A few days ago, polymath Tyler Cowen brought to my attention “an excellent and benchmark piece” (Cowen’s words, not mine) titled “Why I am a liberal” by Harvard law professor Cass Sunstein. I hate to be “that guy” but Professor Sunstein’s holier-than-thou op-ed is full of glittering generalities as well as a plethora of logical fallacies to boot–including strawmen, slippery slopes, and non sequiturs–beginning with Sunstein’s first claim, which I quote in full below to give the reader a small taste of the wishy-washy nature of what we are dealing with here:
1. Liberals believe in six things: freedom, human rights, pluralism, security, the rule of law, and democracy. They believe not only in democracy, understood to require accountability to the people, but also in deliberative democracy, an approach that combines a commitment to reason-giving in the public sphere with the commitment to accountability
Put aside the fact that no country in the world deploys “deliberative democracy” to any meaningful degree. (Alas, Sunstein’s ideal form of democracy is not only overrated; it died with ancient Athens millenia ago.) In brief, there are two big problems with Sunstein’s Claim #1. The first is what legal philosophers call the level of generality problem. Simply put, concepts like “freedom” and “human rights” and “rule of law” can mean different things to different people, so whose definition is the right one? Consider the law and ethics of abortion, by way of example. Whose freedom or human rights are more worthy of protection, the rights of unborn children or the rights of women with unwanted pregnancies?
In any case, however such open-ended concepts like democracy and human rights and the like are defined, the other fatal flaw with Sunstein’s Claim #1 is that his six values (“freedom, human rights, pluralism, security, the rule of law, and democracy”) are often in direct conflict with each other! Whether it be the inescapable collision between security and liberty during never-ending national emergencies (remember Edward Snowden?) or the eternal tension between the rule of law (stability, binding precedent, etc.) and democracy (topsy-turvy politics, majority rule, etc.), how do we balance or choose among these competing values when they collide? Which value should prevail, and by how much?
Take freedom, for example, the first of Professor Sunstein’s six “liberal” values. The problem with invoking freedom as a value is that all laws, by definition, restrict liberty to a lesser or greater extent, depending on the evil the law is designed to remediate. As a result, the question is not whether Sunstein is “for” or “against” freedom in the abstract. The real issue instead is, when is he prepared to limit the liberty of some actors in order to promote some other important value, such as public health or public safety? Simply invoking a general concept like “liberalism” is of no real help when we are called to weigh and make difficult real-world tradeoffs.
In all, Professor Sunstein rattles off no less than 34 claims in his obnoxious op-ed. (By comparison, the Declaration of Independence, the greatest paean to true classical liberal values, contains only 27 colonial grievances against the King of England.) For my part, I will subject Sunstein’s remaining 33 claims to critical scrutiny in my next few posts.
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