progressivism, individualism, and the public ... - Telmarc Group

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The Telmarc Group PROGRESSIVISM, INDIVIDUALISM, AND THE PUBLIC INTELLECTUAL Sunstein then spends endless pages telling why this Burkean approach relying on the Jury Theorem established the Jeffersonian dream of a flexible Constitution reflecting the changes in society. We have seen the same in Wilson a century earlier. They both accept the existence of the Constitution and then find reasons for abrogating the words and reinterpreting it in a manner consistent with whatever views may be current. All without any formal amendment to the Constitution itself. Sunstein examines the Jury Theorem metaphor in many areas, and he seems to go back and forth on its validity and the influence of many minds on the decision process. Towards the end he raises the issue of foreign law. Specifically he states 176 : "There is an initial question, involving the Who Votes? problem. Supports the court seeks to determine whether some law X has some desirable effect Y. The court observes that most other nations have enacted X, but it also discovers that in the aggregate more legislators oppose X than support it - in the states with X a bare majority of the legislators are in favor, while in states without X nearly all legislators voted against the law. Should the court count the states with the law…Who votes?...the question is easy to answer…the court should focus on the people who have the best information and who are therefore most likely to be right..." Sunstein then expands this argument to international law. Simple, his words are often much too long and overbearing at times, suppose the US is considering to pass a law X, and that there are N countries with X already. They have the same underlying issue requiring X. Should the court take the fact that the N countries have X into account when adjudging the law? Sunstein seems to say it should. That is the more informed information the better, even if the US law is moot on the point at hand. This becomes the backdoor approach for using foreign laws in US jurisprudence. This method of logic is used throughout the Sunstein work. He contends in a Wilsonian manner that the Constitution should reflect the conditions at hand and that those sitting in judgment must take into account all factors no matter whence they came. In a sense this approach is the antithesis of classic English law, the law of precedents, where the judge relies on prior cases under English law. 6.5.2 Libertarian Paternalism In the book Nudge, Sunstein and his co-author Thaler introduce what they see as an alternative approach to get people to do the right thing. They call it libertarian paternalism. They state 177 : 176 Sunstein, Constitution, pp 192-193. 177 Thaler and Sunstein, Nudge, p 5-6. Page 176
The Telmarc Group PROGRESSIVISM, INDIVIDUALISM, AND THE PUBLIC INTELLECTUAL "The libertarian aspect of our strategies lies in the straightforward insistence…people should be free to do what they like…when we use the term libertarian to modify paternalism we simply mean liberty preserving…libertarian paternalism is a relatively weak…type of paternalism because choices are not blocked…a nudge … is any aspect of the choice … that alters people's behavior in a predictable way without forbidding any options…" Simply put the Government, the central Government in most cases, will determine what is good and bad, and then it will establish speed bumps along the way to induce you to do the right thing. For example is cookies and sodas are deemed bad for you, then they will require that cookies and soda be placed behind all items on the lunch counter so that you get induce to getting the apple or orange because it is closer. At least that is how it works. However all one has to do is look at the drug problem and we try to make getting drugs more difficult than say candy and what happens, we spawn a drug business. The approach they are trying to promulgate is one which has the elements of Governmental paternalism, the central Government decides and controls. The alternative is a Coasian approach. If you smoke, you pay a fee on your cigarettes which should go to reimburse the putative costs. If you are obese and have Type 2 Diabetes you pay a fee for carbohydrates or the pounds you are overweight. Cause and effect are connected. In a review of the book by Cassidy he writes 178 : "Once you concentrate on the reality that people often make poor choices, and that their actions can harm others as well as themselves, the obvious thing to do is restrict their set of choices and prohibit destructive behavior. Thaler and Sunstein, showing off their roots in the Chicago School, rule out this option a priori: “We libertarian paternalists do not favor bans,” they stare blankly. During a discussion of environmental regulations, they criticize the Clean Air Acts that banned some sources of air pollution and helped to make the air more breathable in many cities. “The air is much cleaner than it was in 1970,” they concede, “Philosophically, however, such limitations look uncomfortably similar to Soviet-style five-year plans, in which bureaucrats in Washington announce that millions of people have to change their conduct in the next five years.” If you start out with the preconceptions about free choice of John Stuart Mill or Friedrich Hayek, it is difficult to get very far in the direction of endorsing active government. (This is precisely the problem that the New Liberals of the late nineteenth century, men like L.T. Hobhouse and T.H. Green, faced.) Once again, consider the subprime crisis. At this stage, it is hard to find anybody willing to defend some of the mortgage industry’s practices, such as offering gullible borrowers artificially low teaser rates that shot up after a couple of years. Hard, but not impossible. “Variable rate mortgages, even with teaser rates, are not inherently bad,” Thaler and Sunstein write. “For those who are 178 http://www.nybooks.com/articles/archives/2008/jun/12/economics-which-way-for-obama/?page=3 Page 177
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