Harvard Law Professor (and recent OIRA head) Cass Sunstein has had some columns lately on Bloomberg View that seem to be squarely in my wheelhouse as an originalist and a libertarian. The most recent one is Resist the Sirens Call of Originalism. Before that was How to Spot a Paranoid Libertarian.
The columns have a striking similarity, in that they both attack extremist or caricatured versions of originalism and libertarianism, and appear to concede that the moderate version has some virtues.
Paranoid libertarianism, says Sunstein, is defined by five characteristics: 1, a belief that government will inevitably abuse its authority in any given area; 2, a presumption of bad faith by government officials; 3, a sense of victimization; 4, a refusal to engage in tradeoffs; and 5, an enthusiasm for slippery slope arguments. (These characteristics seem overlapping to me.)
Yet so far as I can tell, Sunsteins criticism of the category has nothing to do with non-paranoid libertarians, or with those who identify as classical liberals. For a good example on the other side, see this recent column by Richard Epstein, who distinguishes classical liberalism from libertarianism.
It is a little less transparent, but the same thing seems to be going on in Sunsteins column on originalism. Sunsteins three objections to originalism are 1, that the Constitution itself may not embrace originalism since it uses abstract terms; 2, some things (like wire-tapping) were unanticipated by the framers; and 3, originalism would deeply unsettle modern law, unless it embraces precedent, in which case it doesnt count as originalism.
Objections 1 and 2 are simply not true of most sophisticated originalists, who acknowledge that when a constitutional provision was intended to have broad or evolving scope, the originalist thing to do is to give it broad or evolving scope. (This also makes it easy to accommodate new situations.)
To be sure, originalists do sometimes argue that people like Sunstein are far too quick to assume that a provision is broad and abstract, but this a difference in application, not theory. Serious originalists ought to agree with Sunstein that a provision should not be interpreted to be more originalist than it was originally intended to be.
Objection 3 brings us back to a recurring theme of my recent originalist posts. Critics of originalism dont get to just declare that embracing precedent which nearly all originalists do, to differing extents is not the originalist position. Or if they do wish to define originalism so as to exclude most of its practioners, then they ought to be clear that they are attacking only an extreme version of the theory.
So it seems to me that the upshot of Sunsteins columns ought to be: extreme originalism and paranoid libertarianism are bad, though regular originalism and libertarianism are (apparently?) fine. Yet I fear that by the fallacy of mood affiliation, readers may think Sunstein has also struck a blow against regular originalism and regular libertarianism.
Visit link:
Thoughts on Cass Sunsteins criticisms of libertarianism ...
- If Brevity is the Soul of Wit ... - November 7th, 2009 [November 7th, 2009]
- Gang Brutality Caught on Tape - November 8th, 2009 [November 8th, 2009]
- Kim Jong Tweet - November 8th, 2009 [November 8th, 2009]
- Fuck Marching - November 8th, 2009 [November 8th, 2009]
- Monopoly Money - November 8th, 2009 [November 8th, 2009]
- Mexican Gang War: Both Sides are Cops - November 8th, 2009 [November 8th, 2009]
- The Fruits of Democracy - November 8th, 2009 [November 8th, 2009]
- MSM Pwned by Amateurs - November 8th, 2009 [November 8th, 2009]
- War on Drugs: Collateral Damage - November 8th, 2009 [November 8th, 2009]
- Goldman Sachs: Ruler of the Universe - November 8th, 2009 [November 8th, 2009]
- Sam Dodson Talks to MotorHome Diaries - November 8th, 2009 [November 8th, 2009]
- When God and Government Mix - November 8th, 2009 [November 8th, 2009]
- Mike Gogulski PWNS Social Security - November 8th, 2009 [November 8th, 2009]
- Stefan Molyneux Interviews Jan Helfeld - November 8th, 2009 [November 8th, 2009]
- Commander in Chief: Council on Foreign Relations - November 8th, 2009 [November 8th, 2009]
- Canadian Healthcare Extravaganza - November 8th, 2009 [November 8th, 2009]
- My Reply to an Essay on China, the US, and Yu Wan Mei - November 8th, 2009 [November 8th, 2009]
- Iraq War: A Biblical Event - November 8th, 2009 [November 8th, 2009]
- Crazy Facts from GovernmentLand - November 8th, 2009 [November 8th, 2009]
- Remember 9-11 - November 8th, 2009 [November 8th, 2009]
- Then Again... - November 8th, 2009 [November 8th, 2009]
- Hillary Clinton Devestates Pakistan - November 8th, 2009 [November 8th, 2009]
- Jan Helfeld and Elliot Engel - November 8th, 2009 [November 8th, 2009]
- Report on attacks against Michael Jude Gogulski 5 September 2009 - November 8th, 2009 [November 8th, 2009]
- They Are Selling You - November 8th, 2009 [November 8th, 2009]
- Happy Guy Fawkes Day - November 8th, 2009 [November 8th, 2009]
- Emergency Aid to Seniors? No Way - November 8th, 2009 [November 8th, 2009]
- The Public Option is the Decoy - November 8th, 2009 [November 8th, 2009]
- Should Insider Trading be Illegal? - November 8th, 2009 [November 8th, 2009]
- Reefer Non-Madness - November 8th, 2009 [November 8th, 2009]
- U.S. Legalizes Medical Marijuana - November 8th, 2009 [November 8th, 2009]
- Fiddling While Rome Burns - November 8th, 2009 [November 8th, 2009]
- Massachusetts Should Lower, Not Raise, the Dropout Age - November 8th, 2009 [November 8th, 2009]
- No Limits on Executive Compensation - November 8th, 2009 [November 8th, 2009]
- Execs Quit to Avoid Pay Limits - November 8th, 2009 [November 8th, 2009]
- Krugman on China and the Dollar - November 8th, 2009 [November 8th, 2009]
- Obama's Climate Speech at MIT - November 8th, 2009 [November 8th, 2009]
- The Fed and Policy Uncertainty - November 8th, 2009 [November 8th, 2009]
- Civil Union versus Civil Marriage - November 8th, 2009 [November 8th, 2009]
- Medicare Shuns Seniors - November 8th, 2009 [November 8th, 2009]
- Financial Market Reform - November 8th, 2009 [November 8th, 2009]
- All You Need to Know ... - November 8th, 2009 [November 8th, 2009]
- No Government Health Insurance - November 8th, 2009 [November 8th, 2009]
- Cap and Trade Will not Reduce Emissions - November 8th, 2009 [November 8th, 2009]
- Cartoon Commentary - November 8th, 2009 [November 8th, 2009]
- Did the Stimulus Work? - November 8th, 2009 [November 8th, 2009]
- Letting the Sick Die on the Street - November 8th, 2009 [November 8th, 2009]
- Renewed Hope for Gridlock? - November 8th, 2009 [November 8th, 2009]
- An Opportunity for Libertarians? - November 8th, 2009 [November 8th, 2009]
- Not-so-Temporary Stimulus - November 8th, 2009 [November 8th, 2009]
- Sausages in Financial Reform - December 12th, 2009 [December 12th, 2009]
- Dumb Cops, Dumb Laws, Unnecessary Victims - December 13th, 2009 [December 13th, 2009]
- Fighting Terrorism in Berkeley - December 13th, 2009 [December 13th, 2009]
- Obama's Home Teleprompter Malfunctions During Family Dinner - December 13th, 2009 [December 13th, 2009]
- School Lunch FAIL - December 13th, 2009 [December 13th, 2009]
- Insane Mortgage Policy - December 13th, 2009 [December 13th, 2009]
- Comments Welcome - December 13th, 2009 [December 13th, 2009]
- Obamanomics: Growing the Pie or Dividing the Pie? - December 13th, 2009 [December 13th, 2009]
- Right Meets Left on Criminal Justice - December 13th, 2009 [December 13th, 2009]
- Is Nuclear the Answer to Global Warming? - December 13th, 2009 [December 13th, 2009]
- Franksgiving: Another Flawed Stimulus - December 13th, 2009 [December 13th, 2009]
- Dollars for Dishwashers - December 13th, 2009 [December 13th, 2009]
- The Politics of Cap and Trade - December 13th, 2009 [December 13th, 2009]
- A College for Cannabis - December 13th, 2009 [December 13th, 2009]
- George Will, Medical Marijuana, and Legalization - December 13th, 2009 [December 13th, 2009]
- Bernanke on the Fed - December 13th, 2009 [December 13th, 2009]
- A Debate About Mexico's Drug Wars - December 13th, 2009 [December 13th, 2009]
- Doublespeak - December 13th, 2009 [December 13th, 2009]
- Tobacco Prohibition, Bit by Bit - December 13th, 2009 [December 13th, 2009]
- The U.S. in the Middle East: A Prediction - December 13th, 2009 [December 13th, 2009]
- Gay Marriage or Civil Union: Would Less be More? - December 13th, 2009 [December 13th, 2009]
- Whither the Estate Tax - December 13th, 2009 [December 13th, 2009]
- Late-Term Abortions in Nebraska - December 13th, 2009 [December 13th, 2009]
- Why Climate Negotations Are a Waste of Time - December 13th, 2009 [December 13th, 2009]
- "Mild" Gun Control Laws - December 13th, 2009 [December 13th, 2009]
- Did the Iraq Surge Really Work? - December 13th, 2009 [December 13th, 2009]
- Driver's Ed at Age 52 - December 13th, 2009 [December 13th, 2009]
- Ginnie Mae, Ticking Time Bomb - December 13th, 2009 [December 13th, 2009]
- Toddler Terrorism - December 13th, 2009 [December 13th, 2009]
- Policy Insight from David Letterman - December 14th, 2009 [December 14th, 2009]