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.