Vol. 1, No. 5 (July, 1991), PP. 72-75
AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE by
Cass R. Sunstein. Cambridge, Mass.: Harvard University Press,
1990. 284 pp.
Reviewed by Dennis J. Coyle, Department of Politics, Catholic
University of America.
Cass Sunstein sets out not to bury regulation, but to save it --
to save it from both its friends and its enemies. He seeks to
make the regulatory state more legitimate and effective by
creating a set of norms for judicial review of regulatory stat-
utes and administrative actions, norms that emphasize efficiency
and consistency and -- most of all -- democratic deliberation and
equality.
While Sunstein dismisses attacks on the regulatory state based on
common law or constitutional liberties as having "over-
stayed their welcome," he neither dismisses constitutional
concerns entirely nor embraces regulation unquestioningly. While
he accepts the New Deal "reformation" as an article of
faith, he is willing to entertain some heresies about the modern
regulatory state. And although he is skeptical of common norms of
interpre- tation, such as legislative intent and textual meaning,
Sunstein also criticizes deconstructionists and critical
theorists who see norms as arbitrary assertions of power. He
seeks to unite the virtue of republicanism with the freedom of
liberalism -- and even with the efficiency of the market --
through an eclectic and conflicting series of interpretive norms
whose derivation, ranking and application seem clearer to
Sunstein than to this reviewer.
By the "rights revolution," Sunstein does not mean
constitu- tional rights to be free from government coercion; he
makes virtually no mention of how regulation might impede
individual rights of expression, privacy or property, for
instance. He simply ducks those issues, as when he writes:
"The Court's unwillingness to provide more protection to
rights of contract and property may or may not be
justified." (168) True, but hardly illuminating.
Yet Sunstein roots his vision of the regulatory regime in
principles of welfare and autonomy. Detached from the constitu-
tional structure of individual liberties, autonomy depends not on
freedom from governmental coercion, but rather on entitlements to
governmental support. "By the 'rights revolution,'"
writes Sunstein, "I mean the creation, by Congress and the
President, of a set of legal rights departing in significant ways
from those recognized at the time of the framing of the American
Constitu- tion. The catalogue is a long one," including
freedom from occupational and environmental risks, freedom from
poverty, from discrimination and from "one-sided or purely
commercial broad- casting." (13) For Sunstein, these
entitlements are the "rights" worth salvaging.
Page 73 follows
Sunstein sets a demanding standard for autonomy, requiring that
personal decisions be "reached with a full and vivid aware-
ness of available opportunities, with all relevant information,
or, most generally, without illegitimate constraints on the
process of preference formation. When these conditions are not
met, decisions might be described as unfree or
nonautonomous." (40) Because knowledge is never perfect and
choices are always made in a cultural context that influences
perceptions of needs and desires, Sunstein's pure autonomy cannot
be attained. Failure thus ensured, autonomy becomes a rationale
for governmen- tal control. In the modern regulatory state,
Sunstein writes, the "satisfaction of private preferences
... is an utterly im- plausible conception of liberty or
autonomy." (40) Many individ- ual preferences need not be
protected by legislatures, nor valued by judges when interpreting
regulatory statutes. For example:
a decision of a woman to adopt a traditional gender role because
of the social stigma of refusing to do so; a decision not to
purchase cars equipped with seat belts or to wear motorcycle
helmets because of the social pressures imposed by one's peer
group; a lack of interest in environmental diversity resulting
from personal experiences that are limited to industrialized
urban areas. (40)
The preferences of "people who are indifferent to high-
quality broadcasting because they have experienced only banal
situation comedies and dehumanizing, violence-ridden police
dramas" also may be disregarded. (41) In these cases and
others, it is the role of the legislatures, the agencies and the
courts to discover what personal aspirations should be, and to
create an environment that will encourage correct choices and
limit incor- rect ones. Thus, for example, "government
regulation of the environment or broadcasting ... may in the end
generate new preferences, providing increased satisfaction and
consequently producing considerable welfare gains." (44)
Sunstein does see abuses in regulation, mainly that it may be a
cover for "naked interest-group transfers" or may
impose great social costs for marginal social benefits. Yet while
the public-choice and law-and-economics schools have made
thorough critiques of regulation, Sunstein finds their concerns
most relevant only to a small class of regulation that he
considers to be economic, and even then he sees expansive
judicial interpreta- tion, not invalidation, as the answer. He
does not consider problems of efficiency or faction to be
critical to the regula- tions that are most dear to him, such as
measures to combat discrimination or to control broadcasting.
In the fifth chapter, Sunstein gets to the heart of his mission
of articulating a set of interpretative norms -- 26 in all --
that courts should use when reviewing regulatory statutes and
administrative actions. He admits that the guiding princi- ples
are numerous and varied, but writes that they are united by
general goals: "to promote deliberation in government, to
furnish surrogates for it when it is absent, to limit
factionalism and self-interested representation, and to help
bring about political equality." (171)
Page 74 follows
After the promotion of democratic deliberation (and the related
principles of ensuring political accountability and limiting
interest-group transfers), Sunstein gives highest priority to the
protection of disadvantaged groups. He derives both of these
principles from the Constitution, while saying little of the
constitutional protection of individual liberties and limits on
government. He acknowledges the constitutional importance of
federalism, but writes that "the principle in favor of state
autonomy occupies a lower place than the principle in favor of
protection of disadvantaged groups. This is a natural inference
from the fourteenth amendment and from various cases." (187)
But one might think that the Tenth Amendment and the enumeration
of federal powers in Article I might make the power of the states
the "natural inference." As so often in this book,
Sunstein asserts very debatable premises.
Readers familiar with Sunstein's work on interest groups and
republicanism will not be surprised that his political ideal is
deliberative government. James Madison is a constitutional
founder for all seasons, and in Sunstein's hands he becomes not
the ardent defender of property rights, nor even the architect of
limited governmental powers, but rather the advocate of govern-
ment in the public interest -- government that rises above the
selfishness of faction to vigorously assert its power on behalf
of the welfare of all.
Often, the legislative actions of an ostensibly democratic
government are found wanting when Sunstein applies his highest
criterion, "deliberative democracy." For example, in
the BOB JONES case, in which the Supreme Court ruled that the
Internal Revenue Service must deny tax deductions to schools that
dis- criminate by race:
It could not plausibly be suggested that the enacting Congress
thought that discriminatory schools violated public policy. The
BOB JONES decision is best under- stood as an effort to ensure
that the IRS takes account of the widespread social antagonism
toward racial discrimination, as part of the general thrust of
con- temporary public policy. Some cases limiting agency
authority to impose significant costs for uncertain or
speculative benefits can be best understood in similar terms.
Decisions of this sort are justified as part of the integration
of statutory systems into a coherent whole that could plausibly
be understood as the outcome of deliberative processes. (174)
The key here is that correct outcomes "could plausibly be
understood" as products of deliberation. Actual deliberation
is not required, and indeed may fail to meet the standards of
"democratic deliberation," which evidently takes place
mostly in the minds of judges and law professors, rather than on
the floor of the legislature. As in New Deal jurisprudence,
outcomes turn on the imagination of justices, in this case
applying a sort of "conceivable deliberative process"
test. But whereas the CAROLENE PRODUCTS test produced judicial
restraint, here the role of the courts is to correct for the
distorted preferences and imperfect processes of the democratic
branches.
Page 75 follows:
Sunstein makes a good case that legal standing requirements
should be loose in the modern regulatory state, to provide a
check on the extraordinary power of administrative agencies, and
that statutory interpretation should be sympathetic (this need
not exempt them from constitutional scrutiny, however). But the
logic of his substantive conclusions is more elusive. In an
eclectic chapter on applications, he urges that OSHA and the Food
and Drug Administration be required to be more reasonable,
supports the WEBER decision upholding voluntary affirmative
action, criticizes WARDS COVE, and generally supports strong
environmental protection and the interests of the retarded and
labor. These are the preferences of a liberal egalitarian influ-
enced by his economic-minded peers at the University of Chicago.
How the conclusions follow from his principles, how his princi-
ples are derived and ranked, and how they promote welfare and
autonomy are not so clear.