Cass Sunstein

Q & A...with Cass Sunstein

Cass Sunstein, known for his research on constitutional law, recently took a step in a new direction. His newest book, The Cost of Rights: Why Liberty Depends on Taxes, cowritten with Princeton’s Stephen Holmes, explores their theory that all legally enforceable rights cost money. In an interview, Sunstein, the Karl N. Llewellyn Distinguished Service Professor in the Law School, explained why this is so.

It’s tax season, and many Americans are grumbling as they fill out their tax returns. But in your new book, The Cost of Rights, you say that maybe we shouldn’t be so upset.

Right, well, we don’t need to celebrate the level of taxes, but we do need to celebrate the fact of taxes. We can’t have freedom and security against violence without taxes. They’re not an obstruction to liberty, but the condition.

How did you and Stephen Holmes come up with the idea for the book?

It came out of a project we did on Eastern Europe. We saw the great difficulty there in establishing a system of rights without money. Americans seem to think that rights are free, but the idea that there is a cost of rights is kind of natural to people in Eastern Europe.

I’ll give you an example. In Russia, the establishment of jury trials was abandoned because it cost 25 percent of the local court budgets.

Russia also currently has a much diminished right to private property, even though they’re committed to private property. But it is not a state that is in an effective position to protect property. This illustrates the dependence of rights on resources instead of the libertarian fairy tale. Even the wealthiest people depend on the government to protect their property. People in the Hamptons could band together to create their own fire department, but it’s not usual.

In fact, our rights absolutely depend on money. Someone may want to spend lots of money on protection against crime and violence, but that takes away from other rights. This was illuminated for me when my car was stolen a few years ago and the police recovered it. The police officer asked me what I taught, and I said constitutional law. I asked him if the Fourth Amendment [protecting citizens from unreasonable search and seizure] ever gave him any trouble. He said, “No––I don’t violate the Fourth Amendment unless I say I violated it, and I never say that.”

To monitor the police carefully is expensive and so there are plenty violations of the Fourth Amendment, because we don’t expend the resources to prevent them.

So, you mean that taxes support our rights? What is a right, legally? Is it just a protection from government intrusion?

Rights can be defined as claims that can be vindicated, or enforced, in court or in some other public institution. For instance, Americans have the right to protect their property from takings but not the right to a minimum income. There is the right not to be assaulted by police or a private citizen but not the right to have police patrols around the house 24 hours a day. Rights are things you can make real. That means that from sexual harassment is a right now, but not 20 years ago. The right to be free from smoke in public buildings was not a right 30 years ago.

Rights are not just immunities from government interventions. They are powers to call on the government for help. Rights mean extremely little without a state willing to tax and spend. The real question is how best to use our resources to protect those powers that deserve to be treated as rights.

You call for taxpayers to study carefully the resources that are allocated to protecting our rights. How do we decide which rights should get the most money?

The principal claim in the book is that democratic theory and public finance have more to do with each other than it appears. Rights should be cost-effective, and we should have a theory of who is entitled to what. The big plea is that we should have a democratic discussion of public finance rather than saying that some people depend on government and some people don’t. If you have some property, you depend on the government.

Do you think your book will change the way people view taxes?

That liberty depends on taxes is so elementary that there seems to be some hope that some version of it will be accepted. It’s not that the point is so surprising––what’s surprising is that there are arguments to the contrary. No one can say they are antigovernment; it’s ridiculous, unless you’re an anarchist. There are good-faith arguments for a lower tax rate, or for more protection of property and less of social security, or for rights that are more cost-effective. But there’s no reason to say that we should be relying on markets instead of government, as the Russia example shows.

As the University’s own Nobelist, F.A. Hayek, said, you can’t have markets without government. It’s not about big government vs. small government. It’s about where we choose to allocate our resources.