So-cons and libertarians: the inalterable divide

I've been participating in this discussion over on The Shotgun.

At issue is the degree to which libertarianism and social conservatism are compatible. At this time, I have two answers: (a) in principle, they're not compatible; (b) in practice, they're probably not compatible, under the most plausible assumptions.

Now, to be clear, I think you can be a libertarian and agree with social conservatives about certain deeper matters of morality. For example, you can think potheads and other drug-users live terrible lives.

However, to take up such a position, your deeper moral view has to meet one of two conditions:

(a) When it comes to the state, the right has to trump the good. The state should never violate rights, even if that means sacrificing a lot of value.

Or:

(b) The good cannot be achieved without the right. That is, it's impossible to make the world a better place (with respect to values) by violating peoples' rights.

These conditions are explained as follows: suppose I think potheads tend to lead objectively poor lives. A libertarian has to agree that potheads should be allowed to smoke pot (assumption.) Now, if I think potheads live poor lives -- and, worse, encourage others to live poor lives -- I might think that the law ought to prohibit people from smoking pot. In fact, a lot of social conservatives do believe this.

In principle, to block the move from "X is a poor way to live" to "The state ought to prohibit people from living that way," you have to accept either (a) or (b.) Either you have to believe that a person's right to smoke pot trumps all, including whatever value would be achieved or protected through an anti-pot law. Or you have to believe that you can't actually promote value through the violation of rights.

It's true that there are many ways to get to libertarianism as a principle of political morality. But for your moral view to lead to that principle, it has to accept either (a) or (b.)

Kantians, Objectivists, some social liberals, Lockeans, etc. all accept one or the other. Social conservatives, on the whole, do not.

Yes, you can invent a straw social conservative who does accept one or the other. But then you've given up the contention that social conservatism is, in general, compatible with libertarianism.

My friend Peter Jaworski seems to agree with me, up to a point. He's argued that while social conservatives might not accept libertarianism in principle, they might endorse it in practice.

The so-con is involved in a dangerous liaison with the state. Empower it to take Emery's pot, and it'll be powerful enough to -- to take an example that would have been absurd just 10 years ago -- force churches to perform weddings that they morally object to, or force doctors to choose between either performing abortions or not being doctors at all.

As I understand it, the argument is that so-cons who accept drug prohibition are making a bad bet. They think that they can use the power of the state to achieve certain values. But they're risking the chance that other groups will use that power against them, to diminish those values.

In order to evaluate the argument, we have to know if the bet is really as bad as it is made out to be. And I don't think it is.

Call the option of forgoing the use of the state to achieve one's values "setting aside the hammer." A person sets aside the hammer when he decides not to use the law to force people to live the way he thinks is best. The claim is that, all things considered, it is rational for social conservatives to set aside the hammer, in order to avoid the risk that the hammer will be used against them.

I'll attack the claim from two directions. First, it is only rational to set aside the hammer if you can guarantee that opposing groups will also set down the hammer. This is true even if everyone would be better off if everyone agreed to set aside the hammer. But if I set down the hammer and my ideological opponent does not, I'm in an even worse position than when we were both groping for the hammer.

Second, it is only rational to set aside the hammer if there is really some risk that my ideological opponents will get the chance to use it against me. That is by no means something we can just assume. It is not the case that every interest group has an equal chance of taking possession of the hammer. Social conservatives happen to have a pretty good handle on it right now. Atheists who wish to ban churches (are there any of those?) do not.

The general problem with this argument is that it makes sense only at the point before the hammer is invented/distributed. If we were inventing society from scratch, we might all agree to set aside the hammer permanently. But once some group has control of the hammer, there is little reason for it to set the thing aside.

While some so-cons may come to see that they're making a bad bet, we shouldn't be surprised if most of them don't. And if we, as libertarians, tell them the bet is a bad one, with no redeeming features, then we're lying.

For the fact remains, it's not necessarily a bad bet. Why should powerful factions agree to give up their power?

On Moral Justification and Political Legitimacy

I'm keen on a distinction A. John Simmons makes (can't remember where at the moment) between moral justification (i.e. of some action) and the legitimacy of an authority (i.e. political authority.) Like any thoroughgoing Lockean, Simmons accepts that we are only under a moral obligation to obey a government if we have consented to that government.

Of course, we all have pre-political obligations. We are all obligated not to intentionally kill others who themselves haven't violated any pre-political obligations. We are all obligated not to use the property of others without permission, and so on.

The question of political legitimacy is whether a government can establish other moral obligations, beyond the pre-political. If the government tells me to do X, and X is not something I'm morally required to do anyway, what conditions must be met if the government's decree is supposed to establish a new moral obligation to do X?

The typical answer here will have something to do with consent. For example, if I have previously consented to do what X tells me to do, and X tells me to do something, then I am obligated to do this. If I've consented to obey the law, then I am morally obligated to obey the law. And so on.

The problem is that most of us haven't expressly consented to obey the government in this way, and accounts of tacit consent are fairly implausible. Thus, it appears that the government lacks the authority required to establish new moral obligations. None of us is morally obligated to obey the law, except when the law forbids us from doing something our pre-political obligations forbid us from doing in the first place.

Simmons position amounts to philosophical anarchism. According to Robert Paul Wolff, what government lacks is the capacity to make binding commands of us -- commands that we would be obligated to obey over and above the pre-political moral requirements we are all subject to anyway. To the extent that a government lacks this capacity, that government is illegitimate.

I'm a philosophical anarchist in this sense. However, while I deny the legitimacy of government, I do hold that particular acts of government can be morally justified. For example, it's a good thing when the government stops one person from inflicting violence on another. It's good that some entity exists to stop people from carrying off my property.

If Superman existed and used his super strength to protect my rights, I would also think that was a good thing, even though I would deny that I had any independent reason to obey Superman's commands to respect the rights of others. To the extent that rights violations would occur without his presence, the world would be a better place with Superman in it

We have to be careful here: it might be that Superman couldn't be trusted to use his power only to defend the rights of others. He could use his power for evil as well as for good. To the extent this is so, we might prefer a world without anyone like Superman. But this would be an "all-things-considered" judgment: we would have to compare the good a Superman might do with the evil he could do, and draw our conclusions that way.

However, this would not change the fact that when Superman (or the state) upholds the rights of citizens, then Superman (and the state) is worthy of praise. But what we would not do is condemn Superman as an evil-doer (or the state as an inherently criminal enterprise) on those occasions in which Superman/the state upheld individual rights.

Now let's look at the dispute between Timothy Sandefur and Stephan Kinsella. In reference to the Civil War, Sandefur argues that "The federal government had the right and the duty to put down the Confederate rebellion." We can set aside, for the moment, Sandefur's claim that Lincoln was duty-bound (under the U.S. Constitution) to stop the South from leaving the Union. I think he's right, but that's not what's at issue here.

The issue, rather, is how we should morally evaluate the actions of the state when it stopped the Confederate rebellion. In judging whether an action is good or not, we need a certain standard. In referring to "the ultimate values of libertarian political philosophy," Sandefur thinks libertarianism does posit such a standard. As I read his argument, Sandefur thinks it was good to quash the rebellion and Kinsella thinks it was not.

As I see it, that standard is liberty. Other things being equal, it's better when people are free than when they are not. Slavery is bad; abolishing slavery made the world a better place.

In his response to Sandefur, Kinsella takes the position that

Under my libertarianism, any pro-slavery legislator in either sorry government--or even any voter who endorsed slavery--is a criminal rights violator. Just because a libertarian does not endorse the USA's unconstitutional, immoral, criminal, unlibertarian, illegal actions does not mean we condone its enemy's actions either, as is plain to anyone with a lick of sense and a drop of honesty.

Let's accept the claim that both the United States was and is engaged in the widespread violation of individual rights. Let's also accept the claim that the Confederate government would also have been engaged in violating those same rights. Further, let's accept the philosophical anarchist's point that neither the Union, nor the Confederacy, was legitimate; neither could impose moral obligations on people apart from the obligations they would have had anyway.

Even accepting all this, as libertarians, why should we not think that it was a good thing that Lincoln acted as he did and rid the United States of slavery? This does not mean Lincoln had legitimate authority: he could not make it the case that slavery should be morally forbidden. But I take it that as libertarians we think that slavery is morally forbidden, and that ridding America of slavery was a good thing to do.

This is especially so if you think, as Sandefur does (and I agree) that economic forces in the United States were insufficient on their own to end slavery. If you think this, then you will be led to think that if someone had not acted, slavery would not have withered away on its own. In other words, in a world without Lincoln (or Superman; or the equivalent) slavery would still exist in the United States. And, I think it follows, that world would be -- in that respect -- a much worse place than the one we presently occupy.

Like Rothbard, Kinsella's position is that any state is inherently a criminal enterprise. This seems to amount to the view that nothing the state does can ever be morally justified. Even if it would be justified for you and I to use force to free our neighbor's slaves, it would not be justified for the U.S. government to forcibly free those slaves (would it even be justified in Kinsella's world for the state to pay slave owners to free their slaves? I doubt it.)

To me, this position seems absurd. Obviously, I can and should evaluate the state's conduct the same way I would evaluate the conduct of anyone else. When the state protects individual rights, that's good. When it doesn't, that's bad. And at no time does the state gain legitimate authority, in the sense the philosophical anarchist describes. But the state did not need any kind of special authority to free the slaves: morality itself provided all the justification the state needed to act in that case.

Megan McArdle on the Ron Paul fallout

In her Atlantic blog, Megan McArdle asks an important question: will the decline and fall of Ron Paul be good for libertarianism? Her answer is a guarded "yes":

Ron Paul's unfortunate moment, and the outing of Lew Rockwell and Jeff Tucker as the probable authors of the bile, have given libertarians the opportunity to make decisive break with that past--and thankfully, they all seem to be taking it.

As anyone who delves into my blog knows, I distrusted the Ron Paul "Movement" almost from the very start. In part, I'm suspicious of movements of all kinds, but the level of support Ron Paul received from neo-Nazis, neo-Confederates, 9/11 Truthers, and other assorted nuts and "white nationalists" was an additional reason to withhold my support (such as it is.)

Unfortunately, I can't share McArdle's optimism about the libertarian response to this mess. After plowing through countless blogs and reading about a zillion comments, I can divide the responses from Ron Paul supporters to the newsletter fiasco into maybe three or four:

1. Ron Paul does not believe these things. Just look at his record! And he likes Mises, who was Jewish!
   
2. Ron Paul does not believe these things, but even if he did, most of them are true, and y'all know it.
3. Ron Paul can't be racist. It's impossible for libertarians to be racist!
   

All of these responses are troublesome and leave no room at all for the people who make them to "move past" Ron Paul into a more thoroughgoing, thoughtful libertarianism.

The third is an a priori appeal to a certain conception of libertarianism that is frankly quite false. Insofar as libertarianism is understood as a political doctrine, it sure is possible for a libertarian to be a racist. There are some more robust, comprehensive versions of libertarianism that incorporate a more substantial ethical core. However, these versions suffer a tension between their free market absolutism and the broader conception of the good such views espouse.

For example, if one believes it is very bad to be a racist, and that all humans are equal in their moral dignity, then one should have to explain why federal law should not be used to prevent some forms of racial discrimination. After all, if it is bad to be a racist in Arkansas, it's equally bad to be a racist in Michigan. In my case, I resolved this dilemma by breaking with free market absolutism in favor of federal civil rights legislation. I think this position is very defensible, both morally and politically.

Most people agree with me: it should be illegal everywhere in the United States for employers to hire solely on the basis of race. Some things are more important than the property rights of business owners. As for the equal dignity of every human, that should be recognized in every state, and not subject to variation as a result of the machinations of the invisible hand or local city councils.

The second response from Ron Paul supporters is a version of the crypto-racism I saw over and over again on white nationalist message boards. These neo-Nazi pin-heads invariably believe that lots of Americans agree with them, but are too afraid to say so. Their biggest worry is not that Ron Paul is a closet racist, but that someone like Kirchick will open the closet door before the good doctor has a chance to wipe out the hated 14th Amendment.

I have little to offer by way of counter-argument here: I'm not going to argue racism with a racists. If you agree 100% with those newsletters, I've got nothing to say to you, and my fondest hope is for you to stab yourself in the heart with the spike on top of one of those old German army helmets from the first world war.

Finally, there are those who simply refuse to believe that Ron Paul could have anything at all to do with the newsletters. That position -- an absolutism in its own right -- no longer appears entirely defensible. The personal details printed in the newsletter push the burden of proof back on to those who hold the most extreme position, i.e. those who say they're completely certain Paul had nothing to do with the newsletters.

This certainty is an enemy of the kind of evolution McArdle is hoping to see. Libertarians should have a natural distrust for politicians -- yes, even for Ron Paul. Trusting Ron Paul when he says he had nothing to do with the newsletters and believing that his personal views must be perfectly aligned with his public ones is a dangerous attitude for one to take toward any politician.

In this particular case, the attitude tethers Ron Paul's own presidential ambitions to libertarianism so well that if the former fails (and it will), then the holder of the attitude is likely to reject the latter as well. The irony is that those who loved Ron Paul the most unreservedly are the least likely to remain libertarians once this is all over and the good doctor has returned to his home in Lake Jackson, Texas.

Libertarianism isn't dead. But it isn't exactly alive, either.

A Question for RP and his Supporters

Taken from a much longer post of mine:

Are there some things Ron Paul thinks neither the federal government nor state governments should be able to regulate? Does he think anything should be entirely left up to the individual to decide? If not, then he's no friend of liberty. And if he does, what's his principled basis for thinking so?

I know what my "principled basis" is: I actually care about individual liberty, specifically the liberty of each person to live his life as he sees fit. That's why I reject Ron Paul, who, on the floor of Congress, has said things like the following:

"The State of Texas has the right to decide for itself how to regulate social matters like sex, using its own local standards."

Aside from RP's complete misrepresentation of the issue at stake in Lawrence (the right at issue was not the right to have gay sex, but the right to have intimate relations with whomever one desires) what constitutional basis is there for the claim that the states do have the right to tell people who they can have sex with? Why isn't that right one falling out of the 9th Amendment -- one retained by the people?

You need to invoke more than the text of the Constitution itself to "fill in" the black box of the 9th Amendment. Indeed, that's precisely its point: to tell us that our rights may extend beyond the confines of anything written in the Bill of Rights itself. Textualism, in itself, is not enough. Political philosophy is required, i.e. a view about the general purpose -- the very point of having a government in the first place.

Libertarians I've known were never shy about exploring that philosophical ground. Now many of them are supporting someone who seems to think it's unnecessary to ever step foot on it. After all, the Constitution can answer each and every one of our policy questions, just as long as you interpret it Ron Paul's way.

And no, the 9th Amendment does not imply that it only becomes legitimate to recognize a right once the Constitution is amended to include that right. That interpretation would make the 9th Amendment superfluous. Think about it.

What does it mean to leave abortion for the states to decide?

My last post cited a report indicating that as many as 30 states would likely ban abortion if Roe v. Wade were reversed. Ron Paul thinks Roe was wrongly decided. I happen to think it was decided wrongly, if one can admit the difference. Dr. Paul thinks the problem with Roe v. Wade is that it unconstitutionally abrogates the freedom of the states to choose their own abortion laws. Reversing Roe would allow individual states to regulate or ban abortion in whatever way the citizens of those states (or some plurality of them) desired.

As should be expected, I find Dr. Paul's assessment and rejection of Roe v. Wade simplistic. As a matter of legal fact, Roe v. Wade did leave the regulation of abortion up to the states, almost entirely. It did this in at least two ways.

First, and more well known, it proposed different rules for each of trimester of pregnancy. For example, no state can totally ban abortion in the first trimester. In the second trimester, abortion can be regulated, but only in ways that are respectful to the value of maternal health. In the third trimester, a state can ban abortion.

Second, and more interestingly, Roe gave the states wide latitude to regulate abortion in other ways. Planned Parenthood v. Casey saw the Court uphold several regulations on abortion, including a parental notification law and an informed consent law (this latter law requiring physicians to provide women with information about the risks of abortion.) Casey also formally overturned the trimester formula, while preserving its upshot: fetal viability is the point at which states can ban abortion entirely, since that is the point at which a state's interest in the life of that fetus trumps the rights of the pregnant woman.

Thus, Roe and subsequent cases gave the states all the power to ban abortion abortion after the point of viability, and gave it a great deal of power to regulate abortion before that point. Notice that the power the Court did not give to the states does not just vanish into thin air -- rather, it accrues to women, especially those seeking abortions. Overturning Roe would give state governments the rest of that power.

Now the difference between wrongly decided and decided wrongly is this: as a libertarian, I think individuals -- women -- should have most of the power, because I value individual liberty and have a problem with governments taking power away from people. The problem is that in Roe the Court relied on the 14th Amendment's due process clause. It was not the first time the due process clause was used in this way, of course, and stare decisis is probably enough to justify its use in Roe.

(I do tend to share Bork's view that, at least on the surface, Lochner, Griswold, and Roe all look pretty similar. But I bet I know which of the rulings in those cases Ron Paul would not reject. Hint: it's the one that has to do with regulating property, as opposed to regulating people's bodies.)

In any event, as a libertarian, I only have to value the Supreme Court, judicial review, and stare decisis instrumentally, to the extent they contribute to the freedom of individuals. Arguably, both do, in the same way rule of law more generally contributes to individual liberty. As far as I can tell, Ron Paul rejects each one of these things.

That's what it means to want to give the states all the power when it comes to regulating abortion. It means denying the importance of judicial review, of stare decisis, and of the importance of the Supreme Court as a means of protecting the rights of real, honest-to-goodness people.

Of course, it's literally true that the Constitution does not mention a specific "right to have an abortion." It doesn't mention a specific "right to walk and chew gum at the same time," either. But it does contain something called the 9th Amendment, which says that there may very well be lots of rights besides those specifically enumerated in the Bill of Rights. That's because the Founding Fathers, unlike Ron Paul and some of his supporters, understood that listing all of our "natural liberties" in one document would be impossible.

In Federalist 84, Hamilton could have been talking about Dr. Paul and his cabal when he suggested that a bill of rights could be dangerous. A bill of rights "would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted."

In other words, since the right to privacy is not literally in the document we all call the "Bill of Rights," it can't possibly be a right. This problem is very likely why Madison proposed the 9th and 10th Amendments in the first place.

Ron Paul seems to think that if the federal government does not have the power to regulate abortion, then state governments do have that power. But that's an idea the Constitution itself does not support (the 9th Amendment says rights not enumerated are retained by the people, not the states. The 10th Amendment says powers not delegated are reserved to the states or to the people.)

Let me put it this way: are there some things Ron Paul thinks neither the federal government nor state governments should be able to regulate? Does he think anything should be entirely left up to the individual to decide? If not, then he's no friend of liberty. And if he does, what's his basis for thinking so? After all, he seems to think that if a particular freedom is not mentioned in the Bill of Rights, then states should be able to restrict it on their whim.

And that makes individual liberty too fragile for my tastes. The Constitution is not a libertarian document, but it is also not a document that gives each state almost unlimited power over its citizens.

Ron Paul vs. James Madison

It's been my experience that libertarian supporters of Ron Paul assume something like the following: weakening the power of the federal government and expanding the (potential) power of the state governments will (in fact) increase individual liberty.

I take it that this statement, or something very much like it, is at the heart of the libertarian's support for Ron Paul. Let us call it the devolution thesis, since its subject is the devolution of power from one level of government to another, lower level of government.

The devolution thesis can be understood in at least two ways. First, it can be understood as a thesis about democratic efficiency. For example, some people may think they have greater chance for representation at the state level than at the federal level. So a state legislature will produce their will more readily than a federal legislature. In other words, if I want X, a state legislature will likely give me X more reliably than a federal legislature, where X is some policy.

I think this is a mistaken, overly democratic picture of political power, one most libertarians would reject. Unlike democrats, libertarians do not think that the freedom to make public policy -- basically the freedom to tell other people what to do -- is an extremely valuable kind of liberty, and certainly not intrinsically valuable. As such, let's move on to the second way the devolution thesis can be understood.

The devolution thesis can also be understood as a thesis about government inefficiency. The argument goes like this: the federal government wields a bigger stick than any particular state government. Thus, the fed can do more to restrict personal freedom than any single state could ever hope to do. For example, since it controls the military, the federal government can seal the borders and not let anyone out of the country. In contrast, if a state like South Carolina restricts liberty in an objectionable way, its citizens can always move to some other state.

Now the interesting thing is that in Federalist 10, James Madison clearly sees that state governments have the potential to be very democratically efficient -- which is exactly why he thinks the federal government ought to have more power (i.e. than it did under the Articles of Confederation.) Madison, a genius, argued that because the federal government must encompass a wide variety of competing factions, it will be difficult for any one of those factions to gain control of the fed's admittedly big stick. To quote Madison:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.

Any single state will necessarily contain fewer factions, increasing the chances of one of those factions gaining control of that state's much smaller stick, and using it against the other factions in that state. Notice: the size of the stick doesn't matter that much. A big stick that can be used to restrict the liberty of a whole lot of people is not necessarily worse than a smaller stick that almost certainly will be used to restrict the liberty of a smaller group of people.

Especially not when we're not talking about one small stick, but fifty of them.

This article is a case in point. A pro-choice organization suggests that at least 30 states would ban abortion if Roe v. Wade were reversed. South Dakota is already on track to totally ban abortion. Even Ohio and Michigan, nominally blue states, would likely ban abortion, according to the organization's report. That's a hell of a lot of individual liberty lost. Without quoting wacky conspiracy theories about the fed's use of black helicopters, I would like someone to tell me how this almost certain loss of liberty can be justified.

Does Ron Paul want to overturn Roe v. Wade? He thinks it was "wrongly decided." Indeed, in the linked piece, he clearly espouses an interpretation of the devolution thesis akin to the first one I outlined, the one I think libertarians do and should reject. "Surely people on both sides of the abortion debate realize that it's far easier to influence government at the state and local level," he claims.

And he's probably right, too. From the perspective of individual liberty, that's exactly the problem.

This is not to say that the devolution thesis is always false, but it is not obviously true, either. I tend to think that, on the whole, the federal government has been a force for increasing the freedom of the individual. At least, this is so if you don't think income taxes are the sine quo non of restrictions on liberty.

[Edited to add a quotation from Madison, who was in fact a genius.]

A libertarian's dangerous liasons

You probably haven't heard of Gary North, but he's a prolific commentator at Lewrockwell.com. He's also a "Christian reconstructionist," whose ultimate goal is, in his own words, to

use the doctrine of religious liberty to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government. Then they will get busy in constructing a Bible-based social, political and religious order which finally denies the religious liberty of the enemies of God.

Gary North also claims to be a libertarian and is an ardent supporter of Ron Paul's presidency. In one article on Rockwell's website, he calls Dr. Paul "the Gandhi of our time." (Yes, seriously.)

Aside from his desire to punish homosexuality with stoning (again, yes, seriously), another interesting fact about North is his interest in the so-called Y2k bug. Circa '99, he went on and on about how Y2k "will call into question science, technology, the free market, and the welfare state. It will call into question all of modern humanism." Etc. For 225 dollars, you could (can?) subscribe to his magazine and learn how to protect yourself from the banking collapse that was supposed to occur.

And didn't occur, of course. But I wonder how many subscriptions North sold to libertarians. How much money did he take in? I'm not claiming North talked up Y2K in order to bilk people out of their money -- on the contrary, I believe he was sincere in his uninformed paranoia, like many of Rockwell's folks. To quote a Wired article, "[North] wants to make sure the banking system crashes. It's a self-fulfilling prophecy."

North's advice for surviving the collapse included stocking up on food, weapons, and gold, and moving to the middle of nowhere in order to avoid riots and looters. Probably, he would suggest gathering up a whole lot of rocks, too, in order to bash in the heads of rampaging homosexuals (in accordance with Biblical law, naturally.)

I ask this question: why does Gary North support Ron Paul? I can think of a few reasons. Ron Paul has described the Supreme Court's action in cases like Lawrence v. Texas as the imposition of an "imaginary constutition." Like Justice Scalia, he apparently believes there is no right to "sodomy" in the federal Constitution. He would leave the criminalization of homosexuality for each state to decide on its own.

Can you see why someone like Gary North would support this doctrine? Suppose a state like Texas outlaws gay sex and actually enforces the prohibition in a way it did NOT just prior to the time of the Lawrence decision. Ron Paul's supporters will say, "Well, ok, if you don't like it, then move out of Texas." Great. Now there are even fewer gays in Texas, and more opportunity for someone like Gary North to marginalize those who remain.

It's not a big leap from my scenario to North's favored scenario, in which, based on Biblical law, gay people have their heads smashed in with stones in the city square.

(Oh, and what's so great about stoning? Quoting an article in Reason magazine that quotes North extensively:

"Why stoning?" asks North. "There are many reasons. First, the implements of execution are available to everyone at virtually no cost." Thrift and ubiquity aside, "executions are community projects--not with spectators who watch a professional executioner do `his' duty, but rather with actual participants." You might even say that like square dances or quilting bees, they represent the kind of hands-on neighborliness so often missed in this impersonal era. "That modern Christians never consider the possibility of the reintroduction of stoning for capital crimes," North continues, "indicates how thoroughly humanistic concepts of punishment have influenced the thinking of Christians."

See? Stoning is cool. Just like knitting, except you don't need needles. Or yarn. Just lots of fairly big rocks.)

It'll never happen, you say? Maybe. But Gary North knows a Ron Paul presidency would make it just a little more likely. Real libertarians should recognize that as well.

We need to separate those who merely want to use liberty in order to eventually quash it (as North is wont to do) from those who truly value liberty for all.

The Case Against Ron Paul

The Case Against Ron Paul: Should a Libertarian Support the Repeal of the 14th Amendment?

Amendment XIV, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


1. Introduction
It is not an overstatement to say that the 14th Amendment, ratified in after the Civil War in 1868, marked a fundamental shift in the relationship of the federal government to the governments of the states. This shift has led to decisions in the Supreme Court the framers of the Amendment probably never envisaged, such as Brown v. Board of Education and Roe v. Wade.

The 14th Amendment was intended to restrict the power of the states. Its aim was to stop southern states from using the law to oppress their new black citizens. Each clause in Section 1 – Citizenship, Privileges or Immunities, Due Process, and Equal Protection – directly or indirectly blocks the states from treating those within their borders in certain ways.

Here I’m just going to focus on the Privileges or Immunities clause and the Equal Protection clause. I’m going to argue that libertarians should be staunchly in favor of these two clauses. They should favor the latter clause as the Court has traditionally used it. They should favor an invigorated reinterpretation of the former as an alternative to the states’ rights rhetoric some libertarians currently use. To the extent Ron Paul uses such rhetoric, he should not be considered a friend to libertarians.

2. Equal Protection
The Equal Protection clause requires states to guarantee “equal protection of the laws” to persons within their jurisdictions. Concisely, this means states may not apply one set of laws to some group and another set to a different group. For example, states may not set different penalties for white and black criminals. Without the 14th Amendment, a state like Georgia could establish whites-only schools – it would not even have to provide formally equal schools to its black citizens!

I’m not sure how a libertarian could be against this clause, or something like it. The libertarians I’ve known are not egoists: they genuinely want to increase the freedom of everyone. At a minimum, the Equal Protection clause ensures that if liberty is going to be restricted, it can’t be restricted selectively. The majority in a state cannot limit liberty without limiting its own liberty. This provides an additional check on majority power, and thus enhances personal liberty.

Of course, the 14th Amendment expands personal liberty at the expense of each state’s liberty to determine its own laws. But for a libertarian, this has to be a worthy trade off. Libertarians care about individual liberty, not the liberty of governments. Otherwise, any restriction on individual liberty could be justified as a way of increasing “the liberty of the government” to run people’s lives.

As something of a libertarian myself, I don’t even mind the Supreme Court’s use of the Equal Protection law to strike down separate but equal schooling. This requires accepting that the “equality” of “equal protection” has a substantive and not merely a formal dimension to it. That is, it does not require states to apply one rule to everyone, but to ensure – to some reasonable degree – that the law does not burden some groups much more than it burdens others. The emphasis here is not only on equality, but on the idea of protection. This perception of equality, fundamental to the existence of civil society, is what must be protected.

3. Privileges or Immunities
This clause of the 14th Amendment was quickly emasculated in the infamous Slaughterhouse Cases. It prohibits states from using the law to “abridge the privileges or immunities of citizens of the United States.” Constitutional scholar Randy Barnett has argued that this clause, combined with the 9th and 10th Amendments, adds up to what he calls “a presumption in favor of liberty.”

There’s no need to recount Barnett’s argument here. The idea of the presumption in favor of liberty is that, when liberty is to be restricted, government – any government -- has the burden of proving why such a restriction is reasonable and necessary. Moreover, the principle applies to a restriction of any liberty, including those not enumerated in the Bill of Rights itself.

Rather than empowering states at the expense of the federal government, Barnett’s argument empowers individual citizens. Taken seriously, the presumption in favor of liberty would stop governments from pursuing practically all of the projects libertarians currently object to, such as the so-called “war on drugs.” But it would not allow, say, Arkansas, to conduct its own intra-state war on drugs, either. The citizens of Arkansas would be as free as the citizens of any other state, an outcome one might think libertarians should favor.

The privileges/immunities of U.S. citizens may include only the most important and basic rights, like those contained in what classical liberals often call our “natural liberty.” Thus, it may not be the case that according to this clause each state would have to provide its citizens precisely the same set of liberties as every other state.

At the same time, as Barnett points out, a restored version of this clause might very well achieve the same outcomes for liberty the Court has more recently pursued through other means (like the Due Process clause) in cases like Griswold v. Connecticut and Roe v. Wade. For example, in Griswold, Connecticut’s law prohibiting the sale and use of contraception was overturned. A presumption in favor of liberty could justify overturning such a law, which, as the Court found, could not be justified on any basis Connecticut had offered in its favor. However, without the 14th Amendment, nothing would stand in the way of states taking importance choices away from American citizens.

4. Conclusion
Ron Paul does not like the 14th Amendment. In his response to Lawrence v. Texas, he decries the Court’s reliance on an “imaginary” constitution in its decision to overturn anti-sodomy laws. He claims, “The State of Texas has the right to decide for itself how to regulate social matters like sex, using its own local standards.” But if Barnett is right, the Constitution does not give Texas this right. The presumption in favor of liberty requires Texas to justify its anti-sodomy laws against the privileges and immunities of its citizens.

I hope most libertarians are against anti-sodomy laws simply on principle. Why some of them support Ron Paul, who favors such laws as long as a militant Christian minority in a state can get enough votes in the legislature, is mysterious to me. Perhaps they think that in their comfortably blue state, the local government would not try to prohibit sodomy, birth control, or abortion. But this is a remarkably self-serving attitude, one that confirms some of the left’s worst prejudices against libertarians.

Rather than supporting oppressive proposals for expanded states’ rights, libertarians ought to support genuine rights for all individuals, regardless of what state they happen to reside in. They should support the 14th Amendment and not Ron Paul.

Conservatism: Libertarian means, traditionalist ends?

According to Donald Devine, lecturer at the Federalist Leadership Institute seminar I attended a while back, that's the definition of American conservatism. The free market is the best but by no means the only way of achieving the ends tradition sets for us.


Why should tradition set our collective ends, or have any say at all over the goals we as a society choose to pursue? Why can't we just dream up an end -- say, the abolishment of poverty -- and then use the power of the state to achieve that end?

Conservatism's reliance on tradition represents a rejection of what Hayek called "constructivist social rationalism." Modern liberals believe -- in a way classical liberals did not -- that society cannot only articulate its own goals, but effectively pursue those goals through legislation. To rationalists of this stripe, the "city of God" is attainable here on earth, if only the right legislators with the right ideas are given the power to pass the right laws.

Although constructivism is now rampant, it is not a modern ideology. Arguably, Plato was its first and most vociferous exponent. According to the constructivist, the authority of the state can abolish poverty (or poetry, as Plato preferred) and bring about social harmony. It can achieve the ideal -- the right, the true, the good -- here and now.


How does the conservative's acceptance of tradition as a source of ends repudiate constructivism? After all, whether they admit it or not, many of the ideals liberals espouse are ends conservatives would affirm themselves, e.g. ending poverty, religious coexistence, and ensuring the benefits and burdens of living in a society are distributed fairly. What differentiates the conservative's acceptance of these ideas?


There is nothing new about the desire to live in a tolerant, prosperous society. This desire is not something liberals discovered on their own, to be gradually introduced to the rest of us uneducated troglidytes when we are ready for it.


Nor, however, are the goals of mutual toleration, justice, and freedom innately pursued. In our society, these are traditional goals. But societies like ours, that value these goals, are historically uncommon. There is nothing inevitable about the fact that you have come to value toleration, justice, and freedom. You value them precisely because you were lucky enough to be born into a society that valued them first.

While constructivism may accept traditionalist goals and ideas, it cannot accept them because they are traditional. It must accept them because they are rational. This means: because unencumbered, detached reason has formulated them, and given them its authoritative stamp of approval. However, as both Nietzsche and Hayek well knew, there is no such source of authority. The idea that we can reason best by abstracting away from our cultural surroundings, from our upbringing, from tradition itself -- this is a Platonic sham.

Epistemologically, the abstraction process -- deluding ourselves into thinking we have sanctified ourselves of any vestige of prejudice or cultural conditioning -- only leads to a distortion of our ideas. Morally and politically, it leads to policies that may work well in theory, but have disastrous results when applied to the "real world."

"Ecce homo," says Nietzsche's saint, painting himself on the wall. That is man, the way man ought to be. But not everyone can be a saint, and not only because for most attaining sainthood would require them to completely demolish their current identity. It would be a bad thing for all of us to suddenly ditch our current lives for the life of St. Francis of Assisi. Or the life of Jesus Christ, for that matter.

Some must stay behind, if only to grow the food for which the rest of us will beg. And if many of us did suddenly decide to make the switch to sainthood, those remaining behind -- standing athwart history, yelling "Stop!" like William Buckley -- could have no more accurate label than "conservative."

Fortunately, most of us will not whittle down our current identities and choose to start from scratch as saints. When it comes to the preservation and maintenance of our identities, we are all conservatives.
***
The constructivist's repudiation of tradition leads to a distortion of conception. Policy-wise, the measures constructivists adopt to achieve their ends will suffer a similar theoretical bias. Imaginging themselves to be formulating their goals for the first time, they will ignore what has worked relatively well in the past in favor of social engineering more suited to the abstract, detached nature of their supremely rationalist ends.

Policy failure can easily be explained away -- "Well, at least we did something," will be the familiar refrain, just before another, newer policy is proposed. In repudiating the idea of traditionalist ends, the constructivist repudiates every traditional solution, and must always be on the hunt for the next social science "breakthrough" to supply the latest fix to age-old problems.