or political activist, but a head of state who charged his legislature with implementing them.

In leading the Commission that framed the Universal Declaration of Human Rights, Eleanor Roosevelt reflected her husband’s formulation.  “Freedom without bread,” she held, has little meaning.[2] This understanding has more recently been articulated by Nobel Prize economist, Amartya Sen,[3]  who argued that political freedoms are contingent on an individual’s ability to utilize economic resources as well as on their level of education, health care and so on.  By the same token, their ability to use economic resources is contingent on their ability to enjoy good health, productive employment, good education and transparency in their dealings with one another.  Unlike the first eight articles in our Bill of Rights which derive from so-called “natural rights” and are framed as prohibitions on government activity, Roosevelt’s economic rights are framed as positive rights.  In order to be fulfilled, they require positive government action.

Continuity with Traditional American Ideals

The second outstanding characteristic  of FDR’s approach was his  genius for connecting new values to cherished, traditional ideals—for example in his stating that the political rights guaranteed by the U.S. Constitution “proved inadequate to assure us equality in the pursuit of happiness.” Earlier, in a Fireside Chat in November 1934, this weaving of old and new was apparent:  “I prefer and am sure you prefer that broader definition of liberty under which  we are moving forward to greater freedom, to greater security for the average man [sic]  than he has ever known before in the history of America.”[4]  The call for “Freedom from Want” also connected economic rights with liberty and linked new ideas with traditional values. Today we desperately need new, progressive ideas and FDR’s genius for justifying them.

Since Roosevelt articulated these rights, these and many more have been adopted as aspirational human rights by the international community through various U.N. treaties and covenants such as the Universal Declaration of Human Rights. FDR would have been pleased with the universality of the United Nations’ Declaration.  In his “Four Freedoms” speech he had followed the naming of the freedoms with the reprise, “Everywhere [or anywhere] in the world.”[5]

By contrast, Ronald Reagan viewed economic rights as inimical to freedom, as apparently do current Republican presidential candidates.  Reagan warned, in 1961, that if Medicare were enacted, other similar programs would follow and   “We …would spend our sunset years telling our children and our children’s children, what it once was like in America when men were free.”[6]  Yes, free to work until they dropped, free to be dependent in old age on their relatives, often hard-pressed themselves, free to go to the poorhouse, itself a kind of prison, and free to go without medical care.

What is the relationship of economic equality to the Economic Bill of Rights? It is not a guarantee of economic equality but rather of certain economic rights previously denied to large sectors of the population. Thus, if enacted, the Economic Bill of Rights would result in great reductions in economic inequality.  Let’s look briefly at the extent to which the United States has met the substantive provision of some of these rights, for despite the lack of a constitutional guarantee, several of them have been partially achieved by means of congressional legislation and Supreme Court rulings. Changing conditions, however, have led to the need for additional rights. Let us turn first to a discussion of the extent to which Roosevelt’s economic rights have been assured and then to a discussion of what further rights need to be added.

The Right to Useful, Living-Wage Employment

“The right to a useful and remunerative job” was the first of the economic rights proposed by Roosevelt, and in repeating thr  Second Bill of Rights in his 1945 Annual Address to Congress he referred to it as  “the most fundamental, and the one on which the fulfillment of the others in large parts depends.”  It is unlikely that Roosevelt would have proposed a Second Bill of Rights had World War II not shown that this fundamental, keystone right to employment could be achieved. “We have had full employment during the war,” he stated,” because the Government has been ready to buy all the materials of war which the country could produce—amounting to… approximately half our present productive capacity….  “After the war,” he held, “we must achieve a level of demand and purchasing power by private consumers which is sufficiently high to replace wartime Government demands.”  Roosevelt thought the private sector should have the main responsibility, but that government would have to do what private industry couldn’t.  Recognizing the stimulative  effects of social welfare, he held that “an expanded social security program and adequate health and education programs must play essential roles in a program designed to support individual productivity and mass purchasing power.”[7]

How well has this right been achieved?  Unfortunately, although the work ethic amounts to an American creed, the right to useful employment is perhaps the least recognized of the economic rights in legislation.  After Roosevelt’s death the Senate enacted a Full Employment bill in 1945 that echoed FDR’s call for “useful, remunerative work for all,” but the House turned down the employment guarantee the next year.[8]  High unemployment in the 1970s resulted in the brief passage of the Comprehensive Employment and Training Act (CETA), which made it possible to expand the services of state and public agencies as well as nonprofit social services, but the CETA program was repealed in 1982, even though unemployment was then almost 10 percent.   In 1978, Congress passed another employment bill, the Humphrey-Hawkins Full Employment and Balanced Growth Act that set an interim target of 4 percent adult unemployment. However, the legislation was without teeth, and, weak as it was, Congress ignored its own bill.  Consequently employment is left largely to the fluctuations of the private market.  The Federal Reserve is supposed to manage the money supply in such a way as to boost employment, but for too long employment has taken a back seat to Wall Street’s overriding concern about inflation.

Although we have avoided the periodic depressions that marked our history until 1940, we have never assured the right to employment to all who want it. Unemployment is a chronic problem blighting the lives of millions of people even in the best of times.  In 2000, with the lowest unemployment rate in 30 years, there were at any one time, 13 million people who were either officially unemployed, forced to work part-time though they wanted full-time work or wanted work but were not counted officially because they weren’t actively searching.[9]  In October 2015, with an official unemployment rate of 5.0 percent, 19.8 million people, or 12.1 percent of the labor force were not fully employed Official unemployment is half its high point during the  Great Recession, but its reduction is partly a function of reduced labor force participation which is the lowests since the 1970s. Were the  percentage of people 16 and older who are working or actively seeking work the same as just prior to the recession, unemployment would be 7.1 percent   instead of 5.0 percent.[10] African Americans have generally suffered twice as much unemployment as whites in good times and in bad.  What is perceived as a crisis for the general population is the general lot of African Americans.  As disproportionate as is the risk of unemployment, the problem is suffered by millions of white Americans. In fact, the number of unemployed whites was 56 percent  higher than the number of unemployed blacks and  Hispanics combined (October 2015).

FDR didn’t just call for a job; he specified a useful one. Proposals for government job creation like Representative John Conyers’ Humphrey-Hawkins 21st Century Full Employment and Training Act (H.R. 1000) would achieve this criterion because these jobs would improve infrastructure, increase human services, and help to green the economy as well as the fulfillment of employment .

FDR also proposed living wages or, as he put it: “The right to earn enough to provide adequate food and clothing and recreation.” eThe latter, particularly, went beyond bare necessities. The first post-war decades were promising in this regard with average real wages rising yearly by an average of 2.3 percent.[11]  The trend reversed in the 1970s and between the end of that decade and the present, men’s hourly wages fell in all percentiles up to the 60th. Women’s wages rose in all but the lowest percentile but were still lower than men’s in every percentile. [12]   In the late 1990s when unemployment was relatively low, a fourth of US year-round, full-time workers earned less than the three-person poverty level.[13]  Related to this failure is the steep decline in the value of the minimum wage which was 120 percent of the three-person poverty standard when it peaked in 1968.  In 2015 it was equal to only 72 percent of that standard—a particular hardship for women who predominate among minimum-wage workers. Maintaining that no one who works full-time, year-round should have to raise his or her family in poverty, President Barack Obama has called upon Congress to raise the Federal minimum wage for working Americans to  $9 in 2015 and to index it to inflation thereafter.[14] Living-wage campaigns in many cities and initiatives by fast-food and other low-wage workers have raised consciousness of the problem. According to Presidential aspirant  Senator Bernie Sanders, “The current federal minimum wage is starvation pay and must become a living wage. We must increase it to $15 an hour over the next several years.”[15] Front-runner for the Democratic Party nomination Hillary Clinton proposes a federal minimum wage of $12, and believes that we should go further than the federal minimum through state and local efforts and workers organizing and bargaining for higher wages, such as recent efforts in Los Angeles and New York to raise their minimum wage to $15.[16]

The Right to Security in Old Age

Old age security is one of the breakthrough rights of the New Deal, and these were strengthened over the years, moving from narrowly conceived insurance for a  portion of workers to one with near-universal coverage, not only of retired individuals but their dependents and survivors– and, in time the disabled. Old-age poverty has been greatly reduced since the 1940s, but it still remains, even as measured by our inadequate poverty standard.  In 2012, as measured by a very stringent poverty standard of $11,011 a year for one person 65 and older and $13,878 for an elderly couple, the rate was 9.1 percent or nearly four million people.[17] Calculated by relative poverty rates of 40 percent  and 50 percent of the median income, the latter being the lower of two poverty standards in Europe, U.S. elderly poverty in 2010 was 12 percent at the 40 percent level and 20 percent at the 50 percent level– or one in five elderly women and men. The comparable figures in Germany, for example, were less than half the U.S. rate at the lower level and about half at the higher.[18]  Owing to cutbacks in senior nutrition programs and declining economic conditions, nearly 15 percent of Americans over 60 face the threat of hunger.[19]

Together with private pensions the social security system had created a phase of life–retirement–for many more than the privileged few who, in earlier times, both survived into old age and had the means to spend it independently and at leisure.  Retirement is not a biological time of life but a social construction, made possible by public and private pension systems. Already the number of years for benefit receipt has been shortened, and the private pension system is diminished. Only about two-fifths of the labor force are covered at all, and increasing numbers have only defined contribution rather than defined benefit plans, the former being much less safe than the latter.[20]

The Right to Adequate Medical Care

Though they considered it very important, New Dealers stayed clear of health insurance. Given the strength and opposition of the American Medical Association they feared its inclusion would sink old age and unemployment insurance.  The failure of Congress to pass President Truman’s health care plan in 1950 led to private, largely workplace-provided coverage and the growth of a huge health care industry that stands in the way of affordable care. In the 1960s, the Social Security Act added health insurance for the elderly and for certain categories of the poor. Nonetheless, when Barack Obama became president, 47 million Americans were without health insurance.

The Affordable Care Act covers millions more people, but not all, and it removes certain barriers such as pre-existing conditions. However, since it does not significantly reduce the exorbitant cost of US health care—especially the cost of drugs–the possibility of cutback always looms.  Despite the Affordable Care Act, many middle class people face exorbitantly high deductibles and poor people face many more barriers to the enjoyment of good health.  They are more likely to be harmed by environmental factors such as air pollution, lead, unsafe water, the inability to provide good nutrition, hazardous work conditions, increased stress from living day-to-day financially, poorly heated and ventilated housing and deaths from drugs, alcoholism and gunfire.  Moreover, studies of health care provision demonstrate that poor people, and especially poor people of color, routinely receive poorer medical care than do whites.

The Right to a Decent Home

Roosevelt famously called attention to “one-third of a nation, ill-housed….”[21]  Significant portions of the population remain ill-housed or are paying too much of their incomes for shelter, thus curtailing more elastic expenditures like food, clothing, transportation and recreation.  According to the Department of Housing and Urban Development (HUD), close to 13 million low income people spend more than half of their monthly income on rent and/or live in substandard housing that does not meet local health or building codes.[22] The Center for an Urban Future, reports “in the third quarter of 2008, only 10.6 percent of all housing in New York City (NYC) was affordable to people earning the median income for the area.”[23] This is but one instance of the inter-relationships among these rights, for availability of higher- wage jobs and steady employment would reduce the affordability problem, but the wages would have to increase substantially.  For every 100 extremely low income renter households—with incomes below 30 percent of the area median and amounting to no more than $19,180 (still higher than the yearly yield for the minimum wage and the three-person poverty level)– there are just 30 affordable and available units.[24]

Among the New Deal programs was a fledgling public housing program, but it has never been an entitlement for all who meet its income eligibility criteria.  Low income households desperately in need of housing find themselves on years-long waiting lists or ones closed entirely. Households on waiting lists for housing assistance have a median wait time of two years.[25] Many of them experience unstable housing situations, living “doubled up” with family or friends, or in the worst cases suffering bouts of homelessness as they bounce from one untenable housing situation to another.

Homelessness, like many social problems, notably poverty and unemployment is undercounted by official U.S. statistics—in this case, leaving out millions of doubled-up families. Homelessness is partly an affordability and housing supply problem that has too often been treated as a mental health problem.  A joint report by the U.S. Interagency Council on Homelessness, a government agency, and the National Low-Income Housing Coalition, concludes:  “The lack of decent housing affordable to low income households remains a pervasive national issue, affecting every single community across the United States.”[26] Although other New Deal-initiated programs enabled many people of modest incomes to purchase homes, the needs of too many remained and still remain unmet.

The Right to a Good Education 

The fulfillment of this right also depends on the achievement of other ones, like income and housing.  Better off parents have more time to nurture their children’s intellectual growth, the ability to do so and to purchase such props to cognitive development as good child care and preschool education.  As a result, the gap between the achievement of their children and that of middle- and lower-income children grows, thus exacerbating future income inequality.

It’s not all– or perhaps even mostly– a matter of schools, and some research has found initial disparities greater than those after schooling intervenes. Nonetheless, there is clearly disparity in schools, by state, city, school district and even within schools, all favoring the better off or the initially more competent.[27] Sophisticated analysis of test scores by researchers at the Economic Policy Institute (EPI) found that US lower-income children do better, if anything, than their counterparts in other rich nations, but there are proportionately more of them here so that overall test scores are weighted down.[28]

How about access to higher education?    EPI researchers found that among children from high-income families, 74 percent of those who scored high on math tests in eighth grade finished college, compared to 29 percent of those from low-income families who also scored high–a percentage about equal to college completion of children from high-income families who score low on these tests. Lower-scoring children from high-income families are 10 times more likely to finish college than their low-achievement peers from low-income families.  Even when achievement is not the issue, low income is a barrier to higher education.[29]  It will be difficult if not impossible to provide a good education for all so long as 21 percent of children remain in poverty.  The problem of student loans of course exacerbates the income disparities in higher education and is now affecting even the ability of middle class students to get a good higher education.

21st Century Additions

The Economic Bill of Rights was far-reaching, but with the passage of time, the need for new rights has arisen. With failure to assure the economic rights included in FDR’s initiative, one might ask, “why add more?”  The reason, in addition to the importance of the additional rights and the issue of justice, is political. The more rights covered, the more constituencies with a stake in an economic bill of rights and the better to promote and promulgate the concept.

In addition to specifying rights, FDR proclaimed that they were to be assured, “regardless of station, race, or creed.”  To that we would add gender, often overlooked by the New Deal, national origin, ethnicity, disability and sexual orientation. The disabled have made gains in recent years.  Not so long ago they were seldom in the workplace. Many are there now but suffer high rates of unemployment—even higher than African Americans. Think how many who want work aren’t counted because, anticipating discrimination or unable to find barrier-free workplaces, they are not looking.

We propose to add to the additional groups that must be covered the rights to:  collective bargaining , childhood security, and a sustainable environment.

The Right to Collective Bargaining

Collective bargaining is the only source of power workers have in relation to their employers.  Without this right, they can be abused, denied benefits and adequate pay, or fired at will. The New Deal did more for labor rights that any administration before or after, yet these rights were already under attack by the late 1930s. The Economic Bill of Rights did not include labor rights. Since unionized workers earn more and enjoy more benefits, the decline in unionization– from 26.7 percent in 1973 to less than half that rate, 11.1%, in 2014–is related to overall wage decline as well as to loss of a powerful social movement that can fight for other rights.[30]  Labor density today is about back to where it was in the late 1920s, following a period of curtailment and decline after World War 1.[31]

The Employee Free Choice Act might have strengthened labor rights, perhaps as New Deal legislation did. However, it was accorded lower priority than health rights which President Obama said must come first. There has been no second.

The Right to Security in Childhood

FDR omitted children’s rights.  Indeed the Social Security Act, though including Aid to Dependent Children (AFDC), covered children less adequately than the elderly.  One reason is that older people were represented by a powerful social movement.  AFDC expanded during the 1960s but was repealed in 1995 and replaced by Temporary Assistance for Needy Families (TANF)—a name that spells some of the differences.

Perhaps it was assumed by framers of the Economic Bill of Rights that children would be covered through other rights—a job at living wages for the family breadwinner, health care, and education. The high rate of childhood poverty in the United States, however, is manifest proof that they are not covered. Child poverty in the U.S. is a national disgrace with more than one in five American children living in poverty, according to recent Census data.[32] That’s 15.5 million children, and international comparison makes it an even greater disgrace.[33] A window on deprivation comes from a recent study at Yale http://psychcentral.com/news/2013/08/04/lack-of-diapers-tied-to-mental-health-of-poor-mothers/57971.html showing almost 30 percent of low-income women can’t afford an adequate supply of diapers,[34] not exactly a case of less work for mother, but a deficiency with physical and emotional consequences for parents and children.

Child neglect and abuse is all too frequent.   Poverty is highly correlated with neglect and abuse, though the problem—three million reported cases yearly—doesn’t stop there, and more and better services are needed. A secure childhood, free of poverty, neglect or abuse, is out of reach for too many children and needs to be part of a 21st century bill of rights.  It is vital to the future of the nation.

The Right to a Healthful and Sustainable Environment

Perhaps the most important right of all that should be added to a 21st century Bill of Rights is the right to a healthful and sustainable environment.  Though not an economic right, per say, it is really foundational.  Without a sustainable environment, all the other rights are threatened.  The right to a sustainable environment does not appear in Roosevelt’s list.  Climate change was unknown in 1944 and Roosevelt probably assumed that the environmental crisis he faced in the 1930s had been overcome.   Environmentalist that he was, FDR could not have imagined the current threat to environmental sustainability.  We can nevertheless learn something from the way in which Roosevelt perceived the importance of the environment and the way in which the New Deal dealt with the environmental crises of the 1930s.   If he were alive today he would undoubtedly put the right to a sustainable environment at the top of his list of rights.

It is important to note that the failure to assure employment—or the failure to enact what FDR considered the “most fundamental right” is a formidable barrier to the achievement of a safe and sustainable environment as the argument is made that moving to an environmentally sustainable economy will mean the loss of jobs. Yet, just the opposite is the case.  A commitment to making the environment sustainable could lead to the creation of many new jobs and, if coupled with the right to employment, could open up jobs in those sectors not commonly thought of as environmentally related, such as jobs in the education and caretaking sectors.  Of course, there would have to be a conversion program for the workers—especially in the energy industry—who would initially lose their jobs.

When Roosevelt took office in 1933, the United States faced not only an economic collapse, but the degradation and collapse of large parts of the natural environment.[35]  Seven eights of the original forest cover in the country had been destroyed, one-sixth of the nation’s top soil was about to blow away in the Dust Bowl, we were losing wildlife at an alarming rate, and one-third of the people in the Tennessee Valley, covering parts of seven states, suffered from malaria.  Moreover, the nation had been challenged by one of the greatest floods in the history of the country and would soon be challenged by more.

Roosevelt, a naturalist from his youth, immediately recognized the interconnection between the health of the natural eco-system and the health of the economy, as well as the health of the body politic.  There could be no economic security, he recognized, without a secure natural environment and no healthy democracy unless Americans saw themselves as related to each other through the interconnectedness of the natural world upon which they all depended.  In his State of the Union message in 1935, he spoke of environmental sustainability as requisite to the security of the American people, placing it first.   “I see an America,” he later said in 1940, “whose rivers and valleys and lakes—hills and streams and plains—the mountains over our land and nature’s wealth deep under the earth—are protected as the rightful heritage of all people.” Out of this understanding he created three programs to help restore both economic security as well as the natural resource base:  the Civilian Conservation Corps, the Soil Conservation Service, and the Tennessee Valley Authority.   Although the programs initiated by the New Deal did not go nearly far enough to end the Depression, his environmental initiatives did, to a large extent, restore the country’s natural capacity to recover, and it is very likely that had these programs–along with the building of infrastructure– not been enacted there would have been no capacity to recover so quickly after World War II; moreover, we would probably have faced climate change and species extinction much earlier in our history.

The environmental challenges we now face, of course, are exponentially larger than those faced by Roosevelt, and their extent is not limited to one region or even to one country itself.  Species extinction, climate change, the toxic poisoning of our air, water and food cry out for remedy. The latest report of the Intergovernmental Panel on Climate Change (IPCC) http://www.ipcc.ch/ report makes clear that we may already have done so much harm to the Earth that some of it can’t be undone in our lifetimes, or even in the lifetimes of future generations as far out as most of us can imagine. Yet one hardly hears mention in the press or by our government leaders that economic security is intimately tied to the health of the environment.[36]  In fact, they seem to assume they are mutually exclusive.

Climate-induced environmental disasters have severe economic consequences:  the loss of homes, livelihoods, health, and even life itself.  Yet climate deniers seem to be in the drivers’ seat; and our government is reluctant to make the investments or to enact the radical policies– such as a refundable tax on carbon and feed-in tariffs for renewables–that are necessary to move us away from fossil fuels, even as oil spills multiply and carbon levels soar to unprecedented heights.

The economics profession has much to do with our current dilemma.  Viewing the natural world only as an “input” to the production process and the waste produced as an “externality,” this economic model disregards the fundamental characteristics of the earth system and the services it provides to humanity.  Ecologists tell us that we are living on borrowed resources.  Instead of worrying about the budget deficit, we should be worrying about the resource deficit.  By August 20th of 2015 humanity had exhausted nature’s budget—its biocapacity– for the entire year.  We are now operating in overdraft.  For the rest of the year, we will maintain our ecological deficit by drawing down local resource stocks and accumulating carbon dioxide in the atmosphere..  At our current rate of growth by the 2030s, we will need the bio equivalent of two Earths to support us.   It goes without saying that we need a new economics that views the earth system as the ground of all economic activity and that takes into account its limits and its complex, interconnectedness and feedback loops.

When writing his Economic Bill of Rights Roosevelt must have thought that the environmental problems of the 1930s were behind him, as his Economic Bill of Rights does not include the right to a healthful and sustainable environment.  Yet because of his prescient concern for the environment, were he president today, he would be including the right to a healthful and sustainable environment in his Economic Bill of Rights and would be attempting to enact the long-term policies necessary to move us off the collision course with climate change and species extinction.

Protecting the earth requires long-term planning and commitment.  Roosevelt was very clear about this.  In his State of the Union message in 1935, he spoke of environmental sustainability as requisite to the security of the American people, placing it first, and hinting that long-term planning involved far more than the environmental programs he had already initiated.[37]  An economy built on short-term profit and a political system bought by big money and structured around increasingly shorter election cycles is hardly conducive to preserving the environment for future generations, so the attempt to secure an Economic Bill of Rights that includes the right to a sustainable environment looks pretty hopeless.  Nevertheless, it is absolutely critical that the effort be made, if only, initially, as a tool of education.

Rachel Carson, writing in the early 1960s, was the first after FDR, to suggest the concept of environmental human rights.  Testifying before President Kennedy’s Scientific Advisory Committee, she urged it to consider “the right of the citizen to be secure in his own home against the intrusion of poisons applied by other persons.”  “I strongly feel,” she said, “that this ought to be one of the basic human rights.”[38]    The first formal articulation of such rights is found in the Stockholm Declaration of 1972, which emerged during the first global conference on the environment.

Environmental human rights impose specific duties and obligations on governments,[39]  but unlike other rights they presuppose that government takes into account the laws of nature.  Since everything is interconnected, this implies a vastly complicated new legal framework.  Moreover, planning and regulation are made more difficult by scientific uncertainty.  Yet we have the tools today to manage much complexity and uncertainty and it is critical that we come quickly to the recognition of this most fundamental right.

Although constitutional rights are only as good as the ability to enforce them, nevertheless, once they are on the books, at least victims have some basis for redress, some ground for legal standing.  But perhaps even more important, they provide an aspirational moral framework that has both educational and organizing value.  Eleanor Roosevelt once said that the effect of the Universal Declaration of Human Rights was, “frankly educational.”  Writing fifty years after its adoption, Mary Ann Glendon, in her book on the making of the DeclarationA World Made New, said that its “nonbinding principles, carried far and wide by activists and modern communications, have vaulted over the political and legal barriers that impeded efforts to establish international enforcement mechanisms” so that “most, though not all, flagrant and repeated instances of rights abuse now are brought to light, and most governments now go to great lengths to avoid being black listed as notorious violators.”[40]

The Stockholm Declaration http://staging.unep.org/Documents.Multilingual/Default.Print.asp?DocumentID=97&ArticleID=1503&l=en served a similar purpose.  Since its articulation of the right to a clean environment, the majority of the world’s countries have adopted constitutional provisions specifically guaranteeing an individual right to a quality environment.  As of 2010, out of 198 national constitutions of developed and developing countries across every continent, 142 include at least one reference to the environment, in a broad sense.  While they vary in the ways in which these rights are enshrined and while enforcement has lagged behind the articulation of such rights, at least they are on the books.[41]  Some, like Ecuador, have gone even further, enshrining rights to the earth itself in their constitution; and Bolivia has passed the first piece of legislation giving nature itself substantive rights.[42]

Though the U.S. is a constitutional laggard, we have had some legislatively established environmental protections through the enforcement powers of the EPA and laws like the Clean Water and Clean Air Acts, the Food, Drug and Cosmetic Act, the Superfund Act and others; and in recent years through subsidies provided for renewable energy and passage of the Endangered Species Act we have taken some steps toward environmental sustainability.  It remains to be seen if Obama’s executive order requiring coal-fired plants to reduce their emissions will hold given the current composition of our congress.  But laws are only as good as their enforcement and can be too easily altered or eroded when the political winds change.  Moreover, the law as it exists in the U.S. makes it difficult to use the courts to sue for environmental harm.

While standing in such cases has been somewhat widened over the years, environmental law remains a contested area.[43]  Unless one can demonstrate conclusively that one has been injured by an environmental harm—extremely hard to do in cases like cancer where cumulative environmental poisoning takes years to develop–it is very difficult to get standing and even more difficult to get standing for the precautionary principle to prevent environmental degradation before conclusive evidence of injury exists.[44]  Moreover, in the current conservative climate we see cases seeking redress for environmental harm, or those seeking to prevent environmental harm, increasingly fall to the “takings clause.”

One reason for the difficulty in using the law to enforce the allocation of environmental values is that they go against the basic worldview of the last 500 years of Western civilization which has given priority to property rights over the concept of the “common heritage of mankind.”[45] “Environmental values had almost no support in the common law, in constitutional law or in legislation, so at the beginning of the environmental era, lawyers had to invent environmental law from whole cloth.”[46]

Environmental law professor A. Dan Tarlock maintains that “Ecosystem management is an experiment which may require very different legal approaches from the first generation of environmental problems. . . .  it must evolve from a negative strategy of simply trying to stop an action that disturbs  a mythical natural baseline to a pervasive, affirmative one which provides incentives for creative super-legal protection solutions that are sometimes ‘extra’ legal” (such as stakeholder consensus processes to resolve environmental disputes).[47]

Given that assuring environmental rights challenges our entire way of life, it has been very difficult to get any kind of stakeholder consensus around environmental protection, much less protection that extends beyond individual injury to the protection of the entire planet and future generations.  Thus, it is all the more important that we use every tool available to help people understand that the right to a healthful, sustainable environment is a human right, indeed, that it is a foundational right for all the others.  Given the sanctity of constitutional rights in the Western tradition, the promulgation of an Economic Bill of Rights that includes the right to a safe and sustainable environment is one way to create the basis for a more pervasive affirmative stakeholder consensus around environmental protection and sustainability.

 

 

[1] Thomas Paine, Rights of Man: Being an Answer to Mr. Burke’s Attack on the French Revolution (London: J. Parsons, 1792)l R. H.Tawney, Equality (London: Unwin, 1931), 168.

[2] Eleanor Roosevelt, My Day: The Post-War Years, 1945-1952, David Emblidge, ed. (New York: Pharos, 1990), 17, as  cited in Mary Ann Glendon, The World Made New : Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), 43.

[3] Amartya Sen, Development as Freedom (New York: Anchor Books/Random Houser, 1999).

[4] Roosevelt, “Second  ‘Fireside Chat’ of 1934,” November 30, 1934, PPA, 3, 422.

[5] Franklin D. Roosevelt, State of the Union Address, January 6, 1941, http://voicesofdemocracy.umd.edu/fdr-the-four-freedoms-speech-text/.

[6] Ronald Reagan, “Medicare Will Bring a Socialist Dictatorship,” Recording of Speech for the American Medical Association’s Operation Coffee Cup, December 1961, http://www.youtube.com/watch?v=Bejdhs3jGyw.

[7] Franklin D. Roosevelt, State of the Union Message  to Congress, January 6, 1945,  http://www.presidency.ucsb.edu/ws/?pid=16595.   Roosevelt first proposed the Economic Bill of Rights in his State of the Union Message, January 11, 1944, http://www.presidency.ucsb.edu/ws/?pid=16518

[8] For a history of this legislation, see Stephen Kemp Bailey, Congress Makes a Law:The Story behind the Employment Act of 1946 (New York: Columbia University Press, 1950).

[9] U.S. Bureau of Labor Statistics. The employment situation: June 2000. USDL 80-194. Washington, D.C. http://www.bls.gov/news.release/history/empsit_07072000.txt.

[10] See June Zaccone, “The Labor Force Participation Rate and Its Trajectory: Why It Matters,”  National Jobs for All Coalition, Special Report 5, June 2015,  http://njfac.org/index.php/2015/08/01/the-labor-force-participation-rate-and-its-trajectory-why-it-matters/

[11] Lawrence Mishel, Josh Bivens, Elise Gould, and Heidi Shierholz, In Working America, 12th ed. (Ithaca, NY: Cornell University Press, 2012), 184, http://stateofworkingamerica.org/files/book/Chapter4-Wages.pdf.

[12] Ibid., tables 4.5, 186;  4.6, 189

[13] Lawrence Mishel. Jared Bernstein, and John Schmitt, The State of Working America, 1998-99  (Ithaca, NY: ILR Press, 1999),  table 2.11, 133.

[14] The White House, “The President’s Plan to Reward Work by Raising the Minimum Wage,” https://www.whitehouse.gov/sites/default/files/uploads/sotu_minimum_wage.pdf

[15] Bernie Sanders Campaign,  “A Living Wage,”   https://berniesanders.com/issues/a-living-wage/

[16] Hillary Clinton Campaign, “A Plan to Raise American Incomes,” https://www.hillaryclinton.com/issues/plan-raise-american-incomes/

[17] Carmen DeNavas-Walt, Bernadette D. Proctor, and Jessica C. Smith, Income, Poverty, and Health Insurance Coverage in the United States, 2012, Current Population Reports, P60-245 (Washington, DC: U.S. Census Bureau, 2013), Table B-2, http://www.census.gov/prod/2013pubs/p60-245.pdf.

[18] Luxembourg Income Study, LIS Cross-National Data, Inequality and Poverty, All Waves, http://www.lisdatacenter.org/data-access/key-figures/download-key-figures/

[19] “Senior Poverty: 4.8 million Americans over 60 Are Found Insecure, Huffington Post, May 24, 2013, http://www.huffingtonpost.com/2013/05/24/senior-poverty-food-insecurity_n_3332326.html

[20] For overall coverage, see Alice H. Munnell, Rebecca Cannon Fraenkel, and Josh Hurwitz, “The Pension Coverage Problem in the Private Sector,” Center ror Retirement Researcj at Boston College, September 2012, No. 12-16, http://crr.bc.edu/wp-content/uploads/2012/09/IB_12-16-508.pdf ; for defined benefit coverage, see Barbara A. Butrica, Howard M. Iams, and Karen E. Smithh, “The Disappearing Defined-Benefit Pension and Its Potential Impact on the Retirement Incomes of Baby Boomers, Social Security Bulletin, 69, 3, 2009, http://www.ssa.gov/policy/docs/ssb/v69n3/v69n3p1.html.

[21]Franklin D. Roosevelt, Second Inaugural Address, January 20 ,1937, http://www.bartleby.com/124/pres50.html.

[22] U.S. Department of Housing and Urban Development, “Affordable Housing,” http://portal.hud.gov/hudportal/HUD?src=/program_offices/comm_planning/affordablehousing/.

[23] Housing Opportunity Index, compiled by the National Association of Home Builders and Wells Fargo. cited in Jonathan  Bowles, Joel Kotkin, & David Giles, “Revising the City of Aspirations: A Study of the Challenges Facing New York’s Middle Class,” New York, Center for an Urban Future, 2009, 19,  http://nycfuture.org/pdf/Reviving_the_Middle_Class_Dream_in_NYC.pdf.

[24] Elina Bravve, Megan Bolton, and Sheila Crowley, Out of Reach, 2013 (Washington, DC: National Low-Income Housing Coalition, 2013, http://nlihc.org/sites/default/files/oor/2013_OOR.pdf.

[25] Bravve, Bolton, and Crowley.

[26] Ibid.

[27] Jennifer L. Hochschild, “Social Class in Public Schools,” Journal of Social Issues, 59, 4, 2003, 821-840.

[28] Martin Carnoy and Richard Rothsteinm “What Do International Tests Really show about U.S. Student Performance? (Washington,DC: Economic Policy Institute, 2013), http://www.epi.org/publication/us-student-performance-testing/.

[29] Lawrence Mishel,  Jared Bernstein, and   Sylvia Allegretto, The State of Working America 2006/2007 (Ithaca, NY: ILR Press, 2007), 97-101; U.S. Bureau of Labor Statistics, “Union Members Summary,” January 23, 2015 USDL-15-0072 http://www.bls.gov/news.release/union2.nr0.htm.

[30] http://www.bls.gov/news.release/union2.nr0.htm

[31] For union density in 1930, see James R. Green, The World of the Worker: Labor in Twentieth Century America (New York: Hill and Wang, 1980), 133.

[32] U.S. Bureau of the Census, Income and Poverty in the United States 2014. Current Population Reports P60 252, 14.

[33] Luxembourg Income Study, http://www.lisdatacenter.org/data-access/key-figures/download-key-figures/.

[34] Traci Pedersen, “Lack of Diapers tied to Mental Health of Poor Mothers,” PsychCentral, August 2013, http://psychcentral.com/news/2013/08/04/lack-of-diapers-tied-to-mental-health-of-poor-mothers/57971.html.

[35] For more on the environmental crisis of the 1930s and the New Deal response, see:  “The Rightful Heritage of All,” Chapter 9 in When Government Helped: Learning from the Successes and Failures of the New Deal, ed. Sheila D. Collins and Gertrude Schaffner Goldberg (New York: Oxford University Press, 2014).

[36] Chris Mooney, “Who Created the Global Warming ‘Pause’”? Mother Jones, October 7, 2013 http://www.motherjones.com/environment/2013/09/global-warming-pause-ipcc

[37] Franklin D. Roosevelt State of the Union Address, 1935 .  http://www.albany.edu/faculty/gz580/his101/su35fdr.html.

[38] Carson quoted in David R. Boyd, The Right to a Healthy Environment: Revitalizing Canada’s Constitution (Vancouver: University of British Columbia Press, 2012), 1.

[39] Christopher Jeffords, Constitutional Environmental Human Rights: A Descriptive Analysis of 142 National Constitutions,” Economic Rights Working Paper Series 16, August 2011,  3 (University of Connecticut: The Human Rights Institute), available at http://www.econ.uconn.edu/working/16.pdf.   See also David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment (Vancouver: University of British Columbia Press, 2012; Donald K. Anton and Dinah L. Shelton, Environmental Protection and Human Rights (Cambridge: Cambridge University Press, 2011.

[40] Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2002), Epilogue.

[41] James R. May and Erin Daly, “Manifestations of Constitutional Environmental Rights,” Chapter 3 in Environmental Rights and Constitutional Protections: Implications for Present and Future Generations (Cambridge: Cambridge University Press, 2012 (unpublished discussion paper).  Available at  http://www. blogs.law.widener.edu.

[42] John Vidal, “Bolivia Enshrines Natural World’s Rights with Equal Status for Mother Earth,” The Guardian, April 10, 2011 http://www.theguardian.com/environment/2011/apr/10/bolivia-enshrines-natural-worlds-rights.  See also Kevin Zeese, “The Rule of Law in Times of Ecological Collapse,” Nation of Change, October 3, 2013 available at http://www.nationofchange.org/rule-law-times-ecological-collapse-1366642895.

[43] A. Dan Tarlock, “The Future of Environmental Rule of Law Litigation (2000 Garrison Lecture), Pace Environmental Law Review, 19, no. 2 (2002), 575.

[44] Ibid., 577.

[45] The concept of the common heritage of mankind is a principle of international law which holds that defined territorial areas and elements of humanity’s common heritage (cultural and natural) should be held in trust for future generations and be protected from exploitation by individual nation states or corporations.  It.is one of the most revolutionary and radical legal concepts to have emerged in international law in recent decades although its origins can be traced back hundreds of years.  See Kemal Baslar, The Concept of the Common Heritage of Mankind in International Law (Brill, 1997); Prue Taylor, “The Future of the Common Heritage of Mankind: Intersections with the Public Trust Doctrine in Confronting Ecological Collapse: Ecological Integrity for Law, Policy and Human Rights , Laura Westra, Prue Taylor and Agnes Michelot, eds. (London and New York: Routledge, 2013), 32-46.

[46] Tarlock., 579

[47] Ibid., 580-581.

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