Note: This post originally appeared on September 11, 2011 on Ius Honorarium, the predecessor web-log to the first Opus Publicum, where I mostly wrote about law and politics. I am posting it here as an example of how my thinking on liberalism generally and libertarianism specifically “evolved.” Given what I have written over the past few years, some of you may find this amusing — particularly my opening line about moving past the old days of watching hours of international professional wrestling.
The topography of American libertarianism (is there any other?) never used to be of any interest to me, but then again, there used to be a time in my life where all I would do is read biographies of Civil War generals and watch hours upon hours of Japanese and Mexican pro-wrestling from the tape-trading network I was a part of. In other words, things change.
In the realm of legal studies, the most common divide within libertarianism is between so-called “rights-based libertarians” (e.g., Randy Barnett) and “consequentialist libertarians” (e.g., Richard Epstein). On most things legal, they come out the same way. Both camps, for instance, reject “Obamacare”; both support a massive reduction in government spending, including entitlement programs (though they often disagree on which ones); and both are sympathetic, more or less, to things like states’ rights, free markets, civil unions for homosexuals, and a robust interpretation of the Second Amendment. The disagreements are really at the margins. Some rights-based libertarians will argue that laws like the Sherman Act should be repealed because they unduly interfere with property and contract rights, while consequentialist libertarians, relying on neoclassical (Chicago School) economics, will argue that cartels are a drag on economic productivity and should therefore be prohibited. Intellectually, rights-based libertarians still, for the most part, hold to a thick conception of natural rights as understood by the Framers of the Constitution. Some are, surprisingly, well-read within this tradition and can work through the common juridical and philosophical objections, whereas most, it seems, just accept the Founding generation’s notion of rights as cemented positive law. Consequentialists couldn’t care less about the metaphysical status of such rights; they’re more interested in demonstrating the utility of those rights and discarding them when they appear to contradict the findings of, say, neoclassical economics. Some, like Epstein, have provocatively (though, it seems, unconvincingly) argued that there is substantial overlap between the two approaches.
Outside of the legal field, libertarianism has fractured into a series of camps which appear to borrow from both the rights-based and consequentialist traditions. Many of these camps will discard some elements and embrace others, though not necessarily in principled fashion. A growing segment of the American population, it seems, are quite willing to take the general framework of libertarianism, with its emphasis on small government, localism, and economic freedom, and fuse it with what might loosely be called the “social morality” of America’s faith-based populations. There are dozens, if not hundreds, of exceptions and caveats; the key point, though, is that there is a growing belief that libertarianism or some strand of it holds the key to opening the door which leads out of our present woes.
Of course, I am skeptical that this is true, mainly since the most vocal libertarian or quasi-libertarian “movement” in the U.S., the so-called “Tea Party,” has been effectively captured by the mainline Republican Party. More importantly, this sort of quasi-libertarianism lacks a comprehensive vision of political, social, economic, and legal reform which would be necessary to consummate substantive change to American governance. Occasional and opportune slashes to the federal budget, for instance, won’t do much of anything to turn the economy around. Similarly, the banner of “Small Government” cannot be convincingly waved by those who would see the U.S. continue its military operations in Afghanistan, Iraq, and Libya. Opposing “Obamacare” is fine and dandy, but unless it comes attached to meaningful regulatory reform of the health care industry, then we will continue to suffer through a so-called “health care crisis” and millions of Americans will continue to be denied adequate coverage and access to low-cost (but not necessarily low-quality) health care services. In short, half-measures are not the answer, but half-measures are the best anyone with any chance of being elected is offering up.
Personally, I don’t believe libertarianism is the answer, though I think it holds more possibilities for resolving some serious internal problems than anything else which is currently on the table. One of the critical problems with “orthodox” libertarianism is its inflexibility. Rights-based libertarianism is especially insensitive to the need for pragmatic responses to shifting conditions. No responsible government, for example, should endorse the thick conception of civil rights many rights-based libertarians support if the U.S. suffers another terrorist attack or is under a plausible terrorist threat. Government-funded social welfare programs should not, in an economically prosperous society, be ruled “off limits.” Rather, they should be managed at the local level and be accompanied with meaningful programs to transition their dependents back into the workforce. Consequentalists are easier to convince, particularly those which are willing to accept that the social calculus must include more than just wealth production. Consequentalists tend to be skeptics, though. They will argue strongly for programs which are believed, on the basis of economic theory, likely to grow the social pie, but are inclined to back off (in most circumstances) from arguments for outlawing homosexual civil unions (or marriage) on the grounds that they will disrupt the moral fabric of society.
Some people appear mystified that conservatives, including conservative Catholics, endorse libertarian positions. Their concern, I think, is that libertarianism is tantamount to amoralism and that its policies come without concern for those who are least-off in society. Perhaps this is because most people assume that libertarians are rights-based, that is, they hold their positions in blissful ignorance of the consequences. I do not think that is correct. Most libertarians, particularly those who are religious, have a consequentalist streak. They believe, rightly or wrongly, that libertarian policies which yield results which align (roughly?) with Christian morality. For example, parents will be able to educate their children as they wish and libertarian policies, which will allegedly roll back “crony capitalism,” will lead to more jobs and more social prosperity. “Freedom,” broadly understood, becomes key to this acceptance. Other moral concepts, which may or may not be Christian, such as “personal responsibility” and “hard work” are also intertwined in this acceptance of libertarianism. Whether or not they should be is another matter.
If I may interject with my own “take” on all of this, it seems to me that the attraction of libertarianism (even qualified libertarianism) amongst conservative Christians boils down to a fear, legitimate or not, that the power of the state has reached a disturbing high, but more critically, it has only been able to do this by acting as a parasite on society’s overall welfare. In other words, the modern (administrative) state is a bridge too far. The faith the “Greatest Generation” held in the power of centralized government to rectify the dangers embedded in capitalism and ensure social mobility and prosperity has evaporated. But this is not a new development. Few on the Left will admit it today, but the first thrust for deregulation of industry in the U.S. came about through a convergence of Right and Left ideological forces: neither trusted the government; both endorsed the view that regulation served powerful special interests; and out of this consensus came a snowball of deregulation which, in the post-2008 world, we can fairly say “got out of hand.” But the other spin is that it didn’t get so much “out of hand” as “out of line.” Deregulation, unsurprisingly, really became a codeword for “regulatory reform”; special interests would continue to receive favors, only under other guises.
I doubt very much that libertarianism stricto senso provides the road out of our current malaise, though I still believe it provides a useful shelter for those of us who are genuinely concerned that as the power of the modern state grows, so too does the power of powerful interests which have no interest in any prosperity but their own. The great error of the contemporary Left is that it believes that its usual array of hobgoblins, from the multinational corporation to the billionaire entrepreneur, abide due to an absence of government power to check their deeds. If the libertarian argument has any worthy insight, it is this: without the modern state, the current iteration of the capitalist system could not survive. Ayn Rand may be the darling of a certain segment of libertarians, but her orgasmic laudation of the super-industrialist who stands tall on the rubble of his competitors should strike the rest as perverse and revolting. The Randian capitalist kings maintain their thrones through state power, not entrepreneurial ingenuity.
With that said, I will be spending the next several weeks oscillating between posts on Carl Schmitt and, broadly speaking, Catholic political thought. I “owe” a few more words on the legal profession as well. I think, in the interest of fairness and to get the upcoming “theme” oriented properly, I might close this post with a superficially inapt quote from Schmitt. It happens to be among my favorites from his corpus and the one which aligns, in a somewhat oblique manner, with where I come down on more than a few things.
Like everything that has a bad conscience this age reveled in discussing its problematic character until the twinges of conscience ceased and it could feel better since such reasoning was at least interesting. This age has characterized itself as the capitalistic, mechanistic, relativistic age, as the age of transport, of technology, of organization. Indeed, “business” does seem to be its trademark, business as the superbly functioning means to some pathetic and senseless end, the universal priority of the means over the end, business which annihilates the individual such that he does not even feel his nullification and who thereby does not rely on an idea but at most on a few banalities and always only asserts that everything must go smoothly and without needless friction. The achievement of vast, material wealth, which arose from the general preoccupations with means and calculations, was strange. Men have become poor devils; “they know everything and believe nothing.” They are interested in everything and are enthusiastic about nothing. They understand everything; their scholars register in history, in nature, in men’s own souls. They are judges of character, psychologists, and sociologists, and in the end they write a sociology of sociology. Wherever something does not go completely smoothly, an astute and deft analysis or a purposive organization is able to remedy the incommodity. Even the poor of this age, the wretched multitude, which is nothing but “a shadow that hobbles off to work,” millions who yearn for freedom, prove themselves to be children of this spirit, which reduces everything to a formula of its consciousness and admits of no mysteries and no exuberance of the soul. They wanted heaven on earth, heaven as the result of trade and industry, a heaven that is really supposed to be here on earth, in Berlin, Paris, or New York, a heaven in which the holy book would be a timetable. They did not want a God of love and grace; they had “made” so much that was astonishing; why should they not “make” the tower of an earthly heaven? After all, the most important and last things had already been secularized. Right had become might; loyalty, calculability; truth, generally acknowledged correctness; beauty, good taste; Christianity, a pacifist organization. A general substitution and forgery of values dominated their souls. A sublimely differentiated usefulness and harmfulness took the place of the distinction between good and evil. The confounding was horrific.
That was penned in 1916, folks.
