A Constitutional Law Scholar on How Everyday People Preserve Freedom

“Law can express values in a way that actually alters norms.”

READ ON TO DISCOVER:

  • Why smokers police their own behavior
  • What seat belts teach us about social norms
  • Which Founding Father was skeptical about the Bill of Rights

Cass R. Sunstein is the Robert Walmsley University Professor at Harvard Law School, where he is the founder and director of the Program on Behavioral Economics and Public Policy. He served in the Obama administration from 2009 to 2012, and he is the single most cited law professor in the United States. He recently joined author and Next Big Idea Club Editorial Director Panio Gianopoulos to discuss the groundbreaking insights found in his latest book, the Next Big Idea Club Finalist, How Change Happens.

This conversation has been edited and condensed.

Panio: You begin the book with two different propositions. One is that when social norms collapse, people’s real preferences are unleashed, so they feel free to say what they really think or feel about things. The other proposition is that when norms are revived, new preferences and values are constructed. So they’re not uncovering suppressed desires—they’re actually creating new ones.

I’m wondering about the relation of these two scenarios. Are they in conflict, or do they coexist?

Cass: They are two different ways that social change happens. Think of the modern environmental movement, when people developed new preferences and beliefs. People developed new values or new judgments of fact, and that has changed our country, even across ideological lines—the Clean Air Act is broadly supported.

The anti-smoking campaign is similar, where smoking was a background fact—it was just what people did—and then non-smokers developed a thought—”This is really smelly, this might be getting me sick, this is irritating”—and a new norm and new values developed.

More interesting, I think, is when people have a judgment inside their heads that they don’t reveal because they think that it’s shameful, or would get them in trouble in some way. When a new norm starts to authorize people to speak out, then we can see something amazing happen really rapidly. The big current example involves sexual violence and sexual harassment, where women and men, though mostly women, had experiences that they weren’t speaking out about. Once the norm shifted such that it became acceptable or even desirable to say, “This happened to me,” then we saw a lot of change.

lucia-498264-unsplash

And while the Me Too movement is pretty recent, it’s building on a legal category, sexual harassment, which is also really recent. Sexual harassment as a practice isn’t new, but the term that legitimated a complaint is new, and the legitimation of the complaint unleashed an avalanche of concern. And that has reduced the likelihood that bad things will happen in the future.

Panio: How does this radical shift happen so suddenly?

Cass: It happens suddenly if prominent people—like singers, actresses, or activists—speak out, and thus give license to people who silence themselves. Martin Luther King was a norm entrepreneur. He was very entrepreneurial with changing norms—first an instrumental norm, civil disobedience, which was in the interest of a big social norm, which involved steps toward racial equality.

[Sudden change can also happen] if people speak out because they see a lot of other people speaking out. It’s a little like a movie opening, where everybody is going partly because they see everyone [else] going. Social media, or a neighborhood, or a workplace can allow for that coordination.

Panio: It seems like there is increased anti-immigration sentiment suddenly being voiced in the United States, which is ostensibly a country of immigrants. I’m wondering how [that happened].

Cass: It’s a great question. One view that some historians have about Nazism is that there was a lot of suppressed anti-Semitism in Germany in the ’20s and ’30s, and Hitler unleashed it by making it legitimate. [Personally,] I think that’s too simple—I think Nazism was the development of a new norm, much more than it was the unleashing of a suppressed preference.

The immigration issue is politically contested, but there are some things that I hope are not politically contested, which are racial hatred and religious hatred. There are people who have animosity against people of different religions or different skin colors, and because of social norms, they’re quiet about that. In many cases they feel ashamed about it—they think that most people don’t [share that animosity], and if most people think they’re wrong, then they better shut up.

“In a free society, we should have a presumption, I think, in favor of people feeling licensed to communicate what they believe, even if that thing is awful to most of us.”

Allowing people to say what’s in their head can be a great thing, or it can be a bad thing. In a free society, we should have a presumption, I think, in favor of people feeling licensed to communicate what they believe, even if that thing is awful to most of us. It’s a problem to have people just in their own heads feeling that stuff—maybe they’ll turn violent, or form a conspiracy. But if they’re allowed to say it, then ideally, they’ll be subject to a discussion in which what’s hateful will be exposed as hateful.

Panio: It’s a really interesting question about whether the expression of an uncharitable sentiment strengthens the person’s conviction, or that [gets it out of their system].

Cass: Yes. If you get a group of like-minded people together—it may happen online, at work, in the neighborhood—they end up thinking a more extreme version of what they thought before. So you get a group of people who think that, say, the United States is a terrible country, and let’s suppose the people are in a country that doesn’t wish America very well. After they talk to each other, they’ll end up thinking the United States is actually a horrific country, and something ought to be done to punish the United States. Terrorism is often bred in this way.

But that process of radicalization can also produce extremely desirable change. People who are disabled and struggling, or people with mental health problems who are in despair, can create a support network if they’re able to talk to each other. They can mobilize for help, [whether that be] medical help, political help, or resources. They become more confident.

I think in general, a free society creates enclaves, spaces in which people can talk to one another about shared grievances and concerns. And while there is a not-very-good side to this, which is rage, there is also a terrific side to this, which is openness to new possibilities.

Panio: That makes me think of social media, which seems to help people with similar views congregate, and then amplifies that effect to create an echo chamber.

Cass: One of the things that I think is both extraordinary and troubling is the ease with which social media can unleash hidden preferences and experiences, and also develop new norms that can move groups, cities, and sometimes nations very rapidly in new directions. Revolutions like the Arab Spring are made more feasible by social media, where on Facebook or Twitter, you can create a group of people who otherwise wouldn’t encounter each other. They might think that something like animal welfare is extremely important, and that we should all do something about it. Or they might think something that isn’t so wonderful, like [in the cases] where some [radical] religious group needs to be forbidden.

“We have every reason for optimism, but we can’t just hope that it will happen—we have to make it happen.”

Panio: I’m curious to get your opinion on changing laws, because you talk about how laws change norms. I often think of it in reverse, where people’s opinions change, and then eventually that gets legislated. Take, for example, increasing approval for gay marriage, which then got legally supported.

Cass: Yes, there are intriguing interactions here. You’re completely right that people think, “I want cleaner air,” and then they get a Clean Air Act in their state, and eventually we get a Clean Air Act in the United States. Or people are concerned about illegal immigration—or even legal immigration—and then you’ll get restrictions on that through law. It sometimes is bottom-up: citizenry, and then law.

But sometimes it’s top-down: law, and then citizenry. Law can express values in a way that actually alters norms. The law isn’t going to come in a democratic society without some support, but once it comes, everything can go whoosh.

I’ll give you a couple of examples. The requirement through law that people buckle their seat belts has actually changed the norm so that people buckle their seat belts naturally. That’s just what you do, and if you don’t, your car might go beep, beep, beep, which isn’t law—it’s a [feature added by a private company].

Another example is cigarette smoking, where some of the restrictions on smoking in public places—in fact most of them—don’t have a law at all in the sense of enforcement. But they do depend on law in the sense that once the law was in place, then the norm followed. People think, “You don’t smoke inside a building. That’s not [a good idea.]” The law actually helped generate that norm.

Which goes back to sexual harassment, and many of our equality principles. The law actually preceded many changes in norms—there had to be some support for the anti-discrimination principles before they became law, but once they became law, they had a cultural effect. When you go back to the Constitution’s founding, there was a great debate between Thomas Jefferson and James Madison in which Jefferson said, “You need a Bill of Rights, so that the courts can protect those rights.” Madison was [initially] skeptical of that. In the end he was a principal author of the Bill of Rights, but he was actually a late-comer to the idea—it was something that he rejected for a long time. Madison’s argument was, “I don’t know if I agree with you about the courts, but I think if we write [these rights] down, they’re going to permeate our culture. Then eventually, over the course of generations, we will have a cultural commitment to freedom of speech, freedom of religion, and so forth.”

claire-anderson-60670-unsplash

On that, Madison was scarily prescient. The Bill of Rights is enforced by the courts, but it’s at least as important—probably more important—that most Americans, whatever their political convictions, think that [those rights] are part of [who we are].

Panio: Recently, New Zealand had a horrible tragedy, and then they outlawed assault rifles. Why do you think it could happen so quickly in New Zealand, and it just does not happen in the United States?

Cass: The United States has a few features that, for better or worse, make gun control more challenging. One is that there are a number of people who believe that gun control laws actually don’t save lives, and that allowing people to arm themselves can protect against violence. So in the aftermath of a tragedy, some people say, “Well, the best way to avert tragedy is to allow people to have guns.” A second fact is that there’s a very well-organized set of political actors who have sway and are opposed to gun restrictions. That is distinctive to the United States—for better or worse, it’s an important part of our political culture.

Panio: Going forward, are you optimistic about society’s ability to change?

Cass: I’m very optimistic, partly because that’s how I am by nature, but partly because if you look at the arc of history in the United States and the world, stunningly good things have happened in relatively short periods. I’ll give you one—the reduction of poverty in the world, which has been massive over a relatively short time. And that’s in part a product of changing norms, where people think that if people in other countries are starving or don’t have resources to live, then something ought to be done. What that thing should be, people disagree about—it could be direct financial help, it could be creating policies that promote economic growth through free markets, [it could be] a mix.

But the world in general is so much better now than it was when I was born in the 1950s. We have every reason for optimism, but we can’t just hope that it will happen—we have to make it happen. And the goal of the 25 years I spent on this book was to specify the means by which desirable change can be made to happen.

Ready for more big ideas like this? Join the Next Big Idea Club today!