Cass R. Sunstein

A powerful analysis of why lies and falsehoods spread so rapidly now, and how we can reform our laws and policies regarding speech to alleviate the problem.

Lying has been with us from time immemorial. Yet today is different-and in many respects worse. All over the world, people are circulating damaging lies, and these falsehoods are amplified as never before through powerful social media platforms that reach billions. Liars are saying that COVID-19 is a hoax. They are claiming that vaccines show more cause autism. They are lying about public officials and about people who aspire to high office. They are lying about their friends and neighbors. They are trying to sell products on the basis of untruths. Unfriendly governments, including Russia, are circulating lies in order to destabilize other nations, including the United Kingdom and the United States. In the face of those problems, the renowned legal scholar Cass Sunstein probes the fundamental question of how we can deter lies while also protecting freedom of speech.

To be sure, we cannot eliminate lying, nor should we try to do so. Sunstein shows why free societies must generally allow falsehoods and lies, which cannot and should not be excised from democratic debate. A main reason is that we cannot trust governments to make unbiased judgments about what counts as "fake news." However, governments should have the power to regulate specific kinds of falsehoods: those that genuinely endanger health, safety, and the capacity of the public to govern itself. Sunstein also suggests that private institutions, such as Facebook and Twitter, have a great deal of room to stop the spread of falsehoods, and they should be exercising their authority far more than they are now doing. As Sunstein contends, we are allowing far too many lies, including those that both threaten public health and undermine the foundations of democracy itself. show less

There are two undeniable facts about the US Constitution: (1) it does not contain the instructions for its own interpretation, and (2) it is written in an ambiguous way that nevertheless demands some interpretation. It is impossible, therefore, to engage in a “value-neutral” reading of the text; however you decide to interpret the Constitution inevitably changes its meaning, however slightly. And the consequences of this must be defended on some ground.

In How to Interpret the show more Constitution, Cass Sunstein seeks to explain the various interpretive frameworks that exist and to propose a simple criterion for preferring one over the other; namely, that “judges (and others) should choose the theory that would make the American constitutional order better rather than worse.”

Here’s an example to get us started. As Sunstein wrote:

In 1930 it would have been pretty radical, and maybe even preposterous, to say that the Constitution forbids racially segregated schools. As of this writing, it would be radical, and quite preposterous, to say that the Constitution does not forbid racially segregated schools.

The Constitution, in other words—prior to Brown v. Board of Education—had no “originalist” meaning that made segregation unconstitutional. So, if you adopt an “originalist” position, then congratulations: you can now proudly support the idea that segregation should be perfectly constitutional. You may have a difficult time defending this idea to others, but hey, it’s better to be consistent, right?

The point is that, as Sunstein wrote, “the effects of changes in men’s feelings for what is right and just is equally relevant” in determining how to interpret the Constitution. And if we want to simplify things, and break things down according to a single criterion, then that criterion should be “making the constitutional order better rather than worse” in terms of the effects decisions have on actual people’s lives according to evolving moral standards. And if a theory tells us that segregation is constitutionally acceptable, then that theory should be promptly discarded—original public meaning be damned.

Using this logic, the Supreme Court got it right in its decision requiring states to recognize same-sex marriage. Consider this passage from the decision:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Unfortunately, this is not the only way to think about Constitutional law. Sunstein presents the various interpretive theories—including the various forms of originalism, moral readings, democracy-reinforcing readings, common-law constitutionalism, and common-good constitutionalism—and notes, correctly, that, since the Constitution mentions no theoretical preference, it is largely at the discretion of lawyers and judges to interpret the broad and often vague language of the Constitution in whatever manner they like.

But here’s one thing you cannot do: pretend that adopting an “originalist” stance absolves you from the moral responsibility of defending your decisions, as if they were inevitable, and then deny the fact that all interpretations are unavoidably value-laden. It would be better if we all dropped the charade and said what we’re really after when we “interpret” a constitutional provision one way or another.

The danger here clearly seems to be with originalism, as its proponents fail to offer any moral justifications for their decisions, which, in a deliberative democracy, is anathema. Therefore, we might expect a more passionate and thorough critique of this misguided theory. Instead, Sunstein offers a more round-about critique under the questionable guise of objectivity, and the reader is left to piece things together themselves, at least for the first half of the book. (For a more forceful and substantive critique of originalism, read Erwin Chemerinsky’s masterpiece Worse Than Nothing: The Dangerous Fallacy of Originalism).

And so, you’re three chapters in and halfway through the book before Sunstein tells you what he really thinks; namely, that the best theory of interpretation is a form of Rawlsian reflective equilibrium that forces you to abandon theories that produce morally reprehensible results (big surprise, this means originalism). It’s not that I think Sunstein is wrong (in fact, I think he’s right), it’s just that it takes him a lot of words to get there (straining the reader’s patience along the way).

But it makes a lot of sense; if a theory of interpretation results in blatant discrimination, for example, you’d think it would be rather obvious that the theory should be discarded. It’s actually a shame that it takes a book-length explanation to make the case as to why this is preferable (but unfortunately, it probably does).

The originalist, of course, can still counter that they are perfectly fine with the fact that originalism sometimes produces morally reprehensible results (like the implicit support of segregation) because it is not the job of the courts to monitor the country’s collective moral standing; that’s the job, say the originalists, of Congress, and of a democracy’s elected representatives.

But this seems to be a rather weak and evasive response. If the Constitution does not impose any interpretive theory on us (it doesn’t), and we are then free to select our own theory, then why in the world would we want to choose a theory that produces obviously immoral results, that we can all more-or-less agree on, in specific cases? This is Sunstein’s primary argument, and it's hard to argue against.

In fact, the whole “it’s not my job or problem” attitude among conservative politicians and judges grows tiresome; imagine going to a job interview and saying, “this job doesn’t seem all that valuable, and I’ll look the other way if terrible things happen on my watch.” Well, you probably wouldn’t get hired, and yet we continue to elect politicians that openly express their hatred for the government and then appoint judges that openly express their contempt for any form of judicial oversight (even as they engage in judicial activism by, for example, granting corporations “free speech” rights).

This is, frankly, madness. And Sunstein does a decent job, in his own meandering way, of exposing it. But again, I think Chemerinsky’s book does a far better job.

Here’s a final consideration: Sunstein doesn't mention this, but to my mind, the entire originalism/nonoriginalism debate obscures the real issue, and conceals the real fault line we should be focused on.

Because the Constitution is written ambiguously, we can always interpret it either broadly or narrowly. For example, the First Amendment grants us rights to free speech, which we could interpret as protecting pretty much all speech, including hate speech, libel, and false advertising (broad application), or, alternatively, as protecting free speech except in carefully defined circumstances, like the inciting of violence (a more narrow application). The relevant concern here is not “original intent” or even “democracy-reinforcement” but rather the granting of the appropriate scope of rights—by expanding or contracting them—that is consistent with evolving moral standards of justice. (And since the founders wrote the Constitution in what appears to be an intentionally vague way, it seems like this is more likely what they envisioned.)

Thought of in this way, our theory passes the gold standard test of Brown v. Board of Education. We can say that Brown was ruled correctly because the “equal protection clause” of the Fourteenth Amendment was correctly expanded, or more broadly applied. Whereas originalism, by contrast, tells us Brown was decided incorrectly, and that segregation should be constitutional, our idea that the equal protection clause should be applied more broadly than the founders conceived not only correctly decides Brown, but can also be used to correctly decide future cases of discrimination. And if it’s ever taken too far, we can then talk about narrowing its scope—without ever having to speculate about the intentions of individuals who have been dead for hundreds of years. Is this not preferable?

In other words, when we interpret the Constitution, or decide a case, we must decide how broad or narrow our interpretation or decision is, who is impacted, and whether or not the results seem generally fair. Originalists (and all justices) are basically doing this anyway, but by focusing on the broad/narrow divide, and the inevitable trade-offs involved, at least they’ll be doing it transparently, without hiding behind the fallacy of “originalism.” Currently, the Supreme Court is slowly eroding our rights, which they don’t even have to justify other than by referencing some nebulous idea of “original public meaning,” which should entirely piss you off. show less

Sunstein, a Harvard law professor, has served in several administrations, both Republican and Democratic. In this book, he exposits his experience in regulation to suggest more effective ways to do so. Instead of partisan pro-con analysis, he suggests to measure costs and benefits, an idea originally implemented by Reagan through the Office of Information and Regulatory Affairs (OIRA). This practice provides a pragmatic – Sunstein calls it “technocratic” – way of assessing which show more regulations are helpful and which aren’t.

Sunstein points out that regulation, in and of itself, is not always a good thing and that deregulation, in and of itself, is not always a good thing either. Rather, we have to estimate and measure the monetary costs and benefits. He points out that the government, as a rule of thumb, measures the statistical value of a human life as $9 million. Although this seems controversial, this is merely an expedient way to factor value. It provides a way to quantify human sentiments and to judge their worth.

The Obama administration seemed to be helped by such pragmatism. Sunstein notes that many were stultified by the administration’s changing stances of being labeled “pro-environmentalist” one day and “pro-business” the next. He explains that the cost-benefit analysis merely rendered different verdicts. Such reasoning, which has evolved since its inception under Reagan, surely has brought about positive change in the well-being of the U.S. citizen. At least, Sunstein notes positive effects and its place in American legal theory under the “general welfare” clause of the Constitution.

As with most works of economics, this book engages reason applied in the long term as the best way to economic prosperity and happiness. He admonishes the Trump administration for abandoning such ideals in favor of populist deregulation. He notes that this is a change in Republican policy and that this disagrees with the policies of Reagan, H.W. Bush, and W. Bush.

I like Sunstein’s voice. His legal and ethical reasoning are quite strong. He heavily relies upon utilitarianism, but not entirely. His decades of experience in the federal government elucidate wisdom applied to present-day problems. This book hopefully will contribute to America’s and the world’s economic success in coming generations. show less

The Publisher Says: How much information is too much? Do we need to know how many calories are in the giant vat of popcorn that we bought on our way into the movie theater? Do we want to know if we are genetically predisposed to a certain disease? In Too Much Information, Cass Sunstein examines the effects of information on our lives. Sunstein argues that government should require companies, employers, hospitals, and others to disclose information not because of a general "right to know" but show more when the information in question would significantly improve people's lives.

I RECEIVED A DRC FROM THE PUBLISHER VIA NETGALLEY. THANK YOU.

My Review: How many times a day do you have to fill out a form of some sort? How many forms does it take for you to interact with your bank, your local government, your vendor of choice for whatever gotta-have-it you gotta have today? I know most of us don't read the Terms of Service, and even if we start to, they're written in legalese to discourage all but the most bloody-minded to give up, scroll to the bottom, and hit "I Agree" even though you're pretty sure you don't.

Autocomplete makes some forms tolerable and password managers make others easy enough to forego the usual "do I really want to sign up for this?" soul-searching. But it is all information...your information. You are your information.

Author Sunstein (Can It Happen Here?: Authoritarianism in America, Impeachment: A Citizen's Guide) was the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration, as well as the Harry Kalven Visiting Professor at the University of Chicago Law School; he is currently Professor of Law at Harvard Law School. In other words, this is someone who really knows what information is used for, and has an unaralleled grasp of the costs that gathering, storing, and manipulating all this information costs at every end of the transaction.

What this book did for me was to make me think through the mindless "I Agree"-clicking I do when I am online. Service providers are required to disclose things to us for a reason, and it isn't *our* protection. Author Sunstein doesn't provide panaceas or one-size-fits-all solutions to the issue of information overload. He offers a considered, informed insider's look at how the constant demand for your information, the constant barrage of their legally-required information to you, leads to the fatigue of indifference.

This doesn't make it sound like a #Booksgiving gift. It should be one you gift yourself, but as the demand for and deluge of information grows more and more overwhelming, it's a great time to think of the consequences as we head into the presidential election cycle of 2024. Your politically active pals could use this readable, thoughtful treatment of the complex issue of how much is too much information...in or out...and how to manage, parse, and organize that information as presented to you.

Valuable information (!) for your engaged, aware friend. show less