A New York Times book review yesterday snidely commented that libertarianism was past its time – and that “libertarian paternalism” is the wave of the future.

Cass Sunstein was one of the proponents of “libertarian paternalism” invoked by the reviewer.

The notion of “libertarian paternalism” evokes sentiments not fit for a family-friendly blog like this one.

Sunstein has come a long ways. Following is a piece I did for Playboy in 1999 on a book co-written by Sunstein and Stephen Holmes. An angry letter to the editor from Holmes follows, as does my reply to Holmes. (My article was based in part on Freedom in Chains, though the Philadephia analogy was not included in the final version of that book).

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PLAYBOY October 1999

When You Put A Price Tag On Freedom, Guess Who Pays.

BY JAMES BOVARD

The Declaration of Independence proclaims that all men are “endowed by their Creator with certain inalienable Rights.” And to secure these rights, Thomas Jefferson wrote, “governments are instituted among men.”

The founding fathers constructed one such government, limiting its powers to certain well-defined functions.

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 your 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 let alone by the state (freedom from unwarranted search and seizure), freedom from self-incrimination (coerced confessions), freedom from cruel and unusual punishment. The Ninth Amendment states simply that “certain rights shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment underscores the point that the true repository of rights is the individual.

The founding fathers sought to curtail government. Their notion of freedom was described this way: “Society whose laws least restrain the words and actions of its members is most free.”

For 150 years, that formula worked fine. As recently as 1923, the Supreme Court celebrated the breadth of personal freedom: “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.”

Being left alone, uncoerced, is the true meaning of freedom-being able to take to the open road without being stopped and searched. People value freedom so highly because freedom symbolizes life without a master-a life of minimal subjugation and shackles. Freedom means being able to make choices and contracts. Freedom means not having one’s place in life assigned to by one’s superiors. Freedom means being able to take risks and suffer the consequences.

FDR’S LEGACY

Unfortunately, the notion of the citizen’s 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.

Some trace the shift to President Franklin Delano Roosevelt. In 1933 FDR announced, “We have all suffered in the past from individualism run wild.” Naturally, the corrective was to let government run wild.

On January 6, 1941 Roosevelt cavalierly edited the Bill of Rights, replacing Madison’s vision with his “four freedoms.” He kept freedom of speech and freedom of worship, then added “freedom from want, everywhere in the world,” and “freedom from fear, anywhere in the world.” In 1944 he declared that the Bill of Rights had “proved inadequate to assure us equality in the pursuit of happiness.” He called for a second Bill of Rights that created, among others, “the 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.”

The taxpayer would pay for these new rights, and the government would control the reallocation of resources. Roosevelt talked of using the power of government to crush “the few slackers or troublemakers in our midst,” the “small group of selfish men who would clip the wings of the American eagle in order to feather their own nests.”

FDR 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’s original concept of freedom. In 1994 Bill Clinton offered this idea: “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’s too much personal freedom. When personal freedom is being abused, you have to move to limit it.”

THE BIRTH OF GOVERNMENT

The shifting definition of rights-of freedom itself-raises the question of whether people will benefit more from being left to build their own lives or from somebody’s confiscating much of their building material and imposing the structure he or she thinks is best.

The debate has shifted from the ideal to the monetary. Roosevelt’s redefinition of freedom was expensive. Total government spending increased from $61 billion in 1950 (about $2770 per person in current dollars) to $4.4 trillion in 1994 (or $9550 per person in current dollars). Federal, state and local governments collected an average of $26,434 in taxes for every household in the country, or an average of $9881 for every U.S. resident in 1998. Indeed, the Tax Foundation calculates that an American works the equivalent of five months before any money he earns goes into his own pocket.

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 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.

The intellectual attack on the Bill of Rights has been spearheaded by Cass Sunstein, a law professor at the University of Chicago. 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: “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. Positive rights include the rights of property and contract and, of course, freedom from being tortured by the police; negative rights encompass rights to food stamps, subsidized housing and minimal welfare.”

A STORYBOOK DISTINCTION

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.

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. So, the wealthier the bureaucracy, the freer the individual. 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.

In perhaps their most creative passage, Sunstein and Holmes reveal: “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.”

MONEY TALKS

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’s 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 U.S.-including enforcement, litigation, adjudication and correction-cost taxpayers around $94 billion. An average jury trial costs approximately $13,000. The authors assure us that “included in this allocation were funds earmarked for the protection of the basic rights of suspects and detainees.”

Clearly, we consider the rights of suspects less important than national defense (which runs some $265 billion per year). Under this theory every failure of government is the citizens’ fault. Sunstein notes: “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.”

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. “To 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.”

Despite the founding fathers, today’s 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’s not how the men who formed this country conceived it, and that’s not how it should be.

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PLAYBOY January 2000

HEADLINE: READER RESPONSE; Letter to the Editor

THE COST OF RIGHTS

STEPHEN HOLMES: James Bovard’s outburst at a book written by me and University of Chicago law professor Cass Sunstein (”The Cost of Rights,” The Playboy Forum, October) leaves me feeling like a mosquito in a nudist colony: I don’t know where to begin. The theme of our book, The Cost of Rights: Why Liberty Depends on Taxes, is the budgetary cost of nonwelfare rights. Property rights, freedom of contract, the right to vote, freedom from unreasonable search and seizure and so forth all make important claims on the public fisc. Bovard may not have noticed that the money to light, heat and repair courthouses comes from taxpayers. This dependency of nonwelfare rights on budgetary outlays implies something that those of Bovard’s persuasion are loath to admit: Individual liberty, as Americans understand it, can be protected only on the basis of public resources gathered and managed by the government. The freedom that right-wingers purport to love presupposes the government’s capacity to tax and spend, an activity right-wingers purport to hate.

The debate between those favoring large government and those favoring small government is a reasonable one. What introduces an element of irrationality is the assumption that there are two kinds of rights-one that makes us independent of government while requiring no government spending, and one that promotes dependency while draining the budget. The for-mer is American and should be preserved, we frequently hear, while the latter is un-American and should be abolished. But this flimsy distinction is a poor basis for public policy, as demonstrated by someone asking who is more dependent on taxpayer-funded government support: the CEO of a Fortune 500 company or the invalid who sleeps on a heating grate?

The purpose of our book is not to decide which government programs should be expanded or cut, but to puncture some pervasive illusions that continue to cloud the thinking of those who enjoy posing as embattled heroes of private liberty. The notion that any right is deeply un-American if it makes the individual dependent on government is one of those all- too-common fallacies. If Bovard feels perfectly “free” when he rides in an elevator that has never been inspected by a taxpayer-salaried government official, then he has an odd conception of freedom.

Stephen Holmes

New York, New York

Bovard responds: 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. And regardless of how heavy taxes become, they are still a badge of freedom, because not all the revenue is pissed away or used to buy new shackles for citizens. This is the Sunstein-Holmes philosophy of government in a nutshell.

Holmes and Sunstein work overtime to attribute every freedom to government intervention, asserting: “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).” By that reasoning, people have sexual freedom only because government-funded rescue squads might retrieve the wounded after a couple injure themselves attempting a Flying Philadelphia Fuck. 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 or her life.

