Thoughts on Cass Sunstein’s criticisms of libertarianism and originalism

February 5

Harvard Law Professor (and recent OIRA head) Cass Sunstein has had some columns lately on Bloomberg View that seem to be squarely in my wheelhouse as an originalist and a libertarian. The most recent one is “Resist the Siren’s Call of Originalism.” Before that was “How to Spot a Paranoid Libertarian.

The columns have a striking similarity, in that they both attack extremist or caricatured versions of originalism and libertarianism, and appear to concede that the moderate version has some virtues.

“Paranoid” libertarianism, says Sunstein, is defined by five characteristics: 1, a belief that government will “inevitably” abuse its authority in any given area; 2, “a presumption of bad faith” by government officials; 3, a sense of “victimization;” 4, a refusal to engage in tradeoffs; and 5, an enthusiasm for slippery slope arguments. (These characteristics seem overlapping to me.)

Yet so far as I can tell, Sunstein’s criticism of the category has nothing to do with non-paranoid libertarians, or with those who identify as “classical liberals.” For a good example on the other side, see this recent column by Richard Epstein, who distinguishes classical liberalism from libertarianism.

It is a little less transparent, but the same thing seems to be going on in Sunstein’s column on originalism. Sunstein’s three objections to originalism are 1, that the Constitution itself may not embrace originalism since it uses abstract terms; 2, some things (like wire-tapping) were unanticipated by the framers; and 3, originalism would “deeply unsettle” modern law, unless it embraces precedent, in which case it doesn’t count as originalism.

Objections 1 and 2 are simply not true of most sophisticated originalists, who acknowledge that when a constitutional provision was intended to have broad or evolving scope, the originalist thing to do is to give it broad or evolving scope. (This also makes it easy to accommodate new situations.)

To be sure, originalists do sometimes argue that people like Sunstein are far too quick to assume that a provision is “broad and abstract,” but this a difference in application, not theory. Serious originalists ought to agree with Sunstein that a provision should not be interpreted to be more originalist than it was originally intended to be.

Objection 3 brings us back to a recurring theme of my recent originalist posts. Critics of originalism don’t get to just declare that embracing precedent — which nearly all originalists do, to differing extents — is not the originalist position. Or if they do wish to define originalism so as to exclude most of its practioners, then they ought to be clear that they are attacking only an extreme version of the theory.

So it seems to me that the upshot of Sunstein’s columns ought to be: “extreme originalism” and “paranoid libertarianism” are bad, though regular originalism and libertarianism are (apparently?) fine. Yet I fear that by the fallacy of mood affiliation, readers may think Sunstein has also struck a blow against regular originalism and regular libertarianism.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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