We continue our preview of the new issue of the Claremont Review of Books (subscribe here) with Joseph Postell’s review/essay on Cass Sunstein. Sunstein is an ambitious intellectual to whom attention must be paid. He was reportedly one of the favorites of the left for appointment to the Supreme Court upon the prospective retirement of Justice Stevens earlier this year.
Sunstein played an important role in the campaign of 2008 while serving on the faculty of the University of Chicago Law School. The Obama campaign called on Sunstein to tamp down the furor over Obama’s advocacy of “redistributive change” and overcoming of the Constitution’s “negative rights” in the 2001 radio interview he gave to WEBZ in Chicago. Politico’s Ben Smith reliably channeled Professor Sunstein’s spinning on behalf of Obama.
Professor Sunstein was the right man to call on to explain away Obama’s remarks. They derived directly from Sunstein’s advocacy of Roosevelt’s so-called second Bill of Rights. Sunstein devoted a book to the subject in 2004 — The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever. Roosevelt set forth his second Bill of Rights in his 1944 State of the Union Address; I wrote about it in “Whatever happened to the Constitution?”
Tom Palmer usefully explicated the political thought underlying Sunstein’s argument in his review of the book. By contrast with the doctrine of rights conferred by God and nature set forth in the Declaration of Independence, Sunstein holds: “You owe your life — and everything else — to the sovereign. The rights of subjects are not natural rights, but merely grants from the sovereign. There is no right even to complain about the actions of the sovereign, except insofar as the sovereign allows the subject to complain. These are the principles of unlimited, arbitrary, and absolute power, the principles of such rulers as Louis XIV.”
Thus Palmer deemed Sunstein a “new intellectual champion of absolutism” who advances “the radical notion that all rights — including rights usually held to be ‘against’ the state, such as the right to freedom of speech and the right not to be arbitrarily imprisoned or tortured — are grants from the state.”
Sunstein is now among the most important members of the Obama Administration; he is Obama’s “Regulatory Czar,” the admistrator of the Office of Information and Regulatory Affairs. In his review/essay on Sunstein’s works, Professor Postell explicates Sunstein’s political thought. Professor Postell takes a hard look at Sunstein’s views on constitutional interpretation, government intervention, and individual rights, and discovers that he lies somewhere between old Progressives like John Dewey and postmodern Progressives like Richard Rorty on these questions.
Sunstein’s views on the modern administrative state have a political nuance. He acknowledges the inefficiency of regulatory agencies, but this doesn’t lead him to call the administrative state into question as a threat to individual autonomy. Instead, government is to shape individual autonomy. In Nudge: Improving Decisions About Health, Wealth, and Happiness (2008, co-authored with Richard Thaler), Sunstein outlines a framework for government and business “choice architects” to influence decisions made by individuals, gently inducing them to exercise their freedom responsibly.
Professor Postell explains Sunstein’s rationale for this project, and moves on to explore Sunstein’s views on the Constitution, the role of the judiciary, and congressional deliberation. The piece provides a good introduction to Sunstein’s thought, worth knowing well because it is now entrenched in the current administration.
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill
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