Review of “The Second Bill of Rights” Available in National Review

I just got the latest edition of National Review and was pleased to find in it my review of Cass Sunstein’s The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever. It’s available online only to National Review subscribers, but the editors very kindly provided me with an electronic version that I could post on my site. So, here it is:

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I’d appreciate any comments anyone might have, especially if he or she has read the book. (I had the pleasure of commenting critically on the book when Professor Sunstein presented and discussed it at a Cato Institute book luncheon. Naturally, I had a lot of things to say that I couldn’t put in a short review.)

13 Responses to “Review of “The Second Bill of Rights” Available in National Review”

  1. Well done. However, without diminishing in any way what you say, the real problem is that you do not have to be a rocket scientist to make the points you do. Which leaves us with two thoughts: either professor Sunstein is as thick as a plank, or he does not believe his own argument. I honestly don’t know the answer to this. I do know that his style of thinking is overwhelmingly dominant in the academy and that your very obvious and correct objections to them hold no sway whatsoever. None. I despair as to what to do about this, since the Sunstein style of thinking very much continues to influence judicial thinking.

  2. Tom G. Palmer

    Whew. NoJacques has a way of deflating a guy. I thought that the argument from an infinite regress showed at least a little intellect, a tiny bit of “rocket science.” Ditto for showing that a completely untenable economic theory of value is implicit in the argument — a very common one in both academia and in public arguments about property rights — that since nothing (or damn little) would be produced without the protection of the state, the state has a prior claim to all that is produced. But NoJacques is right that remarkably weak arguments are frequently offered by collectivists (of one sort or another) and hailed a evidence of genius.

    As to why those arguments are so common, several hypotheses suggest themselves. One is that people who hold them hold them for reasons that are other than the arguments they give. That wouldn’t be uncommon; lots of people have intuitions about right and wrong and then go from theory to theory to try to justify them. If that’s true, however, and if the intuitions about justice are very deep seated, it could lead people to avoid engaging with criticisms at all, since people who openly reject “justice and goodness” are obviously unjust and evil bastards who are just trying to fool you. Here’s what Professor Sunstein and his co-author Stephen Holmes wrote in their book “The Cost of Rights: Why Liberty Depends on Taxes” (New York: W. W. Norton & Co., 1999) (reviewed by my humble self at

    “[T]heir claim that ‘positive rights’ are somehow un-American and should be replaced by a policy of nonintervention is so implausible on its face that we may well wonder why it persists. What explains the survival of such a grievously inadequate way of thinking? There are many possible answers, but inherited biases–including racial prejudice, conscious and unconscious–probably play a role. Indeed, the claim that the only real liberties are the rights of property and contract can sometimes verge on a form of white separatism: prison-building should supplant Head Start. Withdrawal into gated communities should replace a politics of inclusion” (p. 216).

    There is no need to address the arguments for the claim that welfare rights are unjustified (distorted as a jingoistic claim that they are “somehow un-American”) is “so implausible on its face.” So, instead of engaging any arguments, one can merely assert that people who don’t share one’s view are racists, i.e., evil. On that basis, no debate is allowed. Why “debate” with Satan, after all? He’ll only try to deceive you. Remember, he’s evil, so no argument he would give could be in good faith.

  3. Tom, thanks for the response! I didn’t mean to deflate you. You deserve all the praise that I know you get.

    Your argument about infinite regress was known amongst the Ancients as the problem of “who guards the guardians”.

    At any rate, for what it’s worth, I think you’re right about the ‘theory-shopping’ to continually justify existing intuitions. It has always seemed self-evident to me that a true political philosopher does the opposite: adjust his instincts on the basis of reasoning. In the current academic climate of ultra-skepticism that seems a melancholy thought, however. Most academics I know, including political theorists, think that political theories just reflect one’s preferences, or one’s Will. Since many theorists evidently act on that belief, in a vicious cycle this general impression is reinforced.

    I consider this phenomenon the greatest scourge of our age. True philosophizing is troubling enough in its implications for us to be saddled on top of it with this ‘theory-shopping’ disaster.

    At any rate, keep up the good work (even though, or especially since, I do not always agree with you).

  4. Tom G. Palmer

    My wounded pride has been salved. 😉

    A query for NoJacques: Is that really a version of the “quis custodiet ipsos custodes?” question? I thought that that was usually invoked as a problem in political theory (X will be responsible for keeping us just, but who shall keep X just?). I was making a logical point about the infinite iteration of the necessary conditions for the existence of a valid right. Since they cannot be infinitely iterated, the right cannot exist. (I suspect that the who guards the guardians question may have the form of a logical regress if formulated as “No human would be just without a guardian; X is a sovereign, a guardian above whom there is no guardian, who will make us just.” To which one would point out that X could not then be both just and a human.)

    Anyway, I was merely teasing about the wounded pride. The point that NoJacques makes is valid; I’m so often astounded by the persistence of weak arguments that I wonder why they aren’t picked up on. When you do so, their advocates often retreat. More often, as in the case of G. A. Cohen, they just become flustered and storm around and then decide to ignore the critique. (If that sounds suspiciously like Sunstein’s and Holmes’ point, the difference is that A) I think that you should actually engage the arguments offered, and not brush them aside, and B) I don’t think that people who offer invalid arguments are bad people who are acting in bad faith, as Sunstein and Holmes assert.)

  5. Chris Farley

    Is it possible that Sunstein and Holmes just aren’t that smart? You ripped the whole book to shreds in a matter of a few paragraphs. You wrote more than necessary to make the entire premise of the argument look foolish.

    Again, I have to ask, how does something so, well, dumb, get published?

    And, what kind of job do you have that lets you stay up until 1:00 am posting? Don’t you sleep?

  6. Tom,

    I came across your withering critique of Sunstein as I was reading one of his working papers: ‘Libertarian Paternalism is not an Oxymoron’. ( ) This unfortunate formulation is made somewhat clearer in the paper itself, but I found his positions in this paper to be in striking contrast to the views you attribute to him in your review.

    Sunstein argues:
    -Agents frequently lack stable preferences
    -Agent preference is often affected by framing, default rules, etc. that obscure choices truly in interest of the agent’s well-being
    -Therefore, agents often make choices that are not in their best interests.
    -Accordingly, “planners” are justified in educating, cajoling, informing, etc. agents in regard to decisions that would be in their best interest.
    -Nevertheless, maintaining the free choice of agents would remain a side-constraint on any interventions of planners, with the caveat that planners may or may not be justified in imposing modest “costs” on those who do not choose what is in their best interest. He goes on to reject a “non-libertarian paternalism” position that would attempt to “block” certain choices by imposing “higher” costs on those who choose them.

    Most libertarians would agree that educating others about the consequences of their choices, or that an array of choices may be affected by framing, default rules, etc. is entirely appropriate, when welcomed by the agent in question. Libertarians might be divided as to whether such advice is conceivably a form of a paternalism, though would be less divided on whether “penalties” imposed by “planners” counts as paternalism. But, what was so striking to me was the difference between what Sunstein was defending in this paper and the statist (monarchist?) views you attribute to him in your review and subsequent comments.

    Is it possible that Sunstein is a Locke in Hobbsean clothing? Your review suggests not. Perhaps Sunstein’s “planners” are more autocratic than I thought.


    P.S. Even Hobbes believed that one had an obligation to struggle for freedom as one was being led to the scaffold for execution, even when the execution was sanctioned by the Sovereign. Your review suggests that Sunstein may not share this caveat.

  7. Tom G. Palmer

    I will respond later to BH, who raises important issues, but I’d like to point out very quickly that what BH has written also shows that Cass Sunstein is in fact a highly intelligent person (as is Stephen Holmes, who has written a number of engaging and interesting books). I should say, also, that when I prepared for commenting on Sunstein’s book after he had presented it, I had been ready to meet a rather nasty person, as he makes a number of low-blows (I quote one above) in his books. In person, however, he is charming and gracious and offered what I presume was a heartfelt private apology for some of the remarks, which I gather he regretted. (It was another lesson to me to try to be careful in what I write, not offend others needlessly and to stick to the important issues.)

  8. Tom, your logical regress is what I had in mind. As to your point about picking on weak arguments: the advocates of the weak arguments just exchange them for another argument that suits their prejudice (as we discussed before). I suppose one could try to influence the undecided people of mediocre intelligence, but this carries the opportunity cost of not engaging oneself in something intellectually more satisfying. I think this is also why in my experience there are a lot of smart people in all walks of life who see the silliness for what it is and move on without bothering to engage it. A lot of the contempt in the red states for perceived blue state windbaggery finds its origins here, it seems to me. That’s not meant as a partisan remark, by the way. And yes, I know you’re an Independent… 🙂

  9. Tom’s perfectly correct that Sunstein offers an odd combination of graciousness in person with nastiness in print– and often toward libertarian views in particular. The weird thing is that that’s behavior he himself, in his work on deliberation, has taught us to expect of people in an echo chamber, people who only ever talk to others who agree with them. And he has not been in an echo chamber; he’s been colleagues with people like Richard Epstein and Richard Posner for decades, at a law school famous for its constant face-to-face academic interaction. I don’t quite get it.