A Critique of Cass Sunstein's "On Liberalism"

My adventures in political theory continue! Cass Sunstein opens his new book by denying that it is a work of theory, and perhaps that is true. He doesn’t break new ground. What he does do is assemble liberal thinkers (mostly Mill and Hayek, with some Rawls) and tell us what liberalism is and isn’t, and what a reasonable liberal would find reasonable. I have an enjoy-loathe relationship with Sunstein. As a non-lawyer who works in a regulatory space (and a believer in the administrative state, at least in what he might call a Fullerian sense), I rather liked Law & Leviathan (or, at least, the parts I could understand). I’m a long-term hater of his work with Richard Thaler, Nudge — and that optimistic concept appears again and again within these pages.

Sunstein is a lawyer, but also something of an economist. Much of his work that I’ve read is interested in having the law follow concepts of behavioral economics. I think this is a pretty stupid idea. He is married to Samantha Power (I think this is a pretty good idea), who is a remarkable person, and the author of much more readable books like The Education of an Idealist (wonderful) and A Problem from Hell. Sunstein writes a lot about liberalism, not just in this book, though I think it would be fair to consider this book really an assemblage of things he’s written before, elsewhere. While perusing his Wikipedia page, I also learn that he had a brief flirtation with Ayn Rand, as I did, and had about the same experience as me, which makes me a little sympathetic to at least understanding where some of his more conservative or libertarian streaks come from. (My flirtation with Rand came after reading Anthem in High School, and then reading everything she ever published (this is not hyperbole), and finding that I didn’t agree with much of it. It was a little like watching a car crash, I just couldn’t look away.)

The book is titled On Liberalism, and I guess the title fits; it is sufficiently dry, at least. The “On” gives a title a little authority, no? On Writing (S King, E Hemingway), On Photography (S Sontag), On Tyranny (T Snyder, and a book I’ve revisited in the past week), On Liberty (J S Mill; and, I think, the inspiration for Sunstein’s title here). Sunstein has contributed to it before, in his 2019 On Freedom. Critchley almost gets into the club, with his Notes on Suicide—what stopped him? Confidence, sense of authority? Ernaux doesn’t even bother with the “On” in her titles (ex: Shame, Possession, others). Anyway, Mr. Sunstein has things to say On Liberalism, and wouldn’t you know it, I have some things to say On The Things He Has To Say.

In general, the book is a fine historical summary of some liberal thinkers’ views on liberalism, along with a description of how a “reasonable” liberal might interact with them. He is interested in making the lower-case-L liberalism as big a tent as he can. It pains me to paraphrase Ben Shapiro from his recent interview with Ezra Klein (one of two ill-considered pieces from Mr. Klein over the past week, as though he lives to irritate me, personally), but the problem with a big tent is you let in a lot of clowns. Sunstein and I probably have different opinions on who the clowns are. He takes potshots at anti-liberals and those who claim to be post-liberal. Mostly, he thinks these folks just don’t know what liberalism is, and maybe with a little vocabulary and history, they’ll re-embrace the label. Thus is the goal of On Liberalism, to reassert the definition of what is now a term mired in mess. Orienting this effort around economics, society, and institutions, he manages something that is bearable and well-intentioned (a truly liberal action), but he gets lost in this numeric, economic world. Maybe he is also a little naïve, or at least too optimistic.

For example, one could read this book and have essentially no idea that many, maybe most, of the norms that have scaffolded the United States for the past century have been almost completely eradicated. The book released on September 2nd. In the two weeks since, the following things have occurred:

• 9/2—The Trump Administration summarily executes 11 people in international waters via multiple drone strikes. No evidence to support this action, even if it were not facially illegal in nearly all contexts, is presented in the weeks since.

• 9/5—Trump renames, via Executive Order, the Department of Defense to the Department of War (not even the much easier to say and better-sounding ‘War Department,’ hasn’t he seen a movie?)

• 9/8—Trump’s ICE prepares an invasion of Chicago via an “Operation” in the name of a drunk driving victim whose family has nothing to do with this political seizure of her name.

• 9/8—The Congress releases an image of a birthday card, signed by Trump, with a creepy little dialogue between Trump and Epstein, the dead and prolific child trafficker and abuser.

• 9/9—A conservative demagogue is assassinated on a college campus, while discussing mass violence, and propagating hatred in the doing of it.

• 9/15—The Trump administration summarily executes three people in international waters via drone strike. No evidence to support this action is presented.

• 9/15—The Trump Administration deploys military forces to the city of Memphis, TN, in another apparent violation of the Posse Comitatus Act.

And this is just stuff off the top of my head, all of it set to the backdrop of armed military personnel patrolling the streets of DC, not to mention the masked ICE gangs roving around and throwing people into unmarked vehicles. None of this evidences liberalism in the United States. This is not a healthy democracy. There is a non-trivial argument that we are no longer in a democracy. One could see why a rather feeble description of liberalism might fail to stoke our passions.

Which is unfortunate, because stoking our passions is something Sunstein wants to do. In the closing paragraphs, he writes, “In its early days, liberalism was full of fire.” (There is a fair bit of this, ‘in the good-ol’-days’ line of thought.) Despite this want, and his prizing of liberalism’s youthful fire, his assertions herein are anything but energetic or daring. Let us visit that first pillar of ultimate zest and excitement: economics.

Sunstein spends much of his 140 pages discussing deceptively simple, behavioral-economics-based “interventions” to complex problems. In my economics class (Economics for Social Workers, they might as well have called it Econ for the Mathematically Averse), we learned some of these as Wicked Problems. Wicked Problems are complex, sometimes hard to define, and prone to having attempted solutions result in more problems. Climate change is one such problem that Sunstein is interested in, though he would likely not approve of my calling his suggestions “interventions.” He assures us that a Good Liberal would prefer nudges or boosts rather than systematic changes (e.g., regulation).

In Chapter 6, titled Free Markets and Their Limits (our first sign of trouble), he explores ‘Liberal Behavioral Economics.’ “If there is such a thing as liberal behavioral economics, it would firmly reject the idea that public officials should be content to identify individual errors and declare victory.” Sure. He goes on to discuss ‘informed choosers’ and how they make choices, how different biases may impact decisions, the role of defaults, etc. All of this has roots in his 2008 book with Richard Thaler, Nudge.

(An aside: I mentioned earlier that I hate Nudge. It isn’t the nuclear hatred I have for Patrick Lencioni’s The Five Dysfunctions of a Team, it’s more the I-was-forced-to-read-this-facially-incorrect-book-in-grad-school hatred. I could go on a long diatribe about how the concepts in the book do not stand up to research. But what fun would that be, when there’s an acidic and delightful episode of If Books Could Kill on it?)

Sunstein contemplates the value of educational labels on appliances and cars that are not energy efficient. Some of the items he quotes wonder why consumers would purchase something less expensive in the moment, when in the long run it will cost more. Mostly, he contends that the consumer does not have enough information, leading the consumer to choose against their interests, hence his interest in educational labels. He does not consider short-term issues like immediate affordability and its relation to critical need, and only considers preferences briefly (and, it feels to me, as something to be overcome, rather than respected).

Sunstein centers his want for behavioral economic nudges and boosts on concepts from liberal thinker Hayek, who considers anything else coercion.

The question is whether Kantian strictures really should apply in cases in which consumers lack information or are acting on the basis of some kind of behavioral bias. There is a strong argument that they should not, and that government responses do not treat people disrespectfully even if the presumption ought to be in favor of nudges rather than mandates. Reasonable liberals reasonably disagree on such a question.

I agree that consumers should have access to information and should, in general, have the right to make the decisions they like. However, I think Sunstein favors nudges much more than a reasonable person should. He avoids government intervention, and in Nudge talks a fair bit about having a libertarian approach to consumer decision-making. I don’t agree that the default position of the State should be to trust corporations to divulge that information, or to do so in a way that is effective. I think there is little evidence to support the notion of corporate responsibility. Sunstein quotes an unsigned note from 1935:

Justification for this purported refusal to supervise the ethics of the market place is sought in doctrines of laissez-faire. . . In general, the freedom from regulation postulated by laissez-faire adherents is demonstrably nonexistent and virtually inconceivable. Bargaining power exists only because of government protection of the property rights bargained, and is properly subjected to government control.

(bold mine)

Broadly, I agree with this. I have a few qualms about power only existing because of government protection, but let’s put that aside. The idea of supervising the ethics of the marketplace rings out to me. Hayek supports this, later quoted saying the functioning of competition in the marketplace depends on “the existence of an appropriate legal system . . . designed both to preserve competition and to make it operate as beneficially as possible.” Beneficially to human interests, that is.

There are times in Sunstein’s book when I feel he considers corporations as people. There are broad considerations of government regulation as potentially infringing on free speech, but who is entitled to free speech? And where are the limits, and can people lie? The latter question is explored, but the former is not. I am not convinced that corporations are subject to the same rights as human beings. I think, unless presented with a convincing argument that they should be, that I would advocate sternly that corporations not be considered people, and should operate within the boundaries opened to them by the State. I do not think that is inconsistent with a capitalist system, freedom of speech (on the human’s part), or consumer decision-making.

There are a few other concerns I have with Sunstein’s economic arguments, but I’m not sure they’re worth going into at length. First, Sunstein talks a fair bit about public support, but he doesn’t talk about the importance of education and how easily misled people are. For example, support for the Affordable Care Act has often polled more favorably than the same thing when it is called “Obamacare” (one example poll from 2024, though I would suggest some caveats and a consideration of the “about the study” section at the bottom – I am not suggesting this study itself is authoritative, more I am offering a piece among several I have seen and anecdotally observed over the years).

Corporations hold power that has been historically unimaginable. Even Hayek, writing in 1960, could scarcely imagine the level of power that corporations wield over people formally and informally. I am thinking about Big Data, algorithms, social media, but also in plain old inundation of advertising, supercharged by those things. I am talking about the almost total disinterest by the State in regulating monopolies or the technologies I just described.

I’ll close this section out by referring to Sunstein’s initial itemized list:

21. Liberals prize free markets, on the ground that they provide an important means by which people exercise their agency. In addition, liberals never forget that free markets promote economic growth. Liberals believe that economic growth is important for a wide range of important things, above all well-being, including or perhaps especially for the bottom of the economic ladder.

This liberal doesn’t know all of those things. I can acknowledge that economic sustainability is critical to security and human welfare, but I am skeptical that growth should be the goal of a system. I am also skeptical of the proposition that economic growth is particularly important for the well-being of those at the bottom of the economic ladder. I am skeptical because those things are not evidenced in the United States at this time, due in large part to the State not supervising the ethics of the marketplace. Unrestrained growth goes by another name: cancer.

In my critique of Justice by Means of Democracy, I lamented Allen’s centering of employment in her political framework. I reiterate: employment cannot be, and should not be, the measure of human flourishing. Purpose, yes. But mere labor? No. A political framework enchanted by the mystics of behavioral economists cannot see humans as anything other than Consumers and Laborers. They do not see mothers or fathers, lovers, teachers, carers, artists, and the broader social networks that make life worth living. A life that is no more than a job is not a life worth living.

Sunstein’s centering of behavioral economics unveils some other rather odd spots, particularly around identity. In his initial list, he says:

31. Although Liberals like liberalism, they do not like tribalism. They are concerned when people sort themselves into different groups, defined in specific ways, and see other people as part of other groups, defined in other ways. Liberals tend to think that tribalism is an obstacle to mutual respect. They are intensely uncomfortable with discussions that start with “I am an X and you are a Y,” and that proceed accordingly. Skeptical of “identity politics,” liberals think that each of us has many different identities, and that it is usually best to focus on the merit of issues, not on one or another “identity.”

This is clearly uttered by an economist, not a humanist. One should expect nothing less from the same person that, in Nudge, contends that total abolition of marriage is the best solution to the gay marriage problem, or whose idea of right to privacy might include “consensual sodomy” (which of course, it does, but also, isn’t there more? And, surely, one demands it be consensual, but why not fun as well? Oh so clinical, Mr. Sunstein).

Sunstein shows his age and privilege with this statement. Identity can be easily put aside to focus on the “merit of the issues” when your identities are in power and your identities are those controlling what is meritorious. Further, it is a facially ignorant argument. Tribalism has negative connotations, and we may go so far as to call it bad. But collective action is one of the primary ways in which human beings have advanced the state of our existence for time immemorial. Government is a form of collective action. But let’s be more practical, more analogous to what Sunstein is talking about: when he is talking of identity politics, he’s talking about Democrats and Republicans, but also queer folks and folks of color. I don’t think Sunstein thinks he’s talking about these latter folks specifically; I think he earnestly believes that we have become tribal in a much more general sense, and he is right. But in his ignorance of how critical identity is, he forgoes everyone unlike himself.

I think about ‘tribalism’ a lot with regard to queer rights. I do not believe that queer rights progressed as far as they have over the past 50 years from us all operating in different tribes based on our specific orientations and genders, but from the collective organizing action (and, face it, branding) of a unifying word. It is unfortunate that the word (gay) was also the name of a specific subset of the overall population. Today, ‘queer’ feels comfortably inclusive as both an identity and a broader umbrella term, and that positioning allows it to be a central(ish) organizing force. Mr. Sunstein thinks these little terms are tribalism and are not helpful. He should try growing up alone and afraid because of who he loves, not understanding that there are people out there to offer love and community.

I’m muddling through this a bit. The point is this: there is power in numbers and power in organizing. When the “issue” is your right to exist, it takes more than hoping that those in power find your rights meritorious.

(Another aside: if you really believe that these ‘tribes’ destroy cohesiveness, consider watching Matthew Warchus’ spectacular 2014 film PRIDE (my review). The film is inspired by the ingenious organizing of queer activists in 1984, organizing support for the National Union of Mineworkers strike, which led to the Miners’ union becoming a long-term ally of the queer rights movement in the UK.)

Power in groups does not only reside in numbers, but also in influencers, demagogues, advocates, and perhaps the not-so-random viral spread of information. For this, I want to return to the idea of lying in the public domain. On page 79, Sunstein writes:

Mill added a separate point, fundamental to the liberal tradition, which is that false statements can bring about “the clearer perception and livelier impression of truth, produced by its collision with error.”^22 Mill’s point holds for a large number of false statements. If people are told that the moon landing was faked or that the Holocaust never happened, they can learn more about the truth of these matters—but only if the statements are not censored. Consider a classroom. If students make mistakes, the discussion might well be improved. Falsehoods put a spotlight on truth. They give it life.

I beg Sunstein to wake up from his dream of quaint Americana and check his most recent copy of The Times. Some critics have referred to our present era as “post-truth” because of the rapidity and density of demonstrable lies that are spewed by those in power, and the utter refusal of meaningful consequence. If anyone in this country is struggling with free speech at this moment, it is the teachers, who are so quickly fired for discussing certain topics in class, in some states. Meanwhile, there is an all-out assault on American history, not only in schools, but in institutions like the Smithsonian and on college campuses. Why stop there? Trump also seeks to dismantle the entire Department of Education. This very week, the National Park Service directed the removal of exhibits and photographs documenting slavery, including the famous and famously horrifying picture of Peter. Not to mention demanding that we ignore the evidence we witnessed on January 6th.

Mr. Sunstein must understand that it is not so simple as going into a classroom. And for students of some schools, it never has been. Our current reality is not post-truth, it is post-consequence. Sunstein insists on raising the idea of ‘cancel culture’ as if it were not, itself, an exercise in free speech, an exercise in the ‘market of ideas’ (and as if it were a real thing practiced by real liberals, and not a performance practiced by conservatives), The fault in our system, what keeps of from being a truly liberal system, is not that college kids get pissy with visiting speakers (something Sunstein abhors), it is that we do not deal out consequences for the intentional deception of the citizenry. We have abandoned justice.

Sunstein writes that censorship may create a rallying cry around demonstrable falsity. It’s a worthy argument, and he offers counterspeech as an antidote, the idea that discourse wins out, that truth is an inevitable reality. It is not. Truth is a reality only when there are guardrails to protect it and distribute it. In our world, as it is, the most powerful forces are those suffocating it, obscuring it, and convincing us that we have Moved On from a sense of truth.

Why is moving on from truth important? When there is no truth, there is no trust, and where there is no trust, there is no security. Sunstein devotes Chapter 8 to FDR and his Second Bill of Rights. It is no shameful thing to admit that I (having had several glasses of wine) got very excited to be reading about the Second Bill, demonstrating that with fistpumps and a note written in the margin, “fuckin’ A right.” FDR understood that there can be no freedom where there is no security. Sunstein, quoting FDR:

Unlike the Constitution’s framers, “we have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.” As Roosevelt saw it, “necessitous men are not free men,” not least because those who are hungry and jobless “are the stuff of which dictatorships are made.”

You can imagine that I would modernize these sentiments by replacing joblessness with purposelessness, though the reality of economic security as a necessity cannot be ignored. Our mistake, and Sunstein’s mistake, is thinking that the State’s only role here is to ensure that private industry creates jobs, and trusts that those jobs be sufficient for economic security. They are not. According to the National Low Income Housing Coalition, “. . .the average minimum-wage worker in the U.S. must work 116 hours per week—nearly three full-time jobs—to afford a modest two-bedroom rental home at Fair Market Rent. To afford a modest one-bedroom rental home, they would need to work 97 hours per week, or 2.4 full-time jobs” (2025 Out of Reach report, page 13). Earlier, on the NLIHC cites a Bureau of Labor Statistics study, stating almost half of U.S. workers earn less than the hourly wage required to afford a modest one-bedroom rental home. This is not what Hayek means when he thinks about “some minimum of food, shelter, and clothing, sufficient to preserve health and the capacity to work. . .assured to everybody” (quoted by Sunstein on page 47).

Alongside this misconception of the current economic reality of the United States, Sunstein is fond of citing the “rule of law” as a provider of equality. One need not look far to question the “rule of law” today, though it is clear he is talking about a hypothetical world. One in which law truly has morality, as his admired Lon Fuller described in The Morality of Law.

In making his point about the rule of law, in his initial list, Sunstein quotes Morton Horwitz:

I do not see how a Man of the Left can describe the rule of law as “an unqualified human good! It undoubtedly restrains power, but it also prevents power’s benevolent exercise. It creates formal equality—a not inconsiderable virtue—but it promotes substantive inequality by creating a consciousness that radically separates law from politics, means from ends, processes from outcomes. By promoting procedural justice it enables the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage. And it ratifies and legitimates an adversarial, competitive, and atomistic conception of human relations.

Sunstein treats Horwitz’s opinion with the same level of disdain I treat some of his own, saying only, “Liberals do not agree with any of this.” This liberal sees room to acknowledge the obvious: that the wealthy do manipulate the forms of law to their advantage, and that in fact much of our current government is quite open about this. And that the mode of our current President has been to create an adversarial, competitive, and atomistic atmosphere among the citizenry. One could even say a violently adversarial atmosphere. Sunstein will not admit that the rule of law is not immutable, and that the rule itself is dependent on who is writing the law. We wouldn’t have considered Hitler’s rule to be an unqualified human good, even if it had been lawful. We might consider it to be an unqualified human evil (I do).

We should not consider the rule of law alone to create formal equality. Sunstein seems to like Hayek’s view that “norms, cultural understandings, and institutions that were not designed by anyone, that have built up over time. . .” (pg 88). The idea that these systems were not designed is the willful ignorance that allows one to think that the rule of law is an absolute, immutable, moral being. Institutions, in particular, are designed. It is no accident that there is a limit on how much public housing may be constructed in this country: it is by design. It is no accident that our current welfare programs do not sufficiently help people out of poverty (and in some cases, restrain them to it), that they instill a sense of failure in the person instead of intervening in the systems designed to keep them where they are: it is by design. And it will be and is by design when systems are turned against the most vulnerable. That a thing is designed over years, decades, or centuries does not mean it is not by design.

Our law is not moral because we say it is; it may be moral because we design it to be so. And when it fails to be moral, when it is not only immoral but used to exercise evil, that too is because it is designed to be so. Law is not good or bad by default; it is crafted to reflect how those crafting it view moral goods and moral evils. The question is, who is allowed to craft it? Liberals, according to Sunstein, believe in six things: freedom, human rights, pluralism, security, the rule of law, and democracy. Specifically, deliberative democracy. I believe in these things, too. But not without condition.

You do not believe in freedom if you do not advocate for and defend it.

You do not believe in human rights if you allow your law to rule evilly over the indigent, if you allow your rule of law to oppress, if you allow your rule of law to deny history.

You do not believe in pluralism if you support whitewashing history, if you would deny power to those who are powerless.

You do not believe in security if you are not prepared to have the State guarantee a minimum of food, shelter, education, and health. You do not believe in security if your concept of security begins and ends with the barrel of a gun.

You do not believe in the rule of law if you would permit demagogues and corporations to bend the law away from justice, or if you would permit your law to be iniquitous, oppressive, or evil.

You do not believe in democracy if you are not prepared to speak with your neighbor, to tolerate them within reason. You do not believe in democracy if you are prepared to allow the shadows to subvert the rule of law and manipulate the citizenry, to have unfettered access to practically unlimited power, be it in force or currency.

Liberalism is not mere economics. My belief is this: people are, generally, good. People mean well, but they get lost. People get lost when those who have abandoned the human condition in search of conquest call to the insecurities and wants within us, natural fears exploded into unnatural hatred. We have a responsibility to try to protect each other, within the limits of rights to self-determination. The State is a collective action; it is a responsibility trying to become corporeal. That the mold has not yet been perfect does not mean it is useless, only that we will always have to strive to perfect it, knowing it can never be perfect. The effort is not in vain, as long as we help more than we hurt, and that we seek redress for the hurts we cause, and that we exact justice against those who seek to destroy the human condition. Liberals know that justice is not the same as violence, and that there is a possibility that no violence can ever be just, even if it feels good or deserved.

I like Robert Caro’s description of government, the State. I like what it says about our responsibility to ourselves and our neighbors, and what it says about justice:

But what, really, had the People’s Party—the farmers who called themselves “Alliancemen”—asked for? Only that when men found themselves at the mercy of forces too big for them to fight alone, government—their government—help them fight. What were the demands for railroad and bank regulation, for government loans, for public-works projects, but an expression of a belief that after men have banded together and formed a government, they have a right, when they are being crushed by conditions over which they have no control, to ask that government to extend a helping hand to them—if necessary, to fight for them, to be their champion?

(Caro, The Path to Power)

Sunstein’s book hopes to reassert what Liberalism is; he succeeds only at the most textual level, and only in limited ways. If we want to reassert liberalism and its values, it is not enough to talk about nudges and numbers and markets and freedom. We must anticipate the next five, ten, and fifty years, and understand that the economic vision of 1960 is not sufficient to fulfill the values of liberalism. We must understand that we are not in some random storm of bad luck, but in a churning of fear, insecurity, and desperation. A person cannot be stable unless their basic needs are met, and our State has abdicated its role in meeting those needs. Sunstein’s view of Liberalism asserts only the most timid offering of a ‘minimum assistance.’ It will not save us.

Most days, I am exhausted. I feel as though I work in a system that has been captured, and I wonder how many years it will take to undo the damage, if it can ever be undone. If the system will continue to exist at all. It is hard not to feel rageful, sometimes, seeing such injustice and those committing it reveling in glee for the doing of it. I find that I am more cynical than I used to be, that I sometimes feel the urge to simply give up and say, “fuck them, they’ll get what they voted for,” or I feel cold hatred. It is hard not to feel hatred towards those committing evil, and I believe that is what they are doing. I don’t have a clean remedy for it, and sometimes when I think about that, I feel empty.

In this, at least, I found Sunstein’s book helpful. He put his beliefs forward, and in disagreeing with them or finding them insufficient, I found that I still have beliefs. I still believe that a State can be an instrument of good, and I see every day good people trying as hard as they can to hold onto that. I have seen them break down in tears, and I have done the same. Sunstein’s book has thrown my beliefs into sharper relief, and for that I am grateful, because it succeeded in letting me reassert what it means to be a liberal to myself.

In that, I hope it works for all who may read it.

Thomas