Writer vs. Reviewer: Sunstein’s Bifurcation

Tibor R. Machan

The University of Chicago Law School’s Cass Sunstein is now nearly as prominent a modern liberal—Leftists—legal scholar as is Harvard Law School’s Lawrence Tribe—just the other day I heard someone mention him as the equivalent on the Left to Samuel Alito on the Right, someone who might be nominated for the Supreme Court by a Democratic President.

In a detailed review he wrote for The New Republic (1/10/06) of UC Berkeley Law Professor John Yoo’s The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago, 2006), Sunstein argues pretty effectively against Yoo’s idea that as far as the Founders, Framers, and the Constitution are concerned, the President has all the legitimate power to make war without a Congressional declaration.

A part of Yoo’s argument is that the British model guiding the Founders, et al., endorses this position and Sunstein not only shows, with several good quotes, that the Founders, et al., were not agreeing with this position but observes, rightly I think, that “there is specific evidence that the British model was rejected.” Of course, what else was the revolution about anyway? It was to burst the myth of the king. So it is no good going to the king now to legitimize George Bush’s or any other president’s unilateral war-waging. (I have argued often that when Ralph Nader endorses the “creature of the state” case for government regulation of the economy, he, too, forgets that there was a revolution and government no longer gets to create corporations; the people do that in a free country.)

Sunstein, then, is correct to complain that Yoo ignores good evidence as he tries to make his case—acting more like a trial lawyer than a political or even legal theorist. And he is also right to point out that America is not a monarchy, so the president is just that, a presiding officer, not a king.

Alas, Sunstein’s own work concerning a somewhat different issue would fare badly if he deployed his own critical standards against himself. In his The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need it More Than Ever (Basic Books, 2004), Sunstein sets out to square the circle by attempting to show that what FDR wanted—a full blown welfare state with its plethora of new “rights,” the positive sort, namely, entitlements—lines up nicely with the American political and even constitutional tradition.

Never mind how this dream of expanding the welfare state much farther than even FDR wanted to cannot jive with economic realities—or common sense. Getting blood out of a turnip just will not cut it. But in order to defend the bloated welfare state as a proper American system, Sunstein himself has to ignore some important documents, not the least of which is the Declaration of Independence. By what we read therein, no welfare rights or entitlements can exist since if everyone has unalienable rights to life, liberty, and the pursuit of happiness, any protection of positive welfare “rights” must necessarily violate them.

There is more, as reviewer Michael DeBow notes in the December, 2005, issue of The Freeman. Sunstein discusses the Great Depression as if no one ever disagreed with the claim that it was caused by laissez-faire. He “ignores the recent revisionist scholarship of Robert Higgs, Jim Powell, William Shughart, Gene Smiley,” not to mention several earlier works by the likes of Murray N. Rothbard. These folks seem not to exist as far as Sunstein is concerned, which is a clear case of scholarly malpractice, akin to what he claims Yoo has perpetrated.

So, in short, Sunstein is guilty of exactly what he claims Yoo is guilty of, namely, ignoring evidence and failing to understand the American political tradition. That, of course, is the price of attempting to be a champion of civil libertarianism while failing to appreciate that libertarianism cannot be bifurcated. If you are going to set out to defend civil liberties, you need to give equal consideration to economic liberties. One’s life, in other words, cannot be kept under monarchical rule respecting one’s body—one’s labor and property—but liberated as far as one’s mind and soul are concerned—one’s thought and speech.

Alas, this bifurcation has plagued not only many of America’s intellectuals, including legal scholars such as Sunstein, Ronald Dworkin, and many others, but intellectuals throughout the world and human history. Dualistic thinkers will try for this all the time but reality will invariably bite them in the rear end.