Posts tagged Sunstein

Column on Natural Rights

Let’s Talk about Natural Rights

Tibor R. Machan

When various skeptics question the soundness of the American political system, one of their targets is the idea of human nature. After all, the founders took their political philosophy mainly from John Locke who thought human nature does exist and, based on what we know of it and a few other evident matters, we can reach the conclusion that all human beings have certain rights. This is what is meant by holding that there are natural rights and that they are pre-legal, not a creation of government.

This is the idea that is rejected today by one of President Obama’s top advisers and the man in charge of the federal government’s regulatory operations. Cass Sunstein, who is now a professor of law at Harvard but is on leave to work with the administration, rejects any notion of rights not fashioned by government. And one reason for this may well be, although I am not certain about it, that Professor Sunstein does not agree that human nature exists.

Certainly many prominent legal and political theorists share this skepticism. I recently read one of them who argued that because in some cultures there is no reference to human nature anywhere, let alone in the law, the idea of human nature cannot be right. As if consensus determined whether human nature exists; as if it were impossible that some folks could be entirely ignorant of what human nature is, so much so that they might even deny its existence.

When the idea emerged in philosophy that things have a nature–e.g., starting with Socrates and his pupil Plato–it was thought that the nature of something resembled geometrical objects by being perfect and timeless. So if there is a human nature, it must be something perfect and a-temporal. But because none of us is going to live to eternity, none of us can establish anything as timelessly true. If human nature has to be something like that, then skepticism about it would be warranted.

But human nature–and, indeed, the nature of anything else–need not be timeless. What makes us all human, our human nature, can be the most up to date, well-informed specification of attributes, capacities, or properties so far. Anything else would be unreasonable to ask for since, as I already said, none of us is going to be here till the end of time and can thus establish that what we understand as human nature will not need some modification or adjustment. The principles the American founders rested on human nature were understood as capable of being updated, which is why the U. S. Constitution has provisions for its amendment. This, however, does not justify fundamental doubt or skepticism about either human nature or the principles based on it, such as our natural rights.

So at least one source of skepticism about our basic rights, rights that do not depend upon government’s grating them (even if their protection is government’s main job), can be set aside. But there is more. We are all dependent upon knowing the nature of things so that we can organize our knowledge of the world. We know, for example, that there are fruits–a class of some kind of beings–and games–another class–and subatomic particles–yet another class–and so on and so forth. These classes or natures of things are not something separate from the things being classified but constitute their common features, ones without which they wouldn’t be what they are. Across the world, for example, apples and dogs and chicken and tomatoes and, yes, human beings are all recognized for what they are because we know their natures even when some cases are difficult to identify fully, completely, even when there are some oddities involved.

So there is good reason that governments do not create rights for us–we have them, instead, by virtue of our human nature. And this puts a limit on what governments may do, including do to us. They need to secure our rights and as they do so they must also respect them.

Column on Most Americans Just Don’t Get It

Most Americans Just Don’t Get It

Tibor R. Machan

It bothers me to no end that millions of Americans simply don’t get just how dangerous this current administration’s views are, especially about the nature of our basic rights.

I suppose I should not be surprised, given the utterly perverted primary and secondary education most people receive now in their government run schools. After all, those very schools and everyone with a job in the system, depend upon the flat out rejection of the idea of our basic, natural rights spelled out in the Declaration of Independence. For if each of us does in fact have an unalienable right to our life, our liberty, our pursuit of our happiness and the rest, then those schools exists in direct contradiction to these rights. They are built with the loot the politicians and bureaucrats confiscate from the citizenry, loot that involves the violation of those basic rights the Declaration states every human being has!

So then in order to continue the confiscation of our resources with impunity at all levels of state, it is required that the confiscators deny those rights. And that is just what has transpired–in our era the White House and its legal team, lead by Harvard Law Professor Cass Sunstein, insist that government creates our rights, that we have none based on our human nature. That we if one complains about these people extorting from us our life-times and our property, i.e., a chunk of our very lives, the politicians and bureaucrats can retort that these are not really ours at all, we have no rights apart from what they decide we have! (This is exactly what some of the stars of contemporary political theory preach!) That is what it means to claim that government creates our rights and we have none based on our humanity! That is what it means to claim that instead of governments being instituted so as to secure our basic natural, prelegal rights, governments just happen to exist and do with us as they please, like monarchs, tsars, dictators, pharaohs and Caesars used to, proclaiming that they have the divinely obtained authority to do so. When Thomas Hobbes strove to defend the unlimited authority of government without appealing to its divine appointment, he retained the core authoritarian idea that genuine rights are the product of the sovereign’s will and that, therefore, no subject could have rights against the sovereign. The anti-authoritarian resistance to tyrannical government that was manifested in 17th and 18th century Ango-American political history was grounded in the idea that government itself is subject to moral constraints that it neither creates nor can abrogate.

This is why this utter distortion of the nature of government and our basic rights must be something to which American citizens should pay the utmost attention instead of dosing through the experience. They do appear to be in a semi coma about it, except for a few, like Judge Napolitano at Fox-TV. But the vast majority are clueless about just how dangerous is the current administration’s legal philosophy. Incredibly they behave like those sad peons of past centuries who tended to accept without much question that some human beings are mysteriously authorized to rule them and they have no justification to call this rule into question. All those ideas and ideals with which American had been associated, albeit even then not closely enough, about how when governments begin to act as tyrants they may be dismissed from their job, seem to have been forgotten. Instead the vast majority has come to accept their reactionary status as mere subjects to whom governments simply promise–though rarely deliver–various benefits in return for their silence and compliance.

Any protests, as put forth by some of the Tea Party people, are dismissed by the elite–writing in forums such as The New York Review of Books, The New York Times, etc.–with the sneers and snootiness of an untouchable elite. (And even the few well positioned conservative skeptics tend to refuse to truly challenge all this, apparently because they, too, want not to reaffirm universal, unalienable individual rights but to wrest power and establish their Right wing version of coercive statism.)

Although in the long haul there is still cause for some optimism–after all, the American system of government, dedicated as it was supposed to be, to the protection of the individual rights of the citizenry, is a very radical notion and its principles require a great deal of ongoing vigilance to be fully realized–for the time being it does appear that the truly exceptional Americanism that distinguished the country from those around the globe (including, especially, the European top down systems the Founders and Framers wanted to disown) is under full assault.

The currently fashionable European system of democratic socialism–which, in practice, comes to nothing else but a type of fascism–is all the rage in Washington. And this country’s exceptional standing is now scoffed at by our political thinkers and leaders. It is time to wake up to this travesty and to do something decisive about it. And that must start in the hearts and minds of the citizenry.

Column on NYTimes’ Magazine Hides Sunstein

NYTimes’ Magazine Hides Sunstein

Tibor R. Machan

On Sunday, May 16th, The New York Times Magazine ran what amounts to a puff piece about Harvard Law Professor Cass Sunstein, President Obama’s long time friend, former colleague, and current regulation czar. It was penned by Benjamin Wallace-Wells, who is identified as “a contributing writer for the magazine and a contributing editor for Rolling Stone” magazine.

The essay is a decent enough account of Sunstein’s career and personal life but the only idea it focuses upon in his repertoire of significant and controversial ideas is “nudging” or “libertarian paternalism.” This is the belief in a system of government regulations that amount to creating government incentives for people to do the right thing (as per how the government or Professor Sunstein see it, of course). Instead of coming down on what government considers objectionable or undesired human conduct with a sledge hammer, nudging works by setting up various tricks by which people are lead to act in the way the government intends for them to act.

Call it behavior modification or libertarian paternalism, the gist of Sunstein’s type of government meddling in people’s lives is to use a kind of Skinnerian program of stimulus-response (after the late Harvard behaviorist psychologist, B. F. Skinner), whereby what government officials want the citizens to do isn’t commanded but made the result of various more or less subtle prompters. Although Sunstein and his collaborators prefer the term “nudging,” it is a misleading idea since if it involved no more than than, one could just sidestep it. Suppose my neighbor wants his guests to stop wearing shoes in his home, so he leaves bits and pieces of suggestions to you as you enter it that leads you to take off your shoes and proceed into the home in your socks. OK, but you need not visit him in the first place. So when you realize you are being manipulated into doing stuff you don’t want to do–say you don’t particularly like showing people the condition of your socks–you can just not enter or take some other evasive action. There are numerous such situations in our lives, when those with whom we interact desire for us to act in certain ways and we can either comply or opt out.

With so called nudging, however, we are ultimately being forced to comply with how the government wants us to behave. There is no escape. If we don’t go along, we could end up fined or even sent to jail. That is why it is called paternalism, since the government acts as would parents act toward their children who have full authority over them. The “libertarian” part is a ruse–it comes from the fact that government tries to keep the citizenry in the dark about what it is doing, making it appear that one is making one’s own choices when one isn’t really.

Anyway, this idea is almost the only one associated with Cass Sunstein and with what he is supposed to be contributing to the Obama regime. The article does mention that he has urged government to go to court in support of animal rights but what it failed to do is mention Professor Sunstein’s most dangerous and vile idea, namely, that government is the source of our basic rights.

In the American tradition of law and politics, the foundation of these come from human nature. That is what the Declaration of Independence points out, namely, that we have equal rights to life, liberty and the pursuit of happiness–among others–because of our human nature. They are unalienable so long as we remain human!

What Professor Sunstein and his co-author Stephen Holmes claimed, in their 1999 book, The Cost of Rights: Why Liberty Depends on Taxes, is that “individual rights and freedoms depend fundamentally on vigorous state action” and “Statelessness means rightlessness.” This is the pre-revolutionary, pre-Lockean–and pre-Jeffersonian–idea that governments grant us rights; that there are no natural rights but mere privileges we get from government which can also promptly take them away. It isn’t just the protection of our rights for which government is needed but their very existence is due to government as Sunstein & Co. see things! Instead of the citizens having rights that government is instituted to secure, all governments, like monarch, czars, dictators and such, give people rights, which they can promptly take away at their discretion.

That such a reactionary view should be held by the foremost legal mind in the Obama administration is worth full disclosure and exploration, something The New York Times Magazine essay failed to do. Never mind nudging or animal “rights”–those are small potatoes. What matters far more is that Sunstein and Co. believe the thoroughly anti-libertarian notion that government is the source of law and rights, not their administrator and protector, respectively.

From Machan Archives–Private Property and Community

Private Property and Human Community Life

Tibor R. Machan

If there is one thing that divides people most on matters of politics it concerns loyalty to the principle of private property rights. You can test this easily enough.
Ask someone to tell you whether he or she thinks a person has exclusive authority over that which he or she owns. Those who say yes will find the scope of governmental authority in our lives to be severely limited, mainly, to the protection of individual rights. Those who do not will consider it quite all right for government to take, take, and take some more, via taxation, eminent domain, and government regulation, for whatever purposes it may have. It makes no difference whether the government is democratic, dictatorial or parliamentary—the central issue is its scope of authority over the lives of its citizens (or its subjects, in some cases). And that depends on how serious the law is about the protection of the right to private property.
One major reason people are not loyal to—or even out and out dismiss as mythical—the principle of the right to private property is that they have a misconception of its main function. Many think only the wealthy benefit from it. And even if they do not have anything against being rich, they do have something against unfair legal advantages for those who are.
All over the map of diverse ideologies this mistake has tended to polarize people. As an example, throughout the legal education community there are very influential teachers—usually members of what is called the “critical legal studies” school of jurisprudence—who hold this view. They think private property rights amount to a legal privilege for the rich, a weapon with which they keep the poor from gaining on them.
This idea, in turn, is fueled by the “zero sum game” mentality, the belief that if someone gains, someone else must lose. Wealth is viewed as a static pile of goods and it just sits there and is dipped into by various folks and if one accepts the principle of private property rights, those who get there first to do the dipping will manage to bar the rest from any chance of enriching themselves. They view the world as such a static pile and cannot fathom any enrichment without at once producing impoverishment.
Yet even such folks—whose ideas are way out of line with reality but somewhat understandable, given their use of the principle of the conservation of mass and energy as a model for understanding political economy—ought to appreciate something vital about private property rights, namely, how it facilitates peaceful diversity in human communities. Just take the example of religion.
In a society in which the right to private property is at least significantly accepted and legally protected, different faiths can flourish because the faithful can gather in distinct places, worship apart from others who gather elsewhere for the same purposes, at any time they choose. Compare this to places around the globe where religion is a public affair and people of different faiths are all battling to become the dominant public religion so they can rule the public square and call the shots as to which conception of God and His ways will prevail for everyone. India, the Middle East, even England are in greater or lesser religious turmoil because of this version of the tragedy of the commons, while in the USA there is noticeable peace at least on that front.
It may appear that this has to do with the US Constitution’s protection of the right to freedom of religion, laid out in the First Amendment, but that right would be impossible to exercise without the corresponding right to private property. And while we are talking about the First Amendment, it is worth noting that the right to freedom of the press—or as it is now more broadly understood, freedom of expression—would also lack any teeth without the principle of the right to private property. Just consider the contrast between the exercise of this right where private property is the rule—in the publication of magazines, newspapers, books, newsletters, paintings, posters, pamphlets and such—versus where public ownership prevails—as in the broadcast industry, radio, television and the like. The former are diverse and full of variety in content, style, level of culture and such, while the latter tend to be pretty bland and undifferentiated.
There is more. In a community that’s at least somewhat loyal to the principle of the right to private property the possibility of cultural diversity itself is far more evident. Not only are there a great variety of religious practices afoot in such communities—about 2500 different religions in the USA—but there are also many life styles, forms of entertainment and sport, with none enjoying substantial legal privileges. (Where there is an exception, as in the cases involving public funding of football or baseball arenas, controversy and acrimony are rife.)
So even apart from the alleged unfair economic benefits to the propertied classes of the right to private property—benefits that are mostly imaginary, since the fierce competition this same principle encourages keeps all participants in the productive sector on their toes—the right is of enormous and widespread benefit throughout human community life.
Still, mainly prominent intellectuals resist it. Recently Professors Liam Murphy and Thomas Nagel have published a book (by Oxford University Press!), titled The Myth of Ownership. The central thesis of this work is that there is no property prior to government saying there is, so taxes do not take from anyone something they own but merely serve as a method for distributing resources that belong to no one. So the ascription of the right to private property rests not on anything objective, pre-legal and real but on political make-believe. (Murphy and Nagel continue the line of thought first articulated by the English Jurist Jeremy Bentham who declared, back in the 18th century, John Locke’s initially very influential idea, that the right to private property is a natural right, that is, it’s grounded firmly in human nature, “nonsense upon stilts,” and more recently by Stephen Holmes and Cass Sunstein, in their book, The Cost of Rights.)
In contrast to Murphy’s and Nagel’s criticism, Bernard Siegan’s Property Rights, From the Magna Carte to the Fourteenth Amendment (Transaction Books, 2002) lays out the history of the idea in Western Law. Siegan doesn’t offer a moral justification of this right but shows that such a justification had been taken as sound for nearly one thousand years. And the early champions of the idea did not see it primarily in economic terms. William of Ockham, for example, regarded natural right “nothing other than a power to conform to right reason,” not unlike Robert Nozick, who took such rights to identify the “moral space” every individual requires in order to make his or her own choices. And natural rights include, of course, property rights since, to quote another famous philosopher, the late comic Myron Cohen, “Everybody’s got to be someplace.”
Significantly, Murphy and Nagel’s is just one more of a very long list of books during the last century that have attacked the right to private property. One should recall that in The Communist Manifesto Karl Marx and Frederick Engels listed it first among the principles that needed to be abolished in order to usher in socialism and, eventually, communism! Since then hundreds and more such attacks have been and continue to be aired, mainly from political philosophers and theorists.
It is, of course, true that the right to ownership does allow for inequality of wealth, but it also threatens all wealth with competition and, thus, even with possible poverty. One need but reflect on how giants of private industry such as Montgomery Ward, Kmart, and, yes, Enron lost their might in the relatively free market, one that does not tolerate mismanagement and corruption very long, in contrast to how state owned industries across the globe manage to hang in there even while crooks run them.
It is too bad that the overall value to human beings of their basic right to private property is so widely and prestigiously denied. It is one of the most beneficent institutions and certainly the bulwark against any kind of tyranny, be it that of a ruling party, a dictatorship or even of a democratic majority.