JOANNE MYERS: On behalf of the Carnegie Council I would like to welcome you to our first breakfast program since the summer break.
Today we are pleased to have as our speaker one of our country’s most thoughtful and respected legal scholars, Cass Sunstein.
On a day when we look back on events that changed our world forever, and at a time when our country is in the process of assisting some nations to institute democratic reforms, it might be instructive for us to talk about some of the more important building blocks which could lead to healthy and prosperous societies. Therefore, this morning’s discussion will focus on what our guest believes is a cornerstone of a democratic society: the ability to allow dissent.
In his latest work, Why Societies Need Dissent, Professor Sunstein casts new light on the fundamental importance of freedom of speech and shows us that nations are far more likely to prosper if they allow their citizens the right to think the unthinkable, discuss the unmentionable, and dare to challenge the unchallengeable.
This book is an expanded version of the Oliver Wendell Holmes lectures Professor Sunstein delivered at Harvard Law School. In this analysis he examines how the suppression of free discussion results in the loss of full and accurate information for the people. Like any good lawyer, he knows that competing arguments are the basis for rational and effective decision-making and this, in turn, leads to the emergence of healthy societies. He shows us how conformity of thought, if unchecked, can produce harmful, and sometimes even catastrophic, results.
For example, in the aftermath of the terrorist attacks two years ago, one question which has been raised over and over again is “How did this happen?” Although several explanations have been offered, nothing more clearly illustrates the incalculable value of why societies need dissent than those horrific acts. More specifically, it could be argued that the dissemination of Islamic fundamentalism would not have been so virulent, nor spread so rapidly, had the repressive and authoritarian regime of the Arab world permitted dissent among its population.
Professor Sunstein is a graduate of Harvard College and its Law School. After graduation, he clerked for Justice Thurgood Marshall of the U.S. Supreme Court. Subsequently, he served as Attorney Advisor in the Office of the Legal Counsel at the Department of Justice. It was there that Professor Sunstein witnessed first-hand the evolution of democratic societies, as he assisted a number of nations, including China, Poland, Russia, South Africa, and Ukraine with the drafting of their constitutions and legal reforms. Currently, our guest is on the faculties of both the Department of Political Science and of the Law School at the University of Chicago, where he specializes in administrative and constitutional law.
He is a prolific writer. Among his books are Democracy and the Problem of Free Speech, Free Markets and Social Justice, Designing Democracy: What Constitutions Do, and his most recent, Republic.com.
CASS SUNSTEIN: These remarks come from the last two years, and in two ways: one is the reaction to the events of two years ago; and the other is the reaction to the reaction to the events of two years ago, what has happened in the United States and in other countries.
The more indirect origins lie in the more remote past. We had a Center at the University of Chicago on Constitution-Making in Eastern Europe that was spurred by the rapid disintegration of communism, and what may have been the most prolific period of constitution-making in the history of the world. Some of us were marginally involved in those efforts.
There was a meeting in Prague involving the Ukrainian constitution makers and about four Westerners. The former were courageous and heroic people who had played an important role in breaking up the Soviet Union because of their commitment to liberty – the furthest thing from tyrants.
During our discussions of the constitution, things were going well, all was clear and the disagreements were straightforward, until one of the Ukrainians said with respect to freedom of speech, “Shouldn’t we put in a constitutional provision requiring the press to be objective?” The other Ukrainians nodded. The Westerners were stunned. One of us said, “The whole idea of a system of free expression is that you don’t have to be objective.” The Ukrainians were as puzzled by that as we were puzzled by their proposed provision.
I have two epigraphs for you.
The first comes from Kanan Makiya, an Iraqi dissident who has been speaking to Vice President Cheney and writing for The New Republic online:
Silence is a way of talking, of writing. Above all, it is a way of thinking that obfuscates and covers up for the cruelty that should today be a central preoccupation of those who make talking, writing, and thinking their business. Breaking with this silence is the moral obligation of every Arab, in particular the intellectuals among us. Nothing else is of comparable importance, not even the struggle against Israel. For all of us who love and identify with this corner of the world it isn’t easy or nice to say such things. That doesn’t make them any the less true.
The second is from Hans Christian Andersen, played by Danny Kaye in the movie: “A child, however, who had no important job and could only see things as his eyes showed them to him, went up to the carriage. ‘The emperor is naked,’ he said.”
These ideas about conformity and dissent are punctuated by two empirical studies, which I will describe to you.
Much attention, even with lawsuits in connection with the September 11th bombings, has been given to punitive damage awards by juries. For a number of years I have been involved in studies trying to figure out why juries sometimes come up with large awards and others with small awards.
Our early studies of individual judgments, based on 1,000 demographically diverse Americans asked individually about cases, show that Americans’ moral judgments with respect to the “badness” of wrongdoing are widely shared. If you ask people, “How bad is conduct on a scale of zero to eight?”—where zero is not bad at all and eight is horrific—people agree. A group of six will agree with another group of six. It doesn’t matter if it’s white, African-American; male, female; rich, poor; well educated, poorly educated; old, young—any demographic characteristic. The moral judgments are widely shared.
If you decide that the judgment of the jury is the median judgment of the jurors, we also found that dollar awards were erratic.
We decided to follow this up with a study of deliberating juries to find our whether jury judgments are really the same as the median judgment of the jurors, or whether something different happens. This was meant as a footnote to our first study to confirm the accuracy of our findings.
We conducted what might have been the largest mock jury study ever, involving 3,000 people in 500 deliberating juries, in which people were asked to record their moral and dollar judgments before they started and then to deliberate to a moral judgment and to a dollar judgment by the jury of six.
When the median judgment of the individual jurors was severe, say around six, the jury’s judgment jumped. The jury typically had more moral outrage than the median juror before people started to talk. When people felt that the misconduct wasn’t bad, say it was a three, the outrage diminished as a result of group deliberation, so they ended up around two.
High moral outrage jumped up. Low moral outrage fell down. That’s not what we expected to find, but says something about the social dynamics of outrage.
The second study involves judges in the United States. There’s no reason to think that judges in the U.S. are different along the dimension I’m about to describe than judges in other nations, or indeed that our judges are different from ordinary people in this respect.
To understand the study it is important to know that courts of appeals in the federal system consist of three people who make decisions by majority vote. This is a fantastic natural experiment, in the sense that these panels of three people consist of two Democratic appointees and one Republican, two Republican appointees and one Democrat, three Democratic appointees, and three Republican appointees.
Because we have public records of judicial outcomes and votes, it is possible to figure out the difference between how Republicans vote when they’re surrounded by Republicans and how Republicans vote when they’re surrounded by Democrats, and the difference between how Democrats vote when they’re surrounded by Democrats and how Democrats vote when they’re surrounded by Republicans.
We posited that in ideologically controversial cases, involving, let’s say, environmental protection or sexual harassment or campaign finance or disability discrimination, that the ideological tendency of Republican appointees would be different from that of Democratic appointees. So that in this massive pool of cases, the percentage of votes in favor of, let’s say, government trying to regulate to protect clean air by Democratic appointees would be much more pro-government than Republican appointees. And we got that.
But what we were mostly testing was two other things: would Republicans sitting with two Democrats maintain their ideological tendency; would Democrats sitting with two Republicans maintain their ideological tendency?
We found that the dampening effect of sitting with two others who are different from you is so severe that in most cases Democrats sitting with two Republicans vote more conservatively than do Republicans voting sitting with two Democrats. So the likelihood that a Republican will vote to strike down an affirmative action program sitting with two Democrats is actually lower than the likelihood that a Democrat will vote to strike down an affirmative action program when the Democrat is sitting with two Republicans. There is an ideological reversal.
I personally was most interested in finding out what happens to Democratic votes when Democrats are sitting just with Democrats; what happens to Republican votes when Republicans are just sitting with two Republicans?
The overall Republican tendency, which is to vote conservatively, leaps up when a Republican is sitting with two Republicans. The overall Democratic tendency, which is to vote liberal, leaps up when a Democrat is sitting with two Democrats. That is to say that the likelihood that a Democrat will vote in the stereotypical liberal way is much higher when the Democrat is sitting with two Democrats, and the Republicans’ likelihood of voting in the conservative direction is much higher when the Republican is sitting with two Republicans.
These two studies are about group polarization, a phenomenon that has been little discussed in academic circles. The idea is that when like-minded people are sitting with one another, they end up thinking a more extreme version of what they thought before they started to talk.
If a group of people tend to think that global warming is a very serious problem, they will be more inclined to fear global warming after they have engaged in mutual discussion. If you have a group of people that is inclined to dismiss the risk of global warming, after they have talked with one another, they will be more inclined still to think that global warming is a trivial or nonexistent problem.
If you have a group of people who are fearful of genetic engineering of food, after they have talked to one another, they will be more fearful still. Their initial tendency will be amplified.
If you have a group of people who are critical of the U.S. and suspicious of its intentions with respect to foreign aid, after their mutual discussions, they will be much more skeptical and critical than before they started to talk.
What accounts for this phenomenon of group polarization by which like-minded people end up in a more extreme point, in line with their pre-deliberation tendencies?
There seem to be three things occurring:
1) The argument pool. If you have a group who believes that corporate misconduct is pretty bad, in a case in which, say, babies’ pajamas caught on fire, there will be a large number of arguments to that effect and not many arguments the other way. After people have talked to one another for, let’s say, twenty minutes or half an hour, then the number of reasons given for being outraged about the company’s behavior will be far more prominent than the number of reasons the other way. That’s the natural effect of the pre-deliberation tendency.
So, too, if you have a group of people who are suspicious, let’s say, of the Bush White House and believe that it is corrupt or confused, the number of arguments favoring that position will be well voiced; the number of arguments the other way will not be so well voiced. The natural effect of people listening to one another will be to amplify the pre-deliberation tendency.
There is a brilliant paper by political scientist Russell Hardin who doesn’t write directly of group polarization but refers to what he calls “the crippled epistemology of extremists,” by which he means that extremists tend to know very little, and what they know points in the same direction. He suggests that the informational inputs to an extremist are all in the same direction, there’s nothing counteracting it—and then suggests, not because they’re different from anyone else but because they’re listening to arguments like everyone else, they will end up thinking something that is epistemologically crippled and potentially violent.
There is a clue here about the wellsprings of terrorism. Studies show that people who engage in terrorism in the Middle East and elsewhere are not poorer or less educated or more deprived than other people. One problem is that they tend to talk most of the time to like-minded others, and often they are indoctrinated.
2) The link among confidence and extremism. In our study involving the zero-to-eight scale of the juries, we found that when people lack confidence about where to put conduct on a scale of zero to eight, they tend to go toward the middle.
Any law professor knows that if you’re dealing with first-year students and want a certain answer, you frame the preferred answer as the middle of two poles. Since the poles can be described in multiple ways, you can always come up with poles such that the answer you want is in the middle. If you have first-year students who are cautious, they’ll go for the center, which is a not senseless thing to do when you don’t know much and lack confidence.
If you have a group of people who tend to think that conduct is bad but they’re reluctant to say it is extremely bad, when they get corroborated by others they’ll gain more confidence, which will lead them to be more extreme.
Corroboration increases confidence and then it increases movement in a more extreme direction. This is easy to prove with respect to both factual and political judgments, such as whether people are good looking, whether a chair is comfortable, and whether charitable donations should be made. On all of those sorts of questions, when people’s initial inclination is corroborated, they become more confident and then more extreme.
The more extreme position with respect to charitable donations is to give more. A good way to increase charitable donations is to make clear to the target donor that many people are giving and that they’re giving a lot.
3) Reputation and people’s self-conception. It turns out that people don’t want to be different from everybody else or the same as everybody else. They want to have a relationship to others which goes in the right direction and to the right degree.
If you have someone who is a supporter of affirmative action and finds himself in a group of people who quite like affirmative action (more than he thinks the median person does), if he is going to shift at all, he will shift a bit towards greater enthusiasm about affirmative action, just to hold on to his preferred self-presentation with respect to affirmative action.
When I was first trying to figure out what we had found in our jury study, I mentioned it to an animal rights activist, who reacted in the following way: “No. I believe very strongly in animal rights, and I’m famous or infamous for doing that. But let me tell you something: when we animal rights advocates get in a room on Friday for a three-day meeting, we’re sensible on Friday, and by Sunday things have gone crazy. People are saying that experiments on animals never provide any scientific help to human beings, or that hunting and fishing can never be justified.” The idea is that the identity of the people here is defined by their enthusiasm for animal rights, and once they find themselves in a group of like-minded others, they shift a little bit to hold on to that.
This accounts for some of the violence in the 1960s among students, and has some implications for developments in the Middle East.
In the disaster in the Bay of Pigs, in which President Kennedy authorized an invasion that went extremely awry, to the embarrassment and financial loss of the nation, Kennedy himself said, “How could I have been so stupid as to allow them to go ahead?” We don’t have a full explanation, but Arthur Schlesinger, Jr., who was there, said, that he squelched his private doubts, and others who were there said that they did the same thing so as not to seem undaring or too cautious in front of others.
With respect to our jury judgment, this is exactly what has happened when people who are outraged are fortified as a result of mutual interactions.
The recent report about the Challenger disaster is about just this. The report says that NASA didn’t have any system of checks and balances, that there was a march toward consensus that was part of the culture, that safety issues were consistently downplayed, and that dissenters were effectively silenced, not through the law but through social norms, which made people feel embarrassed if they raised their doubts.
There are two things that can make group polarization worse, in the sense that people move more.
One is if people have a high degree of solidarity with one another and identify themselves in group terms. In the experimental setting, it’s easy to do this by saying, “You’ve been chosen for this task because you have a certain political predisposition, as does everyone else in the room.” When that is the case, then the effect I’ve described is heightened: people are more likely to move, and likely to move more.
If people are told that they are in a heterogeneous group, that many people there are not like-minded, then the movements are less extreme and less likely.
Solidarity and group identification are present in extreme political movements, and when we have radical movements, group polarization is often what is happening.
The other thing that helps aggravate the effect is if people are antecedently extreme. On legal and political issues, the extent of the shift induced by group deliberation is an artifact of the extent of the extremism with which they began.
The most surprising finding in our jury study was that people who are antecedently extreme are most likely to shift.
I told you what happened to the moral judgments, remember? Severe moral judgments get more severe; lenient ones get more lenient.
What about dollars? Dollar judgments systematically went up. If the median judgment was low, $10,000, then the jury’s judgment was higher, $30,000. If the median judgment was $100,000, then the jury’s judgment was $200,000. The overwhelming effect of jury deliberation was to increase the dollar awards.
But that’s not the finding that was most striking. It’s that the extent of the shift varied with the extent of the award: million-dollar awards went up much more than $10,000 awards; $10 million awards went up more than $1 million awards. You could plot the extent of the increase from the existing severity of the dollar award.
The severity of the shift toward higher dollar awards was so much that in 27 percent of the cases the jury’s judgment was as high as or higher than that of the highest juror before deliberations started. So with respect to dollars, in more than a quarter of the cases the jury ended up in a spot that was as high as or higher than that of the highest juror before they started.
There is a sort of rhetorical asymmetry, in that those who are urging higher dollar awards are always in a better position than those who are urging lower dollar awards. So the dollar awards as a result of social interactions will come up because of the asymmetry.
If you think about criminal punishment for drug offenders in the U.S. Congress, or tax decreases in the current Congress and White House, there’s probably a similar rhetorical asymmetry involved, so that those urging more severe criminal sentences and lower taxes are always at a rhetorical advantage in a dispute.
We’re not sure exactly what to make of this rhetorical asymmetry. It sometimes has what might be good effects. Teams of doctors are apparently more inclined to take heroic measures to resuscitate patients than are individual doctors, including the individual doctors who compose the team. Doctors working as groups are more likely to try to do things that would seem heroic or outlandish than individuals are, perhaps because there’s a rhetorical asymmetry in doctors’ own interactions in favor of doing that sort of thing.
What Schlesinger describes in the Bay of Pigs—and, possibly, what has happened in the White House on Iraq—reflects a similar rhetorical asymmetry.
I will give you two notations on other applications and then talk about institutions before concluding.
In a study done of investors and investment clubs—informal associations of people—the worst-performing investment clubs are clubs in which people like each other, know each other, meet at restaurants, socialize, maybe spend a holiday or two together. They lose a lot of money and they have no dissent.
The best-performing investment clubs in the U.S., in the huge study done at Brown University, involved people who don’t know each other socially, don’t get together except for this purpose, meet in an office rather than at home, appear not to like each other terribly much, and exhibit interactions highly charged with dissent.
Studies of disability movements in the U.S. show that the most mobilized, effective and separatist of the many disability movements, is the hearing-impaired. They are the ones who have the strongest sense of a shared identity, who have the most political clout. The author’s speculation is that deaf people have geographical unity, they have spaces of their own, they often go to school together, so they interact. Like-minded people interact, they polarize, they end up being a unified force, which doesn’t happen for the visually-impaired or depressed people or those in wheelchairs, at least not nearly as much.
Let’s turn to an evaluation of what to do about all this. It’s easy to think that if people are polarizing themselves to a better position there’s nothing to worry about. Maybe civil rights movements and doctors engaging in heroic measures are like that.
It’s easy to know there’s a serious problem if there is independent reason to believe that the outcome is wrong, like the Bay of Pigs disaster, and maybe like aspects at least of what is happening in Iraq now, and certainly like the epistemological poverty of extremists.
The hard one is where we don’t have independent grounds for knowing whether the position where people are getting more extreme is good or bad. At least we can say that there is a procedural problem when like-minded people spur each other to a more extreme position in line with what they thought before. There’s a procedural problem with that.
My own interest has to do with constitutional design, so I will add a bit about constitutional structure and constitutional rights.
You might think, looking back on our Constitution, that the great debate in the founding period, and maybe the greatest achievement, had to do with how to deal with heterogeneity. Montesquieu was a hero to many of our founders, and he believed that for a republic to work everyone has to be similar; otherwise the system will disintegrate. The republicans, whom our Founders were attempting to emulate, insisted on the need for a degree of homogeneity.
“Brutus,” the most articulate anti-federalist, wrote, following Montesquieu: “In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be constant clashing of opinions and the representatives of one part will be continually striving against those of the others.” That was “Brutus’s” nightmare, which was why he thought that the constitutional plan would inevitably fail.
The real innovation of the American Founders was to urge that Montesquieu delicately, and “Brutus” less delicately, had it exactly backwards. They thought that the constant clashing of opinions deplored by “Brutus” was great, and what they sought was a system in which the representatives of one party would be continually striving against those of the other.
Alexander Hamilton was the most articulate on this, urging that “differences of opinion and jarring of parties in the legislative department of government often promote deliberation and circumspection and serve to check the excesses of the majority.”
What the American Founders had was a working knowledge of the risk of group polarization, and what they sought to design was a system in which movements would occur not because of the social influences I’m discussing but because of the reasonableness of the argument.
The most obvious right that is in play here is the right to freedom of speech. It is a bit of a platitude to emphasize the need to eliminate censorship, so I will focus briefly on what might be thought of as the affirmative side of the First Amendment, which is more neglected.
We are used to thinking of the First Amendment as imposing a big “No” to government and banning efforts to regulate. But there is another part of that, which is sometimes referred to as “the public forum doctrine,” which says that the streets and parks have to be open.
I was on “The O’Reilly Factor” discussing the use of the public streets for political protests at the beginning of the Iraq War. O’Reilly said, "This is using taxpayer resources which could be used for other purposes to fund political protests, and why should the taxpayers have to fund political protests?” He was alert to the requirement that the streets and parks be open for expressive activity, which actually requires a government subsidy for expressive activity.
The public forum doctrine ensures that each of us, if the streets and parks are places we go, will have unchosen, unanticipated encounters with people who are not like us both in their lives and in their points of view. Even though this is sometimes irritating, or worse, it does something that is not dispensable in a democracy, which is to make it impossible for people to live in gated communities of their own design, something which may be a risk for contemporary Americans, just because of what technology and resources are making possible.
My emphasis has been on extremism and its sources. I suggest that this happens on juries, it happens on federal courts.
I have also suggested more generally that group polarization is a clue to large-scale social movements. Many of these movements in Canda, France, Germany, Iraq and the U.S. are attributed to social deprivation or individual predisposition, or something big called culture. Often they depend on social influences and often those movements are quite fragile.
A large job for political institutions is to ensure that when people do move it is for good reasons and not because of the predictable laws of social interactions.
JOANNE MYERS: Thank you very much.
Question & Answer
QUESTION: I want to give you one quotation to add when you next appear on “The O’Reilly Factor”: “To announce that there must be no criticism of the President, or that we are to stand by the President right or wrong, is not only unpatriotic and servile but is morally treasonable to the American public.” Theodore Roosevelt, 1918.
I was wondering what you have had to say has to do with the media ownership bills that are now before us, because if everyone listens to Fox News or PBS all day and only has one perspective, what does one do about decision-making?
CASS SUNSTEIN: I like the bills before Congress. The FCC is probably not doing the right thing, though the issue is complex. The FCC is reducing ownership limitations. It believes that we now have such heterogeneity in the communications market, that there is less reason to stop newspapers from owning radio stations.
There is not an extremely good reason to allow more concentration and, given the risks you describe of monopoly control of information, this should not be a priority item for the FCC. It would be much better for the FCC to be doing things to ensure more in the way of coverage of local issues or of substantive programming or access for the hearing-impaired. So hooray for Congress’s skepticism about the FCC.
QUESTION: There has been no real seriousness for many years to the claim that dissent is being stifled. The wide range of opinion that is available in the press and elsewhere, in any public forum, regarding criticism of the President, is so overwhelming, that the argument cannot be made.
Your theory is interesting, but it can be built on a house of cards. What you miss here is the persnickety factor. John Brademas took this one level higher than I did. I was involved in politics for forty years. He went to Congress. I didn’t.
His experiences and mine may not be so different, and that is that when you get even like-minded people, whether it is the Democratic Party or the Republican Party on the other side, you will always have someone like Jim Jeffords, who, even when you have apparent agreement, for some reason will not seek that consensus but will in fact go the other way. And there you have the problem of how do you bring this person back, or to what extent will that individual begin removing the consensus that is being sought? So how do you factor in that persnickety factor in all of your theories?
CASS SUNSTEIN: It is very unusual. The person you called “persnickety,” you might think of him as a maverick or a contrarian. John McCain is probably like that. These people get irritated if they are part of a group and they want to switch.
But the percentage of people who are like this is very low. My guess is, even for the famous ones, like Jeffords and McCain, there are just dimensions along which they are contrarians. But they are not about to ask for some weird outcome, call it X, and one of the reasons they are not about to ask for X is that no one is asking for X. Political correctness is a much broader phenomenon, only rarely counteracted by these mavericks.
On your point about dissent, it is very true that regulation of dissent is nearly invisible in the United States. In a way, that seems like a great triumph for Mill—On Liberty—whose book is more about expression even than about anything else. But there we overlooked a part of Mill, where he says that it is wrong to think that legal restrictions are the only, or even the most important, place in which dissent is suppressed. He says it is conformity pressures that have nothing to do with law. These pressures are all around us and often invisible and a real problem for the U.S.
This is not meant as a criticism of the Bush Administration particularly, but these norms of fidelity to group judgment are pervasive. Why was it that in the Bush v. Gore situation both sides were saying that the other was trying to steal the election? That was a ridiculous claim. Both sides had reasonable concerns and objections.
Why was it that an overwhelming percentage of Republicans voted for and as citizens supported the unconstitutional impeachment of Clinton—many of them privately acknowledging not only its unreasonableness but its unconstitutionality? Unlike in Bush v. Gore, that was one where one side was actually right. But it is also the case that the overwhelming Democratic support for Clinton had to do with group polarization too. At least some of those people privately wished he would resign.
During World War II, Luther Gulick, a no-longer-famous advisor to Roosevelt, wrote a boring book, called Administrative Governance in the United States. He wrote an short concluding chapters in 1948, a conclusion about the war: “Our adversaries thought democracies couldn’t fight, but they had it wrong. Democracies fight better, and the reason they fight better is that they have not just law that tolerates dissent and disagreement but a culture that insists on it.” He attributes the success of the Allies to the fact that if we made any mistakes they could get corrected, whereas for Hitler and Mussolini it just didn’t happen. So for the blunders there were no mid-course corrections, and that was, he says, a great help to us.
I don’t worry in the United States about legal regulation, but in Canada even to some extent, and certainly here, there are norms of political correctness that are a problem.
QUESTION: Would you be a little more specific as to your views on the present political atmosphere in this Administration? President Bush has announced that he wants to expand on the Patriot Act, meaning that anybody who doesn’t vote for an expansion of the Patriot Act is not a patriot. There is so much psychological warfare going on in our society today.
CASS SUNSTEIN: On the White House, I worry more about what happens internally actually than externally. The military has a term for group polarization, “incestuous amplification.” They mean that if we are like-minded and talk to each other, we will do extreme things and make catastrophic judgments.
President Bush is certainly doing the best that he possibly can under difficult conditions. But the Bush Administration – unlike the Roosevelt or Reagan Administrations, which tolerated a lot of internal disagreement—seems to me, from afar, to have too little internal disagreement. Ashcroft is part of that picture. Some of the domestic blunders are a result of this.
With respect to external effects, what they are doing to the public, I am less alarmed than you are. Such social pressures as there are – pressures that make people quiet—are not coming from the Bush Administration.
I agree with you about the rhetorical asymmetry both within the Congress and the public. Remember the dollars all go up and criminal sentences tend to go up for drug offenders certainly, and taxes tend to go down? It’s politically very dangerous to vote against the Patriot Act, and not only because of the name.
It is a little like when the unanimous Congress went out to oppose a federal court decision saying that the words “under God” in the Pledge of Allegiance were unconstitutional. The court of appeals was wrong, I believe. But it can’t be that every member of Congress thought that—but it was politically necessary to say you thought that.
With the Patriot Act, there are fantastic internal pressures on members of Congress to support stronger restrictions, and that’s not good. What we might want to have is a sunset provision making whatever we do now expire—after three years, let’s say—so that it can be reconsidered when the thinking is a little less hot.
QUESTION: A senior Democrat told me that in the House of Representatives you now have the following situation—and I speak as the former Democratic Whip of the House, so I know how difficult it was to round up votes from my own party for a position taken by the leadership.
The discipline is so tight on the Republican side that even if there are moderate Republicans who want to vote with the Democrats on a particular issue, the discipline imposed by Tom DeLay particularly is so strong that they just go along, knowing also that they will lose subcommittee or committee chairmanships. This is an example of the phenomenon that you were describing in your talk.
You will see this White House drumming up the patriotism issue, making it a major issue in the fall campaign. That’s why I gave you that Theodore Roosevelt quote, which if I were out campaigning I would use as much as I could.
QUESTION: I would like some information on “Brutus.”
CASS SUNSTEIN: “Brutus” was an anti-federalist who wrote pamphlets against the Constitution. He chose that name because he was aligning himself with the old-style republicans against imperialists. He claimed that the government in Washington would be not only too remote but would consist of too many different types.
There was a proposal to include in the First Amendment a right to instruct representatives how to vote, so that citizens could tell their representative “You have to vote this way” and they would be bound. This was formally proposed by the anti-federalists—the “Brutus” types liked it—to constrain representatives.
It was defeated as part of the Constitution on the ground that it would destroy the point of the meeting. Roger Sherman argued that that the whole idea is you get people from different parts of the Union who disagree with one another, who come together and debate the issues, and if they are constrained by this instruction, then there is no point in the meeting.
If Tom DeLay is doing this, then there is no point in the meeting. And within the White House, these meetings seem to have unduly narrow bounds.
QUESTION: Based on your theory of group polarization and the tendency for the group to move to the extreme, if you were to give voice to the so overwhelming silence of the dissidents—the Iraqi dissidents, for example, and other Arab intellectuals who don’t agree with the direction in which the group polarization is going—how would you effectively move the group in a different way?
CASS SUNSTEIN: One way to get people going is to have the like-minded talking to each other. If you get Iraqi dissidents talking to each other, then they can be a little like the disability movement in the United States, which was activated and noisy.
The idea of consciousness-raising in the feminist movement was that women who had experiences of injustice would talk to each other, and find that their views were widely shared, and then create a political movement.
If like-minded people meet, they can start talking, and that is the way to start a political movement.
QUESTION: If you were asked by a group of senators list criteria that they should use in the confirmation process for the judiciary, for judges, beyond the political discipline they have to work within, what would you say?
CASS SUNSTEIN: We have had a radical, quiet, unnoticed transformation in the federal judiciary in the last thirty years as a result of which what was on the right is now on the center, what was on the center is now on the left, what was on the left is unrepresented. No one on the Supreme Court is as liberal as Justice Brennan or Justice Marshall or Chief Justice Warren—and what was unthinkably extreme is now present on the right.
The Warren Court did engage in unjustified liberal activism, so the conservatives are right on that. But now the target of some parts of the right-wing judiciary is not Earl Warren, which is a worthy target, but Franklin Delano Roosevelt, who is not a worthy target. If people are in favor of returning the Constitution to the pre-1937 Constitution or show any inclination of doing that, by striking down acts of Congress that under current law are just fine, then they shouldn’t be confirmed.
The Senate has the power not only to consent but to advise under the Constitution, and under contemporary circumstances it is sensible to compromise as President Clinton did to some extent, to say, “If you are going to get a very conservative type, we will go for that so long as you appoint a moderate too.” But this notion of a complete presidential monopoly over the composition of the federal judiciary is not acceptable.
So the conservative objections to liberal judicial activism had a lot of reason, and honor, but now some of the conservatives, including a few on the federal bench, claim that the Constitution looks much like the 1980 Republican Party platform. It would be a stunning coincidence if the Framers of the Constitution’s views lined up so closely with that of the 1980 Republican Party platform. So they should take at least a firm a hand as they now are.
JOANNE MYERS: Some may dissent with your point of view, but I think there is a conformity in judgment that it was an excellent presentation. Thank you.