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Rating: 
Summary: The Skinny on Sunstein's New Rights
Review: In examining the "soft" new rights Sunstein champions, keep these hard issues in mind:1. Black letter law: how should new rights read? The "affirmative rights" cases of the 1970s expressed rights (for example, the right to housing) as an affirmative duty, or at least the Courts so interpreted it. And they turned down such a right for the usual reason: it tended to bring the Court into the Executive branch, involving it in a supervisory role to determine if the right was being implemented properly. This overstepped the bounds of the separation of powers and the Court would have none of it. Solution: express new rights as negative prohibitions (this is not how the Four Freedoms or the Declaration of Human Rights are expressed, and Sunstein glosses over this vital issue). For two reasons: they tend to avoid fact questions and they tend to be self-enforcing. For example, housing: if two parties are quarreling over whether one should be removed from housing, there isn't any question as to what is housing. So this minimizes the necessity for the Court to step in and answer the question: what, in fact, is housing? Second, a negative prohibition tends to minimize the affirmative need for Government to make sure people aren't being forced out of housing. People tend to know when they're being forced out of housing. If they have an individually enforceable right, they'll squawk and take it to Court and get the threatened removal stopped. Second area: what rights? This turns on a statement by James Madison constantly cited in the later dissents of Brennan and Marshall. Madison states, in The Federalist, that the Fourth Amendment prevents every assumption of power in the legislative and executive. This creates what I call the fatal anomaly of the Constitution. The Fourth Amendment guards against unreasonable searches and seizures. Reasonableness suggests a balancing approach, which the Court has adopted. However, Madison does not say every unreasonable assumption; he says, EVERY assumption. It suggests that there are rights which are protected in EVERY case, somewhat along the lines of an establishment of religion where, if you find it, you ban it in EVERY case (no such thing as a reasonable establishment of religion). No one can properly address new individual rights without reaching a conclusion on this issue. Sunstein doesn't do this. The history of English constitutional law suggests that the state makes long-term efforts to impose certain conditions, for example a state religion or violations of what today is regarded by the Court as protected speech. These efforts are made over thousands, sometimes tens of thousands of years, so there is a long history to look at. And the conclusion is that it is simply a history of failure. In the end, governments don't succeed in imposing state religion or in violating protected speech--they simply distort the facts and cause all kinds of grotesque situations. Which suggests that these facts--freedom from state religion and exercise of protected speech--are facts of the individual. That is, they inhere in the individual and are never violated. Myself, I think there are five about which the logic has been made clear over the centuries, even though there is no political consensus: housing, education, maintenance, liberty and medical care. So, if you were going to formulate new black letter rights, they should read something like (on the model of the 13th amendment): no individual shall be involuntarily deprived of housing, and so on. It's a negative prohibition with respect to a fact to which parties would tend to stipulate, and neither the Government nor the Court would tend to be dragged into a fact-finding or supervisory role. Is that the test for an individual right? What about other ideas, say, transportation? Is that a right? The point is that the process is endless, of discovering facts of the individual. The third problem area is, even if you know of new rights, how on earth do you get them enforced? Whatever the new facts, it is clear that we are living in a political reaction--and have been for 30 years--which makes it unlikely, barring a crisis, that we will see the promulgation of new rights. Say we sign off on libery and housing as rights. That means the end of incarceration. How can you have a ban on involuntarily deprivations of housing (and remember, Madison says it's in "every" case) and still put people in prison? Test case: the sheriff enforcing an arrest warrant by going up to the door of a building in which both the defendant and the sheriff concede, the defendant is housed. Here you have a flat-out political problem: Joe Sixpack will not currently allow an end to incarceration. Americans ADORE incarceration. For them, it's a sport. And how can you convince them otherwise, when only 10% of Americans ever come into contact with the criminal justice system? What about eminent domain? No road which would benefit all humanity because Grandma won't take the buyout? And is now standing on her right to housing? I sense the bulldozers waiting, purring.... I can't see the powers that be (politicians, unions, construction companies, and on and on), putting up with such a right. The reason human rights have stalled is because we have indeed reached something like a logical consensus on new facts, which new facts are slamming up against very high institutional and political barriers. Nothing stops us, however, from clearing the doctrinal ground against the time those barriers fall.
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