“Paranoid Libertarianism” Is Just As Mainstream As Modern Liberalism

The specter of “paranoid libertarianism” continues to haunt
American liberals. Hot on the heels of Sean Wilentz’s
recent fretting in The New Republic that Edward
Snowden, Glenn Greenwald, and Julian Assange have undermined the
case for big government by drawing too much attention to various
instances of big government malfeasance, former Obama
administration official Cass Sunstein has now weighed in with his
own contribution to the genre, an op-ed titled “How
to Spot a Paranoid Libertarian.”

According to Sunstein, paranoid libertarianism is characterized
by such pathologies as “a presumption of bad faith on the part of
government officials–a belief that their motivations must be
distrusted,” as well as “a belief that liberty, as paranoid
libertarians understand it, is the overriding if not the only
value, and that it is unreasonable and weak to see relevant
considerations on both sides.”

Sunstein tries very hard to make that sound like dangerous and
exotic stuff, but in fact what he’s really describing is mainstream
American jurisprudence when it comes to such vast areas of the law
as free speech, voting, abortion, privacy, and gay rights. In those
areas, our judicial system basically operates exactly as Sunstein
describes: it subjects government regulations to what lawyers call
strict (or intermediate) scrutiny. In essence, judges presume that
the government has acted illegitimately when it legislates in such
areas, and therefore forces the government to shoulder the burden
of proof and justify its actions with extremely convincing
rationales. Why do the courts place these government actions under
the microscope? To protect the people’s liberty to speak, vote,
associate, and enjoy various forms of privacy. One more thing:
American liberals overwhelmingly favor this approach in such
cases.

Here’s a recent example. During the March 2012 oral argument
over the constitutionality of Section 3 of the Defense of Marriage
Act in United
States v. Windsor, Supreme Court Justice Elena Kagan
openly questioned the motives of each and every member of Congress
who voted in favor of that law. “We have a whole series of cases
which suggest the following,” Kagan told Republican lawyer Paul
Clement, who was arguing in favor of DOMA. “That when Congress
targets a group that is not everybody’s favorite group in the
world, that we look at those cases with some…some rigor to say,
do we really think that Congress was doing this for uniformity
reasons, or do we think that Congress’s judgment was infected by
dislike, by fear, by animus, and so forth?”

Is Elena Kagan a “paranoid libertarian?” Judging by Sunstein’s
definition, the answer is yes. Welcome to the brave new world.