Liberalism is embattled today. On the left, “neoliberalism” has become a catch-all epithet. It is held responsible for ills from poverty to climate change to war, with policy answers that run to steep taxation, aggressive price regulation, and renewed flirtations with state ownership. On the right, critics level an even more comprehensive charge: that liberalism exalts individualism over community, freedom over duty, and cool rationalism over sustaining faith. Their program often turns to forms of extreme nationalism, characterized by high tariffs, extremely tight immigration restrictions, and government-policing of cultural conformity.
A defense of big-tent liberalism that attracts the beleaguered band of liberals on both the right and left, therefore, would be most welcome. That is what Cass Sunstein, the distinguished professor of law at Harvard University, promises in his introduction to On Liberalism: A Defense of Freedom. He does one crucial thing right: although he is himself a left-liberal, he emphatically counts right-liberals, like Hayek, Friedman, and Mises, as fellow liberals.
Unfortunately, the book ultimately fails as a case for encompassing liberalism for three reasons. First, despite his respect for some right-liberals, it is sometimes an unnecessarily parochial defense of left-liberalism, even suggesting wrongly that originalism—the favored form of constitutional interpretation of most right-liberals—is inconsistent with liberalism. Second, he folds an extensive list of social “goods,” including democracy and even laughter, into liberalism without sufficiently detailing the precise nature of their connection to liberty—liberalism’s lodestar. Finally, the book, while consistently engaging and well-written, is disjointed. Chapters range over a variety of subjects, including Hayek’s views on John Stuart Mill’s marriage and the folk singer Connie Converse’s failure to become famous in her lifetime. It is more a collection of disparate essays than a focused defense of liberalism. Sunstein is a brilliant public intellectual, but the rate of his production (over thirty books and counting) may harm the coherence and power of some of them.
First, take Sunstein’s claim that liberalism implies a particular theory of constitutional interpretation—“experiments in living constitutionalism”—a jurisprudence he sharply contrasts with originalism. It derives its name from John Stuart Mill’s advocacy of “experiments in living”—ways of living that go against tradition and convention but that may reveal new opportunities for the flourishing of the human spirit. Sunstein is undoubtedly correct that if the federal judiciary’s job is to create constitutional rights that allow people to try the experiments they deem fit, originalism will not do the interpretive trick. The Constitution does not contain an “Experiments-in-living Clause.” And even the provision that some treat as a font of rights not otherwise enumerated—the Due Process Clause—protects only rights deeply rooted in American traditions, hardly a mandate for constitutionalizing contemporary experiments.
But Mill also recognized that the experiments in living should not harm others. And Sunstein himself concedes that not all experiments in living should necessarily get constitutional endorsement. What about polygamy, hard drug use, or assisted suicide (better defined as an experiment in dying!)? Once one recognizes how contestable “harm” is—and thus how hard it is to distinguish permissible from impermissible experiments—the central question becomes which institution is best designed to draw those lines. Why aren’t legislators better than justices at making judgments that cannot be reduced to a formula?
Indeed, Sunstein himself praises democracy as an essential part of liberalism, seeing an analogy between the government of the self, a premise of liberalism, and self-government, the premise of democracy. And Sunstein also argues that the rule of law is essential to liberalism, even going as far as to cite Antonin Scalia’s famous essay, The Rule of Law as a Law of Rules. But how can experiment-in-living constitutionalism reflect the rule of law when there is no clear line to decide which experiments to bless, particularly when the text of the Constitution provides few, if any, materials with which to draw one?
Liberalism must be clear about liberty’s priority, candid about institutional limits, and capable of winning converts on both left and right.
Along with Nelson Lund, I have argued that the Constitution interpreted according to originalism has a much better structure to promote experiments-in-living—its combination of federalism and the First Amendment. Different states strike different policy balances between liberty and what might be considered dangerous license. The First Amendment then protects national debate over those state experiments. The free interstate movement of federalism also assures that citizens elsewhere can move to take advantage of the new experiments. This structure has worked to promote experiments in living. Places like New York City and California permitted looser social and sexual morals. Writers then publicized these experiments through books and entertainment until most of the nation accepted them. To be clear, I do not personally have such a high opinion of the results because most people benefit from more traditional moral frameworks. Nor do I think one has to be an originalist to be a liberal. But if liberalism is to be a big tent, it cannot be confined to the production of the precise social mores of which I approve or the interpretative theories that I defend.
Sunstein’s failure to confront the tensions between his embrace of democracy and the rule of law as essential features of liberalism and his preferred constitutional theory exposes a deeper problem: an under-theorized account of liberty’s relation to adjacent concepts such as democracy and the rule of law. Democracy properly structured is a social good, but it is not a conceptual component of liberty as Sunstein implies with the analogy between governance of self and self-government.
Indeed, democracy and liberty exist in some tension. Liberty is about empowering individuals to make their own decisions. Democracy is about empowering the community or its representatives to make decisions on its behalf. To be sure, there may be an empirical connection between the concepts. Frequent elections in a democracy may diffuse power and thus make it harder for any one group to dominate individuals: for liberalism, democracy could be, as Winston Churchill once said, “the worst form of government except for all the others.” But the connection remains empirical and contingent. Whether democracy actually advances liberty depends again on institutional design, including appropriate limitations on government.
Similarly, Sunstein is far too blithe in declaring that large-scale redistribution of wealth is compatible with liberalism. Even if one believes it is conceptually compatible (and he makes no arguments against those like Robert Nozick, who argue that it is not), it is likely not empirically compatible. Large-scale redistribution necessarily empowers the state by reducing an independent center of power—the rich. And given that Sunstein is also at pains to suggest that his kind of liberalism prizes nonconformism against existing social mores, large-scale redistribution makes overturning these conventions less likely, because it is the rich who often have the independence to break with tradition or fund institutions that encourage such departures.
We must also remember that large-scale redistribution places substantial amounts of money and thus power in the hands of the government. Even with the best of motivations, government will often deploy these funds counterproductively, and given the rent seeking of many who seek a greater share of unearned wealth, the motivations may well prove terrible. Given these empirical problems, Sunstein should do far more to demonstrate that redistribution beyond the modest level, which prevents deprivation, is compatible with liberalism.
Finally, Sunstein has an extravagant view of liberalism’s obligation to provide equal opportunity. In one of the more unusual chapters of the book, he recounts the life of Connie Converse, a talented folk singer who nevertheless failed to make a musical living during her lifetime and whose songs were only widely known after her death. Sunstein appears to use her as an example of one who failed to enjoy a fair opportunity—in this case, to be a singer whose fame was commensurate with her enormous talent. He implies that liberalism should at least eventually address such injustices.
But Sunstein himself provides the facts that show the implausibility of this view. Whether songs succeed in breaking through is not just a product of their own abstract merit, but of their resonance with the times. Based on the evidence of the lyrics presented, Converse focused inwardly when many famous folk singers, like Joan Baez, focused outwardly on protest. Moreover, Converse was a troubled person, choosing to disappear from society and likely even to commit suicide. People are much more likely to succeed in entertainment if they have a personality better primed to seize the main chance. Any effort to reorder society so that the Connie Converses of the world have greater chances of “making it” in an inherently uncertain field like popular music would not only miss its mark but also concentrate so much power in the state as to endanger the liberal order.
In short, Sunstein sometimes presents an overly romanticized version of liberalism. Liberalism cannot abolish chance, equalize natural endowments, or ensure virtue. A more level-headed version can be nested within a disciplined democracy and the rule of law to enlarge the space in which individuals and associations can pursue the good as they understand it. That and not a court-managed catalogue of ever-new rights or a program of sweeping redistribution is the big-tent liberalism worth defending. It must be clear about liberty’s priority, candid about institutional limits, and capable of winning converts on both left and right.