Cass Sunstein on Liberalism
Public Philosophy Digest
This month’s APA Blog Substack Newsletter explores a new book on liberalism with friend of the APA Blog, Cass Sunstein. In our recent September Newsletter we discussed his prior book on manipulation – what it is, why it’s bad and what to do about it – and an earlier Blog piece explored overcoming cognitive bias with algorithms.
His latest book makes an impassioned and comprehensive case for liberalism – a defense of freedom. Following his lead, I would like to open the aperture on the philosophical context and explore expanding his “big tent” conception of liberalism. My questions are in the spirit of Cass’s notion of “experiments in living” and continuous improvement, as he notes liberalism is not a “thing” and a “work in progress”. Cass explicitly addresses critics of liberalism, and I revisit its potential “culpability” in modern ills through potential unintended consequences reflected in shifting applications of the law, working against the public interest. Furthering this line of inquiry, in the context of the core tenets of free markets and the rule of law, we discuss whether Common Good Constitutionalism might be co-opted to serve liberal ends.
As critics typically draw on religion, I explore its relationship to political philosophy, discussing Eric Nelson’s provocative case in The Theology of Liberalism. Nelson suggests that the Rawlsian secular debate over distributive justice is unconsciously part of an ancient dispute about the justice of God. It is topical given the philosophical implications for agency, a bedrock principle of liberalism. Lastly in this interview, Cass previews his next book on the Separation of Powers, which completes a trilogy of works focusing on liberalism and constitutionalism.
Charlie Taben (CT): Cass, thank you again for taking the time to explore your latest book. The breadth of the case drives its vitality. First, in an initial manifesto you broadly define liberalism in the context of the Western tradition, avoiding current caricatures. You then highlight key protagonists and unusual adherents (William Buckley!), reinforcing the inclusive vision. Lastly, you comprehensively review the central elements, including the rule of law, freedom of speech, free markets and the Second Bill of Rights. The essence of the book might be captured by your notion of experiments in living, where autonomy and informed choices drive continuous improvement. To share your positive conclusion in the final sentences of the book, you declare that “Liberalism is full of hope. Hopeful people are remaking it every day”. I left off in the last Newsletter wondering what sustains your optimism and this book reinforces your practical answer of prescriptions and action. To start, given our charged moment, please share any specific impetus for the book and frame the case in your own words.
Cass Sunstein (CS): The impetus was a sense that liberalism is under attack from the left and the right, so much so that many people have lost a sense of what liberalism even is. If you read attacks from the left, it is as if liberals want, and have always wanted, to defend inequality, environmental catastrophe, and oppression. If you read attacks from the right, it is as if liberals want, and have always wanted, to attack the family, religion, and longstanding traditions. These are attempted refutations of a caricature.
Liberalism is an effort to defend freedom, pluralism, and the rule of law – and in the process, freedom of speech, freedom of religion, and freedom from fear. We need those things! The fundamental goal of the book is to capture an approach to political life that deserves to be cherished and nurtured.
CT: Shifting to questions that might tease out the big tent of liberalism, I want to explore a central line of criticism tracing a multitude of problems to the veneration of autonomy – working against the traditional values of family, community and faith. You caught my attention with a passage in your book reciting Ross Douthat’s complaints about liberalism:
”Where it once delivered equality, liberalism now offers plutocracy; instead of liberty, appetitiveness regulated by the surveillance state: instead of true intellectual and religious freedom, growing conformity and mediocrity. It has reduced rich cultures to consumer products, smashed social and familial relations, and left us all isolated and mutually suspicious inhabitants of an ‘anticulture’ from which many genuine human goods have fled”.
As Ross is one of my favorite intellectuals, indulge me in tolerating a lengthy preamble from an older column, where he framed his objections with a flourish, wondering Who Won the Reformation:
“The Western world has not known quite what to do with the 500th anniversary of the Protestant Reformation… Looking back through the chronoscope of religious history, then, the modern secular liberal is a Leninist: He watches Christendom tear itself apart and thinks, the worse the better, since only out of the wars of religion can his own society be born…First, this story goes, Protestantism replaced the authority of the church with the authority of the Bible. Then, once it became clear that nobody could agree on what the Bible meant, the authority of conscience became pre-eminent — and from there we entered naturally (if with some bloody resistance from various reactionary forces) into the age of liberty, democracy and human rights.
The problem with this story is that like all propaganda it edits selectively and treats the experience of various fortunate groups as the measure of a much messier reality. The Reformation and its wars did indeed diminish religious authority, secularize politics and allow certain kinds of individualism to flourish. But they also empowered (and were exploited and worsened by) the great new gods of modernity, the almighty market and the centralizing state, which claimed their own kind of authority over everyday life, making the divided churches into handmaidens or scapegoats, and using Christianity as an excuse for plunder rather than a restraining counterforce to worldly lust.
This simultaneous expansion of commercial power and state power made the Western world more orderly and rationalized and much, much wealthier. It also licensed cruelty and repression on an often extraordinary scale. It produced some remarkable experiments in religious tolerance, our own Constitution among them. It also encouraged secular inquisitions that made the original look tame. It opened new opportunities for the rational and industrious. It also weakened or destroyed the places where one might retreat from commerce or refuse the world. It led to huge leaps forward in health and life expectancy for all. It also brutalized religious resisters, stacked non-European bodies like cordwood… and eventually revived the worst tendencies of the old Christendom, anti-Semitism and millenarianism, in fascist and Communist experiments that added the genocide of millions to the modern state’s list of crimes… I’m being grim on purpose; more optimistic views than this are possible. But since the unity of Christendom isn’t coming back any time soon and our own society has a thousand incentives to lie to itself about how religious division was for the best, it’s worth considering the dark version of the long view.
The modern world offers many gifts, and the fact that Catholics and Protestants now dwell together without bloodshed is certainly one of them. But to assume that this division was a necessary means to a happy secular and liberal ending is to assume that we actually know the ending — even though the story so far has given us many novel forms of tyrannies as well as greater liberties, and the price of the modern experiment has been millions of unremembered dead.”
Ross’s powerful polemic, framed in the sweep of history, sets the landscape for the overarching response in your book. You push back in highlighting that liberalism’s culpability is not at all clear. You note that the critics are being reckless – that liberalism is not a person and Ross and other post-liberal critics frame a narrative without citing empirical evidence: “What, exactly, has caused what, specifically?” Moreover, you maintain that the religious cohort of critiques overlook that “many liberals honor and cherish the many traditions that define nonpolitical life, whether they involve family, community, or religion”. Lastly, you reasonably suggest that the real culprit could be many things, such as atheism or capitalism – and we will discuss restraining private capital later.
In understanding this line of criticism, perhaps the qualm flows from the political conception of liberalism where human flourishing simply follows the promotion of autonomy. The “culprit” in this narrative is an undue focus on autonomy, where neutrality becomes an end-in-itself. The argument is that any system – even democracy – is simply a means and its value depends on the manner of its deployment and ends. The counterpoint or reorientation might be that autonomy must be grounded in the social foundation of liberty, or the Common Good. To provide a potential example, I want to explore negative downstream consequences of a culture of freedom through the shifting application of the law.
In Technology and the Politics of the Common Good, I explored how the thresholds for both patent and antitrust law have drifted away from securing the Common Good. In the case of patents, the measure has shifted from beneficial utility to efficiency or expediency. In the case of antitrust considerations, the standard has moved from serving the community to pure “competitiveness”. The issue is that standards promoting the Common Good, suffused in our statutory framework, can be compromised with the lionization of freedom – where the law reflects the culture of the polity. Unwittingly, the kinds of liberal constraints you outline, such as laws regulating free markets, are potentially weakened.
My question, then, is how you would characterize a form of liberalism which would be pro-active in restraining liberty on the margin, in service of the public interest. As you note, a perfectionist conception is distinguished by promoting autonomy. Is a political understanding truly agnostic in simply guaranteeing a plurality of equal, genuine values – or might it include institutionally promoting shared principles, such as common values across faiths?
CS: There is a lot there! We can use abstractions to tell lots of big stories about history’s arc. Some of those stories are arresting and plausible. Some of them might seem thrilling. Some of them might even be true. But it’s worth considering the possibility that big stories are really just that. I am not sure how to evaluate them, other than to say: Maybe! (And then to whisper: Maybe not.) And note well: Some people are very good writers.
In terms of liberalism, the public interest, and the common good: Liberals have long focused on both the public interest and the common good. We need to solve collective action problems, for sure; that is massively important to liberalism, but not the whole picture of the liberal interest in the public interest and the common good. Public parks and museums fit securely within the liberal tradition.
Liberals value considerateness, including within the family. (See Edna Ullmann-Margalit on this.) Liberals need not oppose seatbelt laws and prohibitions on child pornography and polygamy. Liberals like a lot of traditions. Liberals hardly oppose the family. (My gosh.) On common values across faiths: Sure! For starters: No murder, no rape, no assault, no trespass. No breach of contract, either. We might avoid the phrase “restraining liberty on the margin,” because that formulation is insufficiently informative. Liberals insist on a broad conception of freedom of speech and also freedom of religion, and they highlight the rule of law, which includes the right to due process.
CT: Continuing with the perspective of using critiques as a basis for improvement and exploring concepts that could be co-opted for liberal ends, I would like to turn to capitalism as culprit for our modern predicament. We briefly touched on it in our prior Newsletter, where I lamented about the hegemony of private capital. I would like to highlight a means for constraining private capital that was summarily rejected by the liberal commentariat. In the last Newsletter, I suggested Common Good Constitutionalism, promoted by your esteemed colleague, Adrian Vermuelle, was a practical, institutional lever to regulate commerce. It’s not only a useful commercial tool to support the public interest, but, in my view, intuitive with the prospect of crystallizing public sentiment.
The use of State influence is fraught, but I would like to cite an excellent essay by Alexandre Lefebvre about Soulcraft, where he makes the case that using institutional power to foster human flourishing has been commonplace: “Across the sweep of human history, soulcraft, not individual self-determination, has been the norm”. He suggests that we can learn from illiberal regimes in how they try to craft souls toward spiritual and moral ends. I view the notion of Common Good Constitutionalism as a form of soulcraft – a part of our Western legal heritage reflected in the classical legal tradition. Professor Vermuelle often generates hysterical responses, and I believe knee-jerk reactions to his book overlooked its potential. Do you believe his framework, like the classical legal standards embedded in patent and antitrust law, could foster the liberal order? Could it be a viable concrete experiment in living?
CS: I confess that I like capitalism a lot, perhaps showing my University of Chicago background! Hayek, a great defender of capitalism, is a hero of my book, and here’s to a new appreciation of Ludwig von Mises, cranky and imperfect though he was.
If we care about freedom, security, and growth, we will see private property and free markets as very good things (and yes, we need patent law and antitrust law). It’s hard to show that “capitalism” is a “culprit” for our “predicament.” Maybe so, but I’d love to know what all of those words mean.
I am not sure how to think about “soulcraft.” Liberals want the state to leave the soul and spiritual ends to others (e.g., the Pope), though they also seek to inculcate a range of values, including mutual respect. I am no expert on patent and antitrust law, so alas I don’t have a lot to say about that.
Vermeule is a friend and colleague of mine, and I greatly admire him. (We have written a lot together on administrative and constitutional law.) It is certainly valuable to attend to the classical tradition, and to see what we can learn from it. It is right to say that the classical tradition informed the American founding, and also the development of liberalism as I understand it. Of course, my book is a defense of liberalism, not the classical tradition as such.
CT: To the extent that post-liberal critiques draw on religious values, I would like to introduce Eric Nelson’s fascinating book, The Theology of Liberalism, to further explore the intersection of religion and political philosophy. I know you explicitly state that your book is not a work of political philosophy, but, to the extent Nelson’s case grapples with the central question of agency, I cannot resist seeking your perspective. It is personal, so to speak, as I had the privilege of attending John Rawls’s course in the early 1980’s, which was a highlight of my life. I also had the pleasure of hearing Eric Nelson review his book at Yale and was honestly flabbergasted by his exegesis. Provocative would be an understatement, as he suggests the Rawlsian debate is really part of an ancient, theological dispute. Rather than a conventional, or even penultimate secular analysis, he unceremoniously flips the script to contend it’s unrecognized as theological, unselfconsciously joining the debate about theodicy.
Nelson’s case immediately came to mind because he was preoccupied with what he calls “dignitarian” liberalism. He is focused on modern liberals who make the case for the fundamental value of autonomy and ability to choose - reflected throughout your recent work. The tenets you laud - free speech, privacy, government by consent, etc. - all flow from the importance of voluntary action. He terms it transcendental freedom, where humans possess dignity by virtue of the capacity for moral choices.
Nelson makes the ironic case that Rawls’ morally arbitrary view of distributive justice fundamentally compromises agency - where everything is beyond our control, circumstances are dispositive, and merit has no claim on goods. Of course, he suggests Rawls is constrained by his Augustinian foundation in protecting Christian orthodoxy and God’s foreordained grace, rejecting the Pelagian defense of transcendental human freedom to vindicate God’s justice. For these purposes, Nelson’s challenge is the potential sacrifice of the bedrock principle of agency. He contends that Rawls’s case can be separated from the question of theodicy, situated within the ancient philosophical debate about free will.
As my next question, I am quite anxious to hear your perspective on Nelson’s book! First, the fairness of the exegesis broadly in leveraging Rawls’ Princeton dissertation. Second, outside of the religious context, is he fairly raising a fundamental question about human agency with Rawls’s account of distributive (vs. punitive) justice - in any way compromising the distinguishing feature of liberalism?
CS: I don’t know his book, so I should not speak to it. From your account, I confess that I fear that he might be getting trapped by abstractions. This sentence seems to me challenging to parse: “Rawls is constrained by his Augustinian foundation in protecting Christian orthodoxy and God’s foreordained grace, rejecting the Pelagian defense of transcendental human freedom to vindicate God’s justice.” I have a hard time mapping that onto Rawls’ work. But not having read the book, I should be cautious here.
CT: Lastly, I would like to leverage a common refrain in your book where you describe how a liberal would approach a problem or issue. There is a cohort of post-liberals who promote the concentration of power. The distilled argument might be that an “invisible hand” of competing systems of power, with no express intention of justice, will not naturally or automatically generate goods. Rather than support continuous improvement, this decentralized faith in check and balances can serve to preserve the status quo. To introduce your forthcoming book on the Separation of Powers, where the previews suggest that the concentration of power can amount to “tyranny”, please provide a liberal overview of the dangers of executive power and when it might be used for liberal ends in the administrative state.
CS: Oh well, I have spent a fair bit of time over the last few years in the company of Adolf Hitler. He’s not good company. He did not want to preserve the status quo.
Some people find it tiresome or tendentious to invoke Hitler as a warning sign about the concentration of power. I confess that I want to say to them: Shame on you. A friendlier and more responsible response would take a lot of pages. The basic point is that institutional design is always a matter of risk management, and the risks of concentrated executive power are repeatedly demonstrated by history.
If the executive branch is using its power to protect freedom of speech and freedom of religion, and to vindicate the rule of law, we should applaud. If it is implementing the Clean Air Act, we should also applaud. Liberals need not be hostile to the modern administrative state. Still, Madison was right on the concentration of power: “The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.” Amen.
CT: Cass, I greatly appreciate you taking the time to build on your fair-minded case. Your thoughtful and focused approach brings liberalism to life. I will try to keep track of your prolific work and hope we can continue the dialogue in the APA Blog Substack. Your public voice is vital and a tonic – thank you.
From the APA Archive:
Cosmic Purpose, Creation and Individual Meaning
Cosmic Purpose with Philip Goff
What else I’m Reading/Listening To:
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