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.”The specter of “paranoid libertarianism” continues to haunt American liberals. Hot on the heels of Sean Wilentz’s
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.