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The Cost of Rights


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Stephen Holmes teaches political science at Princeton University and New York University Law School. Cass R. Sunstein teaches law and political science at the University of Chicago.


Perhaps no subject has dominated American discourse in the past 200 years as much as the question of rights‘what they are, who has them and under what circumstances. Holmes (Passions and Constraint), a political science professor at Princeton and NYU Law School, and Sunstein (Free Markets and Social Justice), a law professor at the University of Chicago, argue persuasively that all rights are political. That is, rights are not moral absolutes, independent of government constraints, but "public goods," funded by taxes, administered by government and subject to distributive justice. According to the authors, no right is costless. Even so-called "negative rights," such as the right to hold property free of government interference, must be supervised and maintained by tax-funded courtrooms, police and fire stations. The authors profess to be violating a "cultural taboo... against the `costing out' of rights enforcement." While interesting and well argued, the book isn't that bold. It's a reply to free-lunch liberals and to law-and-economics libertarians such as Richard Epstein and Charles Murray, who, in the authors' view, delude themselves with 18th-century "double-think" about their "immaculate independence" from the government. But Sunstein and Holmes don't really address how the rights debate has evolved. Instead of considering workfare or the myriad other ways rights have expanded and contracted in the 1990s, their book merely restates‘albeit concisely‘the old terms of the debate. (Mar.)

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