On Misreading Sunstein
By Tibor Machan - April 16, 2012

A while back The New York Times Magazine ran what amounts to a puff piece about Harvard Law Professor Cass Sunstein, President Obama's long-time friend, former colleague and one of America's regulation czars. It was penned by Benjamin Wallace-Wells, who is identified as "a contributing writer for the magazine and a contributing editor for Rolling Stone" magazine.

The essay was a decent enough account of Sunstein's career and personal life but it focused only upon one of his significant and controversial ideas, namely "nudging" or "libertarian paternalism." This is the belief in a system of government regulations that amount to creating incentives for people to do the right thing (as per how the government or Professor Sunstein see it, of course). Instead of coming down on what government considers objectionable or undesired human conduct with a sledgehammer, nudging works by setting up various tricks with which people are led to act in the way the government people intend for them to act.

Call it behavior modification or libertarian paternalism, the gist of Sunstein's type of government meddling in people's lives is to use a not very subtle program of Skinnerian stimulus-response (after the late Harvard behaviorist psychologist, B. F. Skinner), whereby what government officials want the citizens to do isn't commanded but made the result of various prompters. Although Sunstein and his collaborators prefer the term "nudging," it is a misleading idea since if it involved no more than that, one could just sidestep it.

Suppose my neighbor wants his guests to stop wearing shoes in his home, so he leaves bits and pieces of suggestions to them as they enter it that lead them to take off their shoes and proceed into the home only in socks. OK, but they need not visit him in the first place. So when they realize they're being manipulated into doing stuff they don't want to do – say, showing people the condition of their socks – they can just not visit at all or take some evasive action. There are numerous such situations in our lives, when those with whom we interact desire for us and try to induce us to act in certain ways and we can either comply or opt out.

With governmental nudging, however, we are ultimately being forced to comply with how the government wants us to behave. There is no escape. If we don't go along, we could end up fined or even sent to jail. That is why it is called paternalism, since the government acts as would parents act toward their children over whom they have full authority. The "libertarian" part is a ruse – it comes from the fact that government tries to keep the citizenry in the dark about what it is doing, making it appear that one is making one's own choices when one isn't really.

Anyway, this idea is almost the only one associated with Cass Sunstein and with what he is supposed to be contributing to the Obama regime. The article does mention that he has urged government to go to court in support of animal rights but what it failed to do is mention Professor Sunstein's most dangerous and vile idea, namely, that government is the source of our basic rights.

In the American tradition of law and politics, the foundation of these come from human nature. That is what the Declaration of Independence points out, namely, that we have equal rights to life, liberty and the pursuit of happiness – among others – because of our human nature. They are unalienable so long as we remain human!

What Professor Sunstein and his co-author Stephen Holmes claimed, in their 1999 book, The Cost of Rights: Why Liberty Depends on Taxes, is that "individual rights and freedoms depend fundamentally on vigorous state action" and "Statelessness means rightlessness." This is the pre-revolutionary, pre-Lockean – and pre-Jeffersonian – idea that governments grant us rights; that there are no natural rights but mere privileges we obtain from a government – i.e., a group of politicians and bureaucrats – that can also promptly take them away. As Sunstein & Co. see things, it isn't just for the protection of our rights that a government is desirable but the very existence of our basic rights is due to government! Instead of the citizens having rights that government is instituted to secure, all governments, like monarchs, czars, dictators and such, give people rights, which they can promptly take away at their discretion. By what right they do this is left entirely unaddressed!

That such a reactionary view should be held by the foremost legal mind in the Obama administration is worth full disclosure and exploration, something The New York Times Magazine essay failed to do. Never mind nudging or animal "rights" – those are small potatoes. What matters far more is that Sunstein and Co. believe the thoroughly anti-libertarian and indeed anti-American notion that government is the source of law and rights, not their administrator and protector, respectively.

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