The Gub’mint: C’est Moi
My review of Cass Sunstein’s book The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004) is now available at National Review Online.
The Gub’mint: C’est Moi
My review of Cass Sunstein’s book The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004) is now available at National Review Online.
I enjoyed the review, but I have a question.
Is Sunstein at least partially correct when he implies that the state protects rights? Those of us that are not anarchists might be sympathetic to the fundamental idea that rights do not develop or survive without a guarantor.
That does not excuse conflating positive and negative rights, or to abrogate the rule of law, of course.
Henri — I think part of Sunstein’s problem is that he confuses at least two different definitions of “right.” (I hasten to add that my knowledge of Sunstein is largely from Tom’s review.)
A “right” in the sense of a moral principle is something that doesn’t depend on a guarantor — it is the idea of ownership — to whom does something (physical object, power to act, etc.) *properly* belong? Whether or not there’s a guarantor of such rights, they “exist.” (Certainly as much as any moral principle cand be said to exist.)
This is distinctly different from what property rights economists call “de facto rights,” which are actual abilities to use objects, undertake actions, etc. This second definition of rights clearly depends on some guarantor — whatever or whomever is enforcing the distribution of such abilities.
Ideally, the de facto “rights” in a society correspond to moral rights.
Even an anarchist (such as myself) can agree that sometimes the state is successful in helping the de facto rights correspond to the moral ones; we think there may be better & more consistent ways of achieving this, though.
I think that the logical essence of Sunstein’s position (as I understand it) is simply “might makes right.” But if so, then bothering with “Bills of Rights” seems a pointless exercise, since “rights” are then *by definition* simply whatever those with power at the moment choose them to be.
And yes, it is a good review from Tom.
Thank you for the review, Tom. I quite agree that there are real distinctions between rights one is born with (life, liberty, and the pursuit of happiness) and ‘rights’ the state might grant. Though it was wasn’t until I attended your Cato University that I could articulate this idea.
On the constitutional question, the death of the idea of enumerated powers (and with it ‘limited government’) in the minds of the people unfortunately supports Sunstein’s position. I doubt many ‘common people’ could distinguish between a right to free speech and a ‘right’ to Social Security. Sad, that. Some could even twist the 9th Amendment to support the notion of such ‘rights of theft’. Did Sunstien try this?
My naive view is that the state is necessary to protect the rights (the real ones, not the made up ones) of the weak from the strong. The state is the ‘most powerful’. I’d love to hear anarchist alternatives, because I fear that before we get back to limited government, we’ll have to go through a period of “no government”.
I also liked this review very much. Aside from Sunstein’s conflation of positive and negative rights, one argument I had real difficulty taking seriously was that the rich owe their wealth to the state because in the absense of the state, their property rights would be unenforceable and therefore meaningless.
My observation (admittedly from second-hand accounts) is that in countries in which the rule of law is weak or non-existent such as Somalia, Lebanon during the civil war, or parts of Colombia, the rich can always hire private bodyguards or militias to protect their property and other rights. The poor, by contrast, often have no one to turn to when someone robs or attacks them. The state of nature is then not a kind of socialism but rather a state in which the wealthy and powerful have organized gangs to protect their own rights while preying on weaker citizens. It is the poor and middle-income citizens who benefit most from the state since the job of the (liberal) state is to protect all including the weaker sections of society.
Of course, I think everyone is responsible for funding a rights-protecting state but to say that property rights (of the wealthy) are a fiction because they would not exist in the absense of government seems to me to be verifiably false.
A very thorough deconstruction of Sunstein’s argument, indeed. But at least his theory stands little chance of becoming practice in the US.
Here in Europe, welfare rights will form a part of the myriad positive rights that will be embedded in the proposed European Constitution.
As a small state Brit, I’m worried.
I’m currently writing a paper about the best way to manage the risks of nanotechnology (one of my first steps away from engineering and toward a career in policy), and came across two fine articles by Cass Sunstein: “Paradoxes of the Regulatory State” (57 U. Chi. L. Rev. 407, 412-29 (1990)) and “Beyond the Precuationary Principle.” The ideas in both are quite good, and can be used to support free-market policies.
So I was quite surprised and disappointed that the same scholar could be so fond of FDR and the Welfare State. In any case, both articles are quite good.
Related links:
http://pacificresearch.org/pub/sab/techno/forward_to_nanotech.pdf
http://ucsub.colorado.edu/~schwartb/issues/papers/sunstein_paradoxes.pdf
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=307098
Defining Rights
One of the many reason’s I am indebted to Ayn Rand is that by reading her work, I realized I needed to be able to clearly define many concepts I’d use in everyday speech. Freedom, reason, and logic are but…