On Monday, I started serial-blogging my article, The Myth of the Federal Private Nondelegation Doctrine, which has just come out in the Notre Dame Law Review. I continued this on Tuesday, Wednesday, and Thursday, and today's is the last installment. This is a timely issue, because of the horseracing case currently pending in the Fifth Circuit (in which I filed an amicus brief on behalf of the Reason Foundation and others). Here's Part II.C, explaining how there are no nondelegation doctrines specific to private parties — here, focusing on the Due Process Clause. And this post ends with the conclusion of the article. (Please be sure to refer to the real version if you want all the footnotes!)
* * *
C. No Private Due Process Doctrine
Finally, let's talk about application-based theories; here, I'll focus on the bias branch of due process.
I start here by pointing out that, in some ways, due process doctrine is pro-privatization, because a private party is often a nonstate actor—which is not bound by constitutional rights. Whether or not this is desirable on policy grounds, some privatizations are more likely to be constitutional if the delegate is private.
Then, I focus on cases where private parties are exercising coercive power and are thus state actors subject to due process. Under the bias doctrine, the power to deprive someone of a life, liberty, or property interest can't be vested in someone who is biased—especially financially self-interested—in the exercise of that power. This caselaw doesn't draw distinctions between public and private actors.
1. The State Action Doctrine
Private parties generally aren't "state actors"; they're exempt from virtually all constitutional rights. (But not always: for instance, private prison providers are still state actors with respect to inmates, because they perform a traditional public function.) The state action doctrine has been around for over a century and isn't going anywhere soon, though it involves many tricky cases, especially for hybrid entities.
When a nonstate-actor private entity replaces a previously governmental entity, lots of constitutional protections no longer apply. For example, employees are easier to fire—including for nakedly political reasons—and any hearings due process might have required for civil-service employment won't be required in the private context. (And this isn't just a matter of constitutional rights: private parties that enforce federal law, for instance as qui tam relators, don't have the same legal constraints that the executive branch has related to faithfully executing the laws.)
This is a common critique of privatization. Surely government can't free itself from constitutional restrictions, and reduce constitutional protections available to service recipients, by offloading those responsibilities to private providers? But it can—and does. This constitutional deregulation that results from privatization is often billed as an efficiency advantage; others argue that it may be part of an insidious agenda, and that it is in any event harmful even if unintentional.
The need to maintain constitutional accountability might be a good policy argument against privatization—though keep in mind that desirable procedures can still be provided by contract as a condition of privatization. (In other cases, there's no need for government to offer the service at all, and the state action doctrine provides important guarantees for the liberty of the private sector.)
But this isn't a constitutional argument against privatization. If anything, the state action doctrine is pro–private delegation, because it delimits a public sphere where constitutional rights apply in full force from a private sphere where constitutional rights don't apply. To the extent that privatization thus removes constitutional restrictions that previously applied, privatization makes a particular arrangement more likely to be constitutional. While certain procedures might have been unconstitutional under public provision, after privatization (if the private provider isn't a state actor) the question of constitutionality doesn't even arise.
2. Private Cases: Just like Public Cases
But now let's focus on cases where the state action doctrine doesn't help the private delegate. For instance, where the private party is exercising coercive power, it is probably a state actor under the "traditionally exclusive public function" doctrine; privatization thus doesn't change the applicability of constitutional norms.
A district court refuses to enter default judgment against caselaw publisher Leagle, concluding that the plaintiff's claims against Leagle were legally insufficient.
From Thomas v. Leagle, Inc., decided Oct. 23 by Judge David Carter (C.D. Cal.), but just added to Westlaw:
The following facts are taken from Plaintiff's Complaint …. Defendant Leagle, Inc. … operates a website that provides information about legal cases, including publishing copies of judicial opinions. [Leagle] published a trial court order where Plaintiff was found liable for fraud in a California state trial court.
An appellate court subsequently reversed the trial court, and the case against Plaintiff was dismissed with prejudice. Defendant did not update its report of the trial court's opinion to indicate that the opinion was reversed and Plaintiff was not liable for fraud. According to Plaintiff, the Leagle's reporting "created the false impression that a final judgment has issued finding that Thomas was guilty of civil fraud."
After unsuccessfully trying to persuade Leagle to remove its report or update it, Plaintiff filed this lawsuit. Plaintiff alleges Defendant's allegedly misleading reporting constituted defamation, and "false light invasion of privacy."
New Jersey law requires all school boards in the state to set aside a portion of their meetings for public comment. During the Teaneck Board of Education's Oct. 18 board meeting, many constituents voiced opinions about a recent letter from the district's superintendent to students' families following the events of October 7. In the letter, Superintendent Andre Spencer acknowledged the "latest incidents in the cycle of violence in the Middle East." Spencer recommended that schools "foster an open dialogue" and called for "a comprehensive understanding of the complex factors impacting our world."
Several parents and community members used the public comment period to criticize Spencer for not explicitly and forcefully condemning the attack. But when they described Hamas's actions to support that criticism, the board repeatedly shut them down. The board took particular exception to commenters' "graphic" descriptions of the attack and repeatedly told speakers to keep in mind that children were in the audience.
Yet when other commenters used their time to emphasize the plight of Palestinians and used similarly "graphic" language, the board allowed them to continue.
For example, when one speaker said it's possible to unequivocally condemn Hamas's actions without taking a side in the conflict "unless of course you're trying to appease people who actually think that the raping and murdering and pillaging of the community is appropriate," Board Vice President Victoria Fisher immediately cut him off. In contrast, the board remained silent when another commenter said, "These people talking about raping and piling bodies on top of each other, that happened in the Holocaust. And if they're having PTSD for what they're doing to the Muslim community in Palestine, that's something they need to seek mental health counseling for."
Students at Penn Chavurah wanted to show Israelism, which has drawn significant controversy this year, but the school cited "a potential negative response on campus" and used the word "vitriol," according to one of the film's producers and a student.
The university had offered to allow students to screen it in February, said senior Jack Starobin, 21, a board member and student organizer for Penn Chavurah ….
Penn said in a statement that "the safety and well-being of the Penn community is our top priority" and that "after discussions with Penn Public Safety and University administration," the decision was made last week to postpone the screening.
"We are actively working to find a date in February when the film can be viewed and discussed safely and constructively," the university said….
The Florida Constitution's crime victims provision (known as Marsy's Law) provides, in relevant part, that "every [crime] victim" has
The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim's family, or which could disclose confidential or privileged information of the victim.
Does this include the right to prevent the disclosure of the victim's name? No, said the Florida Supreme Court today in City of Tallahassee v. Florida Police Benevolent Ass'n, Inc. The case involved police officers who "used lethal force in detaining a suspect," and who claimed they were crime victims who were acting in self-defense; but the court's rationale extends to all crime victims. From Justice John Couriel's opinion for the court:
From Doe v. Ledor, decided today by the California Court of Appeal, in an opinion by Justice Tracie Brown, joined by Justice Jon Streeter and Judge Joni Hiramoto:
Plaintiff filed a lawsuit alleging that his ex-girlfriend and her friends, including defendant and appellant Gina Ledor, embarked upon a "vengeful smear campaign" to harass and defame him after his senior year of high school.
Pertinent to this appeal, in the summer of 2020, Gina Ledor sent emails to school officials at Dartmouth College, stating essentially that plaintiff had committed voter fraud to win an election for student body president at Berkeley High School (BHS) and providing links to what she represented to be articles and a podcast about the incident. She wrote that she was sharing the information so that Dartmouth would be "truly aware of whom you have admitted," and the BHS election incident was only one of many instances where plaintiff had shown a lack of empathy and character, but it "just happened to be the most well-documented."
Sometime after receiving these emails, Dartmouth revoked plaintiff's offer of admission….
Plaintiff asserted claims against Gina for defamation, false light, invasion of privacy, civil harassment, civil stalking, and intentional infliction of emotional distress, and he asserted a claim for vicarious liability against Gina's parents.
The Ledors moved to have the case dismissed at the outset, using California's "anti-SLAPP" statute, which provides for prompt dismissal (and other remedies, such as a requirement that plaintiff pay defendants' attorney fees) for legally meritless cases. The statute is limited, in relevant part, to cases brought based on defendants' speech that "contribute[d] to or further[ed] the public conversation on an issue of public interest," and the court concluded that Gina's speech didn't qualify:
On Monday, I started serial-blogging my article, The Myth of the Federal Private Nondelegation Doctrine, which has just come out in the Notre Dame Law Review. I continued this on Tuesday and Wednesday, and I'll continue serial-blogging it here today and tomorrow. This is a timely issue, because of the horseracing case currently pending in the Fifth Circuit (in which I filed an amicus brief on behalf of the Reason Foundation and others). Here's Part II.B, explaining how there are no nondelegation doctrines specific to private parties — here, focusing on separation-of-powers theories like the Appointments Clause. (Please be sure to refer to the real version if you want all the footnotes!)
* * *
B. No Private Separation-of-Powers Doctrine
Now for the recipient-based theories. I will focus here on the Appointments Clause, which is the most significant recipient-based theory—though much of the discussion of appointments also carries through to issues of removal.
Anyone wielding "significant authority pursuant to the laws of the United States" is an officer of the United States and therefore must be appointed by one of the two methods of officer appointment: presidential nomination plus Senate confirmation, or (optionally for inferior officers) by the President, courts, or heads of departments. (This is only approximately true: see the "continuing and permanent" discussion below.) The requirement of wielding significant federal authority is functional, not formalistic: if someone who could be labeled "private" wields such authority, they are an officer and require the appropriate appointment process.
How does my view above relate to the strong separation-of-powers antiprivatization view? That view would hold that private delegates can never be valid because, not being part of the government, they can never exercise governmental power. The difference between these two views is less than it may appear, and is perhaps merely semantic.
The latter view would presumably hold that, if the invalid private parties go through the constitutional appointment process, that would cure the problem—indeed, the previously private parties would have then become part of the federal government. My view wouldn't care much about the labeling; perhaps, if the private parties were officers and directors of a private corporation traded on the stock market (which did mostly nongovernmental work), it might seem unnatural, as a matter of common usage, to stop calling the company "private." I would just say that, public or private, one can wield significant federal authority as long as one is constitutionally appointed.
Both views would agree that appointment cures the problem. But, I would stress, this is exactly the same thing we would say about federal employees: even a traditional federal employee can't wield significant federal authority without going through the constitutional appointment process. In short, the public-private labeling—and whether the person involved would have been called "public" or "private" before the appointment—shouldn't much matter.
The bottom line is that the Appointments Clause poses no barrier to privatization or outsourcing. Anyone—employee, contractor, random guy, or other—can equally be the recipient of federal power if subjected to the requisite political accountability through the constitutional appointment process.
1. The "Continuing and Permanent" Limitation
The idea that the Appointments Clause is neutral as between public and private actors is only approximately true. Because of a line of nineteenth-century caselaw, certain sorts of private actors—even when they wield significant government authority—are entirely excluded from the Appointments Clause's scope. This introduces a certain pro-privatization bias into the Appointments Clause.
Donald Trump. ( Kyle Mazza/SOPA Images/Sipa USA/Newscom)
Today, The Bulwark published my article making the case for disqualifying Trump from future public office under Section 3 of the 14th Amendment. I address a variety of issues, including moral and pragmatic considerations, as well as purely legal ones. Here's an excerpt from the introduction:
The effort underway in several states to use Section 3 of the Fourteenth Amendment to disqualify Donald Trump from becoming president again raises a variety of legal, moral, and political issues. But fundamentally it comes down to this: liberal democracies often have good reason to bar from positions of vast power people whose track record shows them to be a threat to democracy itself, or to basic liberal values. Section 3—originally enacted to bar former Confederates in the aftermath of the Civil War—is a useful tool towards that end. And Trump epitomizes the sort of person who should be barred, for both legal and pragmatic reasons.
Section 3 bans anyone from state or federal office who previously held certain public offices and "engaged in insurrection" against the United States or gave "aid or comfort to the enemies thereof." Donald Trump is disqualified under Section 3 because of his attempt to use force and fraud to overturn the results of 2020 election, and especially because of his role in instigating the January 6, 2021 attack on the Capitol.
A president who tried to use force and fraud to stay in power after losing an election should not be allowed wield the power of office ever again. And we need not and should not rely on the democratic process alone to combat such dangers.
Trump should not be barred from the ballot if there are legal reasons why Section 3 cannot be used against him. But the legal arguments against disqualification are ultimately unsound, and most are very weak. The same goes for pragmatic arguments against disqualification.
I addressed some of the issues related to democratic theory and slippery slope concerns in greater detail in a recent Lawfare article.
The U.S. Court of Appeals for the Fifth Circuit is soliciting comments on a proposed change. Rule 32.3 would now restrict the use of generative AI (with changes in red):
32.3. Certificate of Compliance. See Form 6 in the Appendix of Forms to the Fed. R. App. P. Additionally, counsel and unrepresented filers must further certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human.A material misrepresentation in the certificate of compliance may result in striking the document and sanctions against the person signing the document.
The new certificate of compliance would require the lawyer to check one of two boxes:
3. This document complies with the AI usage reporting requirement of 5th Cir. R. 32.3 because:
- no generative artificial intelligence program was used in the drafting of this document, or
- a generative artificial intelligence program was used in the drafting of this document and all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human.
I think this proposal strikes a good balance. Lawyers are not barred from using generative AI, but they have to attest that they used this technology. And you can be certain that briefs with the AI box checked will be reviewed more carefully. Indeed, I would be eager to see an empirical study performed about the briefs that check the second box. Clients may also want to see this information--they may have thoughts about lawyers who bill their time to use generative AI.
The Thomas Jefferson High School for Science and Technology. Fairfax, Virginia, defendant in a lawsuit claiming discrimination against Asians. (NA)
My wife, Alison Somin (an attorney with the Pacific Legal Foundation, and former special assistant at the US Commission on Civil Rights) has an article about anti-Asian discrimination in education, and how federal agencies have mostly ignored it:
Discrimination against Asian-American students in admissions at selective universities has been an open secret for decades. An entire cottage industry even coached ambitious applicants on how to be less Asian. Data produced in litigation showed that for applicants with academic credentials in the top 10 percent of Harvard's pool, the odds of admission were 56.1 percent for African Americans, 31.3 percent for Hispanics, and 15.3 percent for whites, but only 12.6 percent for Asian Americans. In emails uncovered in the parallel lawsuit against the University of North Carolina, admissions officers were candid about preferring applicants of other races over Asian Americans. One representative exchange: "perfect 2400 SAT All 5 on AP one B in 11th" "Brown?!" "Heck no. Asian."
Yet the federal agencies charged with enforcing civil rights laws prohibiting this discrimination largely have done nothing in response. These agencies could have issued guidance emphasizing that such discrimination is forbidden or pursued targeted investigations against universities widely suspected of discrimination. But they have not….
Selective public magnet schools also discriminate against Asian Americans. The Fairfax County School Board restructured its admissions process to lower the number of Asian Americans at Thomas Jefferson High School, a top science and technology magnet program. The Board did not hide its intent: litigation produced private text messages, stating "there has been an anti [A]sian feel underlying some of this, hate to say it lol" and that Asian students were "discriminated against in this process." They lamented that "Asians hate us."
Represented by my firm, Pacific Legal Foundation, a parent group called the Coalition for TJ fought back, claiming that the changes violated the Constitution. Their case is currently pending a writ of certiorari at the Supreme Court.
School officials in Boston, New York City, and Montgomery County, Maryland, have similarly revised admissions procedures to lower the numbers of Asian American students in magnet schools there. In Boston, school officials were even caught mocking Asian American surnames on a hot microphone. In each of these cities, parent groups have sued, represented by Pacific Legal Foundation. These cases are pending in the federal appellate courts.
Again, federal civil rights agencies could have opened targeted investigations into anti-Asian discrimination in any of these school districts. They could have issued guidance letters reminding school boards of their legal obligations. They have not. In Coalition for TJ v. Fairfax County School Board, the Department of Justice even filed an amicus brief in the Fourth Circuit supporting the discriminating school district. It is difficult to imagine a similarly indifferent federal response if school officials spoke about members of any other racial group the way Fairfax County and Boston officials talked about Asian-American students.
What can be done to address this problem? As Alison suggests, a valuable first step would be for federal officials to deal with anti-Asian discrimination in education the same way they would with any other discrimination targeting racial minorities. The Supreme Court's recent decision in SFFA v. Harvard is the first Supreme Court ruling to take account of anti-Asian discrimination in higher education, and will make it easier to pursue remedies against it.
In previous writings about this issue, I and others have compared today's anti-Asian discrimination in education with anti-Semitic discrimination practiced by many elite educational institutions in the early to mid twentieth century. Recent outbreaks of anti-Semitism on campus in the wake of the Israel-Hamas war further highlight parallels between the two cases.
The distinctive left-wing version of anti-Semitism - focusing on the economic role of Jews - has some obvious parallels with left-wing rationales for anti-Asian discrimination. Both groups are stigmatized for their relatively high levels of success in education and business. Far-leftists tend to look on such success with suspicion, and this ideology has disproportionate sway in many educational institutions. On top of that, any group with a disproportionately high representation at elite schools (relative to their percentage of the population) makes it harder to achieve the goal of proportionate representation of all ethnic groups, an objective dear to hearts of many left-wing university officials.
The political right has its own awful history of both anti-Semitism and anti-Asian bigotry. But that in no way justifies the left-wing variants of these phenomena or vice versa.
As Alison notes, she is co-counsel for the plaintiffs in the Coalition for TJ case. I previously wrote about that case here and here.
Skeptics and conspiracy theorists (though not Volokh Conspiracy theorists!) may discount what I say on this topic because my wife is involved. But, for what it's worth, my interest in both anti-Asian discrimination in education and the more general issue of the use of "facially neutral" policies for discriminatory purposes long predates Alison's work on the TJ case. I first became interested in these problems when I attended a high school with a large number of Asian students in the late 1980s and early 90s (graduating in 1991). Classmates were worried about discrimination in elite-university admissions even back then.
UPDATE: It's worth noting that the Department of Education recently opened investigations into anti-Semitic discrimination at several universities and in NYC public schools. Whether they will take any meaningful action on anti-Asian discrimination in admissions remains to be seen.
Chang-Tai Hsieh and Enrico Moretti's 2019 article, "Housing Constraints and Spatial Misallocation" is a much-cited and highly influential paper in the literature on the economic effects of zoning. It finds that exclusionary zoning restrictions in several major US metro areas had large negative effects on the economy. Between 1964 and 2009, the authors concluded, they lowered GDP to the point where it was 8.9% lower in 2009 than it would have been if these jurisdictions had only average levels of zoning restrictions.
In 2021, economist Bryan Caplan pointed out methodological errors in the authors' calculations, which - when corrected - showed they greatly underestimated the negative effects of zoning. The authors acknowledged they had erred, and the apparent net effect was to further strengthen the case against zoning.
Recently, economist Brian Greaney of the University of Washington posted a critique the Hsieh-Moretti article in which he argues they made serious methodological errors that, when corrected, severely weaken their conclusions. Unlike in the case of Caplan's critique, this time the authors have not admitted error. Hsieh has posted a response to Greaney (drawn from his referee report on Greaney's paper), and Greaney, in turn, has posted a rejoinder. Housing policy expert Salim Furth has a helpful overview of the issues raised by Greaney (though he only briefly notes Hsieh's response).
This debate is ongoing, and it's not yet clear to what extent the Hsieh-Moretti article will end up being discredited. The issues involved are technical in nature, so I cannot easily summarize them here. Interested readers will have to read the article, critique, response, and rejoinder for themselves, to get a sense of what is going on. And, unfortunately, much of it is not easily accessible to those with no background in econometrics. Greaney's paper has not - so far - been published, and it's not entirely clear whether it will survive peer review, and what it will look like in its final form (assuming publication).
Nonetheless, my tentative judgment is that Greaney has at least raised serious questions about the article's model and use of data. At the very least, scholars and policy analysts should be more cautious in citing the Hsieh-Moretti study unless and until these doubts are resolved.
In addition, the fact that the article had already been shown to have one significant methodological error (the one Caplan found) should, in retrospect, have led more of us to wonder whether there were others.
I feel an obligation to emphasize these points because I am a longtime critic of zoning and have cited the Hsieh-Moretti study in various writings of my own. I also highlighted the error identified by Caplan, pointing out how it strengthened the case against zoning. Intellectual honesty requires pointing out new analysis that cuts the other way, too.
The Hsieh-Moretti study is far from the only one that finds large negative effects of zoning on the economy, housing availability, and opportunities for the poor and minorities. I cited others in Chapter 2 of my book Free to Move. As Furth notes in his commentary on this debate, economists Gilles Duranton and Diego Puga have reached very similar conclusions to Hsieh and Moretti's in a study that avoids the possible errors Greaney argues undermine the latter.
Thus, I continue to believe that zoning has large negative effects, and that most restrictions on housing construction should be abolished. But I do have to admit the case for that position is weaker at the margin than it would be if there weren't serious questions about the validity of the Hsieh-Moretti article.
On Monday, I started serial-blogging my article, The Myth of the Federal Private Nondelegation Doctrine, which has just come out in the Notre Dame Law Review. I continued this yesterday, and I'll continue serial-blogging it here over the next couple of days. This is a timely issue, because of the horseracing case currently pending in the Fifth Circuit (in which I filed an amicus brief on behalf of the Reason Foundation and others). Here's Part II.A, explaining how there are no nondelegation doctrines specific to private parties — beginning with the Nondelegation Doctrine of Article I. (Please be sure to refer to the real version if you want all the footnotes!)
* * *
II. No Private Nondelegation Doctrines
Do any of these doctrines prohibit private delegations? If, per the conventional wisdom discussed in the Introduction, Schechter Poultry and Carter Coal prohibit Congress from delegating to private parties (without regard to the traditional "intelligible principle" doctrine for delegations to public parties) . . . and if (perhaps also due to Carter Coal) you can't give power to private parties . . . and if (as Justices Alito and Thomas say) private parties can't exercise federal power because they're not within the government . . . then aren't private delegations invalid, maybe for several different reasons?
As it happens, though, private delegations have been widely misunderstood. Contrary to popular belief, there is no Article I prohibition against private delegations, though Schechter Poultry is often misread to imply one. The prohibition is also often inferred from Carter Coal, but Carter Coal is best read as a due process case—and one that also doesn't impose any per se prohibition on delegations to private parties. Likewise, recipient-based theories might invalidate certain private delegations, but not because the parties are private. Private status might be correlated with some relevant factors, but it generally isn't part of the actual test.
Understanding how the theories differ—and why they don't rule out private delegations—thus opens the door to various types of privatization that would otherwise be thought impermissible.
A. No Private Article I Nondelegation Doctrine
Nothing in the Article I Nondelegation Doctrine bars private delegations. Several Supreme Court cases have upheld private delegations, and no Supreme Court cases have struck them down (or have even analyzed them differently), under that doctrine. Some cases that have been thought to establish such a doctrine have been thoroughly misread.
This result makes sense. The Article I Nondelegation Doctrine is a giver-based doctrine: Congress isn't supposed to give up too much power. Provided the "too much" question is answered properly, why should it matter, under that doctrine, who gets that power? The doctrine might play out slightly differently when private parties are involved, but that's a result of the neutral application of the doctrine as currently formulated—it doesn't make sense to have a different formulation of the Article I Nondelegation Doctrine that applies differently in private cases.
In two cases—Butte City Water and Rock Royal—the Court simply upheld the delegation. Two other times—in St. Louis Railway and Currin—the Court went further and upheld the delegation by explicitly analogizing it to a similar case where the delegate was the President or an executive official.
We shouldn't ignore these cases just because they're old. No later Supreme Court decision has taken a contrary approach; and in 1935, the two oldest cases were explicitly cited in Schechter Poultry as examples of cases where private delegation is constitutional. (Schechter Poultry itself has never been questioned and continues to be cited regularly.)
So there's no per se rule against private delegations, and the rule for private delegations is the same as for public ones.
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.
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.
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.
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