After the Rights Revolution: Reconceiving the Regulatory State by Cass R. SunsteinReview by: Stephen MacedoPolitical Theory, Vol. 19, No. 3 (Aug., 1991), pp. 456-461Published by: Sage Publications, Inc.Stable URL: http://www.jstor.org/stable/191422 .

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456 POLITICAL THEORY / August 1991

and formal justice that distinguishes the public world: Injustice, in the form of personal dishonor or dissimulation, may be at the very core of what we perceive to be justice itself.

For Rousseau, a democratic people who are to be capable of imposing on themselves a system of abstract justice and abiding by its rules must be subjected to education, religious belief, and benign trickery by a leader of whose power and stratagems they must be unaware. Their sense of injustice would be dramatically aroused were they to become aware of this behavior, but it is nonetheless essential to make justice possible.

Shklar can thus be faulted for overstating the distinction between justice - abstract, inflexible, and impersonal -on one hand, and the immediate, per- sonal humanity of injustice, on the other. Justice, in its human form, is the sum of activities by human political leaders who have their own range of human failings. It is thus messier and less abstract than she depicts it, more akin to injustice in its motives and its imperfections. One wishes that Shklar had taken time to explore these similarities more carefully rather than presenting only the classical portrait of justice as sweet-eyed and pure. The goddess Fortuna is not alone in her caprices, especially in the realm of politics.

-Nannerl 0. Keohane Wellesley College

AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULA- TORY STATE by Cass R. Sunstein. Cambridge, MA: Harvard University Press, 1990. Pp. x, 284. $25.00.

I remarked to a professor early on in my graduate student days that I was interested in studying jurisprudence. "Jurisprudence?" he scoffed, "the monkfish of political philosophy." If jurisprudence is poorman's lobster, the theory of statutory interpretation must be his Chicken McNuggetsT.

Or so it has been. Statutory interpretation is rarely treated by serious political or legal theorists, and when it has been taken up (as in a chapter of Ronald Dworkin's Law's Empire), it is largely to extend interpretive principles developed for apparently weightier tasks like constitutional interpretation.

Cass Sunstein's After the Rights Revolution offers a much needed fresh perspective on the interpretation of regulatory statutes. The author's aim is to clarify and reform the canons of interpretation appropriate to the post-New

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BOOKS IN REVIEW 457

Deal regulatory state. By analyzing the patterns of regulatory success and failure, Sunstein hopes to devise interpretive canons to improve the regula- tory regime and to advance liberal republicanism broadly: "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" (p. 171). Sunstein's book is unfailingly well informed, judicious, and intelligent-a masterful guide through a legal and political thicket.

Sunstein rightly asserts that "canons"-background principles of inter- pretation-are inescapable: No text is self-interpreting. Because simply deferring to the "text" is not possible, canons of interpretation are present even when interpretation is easy. The canons relevant to regulatory statutes are also value laden, and that too is inevitable and means that canon selection and weighting can either compromise or help advance regulatory purposes.

Adopting a foolish literalism, courts and agencies sometimes cling even in the midst of changing circumstances to simplistic interpretations at odds with reasonable purposes. The "Delaney Clause," for example, forbids the use as food additives of substances that "cause" cancer. Detection techniques have become so sophisticated, however, that carcinogens that pose trivial health risks can now be discovered. Sunstein argues persuasively that inter- preters should be allowed to take account of changed circumstances in order to carry forward the reasonable purpose of a statute. Aggressive judicial interpretation can help improve and better realize regulatory aims.

This is not to say that "reasonableness" is the basic touchstone of inter- pretation. Sunstein proposes twenty-six principles of interpretation for the regulatory state: They include constitutional principles (e.g., in favor of feder- alism and deliberation), principles reflecting institutional concerns (e.g., a presumption in favor of judicial review, a principle of caution in the use of legislative history), and principles that counteract statutory failure (e.g., statutes that embody interest group deals should be construed narrowly). There are also principles of priority and harmonization (pp. 235-38).

Sunstein resolutely eschews simplicity: The aims of regulatory statues are diverse, as are the characteristic failures. The canons of interpretation are multiple and will conflict with one another (the principle in favor of federal- ism may conflict with the principle in favor of preferring the good of disadvantaged groups). Sometimes, the principles seem intrinsically to push in opposite directions: federalism, again, versus the principle "in favor of coordination and consistency." The thick texture of Sunstein's argument can sometimes make for difficult reading, but the result is a set of subtly prag-

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458 POLITICALTHEORY/ August 1991

matic and even-tempered prescriptions for how regulatory performance can be improved.

Sunstein sensibly argues that the interpretive canons should be defined and defended as constitutive elements of a larger theory of constitutional principle and legislative purpose. The application of obsolescent or otherwise wrongheaded principles at the level of statutory construction can, and often has, defeated constitutional and legislative aims. Indeed, the political victo- ries of the New Deal and the regulatory "revolution" of the 1960s and 1970s cannot really be consummated until statutory canons are crafted to suit the substantive aims of the interventionist state. As it is, courts often (sometimes unwittingly) deploy principles indebted to the old laissez-faire order, thwart- ing or distorting the new regime. Sunstein hopes to preserve and improve the new regime and beat back the challenge of resurgent judicial conservatism, both in theory and in practice.

At the constitutional level, Sunstein wishes to defend what is of enduring relevance in the original charter (liberal republicanism) while solidifying the New Deal transformation. The regulatory state fulfills the aspirations of the original constitutional design, he says, because that design was about delib- erative government and "principled non-subordination," not about laissez- faire (p. 18). And yet, in its impatience and its confidence in centralization, the New Deal threatened republican institutions worth preserving, such as the separation of powers and federalism. The trick, for Sunstein, is to consolidate the modem regulatory state while reinvigorating the constitu- tion's original commitment to deliberative democracy.

After the Rights Revolution also has a larger theoretical dimension. In contrast to the public and social choice schools, Sunstein defends a vision of lawmaking in which serious deliberation on the public good plays a central role. In response to the charge that politics is a poor way of aggregating preferences, Sunstein retorts that politics may be about more than simple preferences and interests of the sort that dominate economic markets: People also have collective aspirations which may require nonmarket institutions for their expression. Preferences, moreover, are not fixed; regulation may gen- cratc new preferences: Environmental protection may, for example, generate an "outdoorsy" population. For that reason, we should not judge regulatory statuses by whether they satisfy a given set of preferences.

Laws are often not deals among self-interested groups, but regarding them as such might lead judges to narrowly construe, or otherwise misunderstand, the purposes of statutes. Regulations can and do serve a host of functions, as Sunstcin explains: They intemalize extemalities, solve collective action prob-

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lems, redistribute resources to the less well off, pursue collective aspirations, preserve diversity, and reduce social subordination. Laws often pursue polit- ical and moral aspirations of various sorts and should be understood as such by interpreters.

Sunstein's argument is powerful, judicious, never radical, always hopeful, and in many respects convincing. I have much admiration for, but also several reservations about, this book. Those reservations concern Sunstein's treat- ments of liberty and rights and his overall hopefulness about reforming the regulatory state.

Sunstein advances a potentially very demanding and restrictive concep- tion of liberty:

The satisfaction of private preferences, whatever their content, is an utterly implausible conception of liberty or autonomy. The notion of autonomy should be taken to refer instead to decisions reached with a full and vivid awareness 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 regarded as unfree or nonautonomous. (P. 40)

Sunstein strikingly tends to equate liberty and autonomy and to identify autonomy with "collective considered judgments," and so,

people may seek, through law, to implement their reflective, democratic decisions about what courses to pursue. If so, it is no violation of autonomy to allow those considered judgments to be vindicated by government action. (P. 42)

There is danger in defining liberty in terms of obedience to legally enforced "reflective democratic decisions": Sunstein's position is simply too reminis- cent of that godfather of modem illiberal republicanism, Rousseau, who spoke famously of forcing people to be free.'

We should resist identifying liberty with the rule of a higher self or submission to "collective considered judgments." The point is not that we should nevcr bc govemed by such things but rather that we blind ourselves to important trade-offs when we identify being so governed with liberty. We should, instead, recall Isaiah Berlin's warning against equating liberty with self-mastery or submission to a higher rational self or autonomy. Berlin's point is not that "negative" liberty always trumps competing values but rather that by thinking of liberty in negative terms, we more clearly recognize that something of value is lost when people are coerced. Sunstein sometimes seems in danger of forgetting that even if it is good for people to wear

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460 POLITICAL THEORY/ August 1991

seatbelts, requiring them to do so does not make them freer. The negative conception of liberty prevents us from equating liberty with coercion; think- ing of liberty in negative terms helps keep republicanism liberal.

It is important, for similar reasons, not to raise too high the hurdles that must be passed before an agent is considered as acting freely. We may be quite justified in undertaking various political measures to improve the information available to people, but if we regard as free only those prefer- ences formed on the basis of "all relevant information," then very few preferences will qualify as worthy of respect. Sunstein's sunny democratic optimism notwithstanding, a politics that will respect only fully informed preferences will not be very respectful of most of the people most of the time.

It is, finally, always a distortion to speak of "the people" as the source of laws or to say that "the people" are simply pursuing their own aspirations when they are made to obey the law. The fact is that laws are always made by some people and not "the people." There are always dissenters on any policy question; we should respect that fact by refusing to speak of lawmak- ing by "the people."

Liberals should distinguish between liberty and autonomy and recog- nize that while the ideal of autonomy has a close affinity with liberalism, liberals are committed primarily to protecting liberty and only secondarily to promoting autonomy.2

Despite the title of the book, the events of the 1960s and 1970s that concern Sunstein were not, in the main, about rights (I suppose one could observe that they did not constitute a revolution either). Sunstein exhibits a certain schizophrenia on the matter of "rights" -on one hand, he is at pains to deny that regulatory benefits should be thought of as rights (e.g., p. 109); on the other hand, among the proposed principles of interpretation is one labeled "welfare rights" (p. 237). The book opens, moreover, with President Franklin Roosevelt's 1944 call for a "second Bill of Rights ... an economic bill of rights": rights to decent housing and medical care, the right to a "useful and remunerative job," and the right of every farmer to have prices propped up enough to "give him and his family a decent living."

It is simply wrong to say that the items on Roosevelt's list have come to be regarded as matters of right, as guarantees on a par with those contained in the real Bill of Rights, and Professor Sunstein provides no argument for so treating them. Given, moreover, the degree to which Sunstein emphasizes the need for pragmatic balancing of multiple principles and circumstantial considerations with regard to regulatory aims, the inflexible structure of rights talk could not possibly serve his purposes. He should resist the rhetorical attractions of such talk and drop the language of rights.

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Sunstein's general optimism about the process of regulation and the prospect for its improvement sometimes seems a bit partial and strained. Sunstein makes much of the fact, for example, that preferences are not merely given but that the political process may help shape preferences; this is surely correct. There is, however, something rather too reassuring in Sunstein's claim that laws may generate preferences for the goods that the law seeks to supply. He never considers that laws may generate adverse and otherwise perverse preferences. Prohibitions may make the proscribed substance or conduct more glamorous and attractive: Rousseau recognized that laws may help to produce the disorders they are meant to control.3 And the whole regulatory regime may, as Tocqueville worried, whet the taste for government intervention and lead to a slackening of individual initiative.

In the end, some of Sunstein's hopefulness rests on prescriptions that tend toward the platitudinous: We should strive for "a better 'match' between the problem calling for governmental controls and the particular strategy chosen to resolve that problem," and we should always attend to "complex systemic effects" of regulation (p. 108). Some of his institutional prescrip- tions seem unfocused: There should be a new executive office for long-term planning and a new congressional committee for oversight - and there should be more local control (pp. 107-9). And so Sunstein says his ideas would produce "a kind of American-style perestroika" (p. 110). The analogy may be all too accurate - some will wonder whether Sunstein is a kind of Amer- ican Gorbachev, proposing half-measures to deal with a system that is hopelessly inefficient.

If, however, we must take the regulatory state as essentially a given, and if, as is likely, the realistic agenda is one of reform rather than radical change, then Professor Sunstein's book constitutes a very valuable resource for the future.

NOTES

1. Jean-Jacques Rousseau, The Social Contract, book 1, chap. 7. 2. As I argued in my Liberal Virtues: Citizenship, Virtue, and Community in Liberal

Constitutionalism (Oxford University Press, 1990), chap. 6. 3. See Rousseau, Discourse on the Origin of Inequality, part 1. 1 owe this observation to my

colleague Bonnie Honig.

-Stephen Macedo Harvard University

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