Cass Sunstein on “paranoid libertarianism”

February 6

Famed Harvard law professor Cass Sunstein’s recent op ed attacking “paranoid libertarianism” makes some reasonable points against crude libertarian arguments. But it is also in part confusing and in part overstated.

The piece is confusing because it is easily misinterpreted as an attack on libertarianism more generally, even though Sunstein himself draws a distinction between the two. In addition, Sunstein seems to be focusing on paranoid fear of any type of government power, even by people like left-winger Glenn Greenwald who are strongly supportive of government intervention in other areas. Greenwald and other left-wingers whom Sunstein lists as exemplifying “paranoid libertarianism” in his article are very different from most people we usually refer to as libertarians. The latter are highly skeptical of government across the board, not just in a few select areas. Sunstein might have done better to choose some other label for the phenomenon he seeks to criticize.

Semantic confusion aside, each of the five “defining characteristics” Sunstein attributes to “paranoid libertarianism” is readily found in crude versions of most other ideologies, including left-liberalism. In addition, each of the five is actually quite defensible if put in less extreme terms.

The first item on Sunstein’s list is “a wildly exaggerated sense of risks — a belief that if government is engaging in certain action (such as surveillance or gun control), it will inevitably use its authority so as to jeopardize civil liberties and perhaps democracy itself.” The key word here is “inevitably.” It is indeed absurd to think that anything government does inevitably endangers liberty or democracy. On the other hand, there are good reasons to believe that many government activities create serious risks to freedom, in part because widespread political ignorance compromises the ability of voters to effectively monitor government’s misdeeds. Libertarians are far from the only ones who worry that the combination of extensive regulation and voter ignorance can lead to a variety of harmful restrictions on liberty. Cass Sunstein himself has published an insightful book highlighting this danger (though his proposed solutions for it are very different from those offered by libertarians). Moreover, virtually every ideology has some adversary which it views with great suspicion. For example, crude versions of leftism hold that almost anything large corporations do is likely to hurt workers, consumers, or the environment. While that view is surely wrong, its flaws do not in themselves discredit less categorical left-wing criticisms of big business.

The second is “a presumption of bad faith on the part of government officials — a belief that their motivations must be distrusted.” It is of course silly to presume bad faith in everything government does. But there are good reasons to believe that the political process systematically advantages politicians who are willing to prioritize seizing power and holding onto it ahead of the public good. For that reason, it is justifiable to view politicians with greater suspicion than representatives of most other professions. Similarly, crude versions of leftism wrongly impute bad faith to almost anything large corporations do. But it is less unreasonable to believe that market forces, on average, lead corporations to prioritize profit over other values, which in turn leads to various harms.

Third, Sunstein claims that paranoid libertarians have “a sense of past, present or future victimization [and]… tend to believe that as individuals or as members of specified groups, they are being targeted by the government, or will be targeted imminently, or will be targeted as soon as officials have the opportunity to target them.” It is certainly silly (in most cases) to believe that the government necessarily has you personally in its cross-hairs. On the other hand, large numbers of people have been victimized by government in a variety of ways. Similarly, paranoid leftists may believe that virtually all women or minorities have been victimized by white males. The flaws in that view do not undermine the more reasonable belief that many women and minorities have indeed been victims of group-based oppression.

Sunstein’s fourth criterion is “an indifference to trade-offs — a belief that liberty, as paranoid libertarians understand it, is the overriding if not the only value, and that it is unreasonable and weak to see relevant considerations on both sides.” It is obviously unreasonable to ignore all possible trade-offs and counterarguments. But serious libertarian thinkers have a variety of plausible arguments demonstrating that the trade-offs of liberty are worth it in the vast majority of cases. Similarly, crude leftists may dismiss the possibility that welfare state programs involve any costs or tradeoffs. But the obvious fallacy in that view doesn’t invalidate more sophisticated left-wing arguments that claim to show that most welfare state programs create benefits that greatly outweigh their costs.

Finally, Sunstein emphasizes paranoid libertarians’ “passionate enthusiasm for slippery-slope arguments. The fear is that if government is allowed to take an apparently modest step today, it will take far less modest steps tomorrow, and on the next day, freedom itself will be in terrible trouble.” Indiscriminate acceptance of slippery slope arguments is clearly wrong. But many slippery slope arguments – including many focusing on abuses of government power – are valid. Sunstein himself is the coauthor of an important article arguing that slippery slope processes can lead to harmful government regulation. Furthermore, dubious slippery slope arguments are found in almost every ideological camp. For example, crude left-wing advocates of government regulation often argue that even modest deregulation of markets is likely to lead to completely unbridled capitalism or “commodification.” The defects of such extreme claims do not discredit more sophisticated arguments that deregulation can create dangerous slippery slopes.

NOTE: Co-blogger Will Baude offers a less detailed critique of Sunstein here.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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