Cassting Out Liberty

At a recent CATO book discussion, one of the think-tank’s scholars condemned Harvard Professor Cass Sunstein, President Obama’s “regulatory czar,” for coauthoring what is an argument against individual rights.

“Consequently, according to Cass Sunstein, there are no rights whatsoever, which I think actually is the logical outcome of his entire legal theory, is the elimination of rights,” said Tom G. Palmer at the December CATO event. In the book he referenced, The Cost of Rights: Why Liberty Depends on Taxes, Sunstein and New York University Professor Stephen Holmes argue that all rights are positive rights, or “amount to entitlements defined and safeguarded by law.” Thus, a right isn’t a right if it is not enforced by the government.

In The Cost of Rights Sunstein and Holmes also argue that there are no negative rights, and write that “No right is simply a right to be left alone by public officials.”

“I disagree very strongly. You can have a right that’s violated. It’s a meaningful thing to say victims of rights had their rights violated,” argued Palmer, the author of Realizing Freedom: Libertarian Theory, History and Practice.

As Accuracy in Academia has previously reported, Prof. Cass Sunstein has argued that animals should be able to sue, opposes hunting, suggested in Nudge that government neither issue nor recognize marriage licenses, has argued that the ability to create “an informational or communications universe of your own choosing is “a problem from the standpoint of the First Amendment,” and has advocated for “public spaces on the internet.”

Holmes and Sunstein were colleagues at the University of Chicago School of Law prior to writing The Cost of Rights together. Prof. Sunstein is currently on leave from Harvard while Holmes went on to work at Princeton and NYU.

In Realizing Freedom, Palmer quotes Sunstein and Holmes as writing, “Unenforced moral rights are aspirations binding on conscience, not powers binding on officials,” which, he argues, signifies that the authors “brush aside discussion of moral rights and consider only legal rights—those rights that a state will actually enforce…”

Actually, Sunstein and Holmes argue in the same chapter that “For most purposes, moral and positive accounts of rights need not be at odds.” But they tread relativist ground with regards to enforcement, however, and write that “Legal reformers should obviously strive to align politically enforceable rights with what seems to them to be morally right. And those charged with enforcing legal rights would do well to convince the public that these rights are morally well founded” (emphasis added).

“But the cost of rights is in the first instance a descriptive, not moral theme,” they continue.

Palmer said that the logical conclusion of Sunstein and Holmes’ theory—which classifies enforcement as the mechanism of rights—relies on an infinite regress, because,

“If I have a right that the police not torture me, it’s because the state has hired monitors to punish the police in the event that they torture me. But I would only have a right not to be tortured if I had a right that the monitors punish the police in the event that the police torture me, but I can only have that right if there were supermonitors monitoring the monitors who monitor the police such that if the monitors fail to punish the police they’ll be punished by the supermonitors. But I could only have a right not to be tortured by the police if the supermonitors had supersupermonitors over them, and so on…”

In other words, who watches the watchers?

Thus, Palmer argued, without an end point possible for this “infinite stack…of monitors punishing those below them,” human rights can never be truly secure if they originate with government.

Palmer also critiqued “advocates of welfare theory” for arguing that conflicting welfare rights are acceptable. “You have a right to paid vacation, I have a right to medical care, these conflict, so the state will just decide whose rights are going to be respected,” he said, continuing, “Well the consequence of that, if you think about it, is not to add another layer of rights, a richer, more robust set of rights in society, but to eliminate rights from the legal and political system altogether because if my right and your right come into conflict, and the state must decide which right is to be realized, it is by stipulation on the basis of something other than rights, which these people never bother to specify what that happens to be.”

“Is it tribal allegiance, personal friendship, cronyism, bribery, racial preference?”

Meanwhile, America’s future lawyers and scholars are taught this legal theory regularly. The Cost of Rights has been incorporated into college courses at NYU, the University of Rochester, the College of Charleston, and the University of Michigan, among others.

Bethany Stotts is a staff writer at Accuracy in Academia.