{"id":2558,"date":"2011-02-25T14:14:52","date_gmt":"2011-02-25T19:14:52","guid":{"rendered":"http:\/\/jimbovard.com\/blog\/?p=2558"},"modified":"2011-02-25T14:14:52","modified_gmt":"2011-02-25T19:14:52","slug":"obama-advisor-sunsteins-peril-to-freedom","status":"publish","type":"post","link":"https:\/\/jimbovard.com\/blog\/2011\/02\/25\/obama-advisor-sunsteins-peril-to-freedom\/","title":{"rendered":"Obama Advisor Sunstein’s Peril to Freedom"},"content":{"rendered":"

from the Future of Freedom Foundation’s <\/a>Freedom Daily<\/strong><\/a> (November 2010)<\/p>\n

Obama Advisor Sunstein\u2019s Peril to Freedom<\/strong>
\nby James Bovard<\/p>\n

Cass Sunstein is the chief of the Obama administration\u2019s Office of Information and Regulatory Affairs. As Salon\u2019s Glenn Greenwald noted earlier this year, Sunstein \u201chas long been one of Barack Obama\u2019s closest confidants.\u201d His values are probably guiding the Obama administration far more than most Americans realize. <\/p>\n

Sunstein, formerly a law professor at the University of Chicago, has long spearheaded an intellectual attack on the Bill of Rights. In The Cost of Rights: Why Liberty Depends on Taxation, Sunstein and Princeton political-science professor Stephen Holmes offer this definition of the old (negative) and new (positive) rights, or, as they put it, the difference between liberties and subsidies: <\/p>\n

Those Americans who wish to be left alone prize their immunities from public interference, it is said, while those who wish to be taken care of seek entitlements to public aid. Negative rights ban and exclude government; positive ones invite and demand government…. Negative rights typically protect liberty; positive rights typically promote equality. The former shield a private realm, whereas the latter reallocate tax dollars…. If negative rights shelter us from the government, then positive rights grant us service by the government. The former rights include the rights of property and contract and, of course, freedom from being tortured by the police; the latter encompass rights to food stamps, subsidized housing and minimal welfare. <\/p><\/blockquote>\n

In order to untangle these fallacies, we need to roll back the clock to the late 1700s. <\/p>\n

The Declaration of Independence proclaims that all men are \u201cendowed by their Creator with certain unalienable Rights.\u201d And that to secure these rights, Thomas Jefferson wrote, \u201cgovernments are instituted among men.\u201d <\/p>\n

The Founding Fathers constructed one such government, limiting its powers to certain well-defined functions. <\/p>\n

Two years after the Constitution was ratified in 1788, James Madison drafted the Bill of Rights to create a bulwark between the individual and the state. As Syracuse University political-science professor Stephen Macedo described it, the Founding Fathers saw government as an island in a sea of rights. The rights enumerated were those grounded in the American experience: the right to assemble, the right to free speech, the right to worship God in one\u2019s own way, the right to keep and bear arms, the right to a speedy and public trial by an impartial jury, the right to be left alone by the state (freedom from unwarranted search and seizure), freedom from self-incrimination (coerced confessions), and freedom from cruel and unusual punishment. The Ninth Amendment states simply \u201cThe enumeration of certain rights, shall not be construed to deny or disparage others retained by the people.\u201d The Tenth Amendment underscores the point that the true repository of rights is the individual. <\/p>\n

The Founding Fathers sought to curtail government. Their notion of freedom was described this way: \u201cSociety whose laws least restrain the words and actions of its members is most free.\u201d <\/p>\n

For 150 years, that formula worked fine. As recently as 1923, the Supreme Court celebrated the breadth of personal freedom: <\/p>\n

The term [liberty] has received much consideration. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.<\/p><\/blockquote>\n

Being left alone, uncoerced, is the true meaning of freedom. People value freedom so highly because it symbolizes life without a master \u2014 a life of minimal subjugation and shackles. Freedom means being able to make choices and contracts. Freedom means not having one\u2019s place in life assigned by one\u2019s superiors. Freedom means being able to take risks and suffer the consequences. <\/p>\n

Franklin Roosevelt\u2019s legacy <\/strong><\/p>\n

Unfortunately, the notion of the citizen\u2019s inviolable right to liberty is vanishing from the American political landscape. Indeed, the government scorns the individual and treats as suspect the exercise of such rights. <\/p>\n

Some trace the shift to President Franklin Roosevelt. In 1933 he announced, \u201cWe have all suffered in the past from individualism run wild.\u201d Naturally, the corrective was to let government run wild. <\/p>\n

On January 6, 1941, Roosevelt cavalierly edited the Bill of Rights, replacing Madison\u2019s vision with his \u201cfour freedoms.\u201d He kept freedom of speech and freedom of worship, then added \u201cfreedom from want, everywhere in the world\u201d and \u201cfreedom from fear, anywhere in the world.\u201d In 1944 he declared that the Bill of Rights had \u201cproved inadequate to assure us equality in the pursuit of happiness.\u201d He called for a second Bill of Rights that created, among others, \u201cthe right to a useful and remunerative job; the right to earn enough to provide adequate food and clothing and recreation; the right of every family to a decent home; the right to adequate medical care; the right to adequate protection against the economic fears of old age, sickness, accident and unemployment; the right to a good education.\u201d <\/p>\n

The taxpayer would pay for those new rights, and the government would control the reallocation of resources. Roosevelt talked of using the power of government to crush \u201cthe few slackers or troublemakers in our midst,\u201d the \u201csmall group of selfish men who would clip the wings of the American eagle in order to feather their own nests.\u201d <\/p>\n

He pitted individual liberty against the interests of all (as fathomed by government). He would not be the last. Presidents to follow seemed perfectly willing to reconsider the nation\u2019s original concept of freedom. In 1994 Bill Clinton offered this idea: <\/p>\n

When we got organized as a country and we wrote a fairly radical Constitution with a radical Bill of Rights, giving a radical amount of individual freedom to Americans, it was assumed that the Americans who had that freedom would use it responsibly … that they would work for the common good, as well as for the individual welfare…. A lot of people say there\u2019s too much personal freedom. When personal freedom is being abused, you have to move to limit it. <\/p><\/blockquote>\n

Some Americans recognized the grave peril that Clinton\u2019s doctrine posed, but the media cheered him, as usual. <\/p>\n

The birth of government <\/strong><\/p>\n

The shifting definition of rights \u2014 of freedom itself \u2014 raises the question of whether people will benefit more from being left to build their own lives or from somebody\u2019s confiscating much of their building material and imposing the structure he thinks is best. <\/p>\n

The debate has shifted from the ideal to the monetary. The Tax Foundation calculates that an American works the equivalent of almost five months before any money he earns goes into his own pocket. <\/p>\n

The cost of our new rights has become a political hot button: Conservatives complain about the cost of welfare and blame a permissive society that overindulges sexual rights. Law-and-order types gripe about the cost of the appeals process and blame the ACLU for mollycoddling suspected criminals (even those who are innocent). Interest groups invent new rights (the right to a safe workplace, the right to clean air and water, the right to streets free of dog nuisances, the right to workplaces free of dirty jokes and sexual innuendo, the right to a smoke-free environment), and the government responds with costly regulations. <\/p>\n

A storybook distinction <\/strong><\/p>\n

Sunstein and Holmes claim this is a storybook distinction. Both positive and negative rights, they argue, depend on the existence of government. Rights cost money. Rights cannot be protected or enforced without public funding and support. All rights make claims on the public treasury. Rights without remedy are no rights at all. <\/p>\n

The individual has no preexisting rights; his sole responsibility is to contribute his share (or what the government dictates is his share) to the public coffers to protect his government-given rights. Government beneficence hides the erosion of the old order of freedom. The fact that the government imprisons more people now than ever before is irrelevant, because government is bestowing more benefits than ever before. It is as if the benefit automatically outweighs the shackle and therefore nullifies the existence of the shackle. <\/p>\n

In perhaps their most creative passage, Sunstein and Holmes reveal, <\/p>\n

Our freedom from government interference is no less budget-dependent than our entitlement to public assistance. Both freedoms must be interpreted. Both are implemented by public officials who, drawing on the public purse, have a good deal of discretion in construing and protecting them<\/p><\/blockquote>\n

In a stroke, basic freedoms are reduced to line items in a budget. Something as essential as religious freedom is put on a par with some congressman\u2019s pork project. Like moral accountants, Sunstein and Holmes try to calculate the cost of essential rights. In 1992, they claim, the administration of justice in the United States \u2014 including enforcement, litigation, adjudication, and correction \u2014 cost taxpayers around $94 billion. An average jury trial costs approximately $13,000. The authors assure us that \u201cincluded in this allocation were funds earmarked for the protection of the basic rights of suspects and detainees.\u201d <\/p>\n

Because the government spends a minuscule percentage of tax revenues on the administration of court systems, citizens are supposed to pretend that government is their liberator. <\/p>\n

Under this theory every failure of government is the citizens\u2019 fault. Sunstein notes, <\/p>\n

The Fourth Amendment right [against unreasonable government searches and seizures] cannot be absolute unless the public is willing to invest the enormous amounts necessary to ensure that it is seldom violated in practice. The fact that the Fourth Amendment is violated so regularly shows that the public is not willing to make that investment. <\/p><\/blockquote>\n

In other words, police routinely carry out unconstitutional searches with impunity because taxes are not high enough to prevent them. Taxation, not moral outrage, shields citizens from abuse. \u201cTo take the cost of rights into account is therefore to think something like a government procurement officer, asking how to allocate limited resources intelligently while keeping a wide array of public goods in mind.\u201d <\/p>\n

Holmes and Sunstein work overtime to attribute every freedom to government intervention, asserting, <\/p>\n

Religious liberty is certainly no more costless than other legal rights. American citizens are more or less free to worship or not, as they wish, but their freedom in this respect makes a claim upon the public fisc, even when it is not subsidized out of public budgets (through, for example, police and fire protection of churches and other religious institutions). <\/p><\/blockquote>\n

If a single cent of government money could conceivably be involved in some activity, the entire activity becomes the equivalent of a government handout. And regardless of how much tax a person pays, if a person receives any benefit from any government activity, that person becomes the moral equivalent of a public housing resident who never worked a day in his life. Despite the Founding Fathers, today\u2019s rights have become an island in a sea of government. The Bill of Rights is a theme park, and we buy tickets from Uncle Sam. That\u2019s not how the men who formed this country conceived it, and that\u2019s not how it should be. Americans must recognize the peril posed by Sunstein and his statist doctrines. <\/p>\n

James Bovard is the author of Attention Deficit Democracy [2006] as well as The Bush Betrayal [2004], Lost Rights [1994] and Terrorism and Tyranny: Trampling Freedom, Justice and Peace to Rid the World of Evil (Palgrave-Macmillan, September 2003) and serves as a policy advisor for The Future of Freedom Foundation.<\/p>\n","protected":false},"excerpt":{"rendered":"

from the Future of Freedom Foundation’s Freedom Daily (November 2010) Obama Advisor Sunstein\u2019s Peril to Freedom by James Bovard Cass Sunstein is the chief of the Obama administration\u2019s Office of Information and Regulatory Affairs. As Salon\u2019s Glenn Greenwald noted earlier this year, Sunstein \u201chas long been one of Barack Obama\u2019s closest confidants.\u201d His values are […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[22,659,658,677,17,673,45,657,50,31],"class_list":{"0":"post-2558","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"hentry","6":"tag-attention-deficit-democracy","8":"tag-congress","9":"tag-democracy","10":"tag-elective-dictatorship","11":"tag-freedom","13":"tag-rule-of-law","14":"tag-taxation","15":"tag-wool"},"yoast_head":"\nObama Advisor Sunstein's Peril to Freedom - James Bovard<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/jimbovard.com\/blog\/2011\/02\/25\/obama-advisor-sunsteins-peril-to-freedom\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Obama Advisor Sunstein's Peril to Freedom - James Bovard\" \/>\n<meta property=\"og:description\" content=\"from the Future of Freedom Foundation’s Freedom Daily (November 2010) Obama Advisor Sunstein\u2019s Peril to Freedom by James Bovard Cass Sunstein is the chief of the Obama administration\u2019s Office of Information and Regulatory Affairs. 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