I don’t know ‘bout you, but I think I’d rather read a couple thousand posts by Clayton Cramer than two or three by Cass Sunstein. I hear Prof. Sunstein’s a nice guy and all, but his work is atrocious, and it puts me in mind of John Locke’s comment about Robert Filmer, that
His System lies in a little compass, ‘tis no more but this,That all Government is absolute Monarchy,
And the Ground he builds on, is this,
That no Man is Born free.
John Locke, Two Treatises of Government 176 (P. Laslett, rev. ed.1963) (1698).
Throughout his work, Sunstein argues that property and, by extension, contract, exist simply by ipse dixit: property is whatever the government says it is. Therefore, he continues, there’s nothing wrong with readjusting the rules on which property and contract are based, to whatever the authorities decide are better rules. This is radical positivism at its...um, finest.
In Democracy And The Problem of Free Speech (1993) (an interesting title—I never thought free speech was a problem), Sunstein writes that the
major problem with the pre-New Deal framework was that it treated the existing distribution of resources and opportunities as prepolitical and presocial...when in fact it was not.... [The] private or voluntary private sphere...was actually itself a creation of law and hardly purely voluntary. When the law of trespass enabled an employer to exclude an employee from ‘his’ property unless the employee met certain conditions, the law was crucially involved. Without the law of trespass, and accompanying legal rules of contract and tort, the relationship between employers and employees would not be what it now is; indeed, it would be extremely difficult to figure out what that relationship might be, if it would exist in recognizable form at all.
Id. at 30. But in fact, it’s not difficult at all; many societies in the twentieth century have abandoned such laws, and the consequences have been thoroughly documented. Recently, in fact, President Hugo Chavez of Venezuela nationalized Coca-Cola bottling plants in his country. An article in the New York Times illustrated what “that relationship might be”:
Images broadcast live on three television networks showed the troops throwing the protesters, most of them women, to the ground and then kicking cans of tear gas at them. In an interview with reporters, the officer in charge of the action, Gen. Luis Felipe Acosta Carles, taunted the news media and insulted plant managers. News reports said workers at the plants were beaten.“We are distributing this product to the population because collective rights come above individual rights,” Acosta said, slurping down a warm soft drink and belching into the camera. “What I see here is hoarding, and we are going to move these products.”
Troops later pushed their way into a warehouse of the beer and food maker Empresas Polar, Venezuela’s largest private company, also in Carabobo, after forcing managers out into the street.
Thanks to Tom G. Palmer for that cite—Palmer, by the way, has demolished Sunstein’s argument briefly in a book review, where he points out that Sunstein’s argument “collapses into incoherence when [he] incorporate[s] ‘moral ideas’ into [his] definition of power, which was offered an an alternative to moral ideas in the first place. (This shiftiness also shows up when [he] shift[s] from terms such as ‘creation’ and ‘grant’ to describe the origins of rights to ‘recognition’ when discussing the rather more touchy subject of ‘religious liberty.’)”
Sunstein, for all his leftist talk, is actually a conservative: that is, he believes that rights are permissions which are granted by society whenever society decides that doing so is in its interest. If he were consistent enough to say that religious liberty is granted by society just like he claims property and speech are, then his conservatism would be obvious.
But the fact is, property is not created by law. Property has existed in societies without law; it has existed in societies without anything properly describable as government. But there is no record of a society existing without property in at least some degree—and certainly no record of a free society existing without property. As Richard Pipes explains at length in his Property And Freedom (1999),
Acquisitiveness is a universal phenomenon, among animals as well as human beings, children as well as adults, primitive peoples as well as those culturally advanced. It is rooted in the instinct of self-preservation, but it also has an important psychological dimension in that it enhances feelings of self-assurance and competence.... The notion of primitive communism has no basis in fact: it is imply the ancient—and apparently, indestructible—myth of the Golden Age.... Anthropology has no knowledge of societies ignorant of property rights: in the words of E.A. Hoebel...“property is as ubiquitous as man, a part of the basic fabric of all society.” Which means, to employ Aristotelian terminology, that it is not merely a “legal” or “conventional” but a “natural” institution.
Id. at 116. Experiments such as the communistic kibbutzim, which have attempted to create propertyless societies, have always been failures. See id. at 72-75; Larry Arnhart, Darwinian Natural Right 96 (1998). (More radical experiments, such as the existence of the Union of Soviet Socialist Republics, have been even more disastrous.)
Property not only precedes law historically, but ontologically. Freedom is the baseline of human behavior. It does not need to be justified, because so long as an act is feasible, it is admissible until some reason exists to make such an act inadmissible. See Anthony de Jasay, Justice And Its Surroundings 146 (2002). Consider: if I have a hammer, and I can hammer in the morning and hammer in the evening all over this land, some then doing so is admissible unless someone can explain why I ought not to hammer in the morning; as a matter of logic, the onus is on the person who asserts such a claim. The objector may say “You shouldn’t wake me up in the morning with your hammering.” And if this is acceptable, then that justifies a restriction on my hammering. But the point is that “the presumption of liberty is...a matter of epistemology.” Id. at 151.
Sunstein, however, reverses this presumption. For him, acts are prohibited until sufficient reason is given to justify them being free. See, e.g., Democracy, supra at 247 (“respect for private rights, the private sphere, and limited government should themselves be justified by publicly articulable reasons.... In the United States, any particular conception of the private sphere must be defended by substantive argument.” (emphasis added)). Reversing the burden of proof in this way—what I have called the “Red Queen argument”—is an inevitable consequence of his positivism, and it has three consequences.
First, it means justice is the interest of the stronger. Whatever the authority’s decision to redistribute rights, is automatically considered just. By conflating morality and politics, Sunstein has made it impossible to criticize a society for anything other than, maybe, hypocrisy if it fails to be entirely consistent. As Hadley Arkes has put it, such positivism means that
any order may claim the standing of law. So we think that a law has made injustice binding? Surely there can be no such problem. The presence of the law removes the injustice..... [T]his argument...merely offer[s] a stylish way of clothing the power of the state with the appearance of lawfulness.... As Daniel Webster remarked in one of his briefs, “We come before the Court alleging the law to be void as unconstitutional; they stop the inquiry by opposing to us the law itself. Is this logical?”
Hadley Arkes, The Return of George Sutherland 223 (1994). If the collective decides that you belong on a plantation chopping cotton, and decides to “create” property in such a way as to prohibit you from owning it, on what grounds can you complain? If there are underlying moral limits to the decisions that “society” may make when it “creates” property, those moral limits would, presumably, include the proposition that a person should not be forced to work for someone else’s benefit. Yet that is precisely why we libertarians object to the welfare state: because “creates” a “property right” in the earnings of someone else. (Charles Sumner defined the “ever-present motive power,” of slavery as “simply to compel the labor of fellow-men without wages!” Cong. Globe 36th Cong. 1st Sess. 2592 (1860)). Sunstein rejects this argument, however, because it would presume that there are such things as rights that precede politics. For him, there are no such things. This is why the Locke quote applies—for Sunstein, you are not born free: your freedom is created by law, by the decisions of the people around you. Thus all rights are simply permissions.
Now, Sunstein replies to this that his posited “dependency of rights on power does not spell cynicism because power...arises not from money or office or social status alone. It also comes from moral ideas capable of rallying organized social support,” such as the Civil Rights Movement of the 1960s. But on what grounds are people to give their support to these moral ideas? Mere whim, apparently.* If you think it’s wrong that the government comes and steals your property—er, I’m sorry, I mean, redefines property so as not to include yours,—then all you can do is try to “rally organized social support” for your cause. This support can’t be based on notions of pre-political justice, however, since those don’t exist. Rather, they’re just based on some sort of emotionalistic appeals. Even Laurence Tribe, who agrees with Sunstein on most of his statements, acknowledges that defining rights as interests which have been deemed compelling by society “says nothing at all about how a legislator within the political process, who is also bound to observe the Constitution, should have acted.” Laurence Tribe, Constitutional Law 1352 (2d ed. 1988).
This reaches the second consequence of Sunstein’s burden-shifting: it makes it impossible to defend a concept of freedom. Forcing the other side to prove a negative is a common fallacious debating tactic, yet that is what Sunstein requires. To prove that you have a right to property—that is, a right not to have the things you’ve earned taken from you by a “redefinition” of the law—you must show that it is undesirable for some reason. For example, you might say it is immoral. But for Sunstein, (and for Tribe) there is no effective difference between morality and politics; a “redefinition” of property so as to take away what you’ve earned isn’t wrong; it’s just a choice that society can make on whatever purely political grounds it might find convincing. See further Laurence Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics, 103 Harv. L. Rev. 1, 31 (1989) (“the notion that there exists a natural, pre-political and pre-legal state of things...and that the process of making and interpreting law has no effect on that ‘natural’ background” is “profoundly flawed.”)
Consider for a second one genuinely successful attempt to “rally organized social support” for a cause—the Civil Rights Movement of the 1960s. On what grounds did this movement succeed? It did not appeal to wealth generation, or improved national power; primarily it focused on the question of justice—a justice which precedes the state, because the state itself was shown to be acting unjustly. The primary moral teacher of that movement, Martin Luther King, did not believe that there is no natural, pre-political state of things; he did not believe that his conception of the private sphere had to be defended by substantive argument. Rather, he believed that people were free to work and choose and build and own as they please, unless it was shown that they could justly be stopped. The society he challenged had come to the decision that property should be defined in such a way as to exclude blacks from owning it. He believed that blacks’ right to equal treatment before the law came from “those great wells of democracy which were dug deep by the founding fathers in their formulation of the Constitution and the Declaration of Independence.” At best, Sunstein confuses the state’s failure to protect rights with there not being any rights to begin with, as when he says that “‘property rights could not exist’ without [government’s] assistance....” This is simply not true. It might be much harder to defend your property rights without government’s assistance, but those rights are still yours. Why else did the American Indian tribes—which hardly had a government to assist them in protecting their property—object when the White Man came and started stealing their land? They had rights which were not protected.
Third, Sunstein’s argument spirals into infinite regress. For example, he argues that the right not to have your property “redefined” away from you must be justified by “publicly articulable reasons.” (What about the inarticulate? Evidently they get no protection.) But proving a negative is impossible—what Jasay calls a “needle in the haystack” problem. Justice, supra, at 150. There are a veritably infinite number of objections to a person’s freedom, or reasons to take away his property. It’s literally impossible for him to negative each of these objections or reasons. Also, his attempt to do so is itself an action which would need to be publicly justified. If he wishes to do act X, in Sunstein’s world, he must prove that he should be allowed to. Yet proving that is an act—it’s act Y, which must itself be justified, which becomes act Z, and so forth. We already see this infinite regress in action in the campaign finance laws, which increasingly cut off your ability to support candidates to go to Congress to argue that you shouldn’t have your property taken away from you.
Oops, I keep saying that. I mean, “redefined as no longer including you.”
*-Update: Yes, evidently, this whim is called a “constitutive commitment,” which is “firmer than mere polic[y], but fall[s] short of [a] constitutional requirement[]; [is] widely accepted and can’t be eliminated without a fundamental change in national understandings.” So it’s a political creed which fails to make it into the Constitution, but which Sunstein nevertheless believes “help to create, or to constitute, a society’s basic values.” On what grounds are such “commitments” adopted? Again, it can’t be on the grounds of some moral ideas that precede law, because those don’t exist. So they must be based on personal taste or whim, it seems.
You know, I can think of a good example of a “constitutive commitment”: Jim Crow. How better to describe it than a mere policy falling short of constitutional requirement which can’t be eliminated without a fundamental change in national understanding, and which helps constitute a society’s “values”? But just like the “constitutive commitment” that was the New Deal, Jim Crow was contrary to the express language of the Constitution, and was confessedly not a constitutional requirement. I don’t see how one can rationalize the New Deal as being “acceptable despite falling short of a constitutional requirement,” without doing the same to Jim Crow—particularly when one has already rejected the possibility that right and wrong, and mine and thine, can precede the state.
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