Cass Sunstein’s Perspective on the Unifying Principles of Liberalism

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In a recent New York Times article, the great Harvard law Professor Cass Sunstein outlines a set of 34 liberal principles he believes can command agreement across the liberal tradition. While Sunstein himself is a left-liberal, what today is commonly called a “progressive,” the principles he outlines are intended to capture common ground shared by adherents of liberalism broadly defined, including those on the left and right, and libertarians. Sunstein also seeks to outline what separates liberals from illiberal forces on both left and right.

Impressively, Sunstein’s effort has gotten praise from libertarian economist John Cochrane, even though he and Sunstein surely differ over many issues. Anything both Cochrane and Sunstein can agree on is a strong candidate for a genuinely unifying principle for liberals of all stripes!

I too think that Sunstein has done a good job of capturing several key unifying elements of the liberal tradition. But I have a few reservations, as well. In some cases, the liberal principles he outlines have radical implications that I am largely happy to endorse, but others—including Sunstein himself—might not be. Here, we have agreement on principles in part because there is serious disagreement about what they entail.

I won’t try to go through all 34 principles. But I will comment on a few that strike me as especially important:

I agree on five of these six, and differ on the last only in part. The partial exception is democracy. I think the evidence shows that democratic governments are superior to authoritarian states, in the vast majority of situations. But there are rare, but real exceptions where some form of authoritarianism may be less bad for liberal values (Sunstein’s freedom, human rights, pluralism, security, and the rule of law) than democracy is.

When democracy conflicts with liberty and other more fundamental liberal values, I am happy to constrain the former in order to protect the latter. In addition, I am very skeptical that “deliberative democracy” can actually work in the real world, given widespread voter ignorance (which is an endemic structural weakness of democratic government, not merely a transitory one). From a liberal point of view, the main virtue of democracy is not deliberation, but the ability of voters to throw out rulers who cause great harm in obvious ways. Sunstein’s previous writings indicate he shares some of these concerns about voter ignorance. But he and I have somewhat different prescriptions for addressing the problem.

More generally, there is a tension within the liberal tradition between those who give democracy a high priority relative to other values, and those who do not. That said, I think almost all liberals can agree that democracy—where feasible (sometimes, sadly, it isn’t)—is preferable to dictatorship the vast majority of the time.

I agree completely. Though “conservative” and “leftist” are somewhat fuzzy terms that people can try to define in ways that preclude illiberalism.

I agree again! But this principle has radical implications that many who consider themselves liberals are reluctant to embrace. No actual government—including democratic governments—truly has the consent of the governed. Being able to cast one of many millions of votes in an election is not enough to make government meaningfully consensual. That doesn’t necessarily make democratic governments illegitimate. Nonconsensual government may be justified because of beneficial consequences for other liberal values. But the more we value consent, the more we should support tight constraints on government power, and giving people opportunities to engage in “self-government” by voting with their feet (where they can make individually decisive choices) as opposed to at the ballot box.

I agree again! But there is a lot of disagreement among liberals about exactly what this principle entails for issues like affirmative action.

Another point of agreement! This is also a great statement of what the rule of law is—and what it is not. Exercises of government power that adhere to the rule of law may nonetheless be unjust for other reasons. For liberals, adherence to the rule of law is a necessary but not sufficient requirement for a law to be just, and for there to be a moral obligation to obey it.

I agree about illiberal democracy and populism. But for reasons noted in my comments on 1 above, I am not convinced that liberal authoritarianism is an oxymoron. It is highly unlikely to actually arise, but is not a logical impossibility. And, as discussed above, there can be rare situations where some feasible form of authoritarianism is less illiberal than any feasible form of democracy.

Very much so! I fear too many people on both left and right are losing sight of this truth.

I mostly agree with this. But I think some monopolies may be less bad than available alternatives. And if you really think all monopolies are abhorrent, that has radical implications for many functions of government, such as its monopoly of law enforcement and legal adjudication, its control of key infrastructure, and so on. Along similar lines, it is true that “unregulated markets can fail.” But it doesn’t necessarily follow that government will do better in those situations.

Disagreements over economic liberty and redistribution are a major internal dividing line for liberals. Sunstein is right about that. But worth noting that liberals should at least be able to agree on a presumption against redistribution and restrictions on private property that transfer resources to the non-poor—often at the expense of the most disadvantaged. Sadly, too many liberals either ignore this problem, which is ubiquitous in many areas of government policy.

There are indeed differences on this. But I think liberal principles of liberty and autonomy (embraced by Sunstein elsewhere in his list) at least create a strong presumption against paternalistic regulations and in favor of “my body my choice”—a principle that goes far beyond the admittedly difficult case of abortion. Liberal principles of liberty and equality also at least create strong presumptions against immigration and trade restrictions, which severely restrict people’s liberty based on arbitrary circumstances of birth, similar to those underlying racial and ethnic discrimination. These are additional areas where liberal ideals have broad implications that many liberals shy away from.

Agree completely.

I won’t reprint them or comment in detail. But I also strongly agree with Sunstein’s points 28 and 29 regarding the extent and limits of liberal respect for tradition.

Not so sure about this one. Cackling villains—including many illiberals—like laughter too! It all depends on who and what you’re laughing at.