Cass Sunstein on Unifying Principles of Liberalism

The famed Harvard law professor tries to outline a set of principles liberals - broadly defined - can agree on. And it's a strong effort, even though I have a few caveats and reservations.

(NA)

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:

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.

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.

2. Understood in this way, liberalism does not mean "left" or "right." It consists of a set of commitments in political theory and political philosophy, with concrete implications for politics and law. In North America, South America, Europe and elsewhere, those who consider themselves to be conservatives may or may not embrace liberal commitments. Those who consider themselves to be leftists may or may not qualify as liberals. You can be, at once, a liberal, as understood here, and a conservative; you can be a leftist and illiberal. There are illiberal conservatives and illiberal leftists….

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

3. Abraham Lincoln was a liberal. Here is what he said in 1854:

"If the Negro is a man, is it not to that extent, a total destruction of self-government,    to say that he too shall not govern himself? When the white man governs himself that is self-government, but when he governs himself and also governs another man, that is more than self-government — that is despotism. … No man is good enough to govern another man without that other's consent. I say this is the leading principle — the sheet anchor of American republicanism."

We might change "American republicanism" to "liberalism." The idea of a sheet anchor is a useful way of linking self-government, in people's individual lives, with self-government as a political ideal.

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.

4. Rejecting despotism, liberals prize the idea of personal agency. For that reason, they see John Stuart Mill's great work "The Subjection of Women" as helping to define the essence of liberalism. Like Lincoln, Mill insists on a link between a commitment to liberty and a particular conception of equality, which can be seen as a kind of anticaste principle: If some people are subjected to the will of others, we have a violation of liberal ideals. Many liberals have invoked an anticaste principle to combat entrenched forms of inequality on the basis of race, sex and disability. Liberals are committed to individual dignity.

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

6. The rule of law is central to liberalism. The rule of law requires clear, general, publicly accessible rules laid down in advance. It calls for law that is prospective, allowing people to plan, rather than retroactive, defeating people's expectations. It requires conformity between law on the books and law in the world. It calls for rights to a hearing (due process of law). It forbids unduly rapid changes in the law. It does not tolerate contradictions or palpable inconsistency in the law. The rule of law is not the same as a commitment to freedom of speech, freedom of religion or freedom from unreasonable searches and seizures. It is a distinctive ideal, and liberals adopt it as such.

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.

9. Liberal authoritarianism is an oxymoron. Illiberal democracy is illiberal, and liberals oppose it for that reason. Liberals reject illiberal populism.

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.

10. Liberals believe that freedom of speech is essential to self-government. They understand freedom of speech to encompass not only political speech but also literature, music and the arts (including cinema)….

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

15. Liberals prize free markets, insisting that they provide an important means by which people exercise their agency. Liberals abhor monopolies, public or private, on the ground that they are highly likely to compromise freedom and reduce economic growth. At the same time, liberals know that unregulated markets can fail, such as when workers or consumers lack information or when consumption of energy produces environmental harm.

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.

16. Liberals believe in the right to private property. But nothing in liberalism forbids a progressive income tax or is inconsistent with large-scale redistribution from rich to poor. Liberals can and do disagree about the progressive income tax and on whether and when redistribution is a good idea. Many liberals admire Lyndon Johnson's Great Society; many liberals do not.

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 ignore this problem, which is ubiquitous in many areas of government policy.

17. Many liberals are enthusiastic about the contemporary administrative state; many liberals reject it. Within liberalism, there are vigorous debates on that question. Some liberals like laws that require people to get vaccinated or to buckle their seatbelts; some liberals do not. Liberals have different views about climate change, immigration, the minimum wage and free trade.

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.

24. Liberals favor and recognize the need for a robust civil society, including a wide range of private associations that may include people who do not embrace liberalism. They believe in the importance of social norms, including norms of civility, considerateness, charity and self-restraint. They do not want to censor any antiliberals or postliberals, even though some antiliberals or postliberals would not return the favor…..

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.

30. Liberals like laughter. They are anti-anti-laughter.

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.