The Democratic Socialists of America and the New Bill of Rights

Courts insist that if a human right is to be an individually enforceable right—with all that might imply of ordering the executive authority to act or cease acting, or ordering new rules which are legislative in nature—then the language must be unambiguous. Even single words can change what seems to be an individually enforceable right, into vague and unenforceable guidance which legislatures and executive can freely ignore. Here we examine some of the policies advocated by the Democratic Socialists of America (DSA) to see how they—and also international social rights policies—fare as private rights.

The U.S. Context

How enforceable are the promises DSA are making? New rights have to confront long-established policies inhibiting the establishment of social rights. I traced that confrontation in the U.S. anti-eminent domain movement of the early 2000s in a book, The Eminent Domain Revolt, 2004. Eminent domain is the legal rule that, as long as government seizes property and provides fair value compensation, and the purpose of the seizure is rationally related to a legitimate government purpose, the property owner has no countervailing right to stop the seizure—for example, that a right to housing prevails against an eminent domain action to seize housing.

What are the black letter laws litigants need in order to establish that they have an individually enforceable right to what they are seeking? The failure of the anti-eminent domain movement was in part a failure to provide a simple, coherent black letter alternative (in this case, to the straightforward eminent domain black letter law, the so-called “takings clause” at the end of the Fifth Amendment). See Kelo v. City of New London, 2005 (in which a homeowner contested the eminent domain seizure of her home). Now the DSA, in addressing recurring housing, medical care and income inequality issues, come along with new formulations.

Preventing Rights in the Language of Rights

DSA descend directly from 1960s social movements, including the anti-war and civil rights movements and also the Democratic Socialist Organizing Committee (DSOC) and the New American Movement. During the 1980s, DSA emerged by uniting these earlier movements. Their view of social policy was largely that of the New Deal: if you want new social policies, elect the leaders who will enact them through legislation, but there will be no new individually enforceable social rights. The stance of the DSA is nothing more than a restatement of the Constitutional regime—the so-called scrutiny regime—under which Americans have lived since Franklin D. Roosevelt (FDR) became President in 1933. The doctrine of the regime is that almost all power over almost all facts resides in the political system, as policy, and not in individuals, as individually enforceable rights. It is important to note what was meant by scrutiny: under the scrutiny Constitutional regime, the Court would only scrutinize social policy in order to ensure that it was rationally related to a legitimate government purpose.

Consider Social Security and Medicare. These are the result of legislation. Flemming v. Nestor, 1960 found that there is no right to Social Security. The Court pointed out that in the 1935 legislation establishing Social Security, Congress explicitly provided that Congress reserved “the right to alter, amend, or repeal any provision” of the law. Nearly every Executive Order issued by the President contains the following language:

This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States…” It should be clear to the reader what the issue is: government power over, for example, housing, education and medical, means power over what policies are established and, especially, how government money is spent. (emphasis added)

The Supreme Court laid that out explicitly in West Virginia v. Barnette, 1943. In that case, the Court laid out the result of establishing a fact as an individually enforceable right: it

withdraw[s] certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and [establishes them] as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The New Constitutional Regime of Franklin Roosevelt

Although the hugely influential Franklin Roosevelt brought the scrutiny regime to the Federal Government when he became President in 1933, by the time of his 1944 State of the Union Address, even FDR realized his understanding of the facts had outgrown the scrutiny regime. He stated that a new Constitutional regime, the maintenance regime, needed to replace the scrutiny regime. The doctrine behind the maintenance regime is that the law only maintains unchanging facts of human experience. An unchanging fact of human experience is:

1. a fact of human experience
2. which history demonstrates
3. is unaffected by assaults upon it.

It is a robust, resilient and recurrent fact of human experience. 

This is the test of Barnette, and FDR extended that test to social facts—this was the beginning of the maintenance Constitutional regime. In applying the Barnette test to social facts, he said:

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.

This is the Constitutional regime which has been held at bay for eighty years.

Of course, no politician — including any DSA member, or Alexandria Ocasio-Cortez (who is a DSA member or Bernie Sanders (who is not)—will advocate that facts be taken out of the political system and put in the court as individually enforceable rights. Senator Sanders of Vermont and Representative Ocasio-Cortez of New York are co-sponsors of the proposed Green New Deal for Public Housing Act. The proposed legislation says that it is “the policy of the United States to modernize government funding and credit to guarantee the right to housing…” The “problem” is that Federal courts consistently interpret the language “it is the policy of the United States” to be lacking the specific, mandatory language required to create an individually enforceable right. Black letter law matters. What DSA propose are social policies which, no matter how far-reaching their effects, are not rights which an individually can enforce in a court.

The Affordable Care Act (ACA) contains a supposed Patient Bill of Rights. The title suggests that, like the Bill of Rights in the U.S. Constitution (the first ten amendments to the Constitution), the policies enacted in the ACA have the same individual enforceability as the Bill of Rights. That is not the case. The courts have held that barring an explicit statement by Congress creating individually enforceable rights, no such rights exist in the ACA, no matter what the Patient Bill of Rights says. See the complete breakdown of the Act, including the Patient Bill of Rights which it contains, at Title 1, Subtitle A.

Small Steps in the U.S. Toward New Rights

The Supreme Court long ago said there is no individually enforceable right to education, San Antonio Independent School District v. Rodriguez, 1973. Nevertheless, states have gone on to find an individually enforceable right to education in state constitution education provisions. One case comes from New Jersey, Abbott v. Burke, 1989. There, the Court concluded that New Jersey’s unusual state constitutional language establishing an educational system and also providing that the such education must be “thorough and efficient,” made the right individually enforceable. The Texas Supreme Court found the same right in interpreting the Texas state constitutional provision that the state must establish an efficient system of public free schools (Englewood Independent School District v. Kirby, 1989). These states had not previously found such a right. What changed? What changed was a better informed understanding of education in all its many social and political aspects.

There is always, of course, a battle with those who feel that new “social rights” such as education, would drag the court into unconstitutional executive or legislative roles of setting and enforcing policy (see Vergara v. California, 2016).

The Broader International Context

Countries which are parties to the housing provision of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 11(1), enforce this language:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.

This was expanded by the United Nations in 1991 and 1997 to embrace the concept of “adequate housing”:

• Protection against forced eviction and harassment.
• Access to safe water, sanitation, and energy.
• Costs must not compromise other basic needs.
• Protection from structural hazards and elements.
• Prioritizing disadvantaged or marginalized groups.
• Proximity to essential services and safe environments.
• Respect for cultural identity in design.

But note that non-signatories are not bound by the Covenant, litigants must work their way through their own countries’ judiciaries before asserting the right before the U.N., and the U.N. itself provides this guidance on the meaning of the black letter language of the “right:”

Governments are obligated to progressively realize the right, protect vulnerable populations, and avoid arbitrary evictions.

Even countries such as South Africa, which modeled its constitutional housing right on the Covenant, rejected a “core” reading of the right, and uses a “reasonableness review,” explicitly rejecting the notion that the government has an obligation to provide immediate basic shelter to everyone regardless of resources—only an immediate housing crisis forced the government to act. Government of the Republic of South Africa and Others v. Grootboom and Others, 2000. Here is the housing policy of the Charter of Fundamental Rights of the European Union (Article 34, Paragraph 3):

In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices.

Here is DSA’s proposed “guarantees” of housing:

• Social Housing: The DSA supports the development of publicly funded housing that is affordable and accessible to all, prioritizing community needs over profit motives.
• Universal Rent Control: Advocating for rent control measures to prevent displacement and ensure that housing remains affordable.
• Tenant Rights: The DSA emphasizes the importance of legal protections for tenants, including the right to counsel in eviction proceedings.

The DSA is entirely a legislative program, not the black letter law of an individually enforceable right.

The New Bill of Rights

This article has been a brief primer on the drafting of individually enforceable rights language. What changes in the society will need to be made if the New Bill of Rights is recognized as individually enforceable rights.

1. No individual shall be deprived of residence and housing.
2. No individual shall be deprived of health and medical care.
3. No individual shall be deprived of learning and education.
4. No individual shall be deprived of employment and collective bargaining.
5. No individual shall be deprived of competent counsel.
6. No individual shall be deprived of transportation and infrastructure.
7. No individual shall be deprived of maintenance and supply.
8. No individual shall be deprived of liberty and property.