Cass Sunstein on “Paranoid Libertarianism”

by Gerard Emershaw

President Obama’s former Administrator of the White House Office of Information and Regulatory Affairs Cass Sunstein has recently penned a derisive statist column entitled “How to Spot a Paranoid Libertarian.” In the column, Sunstein attacks all those on the right who sound the alarm against gun control, progressive taxation, environmental protection, and health care reform as well as those on the left who sound the alarm against violations of the separation of church and state and overzealous privacy violating anti-terrorism efforts.

While Sunstein quotes novelist Joseph Heller’s truism: “Just because you’re paranoid doesn’t mean they aren’t after you” and acknowledges that “paranoid libertarians” might sometimes “draw attention to genuine risks,” he claims that “paranoia isn’t a good foundation for public policy, even if it operates in freedom’s name.” In other words, pay no attention to all the dangerous unconstitutional abuses that civil libertarians have warned about in the past. A broken clock is right twice a day, and just because those crazy persons are sometimes right, it does not mean that they are not crazy. It also does not mean that anyone should really pay attention to what they have to say.

So confident is Sunstein of himself that he does not bother to even attempt to present well reasoned arguments against “paranoid libertarianism.” Instead, he merely lists five characteristics. Apparently, he must believe that these characteristics are so dubious that it goes without saying that behind them lies paranoia and not reason. Despite claiming to distinguish “paranoid libertarianism” from libertarianism in general, if one removes the allegedly paranoid characteristics of “paranoid libertarianism,” whatever view remains can hardly be called libertarianism.

1.Wildy exaggerated sense or risks

According to Sunstein, “paranoid libertarians” wildly exaggerate the risks of government activity such as gun control or surveillance. “Paranoid libertarians” believe—whether they have evidence or not—that the government “will inevitably use its authority so as to jeopardize civil liberties and perhaps democracy itself.”

For a legal scholar and former law school professor, Sunstein is shockingly naïve when it comes to the state. Even more surprising is that he does not seem to understand that the entire basis for and structure of the American Constitutional Republicanism is the truism that the state is dangerous. The reason that the Founders decided that they had to chain down government with Constitutional limitations, checks, and balances and with the Bill of Rights was that they understood the inevitability that governments tend to abuse their powers and that this abuse invariably violated the natural rights of the people.

History is nothing if not the chronicle of authoritarian governments violating natural rights. From ancient tyrannical kings to the totalitarian governments of the twentieth and twenty-first centuries, human beings have historically had much to fear from their rulers. The state has been such an enemy of individualism and freedom that suspicion concerning government power is clearly the rational default position to hold. This is true even concerning the United States government. The government has used its authority to defend the institution of slavery, attempt to commit genocide against American Indians, imprison Japanese-Americans in concentration camps during World War II, spy on American citizens almost ceaselessly without probable cause for decades, etc.

2. Presumption of bad faith on the part of government officials

Sunstein also criticizes “paranoid libertarians” for holding the belief that the motivations of government officials cannot be trusted. For example, he claims that they believe that the “real” motivations for any restrictions on gun ownership must be that the government officials behind such regulations seek to disarm the American public.

The truth of the matter is that government officials often do have motivations that cannot be trusted. In a democratic system, elected officials often have to mask their true intentions in order to win elections. It is by now a truism that politicians lie, therefore, it becomes rational to mistrust the intentions of politicians. While it is not always possible to ascertain the true motivations of government officials, there is a strong enough correlation between zealous government officials and harms to civil liberties that it is reasonable to always be wary of those wielding state power. Even when the intentions are not specifically malicious, these intentions are often characterized by indifference motivated ultimately by greed. In exchange for campaign contributions—which often function as nothing more than bribes—many elected officials simply do what their patrons—corporations, unions, PACs, etc.—demand. And when the motivations of government officials are honorable, this often produces the worst tyranny. The humanitarian paternalism of the Progressive Era laid down ample blacktop on the way to Hell.

3. A sense of past, present or future victimization  

Sunstein says of “paranoid libertarians” that they “tend to believe that as individuals or as members of specified groups, they are being targeted by the government, or will be targeted imminently, or will be targeted as soon as officials have the opportunity to target them.”

Very little needs to be said about this claim. Following the Snowden revelations, the government has openly admitted that the NSA is targeting everyone. The federal government has long since given up on worrying about the Fourth Amendment and probable cause, and as a result, the NSA’s dragnet collection of metadata means that every American citizen is a target of the government.

4. An indifference to trade-offs

What Sunstein really means is that the belief that natural rights are inalienable is unreasonable. He attempts to stigmatize the view that liberty is “the overriding if not the only value” and criticizes those who do believe this tenet of American government as being inflexible and narrow-minded by believing that “it is unreasonable and weak to see relevant considerations on both sides.”

Sunstein believes that everything is negotiable, and therefore, those who are unwilling to compromise on everything are extremists and possibly even mentally imbalanced. There are clearly matters on which it is reasonable to compromise. If I want to buy a used paperback novel from you at a flea market for $1 and you want $2 for it, it’s not unreasonable for us to “meet halfway” and make a deal to exchange $1.50 for the book. However, there is nothing unreasonable about being unwilling to compromise on one’s natural rights. If you wish to kill me, and I wish to keep living, it is not rational for me to accept a trade-off by which you merely beat me half to death. If you wish to enslave me, but I would prefer to remain free, it is not rational for me to accept a trade-off by which I will become your slave for only 12 hours a day. If you wish to steal from me, and I wish to keep my possessions, it is not rational for me to accept a trade-off by which you only steal half of all that I own.

Sunstein laments that “paranoid libertarians tend to dismiss the benefits of other measures that they despise, including gun control and environmental regulation.” However, this is to make the assumption that such measures actually have benefits. If gun regulations had value, then one would expect cities with strong gun control laws such as Chicago to have little or no gun violence. This, as has been shown ad nauseum, is not the case. If, by “environmental regulation,” Sunstein means carbon taxes or other draconian measures aimed at ending “climate change,” then there is also no benefit to be expected by such a trade-off because evidence is mounting that “climate change” is simply not a genuine phenomenon. In essence, Sunstein seems to mean that one is mentally imbalanced if one is unwilling to allow his or her inalienable rights to be at least partially alienated and that one is equally imbalanced if he or she is unwilling to make serious concessions to government regulations based upon propositions that are either debunked or unproven.

5. Enthusiasm for slippery-slope arguments  

It is this final characteristic of “paranoid libertarianism” which best sums up Sunstein’s worldview and the libertarian worldview that he opposes. According to Sunstein:

The fear is that if government is allowed to take an apparently modest step today, it will take far less modest steps tomorrow, and on the next day, freedom itself will be in terrible trouble. Modest and apparently reasonable steps must be resisted as if they were the incarnation of tyranny itself.  

Slippery slope arguments can be and are sometimes abused. In The Breakfast Club, when after Mr. Vernon allows Andrew Clark to get up from his seat, and John Bender quips: “Hey, how come Andrew gets to get up? If he gets up, we'll all get up, it'll be anarchy,” the line is funny because of the absurd slippery slope reasoning that is mocked. From the point of view of deductive reasoning, a slippery slope argument is fallacious because there is no way to assert with certainty that the feared consequence will result. For example, it would be fallacious to assert that it is deductively certain that total gun confiscation will result from a ban on convicted felons owning assault rifles. However, when a slippery slope argument is instead employed as a form of inductive reasoning, and there is strong evidence that the feared consequence is likely to result, then such reasoning is logical. For example, it is well known that tyrannical regimes have often curtailed freedoms gradually, slowly killing their citizens’ rights the way that a frog is slowly killed in a pot of boiling water. The Nazis did not begin the “final solution” of the Holocaust immediately after assuming power. Along the way to complete tyranny, the Nazis passed the Reichstag Fire Decree, the Enabling Act, the Nuremberg Laws, etc.When one acts as if a law that violates natural rights does not matter, then soon one will find the nation on the road to totalitarianism. The slowly boiling frog does not notice that it is boiling, but when human beings do realize it, the rational thing is to get out of the water rather than assume that the fact that the water is beginning to get hot does not mean that it will continue to get hotter until it is dangerously hot.