Wednesday, September 16, 2009

Why Sunstein Should Be Opposed

Well, actually, since Sunstein was already confirmed, one can only oppose his policy proposals.

But those are likely to be eminently "opposable," based on Epstein's critique of Sunstein's Holy Grail--FDR's "Second Bill of Rights." is Roosevelt's treacherous transformation of human aspirations into enforceable legal rights. [Mutatis mutandis, this also applies to a "right" to healthcare.] There are two enormous gaps in that chain of reasoning. First, it does not specify the persons who must bear the correlative duties to this expanded set of rights. Nor can we duck this problem by imposing the obligations on the state or government, which consists, of course, of all those original right bearers in a different capacity.

...A second difficulty is as acute as the first. Who fills in the content of the right by telling us what counts as a decent price or a remunerative wage? In a world of major uncertainty, these questions have no fixed answer.

In short, there is no way to translate Roosevelt's--or Sunstein's vision--into sustainable social practices. But that's just what the First Bill of Rights can do with its bloodless protection of private property and freedom of contract, speech and religion. Now we can specify the correlative duties with precision: keep off the property of others, and don't meddle in their agreements. Follow these rules and you can stimulate investment and reward hard labor. By keeping our aspirations modest, we can keep our achievements high--which is why we don't want to undermine the first Bill of Rights by adopting the second.

Good stuff.

HT: Agitator

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