Latest / Q & A, Hosted by Jay Nordlinger / Law, Liberty, and Cass (Sunstein)

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Law, Liberty, and Cass (Sunstein) · Q & A, Hosted by Jay Nordlinger

• 0:00
  SPEAKER_00: Hello everyone and welcome to Q&A.
• 0:03
  SPEAKER_00: I'm Jay Nordlinger and our guest today is Cass Sunstein,
• 0:07
  SPEAKER_00: the law professor,
• 0:09
  SPEAKER_00: the legal thinker,
• 0:10
  SPEAKER_00: the writer.
• 0:11
  For many years he taught at the University of Chicago and for
• 0:15
  many years since he
• 0:17
  SPEAKER_00: has taught at Harvard.
• 0:18
  SPEAKER_00: He has written a profusion of books to go with countless articles,
• 0:23
  SPEAKER_00: though maybe someone has counted them.
• 0:26
  SPEAKER_00: His latest books, I believe, are On Liberalism in Defense of Freedom.
• 0:32
  SPEAKER_00: That's one book,
• 0:33
  SPEAKER_00: by the way,
• 0:33
  SPEAKER_00: title and subtitle,
• 0:35
  SPEAKER_00: On Liberalism in Defense of Freedom,
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  SPEAKER_00: and Separation of Powers,
• 0:40
  SPEAKER_00: How to Preserve Liberty in Troubled Times.
• 0:43
  SPEAKER_00: Professor Sunstein is also a substacker.
• 0:47
  SPEAKER_00: His Substack is called,
• 0:48
  SPEAKER_00: straightforwardly enough,
• 0:50
  SPEAKER_00: CASA's Substack,
• 0:51
  SPEAKER_00: Truth in Advertising.
• 0:53
  SPEAKER_00: It is delightful and nutritious time after time.
• 0:57
  SPEAKER_00: It really is, Cass.
• 0:59
  SPEAKER_00: It's a joy.
• 1:00
  SPEAKER_00: You're made for Substack, I think.
• 1:02
  SPEAKER_01: Thank you for that.
• 1:03
  SPEAKER_01: Thank you.
• 1:05
  It's like bits of legal education and other education without
• 1:09
  law school tuition,
• 1:10
  SPEAKER_00: without taking the LSAT.
• 1:13
  SPEAKER_00: You get to sit with Professor Sunstein on your Substack.
• 1:16
  SPEAKER_00: I've enjoyed it quite a bit.
• 1:18
  SPEAKER_01: That's very kind of you.
• 1:20
  SPEAKER_01: It's fun to write,
• 1:21
  partly because you can be brisk and you don't have to be
• 1:24
  completely careful about
• 1:27
  SPEAKER_01: every single word.
• 1:28
  SPEAKER_01: You try to be careful,
• 1:29
  SPEAKER_01: but it's not like in a law review where the editors will say,
• 1:33
  SPEAKER_01: why did you say this?
• 1:34
  SPEAKER_01: And you have to have a completely good answer.
• 1:37
  SPEAKER_00: Well,
• 1:37
  SPEAKER_00: I find it a great sharing,
• 1:39
  SPEAKER_00: you know,
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  SPEAKER_00: that I know for years you have told classes about,
• 1:42
  SPEAKER_00: for example,
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  the 25th amendment and your own personal experience with it and
• 1:47
  understanding it
• 1:47
  SPEAKER_00: and so on.
• 1:48
  SPEAKER_00: I think when you worked in the DOJ, but now you tell everybody.
• 1:53
  SPEAKER_00: So it's really quite nice.
• 1:56
  Sometimes on this program,
• 1:57
  we spend a bit of time on names,
• 2:00
  especially at the beginning.
• 2:01
  SPEAKER_00: And setting Sunstein aside, I like this name Cass.
• 2:07
  SPEAKER_00: I grew up with it in Michigan.
• 2:09
  SPEAKER_00: Why, you ask?
• 2:12
  SPEAKER_00: Because of Louis Cass.
• 2:14
  SPEAKER_00: And he was, I think, the Democratic presidential nominee in 1848.
• 2:18
  SPEAKER_00: I think he was Secretary of State under someone.
• 2:20
  SPEAKER_00: So we had Cass Tech.
• 2:22
  SPEAKER_00: We had Cass Corridor neighborhood in Detroit and so on.
• 2:26
  SPEAKER_00: Where does your Cass come from?
• 2:28
  SPEAKER_01: Exactly the same.
• 2:30
  SPEAKER_01: So an ancestor of mine named his son Cass because of Louis Cass.
• 2:37
  SPEAKER_01: On my dad's side, people came from...
• 2:41
  SPEAKER_01: Europe in the 1860s when Louis Cass was in the news.
• 2:47
  SPEAKER_01: Maybe he was running for vice president around then.
• 2:49
  SPEAKER_01: Maybe he had run.
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  SPEAKER_01: And Louis Cass was greatly admired by my ancestor.
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  SPEAKER_01: And so Cass is a family name.
• 2:57
  SPEAKER_01: It was my dad's name.
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  SPEAKER_01: There's a cousin, that name.
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  SPEAKER_01: It's in the family.
• 3:04
  SPEAKER_01: It's in the family.
• 3:05
  SPEAKER_01: And it's because of Louis Cass.
• 3:09
  SPEAKER_01: And are you a New Englander born and bred?
• 3:12
  SPEAKER_01: I am indeed.
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  SPEAKER_01: I was born in Salem,
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  SPEAKER_01: Massachusetts,
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  SPEAKER_01: and I was raised in Newton,
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  SPEAKER_01: Massachusetts in the winters and Marblehead,
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  SPEAKER_01: Massachusetts.
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  SPEAKER_01: My grandmother had a place we used to go in the summers.
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  So I consider myself a New Englander and specifically a
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  Massachusetts guy.
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  SPEAKER_00: That's pretty neat.
• 3:35
  SPEAKER_00: Well,
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  SPEAKER_00: your book,
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  SPEAKER_00: one of your books on liberalism in defense of freedom,
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  SPEAKER_00: this implies,
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  SPEAKER_00: correct me if I'm wrong,
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  I think it implies that liberalism means freedom and freedom
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  means liberalism.
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  SPEAKER_00: And then we get into this big discussion of what liberalism is.
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  SPEAKER_00: And I take it, you tell me whether this is right or wrong.
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  SPEAKER_00: I take it you're not talking about,
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  SPEAKER_00: let's say,
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  SPEAKER_00: the policy preferences of George McGovern or Barack Obama.
• 4:04
  SPEAKER_00: I take it you mean the American founding,
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  SPEAKER_00: the Enlightenment,
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  SPEAKER_00: to include,
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  SPEAKER_00: let's say,
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  SPEAKER_00: Barry Goldwater and Ronald Reagan.
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  SPEAKER_00: Am I on the right track?
• 4:15
  SPEAKER_01: Completely.
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  So the goal of the book was to say there's a set of ideas that
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  incorporates
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  SPEAKER_01: freedom,
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  SPEAKER_01: especially freedom of speech and freedom of religion.
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  SPEAKER_01: Free markets are part of freedom.
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  SPEAKER_01: Also, pluralism, meaning...
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  SPEAKER_01: If people want to be farmers, they can do that.
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  SPEAKER_01: If they want to have a little company, they can do that.
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  If they want to devote their lives to religious devotion,
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  they can do that.
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  SPEAKER_01: That's pluralism.
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  SPEAKER_01: And our country has, look at the dollar bill and other things.
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  SPEAKER_01: bills, a pluribus unum.
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  SPEAKER_01: So pluralism is part of liberalism and the rule of law.
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  SPEAKER_01: So the idea that,
• 4:59
  SPEAKER_01: you know,
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  SPEAKER_01: we have clear rules in advance,
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  you can't be punished for doing something that wasn't a crime
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  at the time.
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  SPEAKER_01: You have rules that you...
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  SPEAKER_01: can adjust your life to, that they're not impossible to comply with.
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  SPEAKER_01: So this is an assortment of rule of law ideas.
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  SPEAKER_01: So the liberal holy trinity is the rule of law, pluralism, and freedom.
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  SPEAKER_01: And thank you for mentioning the political diversity.
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  So I worked in the Reagan administration as a young lawyer in
• 5:29
  the Department of Justice.
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  And President Reagan,
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  everything I saw was insistently committed to freedom
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  SPEAKER_01: the rule of law and pluralism.
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  SPEAKER_00: And this was William French Smith there as attorney general.
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  SPEAKER_01: He was my boss.
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  SPEAKER_01: So he was the attorney general.
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  SPEAKER_01: He was the big guy.
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  SPEAKER_01: I was one of the little guys.
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  SPEAKER_01: And he set a tone in the time I was there,
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  SPEAKER_01: which worked well with White House Counsel Mies,
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  SPEAKER_01: which was,
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  we're going to comply with the rules and freedom of speech and
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  freedom of religion
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  SPEAKER_01: or sacrifice act.
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  SPEAKER_01: And we're respectful of pluralism.
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  SPEAKER_01: So the big tent of liberalism is,
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  SPEAKER_01: I think,
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  SPEAKER_01: worth emphasizing and cherishing so that Franklin Delano Roosevelt,
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  SPEAKER_01: not perfect by any means,
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  SPEAKER_01: but broadly respectful of
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  SPEAKER_01: pluralism, the rule of law, and freedom, so too Ronald Reagan.
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  SPEAKER_01: Barack Obama,
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  SPEAKER_01: you mentioned,
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  SPEAKER_01: very much committed to those three things,
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  SPEAKER_01: and George W.
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  SPEAKER_01: Bush very much committed to those three things.
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  SPEAKER_01: And the idea is that for all the differences,
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  SPEAKER_01: and of course,
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  SPEAKER_01: President Obama and President Reagan aren't on the same
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  side of every issue,
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  not by any means,
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  but their commitment to liberal principles is shared.
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  SPEAKER_01: And that's something which we should shout from the rooftops.
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  SPEAKER_01: And it's not innocuous, the big tent.
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  SPEAKER_01: Communism isn't liberal, and fascism isn't liberal, and there are
• 7:15
  anti-liberal or illiberal forces on the left in North America
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  and Europe.
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  SPEAKER_01: I regret this,
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  SPEAKER_01: but there are,
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  and there are anti-liberal or illiberal forces on the right in
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  Europe and North
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  SPEAKER_01: America.
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  And we define our anti-liberal or illiberal forces by reference
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  to respect for
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  SPEAKER_01: pluralism or not,
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  SPEAKER_01: respect for freedom or not,
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  SPEAKER_01: respect for the rule of law or not.
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  SPEAKER_00: Yes, indeed.
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  Cass,
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  you used a phrase that I'm sure is common in your world,
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  but not in mine.
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  SPEAKER_00: Rules in advance.
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  SPEAKER_00: What a wonderful phrase.
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  SPEAKER_00: You can't make it up as you go along.
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  SPEAKER_01: Right.
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  SPEAKER_00: A citizen shouldn't be surprised.
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  SPEAKER_00: Yeah, yeah.
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  SPEAKER_01: So I was in China a number of years ago.
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  And one thing I learned just talking to people in China is they
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  never really knew
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  SPEAKER_01: what the rules were.
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  And so they would be very frightened that if they did
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  something,
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  they could be punished for it.
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  And there wasn't some place they could look to know what would
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  be a sphere of,
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  SPEAKER_01: let's call it liberty or security from the government.
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  SPEAKER_01: And the fact that rules are announced in advance,
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  SPEAKER_01: if they are,
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  SPEAKER_01: and they generally are in free countries,
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  SPEAKER_01: means that you can be free in your life from
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  SPEAKER_01: incursions by,
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  SPEAKER_01: let's say,
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  SPEAKER_01: officials who have the force of law and can do something terrible to you.
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  SPEAKER_01: So you have a kind of immunity.
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  And that rules in advance,
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  that's crucial to freedom in a liberal society.
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  Cass,
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  I'd bet a good $100 of your money that you know Perry Link,
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  the China scholar.
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  SPEAKER_01: Not personally.
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  SPEAKER_01: Absolutely.
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  SPEAKER_00: He makes his point over and over again.
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  SPEAKER_00: In China, you're arrested and you say, what did I do wrong?
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  SPEAKER_00: And the authorities say, you know, you know what you did, but you don't.
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  And Perry wrote this marvelous essay called The Anaconda in the
• 9:25
  Chandelier.
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  SPEAKER_00: And it was about really the position of the intellectual in China.
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  SPEAKER_00: There's this great snake coiled up above,
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  SPEAKER_00: and the man below has no idea what will set off the snake,
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  SPEAKER_00: what will make it pounce.
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  SPEAKER_00: Therefore, he treads very carefully, not knowing the rules.
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  SPEAKER_01: That's great.
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  SPEAKER_01: So that essay, I don't know.
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  SPEAKER_01: I know the name.
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  SPEAKER_01: I can say that when I taught in China,
• 9:50
  SPEAKER_01: I asked my students,
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  SPEAKER_01: I had students between the youngest was probably 25,
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  SPEAKER_01: the oldest was probably 50s,
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  SPEAKER_01: 49 of the 50 I was told were
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  SPEAKER_01: in the Communist Party,
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  SPEAKER_01: I asked them to write essays at the end,
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  like little essays on what the United States could learn from
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  Chinese law or what
• 10:07
  SPEAKER_01: China could learn from U.S.
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  SPEAKER_01: law.
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  And they didn't write the essays,
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  even though they were,
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  you know,
• 10:12
  great ideas.
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  SPEAKER_01: And they refused.
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  SPEAKER_01: And I asked why they didn't write the essays.
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  SPEAKER_01: And they said just what you said.
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  SPEAKER_01: They said they were scared.
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  They thought that first they said that the U.S.
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  had nothing to learn from China.
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  SPEAKER_01: That was the view of these students.
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  SPEAKER_01: And they thought that China had a ton to learn from the United States.
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  They didn't want to put any of that in writing because they
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  thought we don't know
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  SPEAKER_01: what could happen to us.
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  SPEAKER_01: Now, in the U.S.,
• 10:41
  SPEAKER_01: things are working well,
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  SPEAKER_01: in accordance with the rule of law,
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  SPEAKER_01: in this country,
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  SPEAKER_01: a student can write any kind of paper,
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  SPEAKER_01: basically,
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  SPEAKER_01: and they might get a terrible grade.
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  SPEAKER_01: Hopefully,
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  SPEAKER_01: they won't get a terrible grade because of their point of view,
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  SPEAKER_01: but they might write a not good essay.
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  SPEAKER_01: They shouldn't be scared that something, you know, the authority
• 11:01
  SPEAKER_01: priorities will come down on them.
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  SPEAKER_01: That's what my Chinese students were afraid of.
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  SPEAKER_01: And we take for granted,
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  SPEAKER_01: I think,
• 11:08
  SPEAKER_01: often,
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  I hope we get to take for granted that we have rules in advance
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  and freedom from
• 11:15
  SPEAKER_01: the snake above.
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  SPEAKER_01: But we shouldn't take it for granted.
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  SPEAKER_01: It's a great blessing of our heritage.
• 11:23
  SPEAKER_00: Well, Cass Sunstein, a lot of people had pandemic projects.
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  SPEAKER_00: And Michael Walzer wrote this little book,
• 11:31
  SPEAKER_00: On liberalism.
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  SPEAKER_00: And he speaks of liberal as an adjective rather than a noun.
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  SPEAKER_00: And he says, I think this is fair to him.
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  SPEAKER_00: I have little notes here.
• 11:42
  SPEAKER_00: Everyone should be a liberal.
• 11:44
  SPEAKER_00: No, sorry, wrong.
• 11:45
  SPEAKER_00: Everyone should be liberal, whatever he is.
• 11:48
  SPEAKER_00: Socialists should be liberal.
• 11:50
  SPEAKER_00: Capitalists should be liberal.
• 11:52
  SPEAKER_00: Everyone should be liberal.
• 11:53
  SPEAKER_00: I take it he means be pluralistic.
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  SPEAKER_00: Honor pluralism.
• 11:59
  SPEAKER_00: Honor the rule of law.
• 12:00
  honor diversity,
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  let's say,
• 12:03
  diversity of thought,
• 12:05
  honor the atmosphere of ordered liberty.
• 12:07
  I thought that was very interesting,
• 12:09
  liberal as an adjective rather than a liberal,
• 12:12
  let's say.
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  SPEAKER_01: Yeah, I get his book and I honor the spirit in which it was written.
• 12:19
  SPEAKER_01: I want liberal to be a noun too.
• 12:23
  SPEAKER_01: There is in
• 12:25
  the origins pre-liberal times before there was a thing called
• 12:29
  liberalism.
• 12:31
  SPEAKER_01: Being liberal as an adjective was invoked as being
• 12:36
  SPEAKER_01: selfless, dedicated to the common good, generous of spirit.
• 12:41
  SPEAKER_01: So John Donne wrote about being liberal.
• 12:44
  SPEAKER_01: George Washington spoke about being liberal.
• 12:47
  SPEAKER_01: And this was before liberalism really was a thing.
• 12:50
  SPEAKER_01: Still, I want to say that there's a political tradition that
• 12:55
  uh hayek the great critic of socialism so i bridled a little
• 12:59
  bit about the idea
• 13:00
  socialists should be liberal there's some socialists who are
• 13:03
  liberal but socialism
• 13:05
  and liberalism in my view have tension we need we need to
• 13:09
  figure out what's bent by
• 13:10
  socialism socialism means public ownership of the means of
• 13:15
  production uh liberals
• 13:17
  tend to be very nervous about that because if you don't have if
• 13:21
  you don't own your
• 13:22
  SPEAKER_01: For example, your fresca.
• 13:25
  SPEAKER_01: I kind of love this fresca.
• 13:26
  If this is something that is publicly owned,
• 13:30
  freedom and security are simultaneously at risk.
• 13:33
  SPEAKER_01: So I want to say liberalism as a noun is something we should embrace.
• 13:39
  SPEAKER_01: And we shouldn't think of this as a...
• 13:42
  thing to embrace like oxygen,
• 13:44
  in the sense that everyone,
• 13:46
  I hope,
• 13:46
  embraces oxygen.
• 13:47
  We should think that embracing liberalism is embracing
• 13:50
  something that's both
• 13:52
  SPEAKER_01: precious and not universally agreed upon.
• 13:57
  SPEAKER_01: So there are forces in the world
• 14:01
  SPEAKER_01: Russia and China are pretty important forces,
• 14:03
  SPEAKER_01: which are not liberalism,
• 14:09
  SPEAKER_01: not enthusiastic about liberalism,
• 14:10
  SPEAKER_01: not practicing liberalism.
• 14:12
  And the fact that we get to live with its practice,
• 14:16
  that's a really good thing.
• 14:18
  SPEAKER_01: And you can take your pick of political forces.
• 14:21
  SPEAKER_01: I teach in a university.
• 14:22
  SPEAKER_01: There have been illiberal or anti-liberal forces on the left.
• 14:26
  SPEAKER_01: I think probably not as much as some people think, but they're right.
• 14:31
  SPEAKER_01: And they're not good.
• 14:33
  And they have been less enthusiastic about freedom of speech
• 14:39
  and pluralism than
• 14:41
  then is just is justified so these things i i grew up with that
• 14:45
  left in part yes
• 14:46
  well familiar with it yeah so there we go so uh with walzer the
• 14:51
  the liberal
• 14:52
  sensibility one of generosity let's say and uh respect uh
• 14:57
  hooray for that but also
• 15:00
  SPEAKER_01: and uh with a degree of urgency hooray for liberalism as a noun well um
• 15:11
  I'd like to bring up with you this idea of the fragility of
• 15:15
  liberalism and its unnaturalness.
• 15:18
  SPEAKER_00: I've spent a lot of time on that in recent years.
• 15:20
  SPEAKER_00: And at the risk of boring my readers and listeners,
• 15:23
  SPEAKER_00: I fastened on to this paragraph from Ortega y Gasset,
• 15:29
  SPEAKER_00: from his Revolt to the Masses.
• 15:31
  SPEAKER_00: And do you mind if I read it?
• 15:32
  SPEAKER_00: I want you to critique it.
• 15:35
  SPEAKER_00: Liberalism, it is well to recall this today, he says.
• 15:39
  is the supreme form of,
• 15:40
  this is a word you just used,
• 15:43
  is the supreme form of generosity.
• 15:46
  SPEAKER_00: It is the right which the majority concedes to minorities,
• 15:49
  SPEAKER_00: and hence it is the noblest cry that has ever resounded on this planet.
• 15:54
  SPEAKER_00: It announces the determination to share existence with the enemy.
• 15:59
  SPEAKER_00: When you were speaking, I thought of the open society and its enemies.
• 16:02
  SPEAKER_00: You mentioned China and Russia.
• 16:03
  SPEAKER_00: I'm going to
• 16:04
  More than that,
• 16:05
  the determination to share existence with an enemy that is
• 16:08
  weak.
• 16:10
  It was incredible that the human species should have arrived at
• 16:13
  so noble an
• 16:14
  SPEAKER_00: attitude,
• 16:15
  SPEAKER_00: so paradoxical,
• 16:16
  SPEAKER_00: so refined,
• 16:17
  SPEAKER_00: so acrobatic,
• 16:18
  SPEAKER_00: so anti-natural.
• 16:21
  SPEAKER_00: Hence,
• 16:22
  it is not to be wondered at that the same humanity should soon
• 16:26
  appear eager to get
• 16:27
  SPEAKER_00: rid of it.
• 16:28
  SPEAKER_00: It is a discipline too difficult and complex to take firm root on Earth.
• 16:34
  SPEAKER_00: And I've heard in my life,
• 16:37
  SPEAKER_00: many people have said,
• 16:38
  SPEAKER_00: you know,
• 16:38
  SPEAKER_00: liberal democracy is less fragile than you think.
• 16:41
  SPEAKER_00: It's stronger and more resilient than you think.
• 16:45
  SPEAKER_00: So I nod to that.
• 16:47
  SPEAKER_00: And on other days, I think this is so exceptional.
• 16:52
  SPEAKER_00: This is so weird.
• 16:53
  SPEAKER_00: This is so parenthetical.
• 16:54
  SPEAKER_00: This is like an asterisk in human existence.
• 16:57
  Let's say I have the power to shut down your speech because I
• 17:00
  don't like it.
• 17:01
  SPEAKER_00: And I choose not to.
• 17:04
  SPEAKER_00: It's a strange thing.
• 17:06
  SPEAKER_00: So I've rambled on and I will shut up and let you discourse.
• 17:11
  SPEAKER_01: Okay, so that's great.
• 17:12
  SPEAKER_01: And the passage you read was very beautiful and poetic.
• 17:15
  SPEAKER_00: But I sense a but.
• 17:18
  SPEAKER_01: Well,
• 17:19
  SPEAKER_01: the way my mind naturally goes,
• 17:21
  SPEAKER_01: this is a character flaw,
• 17:23
  SPEAKER_01: is towards the empirical and the demonstrable.
• 17:27
  SPEAKER_01: It's a virtue.
• 17:28
  SPEAKER_01: It's a virtue.
• 17:30
  Well,
• 17:32
  so the writer in the writing is so beautiful that one is
• 17:37
  carried away by it.
• 17:39
  SPEAKER_01: I wonder over the claim that liberalism in the sense of respect,
• 17:45
  SPEAKER_01: let's say,
• 17:45
  SPEAKER_01: for a thought that we...
• 17:47
  SPEAKER_01: don't like at all is unnatural.
• 17:51
  SPEAKER_01: I don't know how to think about that.
• 17:52
  So is it that there's something genetic in humanity that is in
• 17:58
  tension with liberal practice?
• 18:00
  SPEAKER_01: I think that would be surprising.
• 18:02
  Is there something genetic in humanity that is highly
• 18:06
  compatible with liberal practices?
• 18:11
  SPEAKER_01: I don't know.
• 18:13
  SPEAKER_01: The human species is just so...
• 18:18
  SPEAKER_01: What's the right word?
• 18:20
  SPEAKER_01: So complicated.
• 18:23
  And the tribalism in the sense that you hear someone say
• 18:28
  something terrible and you
• 18:30
  SPEAKER_01: have an instant fist comes out.
• 18:34
  SPEAKER_01: That's real.
• 18:35
  But there's also a sense that the fist unclenches and you see
• 18:41
  this is kind of my
• 18:42
  SPEAKER_01: brother or sister in some way or
• 18:45
  SPEAKER_01: But for the grace of God,
• 18:47
  SPEAKER_01: I go I and then you think,
• 18:49
  SPEAKER_01: you know,
• 18:49
  SPEAKER_01: they said that and,
• 18:51
  SPEAKER_01: you know,
• 18:51
  SPEAKER_01: maybe they're right,
• 18:52
  SPEAKER_01: even or even if they're wrong.
• 18:55
  SPEAKER_01: So Lincoln is said to have said, I don't like that man.
• 19:00
  SPEAKER_01: I must get to know him better.
• 19:02
  SPEAKER_01: And whether or not he said that, it's fantastic.
• 19:05
  And the fact that it's famous is diagnostic because everyone
• 19:08
  recognizes that.
• 19:11
  The idea that you don't like someone,
• 19:12
  you probably get to know them better.
• 19:15
  SPEAKER_01: That's both,
• 19:16
  SPEAKER_01: I think,
• 19:17
  extremely appealing and very recognizable and kind of better
• 19:20
  angels of our nature
• 19:21
  SPEAKER_01: stuff.
• 19:22
  SPEAKER_01: So the
• 19:24
  liberalism which is you know it grew up in recent centuries but
• 19:29
  you can find pieces
• 19:31
  of it in in the oldest texts we know the the idea the rule of
• 19:38
  law liberals didn't
• 19:39
  invent that they completely cherish that but they didn't invent
• 19:44
  it respect for
• 19:45
  freedom of speech and freedom of religion that's been a thing
• 19:49
  and you can find
• 19:51
  SPEAKER_01: all sorts of Waltzerian liberalism, let's say.
• 19:55
  SPEAKER_01: I mean, it kind of comes from the Bible.
• 19:59
  SPEAKER_01: Christianity has a lot to do with liberalism in Waltzer's sense.
• 20:04
  But I'd say that Christianity also has a lot to do with
• 20:09
  liberalism as a noun,
• 20:11
  SPEAKER_01: that the practice of respect for freedom and pluralism,
• 20:16
  SPEAKER_01: that is closely connected with
• 20:19
  SPEAKER_01: Judeo-Christian thinking.
• 20:22
  And,
• 20:23
  you know,
• 20:23
  if those aren't what you're focused on,
• 20:26
  all traditions have that.
• 20:28
  SPEAKER_01: So when I was in China,
• 20:30
  SPEAKER_01: there was actually a student of mine who said,
• 20:34
  SPEAKER_01: Confucianism is very committed to the rule of law as the
• 20:40
  SPEAKER_01: Americans understand that, a Chinese student of mine said.
• 20:44
  SPEAKER_01: And he gave an account of Confucianism and said, this is human.
• 20:50
  SPEAKER_01: This isn't fighting humanity.
• 20:53
  SPEAKER_01: So I love the passage you wrote,
• 20:55
  SPEAKER_01: but the idea that liberalism is in tension with human nature,
• 20:59
  SPEAKER_01: I think there's a sense in which that's true,
• 21:03
  but there's a sense in which liberalism embodies maybe the
• 21:08
  better angels of our
• 21:09
  SPEAKER_01: nature.
• 21:10
  SPEAKER_00: Well, I certainly hope so.
• 21:12
  You're a good man,
• 21:13
  Cass Sunstein,
• 21:13
  for those very thoughts on my less good days.
• 21:17
  I sometimes fear,
• 21:18
  I must confess,
• 21:19
  that good thing this is not a public conversation.
• 21:24
  SPEAKER_00: I sometimes fear that man is kind of a natural authoritarian.
• 21:29
  And I think almost the last thing Mario Vargas Llosa did was
• 21:34
  write a book called
• 21:35
  SPEAKER_00: The Call of the Tribe.
• 21:37
  And the title is slightly misleading because it's sort of
• 21:39
  anti-The Call of the Tribe.
• 21:41
  SPEAKER_00: But he says that this call is awfully hard to resist down the ages.
• 21:48
  And that's why people who do resist it are people who are sort
• 21:53
  of more universalist
• 21:54
  SPEAKER_00: in their thought,
• 21:55
  SPEAKER_00: I think,
• 21:56
  SPEAKER_00: are very much to be admired.
• 21:59
  SPEAKER_01: Now, what you're saying is great.
• 22:00
  SPEAKER_01: And my association is Orwell's 1984,
• 22:04
  SPEAKER_01: which is,
• 22:05
  SPEAKER_01: in a way,
• 22:06
  the liberal novel because it gives such a portrayal of an
• 22:10
  illiberal or anti-liberal
• 22:12
  SPEAKER_01: or liberal society.
• 22:15
  SPEAKER_01: But what makes the book...
• 22:17
  I think enduring and great is that it's on your point that
• 22:23
  Orwell is really into Big Brother.
• 22:26
  SPEAKER_01: That is, he gets it and he gets it emotionally and affectively.
• 22:31
  SPEAKER_01: So submission to Big Brother is what the book is rebelling against.
• 22:36
  But the power of the book comes from the fact that Orwell
• 22:40
  portrays the attraction,
• 22:43
  SPEAKER_01: the intense attraction of submission to Big Brother.
• 22:46
  SPEAKER_01: which is maybe one side of the anti-liberal sensibility.
• 22:50
  SPEAKER_01: I think it's a really powerful side.
• 22:52
  SPEAKER_01: And I think it's in the human heart.
• 22:54
  SPEAKER_01: So those who went for Hitler or Stalin or Mao,
• 23:00
  SPEAKER_01: there's something in it that it's very hard,
• 23:05
  SPEAKER_01: truthfully,
• 23:06
  SPEAKER_01: to say we don't have access to that in our own minds.
• 23:11
  SPEAKER_01: Yes?
• 23:12
  SPEAKER_01: Yes.
• 23:13
  yeah so that so that's one side and then there's the tribalism
• 23:16
  side you know my
• 23:19
  side versus your side and and i think this is a completely
• 23:22
  terrible thing tribalism
• 23:24
  that is i mean to have strong convictions is fine um you know i
• 23:29
  have strong liberal
• 23:30
  SPEAKER_01: convictions but uh they're anti-liberals who
• 23:35
  SPEAKER_01: I know,
• 23:36
  SPEAKER_01: and whom I really like,
• 23:37
  SPEAKER_01: and I don't agree with them,
• 23:39
  SPEAKER_01: but I don't wish them,
• 23:41
  SPEAKER_01: I wish them well.
• 23:43
  SPEAKER_01: So that's,
• 23:44
  SPEAKER_01: you know,
• 23:45
  SPEAKER_01: I mean,
• 23:46
  SPEAKER_01: there's,
• 23:47
  SPEAKER_01: let's name a name,
• 23:48
  SPEAKER_01: there's an anti-liberal named Patrick Deneen,
• 23:51
  SPEAKER_01: he describes himself as a critic.
• 23:54
  SPEAKER_00: I know many of his disciples.
• 23:57
  SPEAKER_01: And I think I may have met him once.
• 23:59
  SPEAKER_01: I completely wish him well.
• 24:00
  SPEAKER_01: And I think his concerns about liberal societies,
• 24:04
  which have to do with crime and rootlessness and some of the
• 24:10
  things that are
• 24:12
  SPEAKER_01: unleashed,
• 24:13
  SPEAKER_01: I wouldn't say by liberalism,
• 24:15
  SPEAKER_01: but I'd agree in our societies,
• 24:17
  SPEAKER_01: his concerns are valid.
• 24:22
  And so to be tribal,
• 24:24
  even with respect to what we're now talking about,
• 24:27
  would be not ideal.
• 24:30
  To be insistent on the importance of the rule of law and
• 24:34
  freedom and pluralism
• 24:39
  SPEAKER_01: seems to me that's good.
• 24:39
  SPEAKER_01: I see.
• 24:42
  SPEAKER_00: There's a word that David French uses that I'm taken with.
• 24:45
  SPEAKER_00: He speaks of the frame,
• 24:47
  SPEAKER_00: to live within the frame of our Constitution,
• 24:50
  SPEAKER_00: the frame of ordered liberty,
• 24:52
  SPEAKER_00: the frame of the rule of law.
• 24:54
  SPEAKER_00: And do what you do.
• 24:57
  SPEAKER_00: I think the current phrase is, you do you, something like that.
• 25:02
  SPEAKER_00: But so long as you don't harm others.
• 25:05
  SPEAKER_01: Yeah.
• 25:06
  SPEAKER_00: And live within the frames.
• 25:08
  And so let a thousand or a million or a billion flowers bloom,
• 25:11
  say I.
• 25:12
  Yeah,
• 25:13
  agreed.
• 25:14
  So that's part of the magic of the United States of America is
• 25:21
  the sheer number of flowers.
• 25:25
  Cass,
• 25:26
  you and I have used several times so far this golden phrase,
• 25:30
  the rule of law.
• 25:32
  There's something called a relatively new organization called
• 25:35
  the Society for the Rule of Law.
• 25:37
  And I think my most recent guest was its executive director,
• 25:40
  Greg Nunziata.
• 25:43
  SPEAKER_00: Wonderful guy.
• 25:43
  SPEAKER_00: I think the society,
• 25:44
  SPEAKER_00: I know the Society for the Rule of Law was founded by a bunch of,
• 25:48
  I don't know if they're ex-Republicans or disaffected current
• 25:51
  Republicans,
• 25:52
  SPEAKER_00: but Reagan,
• 25:53
  SPEAKER_00: Bush,
• 25:54
  SPEAKER_00: Romney,
• 25:55
  SPEAKER_00: alumni,
• 25:56
  SPEAKER_00: so on and so forth.
• 25:58
  And so we spent some time talking about the rule of law and it
• 26:01
  struck me as,
• 26:01
  SPEAKER_00: you know,
• 26:02
  SPEAKER_00: this is old fashioned vernacular.
• 26:03
  SPEAKER_00: This is the kind of language I grew up with.
• 26:05
  SPEAKER_00: The rule of law is kind of the ball game, isn't it?
• 26:09
  SPEAKER_00: It's kind of what you're after.
• 26:11
  SPEAKER_00: I'm sure you could put it better than I can,
• 26:13
  SPEAKER_00: but is it at the heart of,
• 26:15
  SPEAKER_00: I was going to say,
• 26:17
  SPEAKER_00: is it at the heart of a free society?
• 26:22
  SPEAKER_00: What say you?
• 26:24
  So we need to define it on the I think the clearest conception
• 26:30
  of the rule of law.
• 26:32
  SPEAKER_01: It doesn't mean democracy.
• 26:34
  SPEAKER_01: It doesn't mean free markets.
• 26:36
  SPEAKER_01: It doesn't mean inequality.
• 26:39
  SPEAKER_01: It doesn't mean equality.
• 26:42
  SPEAKER_01: It means instead the following.
• 26:45
  SPEAKER_01: The rules have to be prospective rather than retroactive.
• 26:49
  SPEAKER_00: And the rules could be bad.
• 26:50
  SPEAKER_00: And you said, you know,
• 26:52
  SPEAKER_01: Terrible, but they have to be rules.
• 26:55
  SPEAKER_01: So the rules have to be general and they have to be clear.
• 27:01
  SPEAKER_01: Rules can't change so rapidly that people can't know what they are.
• 27:06
  The rules have to operate on the books in the same way they
• 27:10
  operate in the world.
• 27:12
  So it can't be that the authorities have their own rule book
• 27:16
  and the rest of us are
• 27:17
  SPEAKER_01: seeing a very different rule book.
• 27:20
  SPEAKER_01: The rule of law requires due process,
• 27:22
  SPEAKER_01: meaning a right to hearings,
• 27:25
  SPEAKER_01: so we can test the question whether the rules have been obeyed.
• 27:29
  SPEAKER_01: And the rule of law requires a separation between the judiciary,
• 27:34
  SPEAKER_01: which decides on a trial,
• 27:37
  SPEAKER_01: and the lawmaker and the law executor on the other hand.
• 27:42
  So there's a separation between the adjudicative officials and
• 27:46
  the others.
• 27:47
  And I've listed five or six of what are maybe seven or eight
• 27:52
  identifiable features
• 27:54
  SPEAKER_01: of the rule of law.
• 27:55
  SPEAKER_01: And they're not everything.
• 27:57
  So you could have a society in which the rule is no one may
• 28:02
  have more than a penny
• 28:03
  SPEAKER_01: more than anyone else.
• 28:05
  SPEAKER_01: I think that's terrible.
• 28:07
  I was thinking my mind went to black children can't go to
• 28:14
  school with white children.
• 28:15
  SPEAKER_00: That's the law.
• 28:17
  SPEAKER_01: Right.
• 28:17
  SPEAKER_00: So you have the rule of law,
• 28:19
  SPEAKER_00: bad law,
• 28:19
  SPEAKER_00: but it sounds like the rule of law is not the ballgame,
• 28:24
  SPEAKER_00: but a component of it.
• 28:25
  SPEAKER_01: It is a ballgame.
• 28:28
  SPEAKER_01: So if you have a segregation law,
• 28:31
  SPEAKER_01: that violates an equal protection principle,
• 28:34
  SPEAKER_01: which is,
• 28:35
  SPEAKER_01: in my view,
• 28:35
  SPEAKER_01: which is separate from the rule of law.
• 28:38
  SPEAKER_01: And we had,
• 28:40
  SPEAKER_01: in our country,
• 28:41
  the rule of law in the sense that I'm describing it in a time
• 28:46
  of atrocity,
• 28:48
  SPEAKER_01: which was racial segregation.
• 28:50
  SPEAKER_01: And we could have the rule of law in a time of
• 28:54
  SPEAKER_01: let's say,
• 28:57
  rampant inequality or what I would consider excessive
• 29:01
  insistence on economic
• 29:03
  SPEAKER_01: equality.
• 29:04
  SPEAKER_01: So and here in describing what the rule of law is,
• 29:08
  I'm not being original that the leading conceptions of the rule
• 29:13
  of law are in the
• 29:16
  SPEAKER_01: general domain I'm describing.
• 29:18
  SPEAKER_01: So there are many good things.
• 29:20
  SPEAKER_01: Freedom of speech is,
• 29:22
  SPEAKER_01: you know,
• 29:23
  SPEAKER_01: bedrock and self-government,
• 29:25
  SPEAKER_01: I say,
• 29:25
  SPEAKER_01: is bedrock,
• 29:27
  SPEAKER_01: but they are just different from the rule of law.
• 29:29
  So the rule of law,
• 29:31
  you put it very well,
• 29:32
  is not the rule of good law,
• 29:33
  but
• 29:34
  But the limited rule of law that we're talking about,
• 29:38
  it is foundational.
• 29:40
  SPEAKER_01: So, you know, basketball isn't the ball game, but it's a ball game.
• 29:45
  SPEAKER_01: And the same is true of football and football.
• 29:49
  SPEAKER_01: Even my little sport, squash, which is like tennis with a little box.
• 29:56
  SPEAKER_00: Let me just intervene here.
• 29:58
  SPEAKER_00: And you don't get to be modest, OK?
• 30:01
  SPEAKER_00: Since I'm the dictator of the show, I'm ruling out modesty.
• 30:04
  SPEAKER_00: You're not just a squash player.
• 30:06
  SPEAKER_00: You're a big deal in squash.
• 30:08
  SPEAKER_00: Are you a professional or a top amateur?
• 30:12
  SPEAKER_01: Well, I'd say I'm an avid squash player.
• 30:18
  I've played in professional tournaments,
• 30:20
  but haven't done particularly well in them.
• 30:23
  SPEAKER_01: So I consider myself an enthusiastic and not incompetent.
• 30:29
  There's a lot more to it,
• 30:30
  ladies and gentlemen,
• 30:31
  but okay,
• 30:32
  that's very good.
• 30:33
  SPEAKER_00: I'm going to read the title of another book of yours again.
• 30:39
  SPEAKER_00: Separation of powers, how to preserve liberty in troubled times.
• 30:44
  SPEAKER_00: After a Supreme Court ruling not long ago,
• 30:47
  SPEAKER_00: I think it was about tariffs,
• 30:49
  SPEAKER_00: it just occurred,
• 30:50
  SPEAKER_00: I think I wrote,
• 30:51
  SPEAKER_00: Vive Montesquieu,
• 30:53
  SPEAKER_00: you know,
• 30:53
  because all I know about Montesquieu is that he was high on
• 30:57
  separation of powers,
• 30:58
  SPEAKER_00: and so am I,
• 30:58
  SPEAKER_00: and the idea of an independent judiciary
• 31:02
  other branches too but it's just let me ask you an historical
• 31:05
  question if I may is
• 31:07
  separation of powers relatively rare in history yeah definitely
• 31:13
  so if you look at
• 31:14
  SPEAKER_01: governments over the course of uh
• 31:18
  SPEAKER_01: Our species existence, the majority have not been separation of powers.
• 31:23
  SPEAKER_01: And if you look around the world, it'd be interesting to count.
• 31:27
  SPEAKER_01: But we have lots of governments,
• 31:30
  SPEAKER_01: including in China and Russia,
• 31:31
  SPEAKER_01: where separation of powers isn't living large.
• 31:35
  Is the opposite what's known as a unitary government or is that
• 31:39
  something else?
• 31:40
  Well,
• 31:41
  unitary could be defined as the opposite,
• 31:43
  or it could mean any number of things.
• 31:45
  SPEAKER_01: Okay.
• 31:46
  SPEAKER_00: Nevermind.
• 31:47
  SPEAKER_01: What if you have,
• 31:49
  SPEAKER_01: I mean,
• 31:50
  what Madison saw was that the legislative authority and the
• 31:55
  executive authority are
• 31:56
  SPEAKER_01: split.
• 31:57
  SPEAKER_01: So enforcement of the law,
• 31:59
  SPEAKER_01: article two,
• 32:00
  section one of the constitution is done by a different set of
• 32:03
  actors from,
• 32:04
  SPEAKER_01: uh,
• 32:06
  SPEAKER_01: enactment of the law,
• 32:07
  SPEAKER_01: Article 1,
• 32:08
  SPEAKER_01: Section 1,
• 32:09
  SPEAKER_01: and adjudication is separated from those two as well.
• 32:14
  SPEAKER_01: So what the separation of powers actually is, is a they, not a knit.
• 32:20
  It's separations of powers,
• 32:21
  not separation of powers,
• 32:23
  and there are six of them.
• 32:25
  SPEAKER_01: So to just give a couple of examples,
• 32:27
  SPEAKER_01: the legislature doesn't have and can't exercise judicial authority.
• 32:32
  SPEAKER_01: The executive doesn't have and can't exercise executive authority.
• 32:37
  The judicial authority doesn't have and can't exercise
• 32:41
  legislative and executive authority.
• 32:42
  SPEAKER_01: I think that's approximately six.
• 32:45
  SPEAKER_01: And each of them is precious.
• 32:49
  SPEAKER_00: I was involved in a little squabble not long ago.
• 32:52
  In fact,
• 32:53
  it was on a panel during a conference of the Society for the
• 32:56
  Rule of Law.
• 32:58
  And some people were bemoaning the weakening of separation of
• 33:01
  powers in our country.
• 33:03
  SPEAKER_00: And I thought, well,
• 33:06
  SPEAKER_00: I think the system is functioning.
• 33:08
  It's just that you have a majority and the voters have placed a
• 33:12
  majority in the
• 33:13
  SPEAKER_00: U.S.
• 33:13
  SPEAKER_00: House and a majority in the U.S.
• 33:15
  SPEAKER_00: Senate.
• 33:16
  These majorities are Republican and they want not to confront
• 33:19
  the executive.
• 33:20
  SPEAKER_00: They want not to depart.
• 33:23
  I think that the contemporary term is no daylight between
• 33:26
  themselves and the Trump
• 33:28
  SPEAKER_00: administration.
• 33:30
  SPEAKER_00: And I said, I think some other people didn't like this much.
• 33:33
  SPEAKER_00: The voters did this.
• 33:35
  SPEAKER_00: And if they don't like it, they'll have to undo it.
• 33:40
  SPEAKER_00: Speak about this.
• 33:42
  SPEAKER_00: I was being slightly cheeky.
• 33:43
  SPEAKER_00: I knew what they meant.
• 33:45
  SPEAKER_00: They wanted a more independent or tough minded Congress.
• 33:50
  SPEAKER_00: But the voters all put them there.
• 33:52
  And so these fellows,
• 33:53
  these legislators have made their choice,
• 33:56
  at least for now.
• 33:58
  SPEAKER_01: OK, so when I worked for President Obama,
• 34:02
  There were a number of things that the Obama administration was
• 34:05
  interested in
• 34:06
  considering that we knew the Democratic legislators wouldn't
• 34:12
  like because they were
• 34:14
  SPEAKER_01: protective of Congress's prerogatives.
• 34:18
  SPEAKER_01: So there were some things that the Obama administration,
• 34:21
  SPEAKER_01: or at least some people there,
• 34:22
  SPEAKER_01: were considering that
• 34:23
  that they backed off from because they thought the Democrats
• 34:26
  will be very up in
• 34:28
  SPEAKER_01: arms about this,
• 34:30
  SPEAKER_01: not because they disagree,
• 34:32
  SPEAKER_01: but because they are protective of the legislature's prerogatives.
• 34:37
  SPEAKER_01: So I lived that.
• 34:39
  SPEAKER_01: And the idea was, and I saw this under Reagan too, that
• 34:46
  a Republican president might find Republican legislators not on
• 34:52
  board because they
• 34:53
  SPEAKER_01: wanted to protect their own institution.
• 34:56
  SPEAKER_01: And that was true under Obama also.
• 34:59
  SPEAKER_01: It's much less true now.
• 35:00
  SPEAKER_01: It seems much less true under the current president and his predecessor,
• 35:07
  SPEAKER_01: where members of Congress are more,
• 35:10
  SPEAKER_01: as you say,
• 35:12
  SPEAKER_01: protective of their president than of their own institution.
• 35:17
  SPEAKER_00: The Speaker of the House,
• 35:20
  SPEAKER_00: Johnson,
• 35:21
  he acts sort of like a White House staffer rather than the
• 35:24
  holder of this august
• 35:26
  SPEAKER_00: position Speaker of the House.
• 35:27
  SPEAKER_00: I mean, I'm so old.
• 35:29
  I remember Carl Albert and,
• 35:30
  you know,
• 35:31
  and and they were important figures in their own right.
• 35:35
  SPEAKER_00: This fellow seems more like a staffer.
• 35:37
  SPEAKER_00: But of course, he was elected by his fellow members of the majority.
• 35:41
  SPEAKER_01: Yeah.
• 35:41
  SPEAKER_01: So I think we're onto something important,
• 35:44
  SPEAKER_01: which is that in the last X years,
• 35:47
  SPEAKER_01: and we can figure out what X is,
• 35:49
  legislators have been more protective of their own party's
• 35:56
  president than of their
• 35:58
  SPEAKER_01: own institution.
• 36:00
  SPEAKER_01: So separation of and the framers didn't anticipate this.
• 36:03
  SPEAKER_00: So I'm a Republican first and a congressman second,
• 36:06
  SPEAKER_00: or I'm a Democrat first and a congressman second.
• 36:09
  SPEAKER_01: Exactly.
• 36:10
  And that defies an expectation the founders had where the
• 36:14
  branches would be
• 36:16
  SPEAKER_01: fiercely concerned with the authority of their own institution.
• 36:20
  SPEAKER_01: And if Congress,
• 36:21
  SPEAKER_01: let's say,
• 36:22
  Democratic members are thinking Biden's the president were for
• 36:26
  what he wants,
• 36:28
  SPEAKER_01: then they won't be focused on their own institution.
• 36:31
  SPEAKER_01: And something in the separation of powers dies a little bit.
• 36:37
  SPEAKER_01: So that's a completely fair topic of discussion.
• 36:42
  And the founders hoped that freedom and independence would be
• 36:49
  guaranteed or at
• 36:50
  SPEAKER_01: least more likely to be respected because of institutional jealousy.
• 36:55
  SPEAKER_01: And there's much less institutional jealousy.
• 36:58
  SPEAKER_01: That's fair and real.
• 37:02
  SPEAKER_01: And how to get it back is a very nice question.
• 37:05
  SPEAKER_00: Hmm.
• 37:07
  SPEAKER_00: Well, Cass, a bit ago I mentioned David French.
• 37:12
  SPEAKER_00: My old friend,
• 37:13
  SPEAKER_00: I believe a friend of yours,
• 37:16
  SPEAKER_00: he wrote a book called Divided We Fall about the disuniting of America.
• 37:22
  SPEAKER_00: That's another,
• 37:23
  SPEAKER_00: that's an Arthur Schlesinger Jr.
• 37:24
  SPEAKER_00: book,
• 37:25
  SPEAKER_00: The Disuniting of America,
• 37:26
  SPEAKER_00: marvelous book.
• 37:28
  SPEAKER_00: But David's is called Divided We Fall.
• 37:30
  SPEAKER_00: It's basically about polarization in our times.
• 37:34
  SPEAKER_00: And he did something
• 37:36
  SPEAKER_00: In that book, he does something remarkable for an author.
• 37:39
  SPEAKER_00: You should be jealous for your own book.
• 37:41
  SPEAKER_00: He says,
• 37:42
  SPEAKER_00: if you remember nothing else in this book,
• 37:44
  SPEAKER_00: forget everything I've written,
• 37:45
  SPEAKER_00: but remember Sunstein.
• 37:47
  He says,
• 37:48
  if you forget everything else,
• 37:50
  he says,
• 37:50
  I want you to remember this.
• 37:51
  SPEAKER_00: I've got it written down.
• 37:54
  SPEAKER_00: This is from my review.
• 37:56
  SPEAKER_00: What is this blockbuster piece of writing?
• 37:58
  SPEAKER_00: Published in 1999, it's The Law of Group Polarization.
• 38:03
  SPEAKER_00: Cass Unseen, blah, blah, blah.
• 38:04
  SPEAKER_00: What is its point?
• 38:05
  SPEAKER_00: French boils it down to these simple words.
• 38:08
  SPEAKER_00: Feel free to contradict them.
• 38:11
  SPEAKER_00: When people of like mind gather, they tend to become more extreme.
• 38:16
  SPEAKER_00: Then say I...
• 38:17
  SPEAKER_00: This extreme,
• 38:18
  SPEAKER_00: and I think he says,
• 38:20
  SPEAKER_00: but these are my words,
• 38:21
  SPEAKER_00: this extremism can lead to nasty words on social media,
• 38:24
  SPEAKER_00: sure.
• 38:25
  SPEAKER_00: It can also lead to a lot more.
• 38:29
  SPEAKER_00: I guess I'm thinking of violence.
• 38:33
  SPEAKER_00: Is that a fair summation of the law of group polarization?
• 38:39
  SPEAKER_00: The more I'm with people who think like me, the more extreme I get.
• 38:42
  Yeah,
• 38:43
  so I greatly admire David French and I'm very grateful to him
• 38:47
  for the kind words.
• 38:49
  This was a discovery of mine in the 1990s where we studied jury
• 38:55
  behavior and we
• 38:56
  SPEAKER_01: found that juries whose members were outraged by corporate misconduct
• 39:01
  SPEAKER_01: tended to be more outraged as groups than as individuals.
• 39:05
  So a group of jurors would be more punitive and more mad than
• 39:10
  the median member.
• 39:11
  SPEAKER_01: In fact, in a lot of cases, the jury would be more outraged
• 39:16
  SPEAKER_01: than the most outraged individual before they started to talk.
• 39:20
  So I did that study with collaborators and was startled by the
• 39:24
  finding and
• 39:25
  discovered that groups typically end up more extreme than their
• 39:30
  median member.
• 39:31
  And then I embarked on a multi-year research project in which
• 39:35
  we found that
• 39:37
  SPEAKER_01: conservatives and liberals in Colorado,
• 39:41
  SPEAKER_01: liberals,
• 39:41
  SPEAKER_01: not a liberal tradition,
• 39:42
  SPEAKER_01: left of center people.
• 39:44
  If you get a bunch of left of center people together to talk
• 39:47
  about climate change
• 39:48
  SPEAKER_01: or affirmative action,
• 39:49
  SPEAKER_01: they end up becoming more extreme,
• 39:52
  SPEAKER_01: more unified and more confident after they talk.
• 39:55
  So the median left of center person will want a treaty to
• 39:59
  control climate change.
• 40:01
  SPEAKER_01: But after they talk, they love a treaty and they all do.
• 40:06
  SPEAKER_01: So it squelches internal disagreement and promotes extremism.
• 40:09
  SPEAKER_01: People on the right will be mixed on affirmative action policies.
• 40:13
  SPEAKER_01: On average, they won't like affirmative action so much.
• 40:16
  But after they talk to each other,
• 40:17
  they really,
• 40:18
  really don't like affirmative action policies.
• 40:21
  SPEAKER_01: And it's in its uniform.
• 40:23
  SPEAKER_01: They're basically in complete accord.
• 40:26
  SPEAKER_01: So internal disagreement is squelched by group deliberation.
• 40:32
  SPEAKER_01: Extremism is promoted and confidence is increased.
• 40:35
  SPEAKER_01: And everywhere we look, basically, we find that.
• 40:39
  SPEAKER_01: And this is happening all over Europe and the United States,
• 40:44
  where if you get a group of people who are left of center
• 40:48
  talking about some issue,
• 40:51
  SPEAKER_01: maybe it's in the environment,
• 40:54
  SPEAKER_01: they end up going far left.
• 40:56
  SPEAKER_01: There's nothing...
• 40:57
  wrong with them maybe it's great to go far left but let's just
• 41:00
  bracket that it's
• 41:01
  because of how they interact with each other and this is also
• 41:05
  true on the right and
• 41:06
  we see it all over the world and we see it on social media
• 41:11
  where people engaged in
• 41:12
  conversation with like-minded others end up becoming more
• 41:15
  confident more unified
• 41:17
  and more extreme and potentially violent and you know they get
• 41:22
  they start to see
• 41:24
  SPEAKER_01: the other side as
• 41:26
  SPEAKER_01: you know, evil or, you know, unbelievably foolish.
• 41:30
  SPEAKER_01: Whereas if they just talk to them sympathetically,
• 41:33
  SPEAKER_01: they'd think,
• 41:34
  SPEAKER_01: well,
• 41:34
  SPEAKER_01: they're quite like me,
• 41:36
  SPEAKER_01: they're wrong,
• 41:37
  SPEAKER_01: but they have,
• 41:39
  SPEAKER_01: you know,
• 41:39
  two arms and two legs and they smile sometimes and they seem to
• 41:44
  like their
• 41:44
  SPEAKER_01: families.
• 41:45
  SPEAKER_01: So it's not that bad.
• 41:48
  SPEAKER_00: Cass, you've reminded me of something, and you may think this is
• 41:52
  far afield and listeners might,
• 41:55
  but you remind me of something I heard Sayeb Erakat say.
• 42:00
  SPEAKER_00: I can't remember whether he's still with us.
• 42:02
  SPEAKER_00: He was for a long time the chief PLO negotiator.
• 42:07
  SPEAKER_00: And I, not my cup of tea, needless to say.
• 42:10
  SPEAKER_00: And I heard him say something, believe it or not, moving
• 42:15
  SPEAKER_00: More than one thing, actually.
• 42:17
  SPEAKER_00: He said that when he talks to Palestinians in groups,
• 42:20
  SPEAKER_00: his fellow Palestinians,
• 42:21
  SPEAKER_00: they say,
• 42:22
  SPEAKER_00: damn,
• 42:22
  SPEAKER_00: Israel,
• 42:23
  SPEAKER_00: we need to drive them into the sea.
• 42:25
  SPEAKER_00: All of Palestine is ours.
• 42:27
  SPEAKER_00: He said,
• 42:28
  SPEAKER_00: individually,
• 42:29
  SPEAKER_00: he said,
• 42:29
  SPEAKER_00: they'd scurry up to him and say,
• 42:31
  SPEAKER_00: Dr.
• 42:31
  SPEAKER_00: Erekat,
• 42:32
  SPEAKER_00: I'm so sick of this crap.
• 42:33
  SPEAKER_00: Can't you bring us peace?
• 42:34
  SPEAKER_00: Can't you do something about this?
• 42:36
  SPEAKER_00: I'm just so sick of living this way.
• 42:37
  SPEAKER_00: But he said, never in a group.
• 42:39
  SPEAKER_00: They'd never say it in a group.
• 42:41
  I was rather moved,
• 42:42
  but that was many years ago in the aughts,
• 42:44
  I think,
• 42:44
  I heard him say this.
• 42:46
  SPEAKER_01: That's fantastic.
• 42:48
  SPEAKER_01: Speaking of squash, I'm due on the court.
• 42:50
  SPEAKER_00: All right.
• 42:52
  SPEAKER_00: Well, listen, Cass Sunstein, we'll have to end on Sayab Erekat.
• 42:55
  SPEAKER_00: How about that?
• 42:56
  SPEAKER_01: Yeah.
• 42:57
  SPEAKER_01: Thank you so much.
• 42:58
  SPEAKER_00: Thank you.
• 43:00
  SPEAKER_00: All the best to you and see you again.
• 43:02
  SPEAKER_01: I hope so.
• 43:03
  SPEAKER_01: Soon, I hope.
• 43:04
  SPEAKER_01: Thank you so much.
• 43:05
  SPEAKER_01: Bye-bye.