“Paranoid Libertarianism” Is Just As Mainstream As Modern Liberalism

The specter of “paranoid libertarianism” continues to haunt American liberals. Hot on the heels of Sean Wilentz’s recent fretting in The New Republic that Edward Snowden, Glenn Greenwald, and Julian Assange have undermined the case for big government by drawing too much attention to various instances of big government malfeasance, former Obama administration official Cass Sunstein has now weighed in with his own contribution to the genre, an op-ed titled “How to Spot a Paranoid Libertarian.”

According to Sunstein, paranoid libertarianism is characterized by such pathologies as “a presumption of bad faith on the part of government officials--a belief that their motivations must be distrusted,” as well as “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.”

Sunstein tries very hard to make that sound like dangerous and exotic stuff, but in fact what he’s really describing is mainstream American jurisprudence when it comes to such vast areas of the law as free speech, voting, abortion, privacy, and gay rights. In those areas, our judicial system basically operates exactly as Sunstein describes: it subjects government regulations to what lawyers call strict (or intermediate) scrutiny. In essence, judges presume that the government has acted illegitimately when it legislates in such areas, and therefore forces the government to shoulder the burden of proof and justify its actions with extremely convincing rationales. Why do the courts place these government actions under the microscope? To protect the people’s liberty to speak, vote, associate, and enjoy various forms of privacy. One more thing: American liberals overwhelmingly favor this approach in such cases.

Here’s a recent example. During the March 2012 oral argument over the constitutionality of Section 3 of the Defense of Marriage Act in United States v. Windsor, Supreme Court Justice Elena Kagan openly questioned the motives of each and every member of Congress who voted in favor of that law. “We have a whole series of cases which suggest the following,” Kagan told Republican lawyer Paul Clement, who was arguing in favor of DOMA. “That when Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases with some...some rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth?”

Is Elena Kagan a “paranoid libertarian”? Judging by Sunstein’s definition, the answer is yes. Welcome to the brave new world.

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  • Andrew S.||

    Is there a bigger idiot around than Cass Sunstein?

    If you're not distrustful of government motives, you're not paying attention.

  • Bobarian||

    "a belief that their motivations must be distrusted"

    What does it make me if I think it's their actions that I should distrust?

    I give a fuck about their motivations.

  • some guy||

    "motivations"

    There it is. Understand how someone gets paid and you will have a very good idea of what you can expect from them. No government worker gets paid to satify anyone (except maybe his boss).

  • Bill Dalasio||

    "I give a fuck about their motivations."

    No, you don't understand. If their motivations are good, the results can only be favorable. It's only those icky, yucky people with impure motivations that we shouldn't trust.

  • Will Nonya||

    well you have to forgive them if they meant well, don't you know that?

  • some guy||

    Distrust is just a social best practice. In what other aspect of life do we choose to just trust that perfect strangers have our best interest in mind?

  • Sevo||

    "Is there a bigger idiot around than Cass Sunstein?"
    Not sure. That's a pretty big field with some serious competition.

  • CatoTheElder||

    How dumb is Cass Sunstein?

    He's so dumb that he cannot distinguish between reasonable suspicion and psychosis.

    How can an intelligent person like Sunstein be so dumb? Because, to the likes of Cass Sunstein, only a psychotic person would doubt the goodness and greatness of government in all things.

  • ||

    "...only a psychotic person would doubt the goodness and greatness of government in all things."

    That is not what the evil fuckstain believes at all. Sunstien makes his living authoring Spider-to-the-Fly arguments.

  • Will Nonya||

    Don't confuse intelligence with education. Doing so demeans both.

  • Acosmist||

    Snowden! Greenwald! ...Assange.

    One of these...

  • The Original Jason||

    Palmer Raids! Creel Committee! J. Edgar Hoover!

  • Brett L||

    It would only be paranoid if they weren't demonstrably lying to us whenever the truth didn't suit their purposes and there was ever any valuation of liberty (especially once we take out the license of corporatists that often ride under the guise of liberty. Liberties are things we are all free to do).

  • Sam Grove||

    "Paranoid" libertarian = ad hominem

  • Raven Nation||

    Of course, the modern left is, to a large extent, built on a paranoid idea: that all rich people, everywhere, all the time, are out to screw everybody else.

    Exhibit A: leftist attitudes toward the Koch Brothers.

  • Brett L||

    Not all. The Kennedys (are they still rich), George Soros, and Bruce Springsteen are all good people despite having a net worth of 9 figures or more.

  • Raven Nation||

    Good point. Allow me to revise: rich people - who have not seen the light and demonstrated same by supporting leftist causes...

  • Tony||

    Rich people who are actually out there screwing people.

  • The Original Jason||

  • Anonymous Coward||

    Yes. The Kennedys have made excellent use of blind trusts, so that the money keeps coming regardless of the idiocy of the offspring.

  • Bill Dalasio||

    Because they have good motivations. Not like those icky, yucky Koch brothers. They have bad motivations.

  • ||

    There are inherently paranoid elements in Marxism in general.
    See Chomsky's "Manufacturing Consent". Constant talk of false consciousness. A huge part of the left thinks that everyone who disagrees with them is brainwashed by the "corporate media".

    The entire concept underlying Das Kapital is that the entire system of capialism is a giant secret plot to exploit the surplus labor value of the proletariat.

  • Raven Nation||

    Agreed

  • creech||

    Damned paranoid libertarians of 1776!

  • Cdr Lytton||

    Shorter Sunstein: "Who are you going believe, me or your lying eyes?"

  • ||

    Even shorter Sunstein: Robert Reich

  • ||

    I see what you did there.

  • CatoTheElder||

    Very good!

  • Jordan||

    I couldn't care less about government officials' motivation.

    Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber barons cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.
    -C. S. Lewis
  • wareagle||

    once again, a prog putting projection on display. His claim about libertarians' skeptical view of govt applies even more so to the left's view of private enterprise. If not for noble, heroic bureaucrats, every corporate chieftain would be happily poisoning children, starving the elderly, and paying sub-minimum wages in his sweathshop.

  • Square||

    This is the essence of partisanship.

    People on the left tend to believe that people in private industry are motivated entirely by love of profit without regard for morality or fairness.

    People on the right tend to believe that people in the government are motivated entirely by love of power without regard for morality or fairness.

  • Killaz||

    That is not partisanship, that is a class divide. The moral case for each is not equivalent either as the public sector cannot survive without using coercion against the private sector.

  • Sudden||

    And libertarians tend to believe that people in both govt and industry have some sense of both morality and fairness, but generally don't give a damn about motivations and instead focus on results.

    The profit system provides a way that people can a) gauge the results of these intentions and b) punish any wavering from these intentions via not purchasing their goods.

    Govt has no such checks.

  • Tony||

    People on the left tend to believe that people in private industry are motivated entirely by love of profit without regard for morality or fairness.

    Maybe that's because it's basically against the law for corporations to let such concerns as morality and fairness trump profitability.

  • The Original Jason||

    Against the law?

    Sounds like a government problem, not a market problem to me...

  • ||

    Exactly. They are the ones who think that sinster corporate overlords control the government. They are the ones who think the "corporate media" are conspiring to brainwash people into supporting capitalism.

  • ||

    Exactly. They are the ones who think that sinster corporate overlords control the government. They are the ones who think the "corporate media" are conspiring to brainwash people into supporting capitalism.

  • NoVAHockey||

    "what he’s really describing is mainstream American jurisprudence when it comes to such vast areas of the law as free speech, voting, abortion, privacy, and gay rights"

    which, by and large, progressives don't like. They lost their minds after Citizens United. I'm fairly convinced they don't approve of free speech at all.

  • wareagle||

    oh, they approve of it, but only when it is in the "correct" form, correct defined by them, of course. Unions handing money over to one party is okay. Same with Hollywood. And concepts like hate speech and speech codes are necessary, don't you know, because the wrong speech can hurt feelings.

  • NoVAHockey||

    what are these "feelings" you speak of?

  • wareagle||

    Cass is preparing the curriculum for your upcoming camp visit as we type.

  • croaker||

    Which is why I "bitterly cling to my guns". Cass wants me in a camp? Bring a lunch. And body bags for your made men.

  • Bo Cara Esq.||

    When a group stands up and says 'we are going to reserve the right to use force to ourselves' then it is just common sense to be skeptical of and constantly scrutinize that group.

  • Anonymous Coward||

    The first is a belief that if government is engaging in certain action, it will inevitably use its authority so as to jeopardize civil liberties and perhaps democracy itself.

    So Cass is handwaving the slippery slope, even though I can point to several areas (smoking, Drug War, Foreign War, Telecommunications, Auto manufacturing) where the government started out just "imposing a few rules" and today it exercises more or complete control compared to when they started?

    The second characteristic is a presumption of bad faith on the part of government officials -- a belief that their motivations must be distrusted.

    Cass, government by definition is power, or more accurately, legitimate violence. Why would you trust someone who actively seeks, and expends small fortunes for the power to do violence to others without fear of legal repercussion?

    The third characteristic is a sense of past, present or future victimization. Paranoid libertarians 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.

    Because the government has NEVER been used to target individuals or groups of individuals without just cause. Just ask Blacks, Chinese, Catholics, Jews, Japanese, Irish, Italians, Japanese, Anarchists, polygamists, and homosexuals.

  • Bill Dalasio||

    "The first is a belief that if government is engaging in certain action, it will inevitably use its authority so as to jeopardize civil liberties and perhaps democracy itself."

    Wow, thanks for catching that, AC. This is so egregiously stupid a statement, it should be used as a case study on why lawyers shouldn't do economics. If there is a non-zero probability of something happening, and enough trials are observed, eventually the thing will be the result. That's just basic math.

  • Anonymous Coward||

    It is an oft repeated joke that lawyers go to law school because they can't do math (exceptions: tax lawyers and estate planners).

    Judge Richard Posner of the Seventh Circuit is the foremost writer on applying economics to law. And he'll never make it to the USSC because he has argued, loudly and repeatedly, that marijuana and LSD should be completely legalized, among other politically unacceptable but perfectly rational opinions.

  • The Late P Brooks||

    According to Sunstein, paranoid libertarianism is characterized by such pathologies as “a presumption of bad faith on the part of government officials--a belief that their motivations must be distrusted,”

    "Ya got me dead to rights, Sheriff."

    *Throws down six-shooters, emerges from concealment with hands raised*

  • ||

    What? You didn't see Butch Cassidy, did you?

  • Francisco d Anconia||

    According to Sunstein, paranoid libertarianism is characterized by such pathologies as “a presumption of bad faith on the part of government officials--a belief that their motivations must be distrusted,” as well as “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.”

    So, sorta EXACTLY like the Founding Fathers.

    Those fucking anti-government EXTREMISTS!

  • Being Waterboarded||

    This was going to be my comment... you can add guys like Mark Twain and many other historically respected individuals to that list. In fact, at one time, distrust of government was as American as apple pie.

  • The Late P Brooks||

    “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.”

    Goatfucking Jesus on chromium stilts, just come right out and say it.

    FREEDOM IS SLAVERY

  • NoVAHockey||

    That's why we have Salon: Why you’re wrong about communism

  • ||

    I actually clicked through to that one earlier, and it's sort of glorious in its retardation.

  • Brandon||

    Jesus Christ, if you took a drink for every fallacy in that piece of shit, you wouldn't live past the 3rd paragraph.

  • ||

    Responding to that article would be a bit like teasing the retarded kid.

  • Square||

    1. Libertarians might use violence if someone were trying to steal their property. That's the same as Communist governments using violence to sieze people's property and purge their political opponents.

    2. People have confiscated other people's property in the past, and enslaved other people in the past. These people were often aided by the US Government. The US Government claims to be Capitalist. Therefore Capitalism involves enslaving and murdering people.

    3. Communists didn't ONLY kill people who were resisting having their property taken. They also killed other Communists for not being the right kind of Communists.

    4. The US Government allowing and enforcing slavery rights and reneging on free market deals negotiated with American Natives to purchase their land, exterminating them instead, is the fault of Capitalists, since some people got rich, which is a Capitalist thing.

    5. It would be different this time because, you know, robots.

    6. OK, so Communism fosters uniformity, but we'll be free in our minds! Like Diego Rivera, or Paul Robeson!

    7. Capitalism allows people to pursue uniformity if they choose to, which is bad because uniformity by choice is gross.

    On a side note, Hip-Hop is anti-capitalist?

  • Patrick in Michigan||

    If wanting to protect my Country from big government makes me a paranoid libertarian. So be it. Although, I am more a paleoconservative and quite the American Nationalist.

  • Almanian!||

    Just because they're out to get me doesn't mean that I'm paranoid, Cass.

    Go fuck yourself, slaver.

  • The Late P Brooks||

    Paranoid?

    I prefer to think of myself as "cautiously optimistic".

    With an EXTREMELY heavy emphasis on the caution part.

  • ||

    Cass has good intentions, so he really does see us as paranoid. As far as he's concerned, he would never march us off to death camps or regulate us into oblivion...unless it was for our own good. No need to be paranoid about that.

  • Dweebston||

    “a presumption of bad faith on the part of government officials--a belief that their motivations must be distrusted,”

    Distrusted, hell. I'd settle for more voters at least habituating themselves to questioning whether there are auxiliary motivations in the first place. We can talk about mistrust and its legitimacy once people learn to recognize that bureaucrats aren't mannequins devoid of personal initiative, and politicians aren't always progenitors of wholesome civic goodness.

    Granted, I'm one of those paranoiacs who believes that autonomy wedded to authority necessarily engenders perverse incentives.

  • entropy||

    “a presumption of bad faith on the part of government officials

    Check.

    a belief that their motivations must be distrusted,”

    Check.

    as well as “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.”

    https://www.youtube.com/watch?v=QQBttKoetqo

  • CatoTheElder||

  • The Late P Brooks||

    I wonder (not so much as to actually research it) what Sunstein has to say about Public Choice Theory.

    Probably dismisses it as a paranoid delusion.

  • robc||

    Liberty is the overriding, if not only, value.

    I dont see how that makes me paranoid. It means Im clear in my priorities.

  • CatoTheElder||

    Ah, but don't you understand that there are Muslim terrorists, Russian and Chinese hordes, and a dozen other enemies who hate us for our freedom and want to hurt us and kill us with WMDs? Of course we should be willing to trade off all of our liberties for the security that government promises because the Constitution isn't a suicide pact. It's really that scary: desperate times call for desperate measures, and only a strong surveillance state with total information awareness can deliver the security we need.

    Nothing paranoid about that!

  • Adam330||

    At least paranoid libertarians have presumptions that are consistent with one another. Modern liberals simultaneously presume that public officials are acting in good faith and that public officials are pawns of moneyed corporate interests.

  • ||

    According to Sunstein, paranoid libertarianism is characterized by such pathologies as “a presumption of bad faith on the part of government officials--a belief that their motivations must be distrusted,” as well as “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.”

    THIS IS WHAT LIBERTARIAN PATERNALISTS ACTUALLY BELIEVE

  • Brett L||

    Is a libertarian paternalist like a free-market communist? You know, where the good of the modifier is intended to lessen the impact of the evil of the noun?

  • Dweebston||

    Quit mansplaining, cishitlord.

  • Killaz||

    What of those foreigners who distrust our intentions and ask why we have bases on their soil, are they just paranoid libertarians too, Cass?

  • Roger the Shrubber||

    According to Sunstein, paranoid libertarianism is characterized by such pathologies as “a presumption of bad faith on the part of government officials--a belief that their motivations must be distrusted,”

    Their stated intentions are all that matter! Never mind the consequences. The negative ones foreseen buy those whom presume bad faith? They were unintended, so don't distrust our motivations!

  • Fluffy||

    “a presumption of bad faith on the part of government officials--a belief that their motivations must be distrusted,”

    Considering the fact that a great many politicians unabashedly tell me that they intend to sacrifice my interests to the benefit of others-who-are-not-bad-like-me, I don't see how anything would change if I took them at their word and trusted them implicitly.

  • ||

    This :)

  • JW||

    Only the paranoid survive.

  • Killaz||

    We are ruled by people who are offended that the people don't trust their innate goodness, hence why libertarians are singled out by them. Their rationale is no different than and are based on the same premise of justification as such absurdities in human history as the idea of the divine right of kings. Nothing has changed in human nature, the masters still wont their serfs to wear blinders and not look them in the eye to pass judgement.

  • Killaz||

    still want their serfs . . .

  • Francisco d Anconia||

    On a positive note...

    Would anyone have dreamt, three years ago, that mainstream journalists and party affiliates would be writing articles about libertarianism?

    If they are attacking us, it's because they fear us.

  • Tonio||

    Good observation, FdA. I've noticed a sea change over the last several months. First they ignore you, then they laugh at you, then they debate you, then you win. I think we're now at the juncture between being laughed at and being actually debated.

  • Marc F Cheney||

    I don't think government officials are out to get me, specifically.

    I just think they're callously indifferent towards me, at best.

  • prolefeed||

    The entire job of an IRS auditor is to be out to get you. Callous indifference would be a huge upgrade.

  • ||

    Yep, this can't be repeated enough. Government officials are not there to help you do things. They are there solely to make it more difficult to do things.

  • ||

    What's more paranoid?
    Beleiving that the people with actual guns and surveillance equipment are trying to spy on you and control you?

    Or beleiving that Monsanto wants to poison you with GMOs?
    Or that Republicans want to keep women from getting birth control?
    Or that corporations in general are in a massive plot to brainwash you and exploit your suplus labor value?

  • Killaz||

    It is not like they are not suspicious of your intentions when you want to buy a gun, and make you jump through hoops built around the idea that you can't be trusted. But if they want to purchase and stockpile more munitions than were used during the entire Vietnam War for a department unrelated to defense, hey now, how dare you question their motivations!

  • Brett L||

    "You wouldn't believe the bulk discount on a billion rounds of .40"

  • ConstitutionFirst||

    For highly suspicious reasons the biggest purchase was for .380, or 9mmm short. Not a very powerful round, but a calliber many, many Americans own. Therefore it is highly unlikely the government actually needs 1,000,000,000 rounds of hollow point .380 for 'practice' as much as they feel the need to keep it out of the hands of law-abiding citizens.
    What that represents is a defacto ban on personal protection from the government, an end run around our constitutional rights... and for all that I'm NOT supposed to be suspicious?
    You would have to be deaf, blind and dumb not to see evil in play. Very appropriate Cass Sunstein would be the spokeshole for such anti-Americanism.

  • Tony||

    We just distrust other powerful interests the same way you guys only distrust government. Liberal distrust of government goes back to the beginning. That's why we invented a form of it with various checks and balances including regular elections.

    You guys tend to get so obsessed with government that it's seems like you don't think any other entity is even capable of doing wrong.

  • FYTW||

    It's so cute when you try to pretend that modern liberals are the intellectual and ideological heirs of the Framers.

    Thomas Jefferson scraped shit like you off his shoes.

  • croaker||

    Thomas Jefferson wouldn't step in that shit on his worst day.

  • The Late P Brooks||

    I don't think government officials are out to get me, specifically.

    THAT'S JUST WHAT THEY WANT YOU TO THINK.

  • Marc F Cheney||

    Fuuuuuuuuuuuuuuuuuuuuuuuuuu

  • CE||

    When the people who want to spy on you call you "paranoid", they're just trying to distract you.

  • prolefeed||

    paranoid libertarianism is characterized by such pathologies as 'a presumption of bad faith on the part of government officials--a belief that their motivations must be distrusted'

    Whenever I listen to someone opining about government, I substitute the words "mafia, but with better PR" for "government", and usually they come across sounding like a clueless idiot.

    Here goes: "paranoid libertarianism is characterized by such pathologies as 'a presumption of bad faith on the part of operatives for a mafia with better PR --a belief that their motivations must be distrusted"

    Yep -- calling that "paranoid" sounds retarded, all right.

  • Jaunty Rockefeller||

    But wait. Setting aside criticism of Sunstein's op-ed, however warranted, your response makes no sense. Justice Kagan IS a government official, after all, empowered by the government itself to be skeptical of the motives and actions of the other two branches. And her skepticism about government motives is commanded of her by the Constitution and by precedent interpreting the Constitution. We may crack a glimpse of her personal views, but who knows what they truly are. In much the same way Scalia has commented that he personally believes criminals should not be afforded the full protections of the 4th, 5th, and 8th Amendments as they are currently interpreted, but he feels duty-bound to uphold them. Certainly Kagan is no more of a paranoid libertarian, whatever that means, than Scalia is an ACLU member.

  • Wlinden||

    "A presumption of bad faith on the part of government officials" is characteristic of the left whenever there is a Republican (or Lyndon Johnson) administration.

  • John C. Randolph||

    “a presumption of bad faith on the part of government officials--a belief that their motivations must be distrusted,”

    So, anyone who pays attention to the news is paranoid now?

    Fuck you, Cass Sunstein, you worthless apparatchik.

    -jcr

  • ConstitutionFirst||

    Just because Progressivism has never worked in the past, does not work today, and is highly unlikely to work in the future, is not a good enough reason for him to give up on a failed ideology.
    /sac
    How dare you even question failure?
    You must be racist. ;-)
    /sac

  • AD-RtR/OS!||

    Winner, winner....Pay the Line.

  • ConstitutionFirst||

    Why does Progressives like Sunstein continue to call themselves Liberals? They are as far from classical Liberalism as today's Republicans are from classical Conservationism.

  • AD-RtR/OS!||

    Not all Republicans self-label as either Conservatives, or conservatives.

  • D. M. Michell||

    "Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master." George Washington. I guess Cass Sunstein would label George Washington a "paranoid Libertarian."

  • AD-RtR/OS!||

    When you've been chased into the shadows by Progressives for six-decades, you tend to be - with good reason - a mite paranoid.
    Cass is having a "blind squirrel" moment here, but that doesn't mean I'm going to be taking a lot of advice from him.

  • ArbutusJoe||

    How about that photo of Cass. Chewin' the spectacles to show us just how hard it is to nudge us towards virtue.

  • ibcbet||

    If not for noble, heroic bureaucrats, every corporate chieftain would be happily poisoning children, starving the elderly, and paying sub-minimum wages in his sweathshop.

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