Libertarianism: Not So Wrong, After All! A Reply to Nathan Schlueter

Nathan Schlueter offers a critique of libertarianism that reminds me why I am co-authoring a book with him. Rather than lapsing into cheap ad hominem, he offers thoughtful comments.

Schlueter begins with the worry that libertarianism offers neat solutions to complex problems, admonishing that “reality is far more complex than libertarians acknowledge.” In fact, libertarians repudiate social and economic engineering, not from some adolescent naiveté, but from a sober acceptance that reality is so complex that no human mind can organize it, and that no central planner can outperform the market and civil society. Allow me to offer ten points in reply to his ten.

One: There were multiple intellectual movements within “the” American Founding: some were libertarian, others not. The Constitution itself is mostly libertarian.

There was no intellectual homogeneity in “the” American Founding: for every libertarian Patrick Henry, there was a corporatist Alexander Hamilton. The Constitution itself is mostly libertarian, as it provides for a framework of limited government to protect individual rights. But it is not entirely libertarian, as (a) it allows certain economic powers which have returned to haunt us, from the commerce clause to the coining of money; and (b) it proves the old adage that today’s revolutionary is tomorrow’s reactionary, since it includes illiberal powers to suspend habeas corpus and quash dissent, putting regime over liberty—not to mention the blind eye it turns to slavery. What is more, the Constitution is fuzzy about the states: does it apply solely to the federal government, leaving the states free to engage in the local tyranny that some founders feared? Or does it apply to the states, setting libertarian parameters within which the states can legislate? It took a civil war and the Fourteenth Amendment to clarify this, and the answer to the question is still murky. The Federalists sought to curb the states’ abuses through a powerful central government. But the Anti-Federalists (rightly, I think) feared such a concentration of power.

Two: Does conservatism like certain things simply because they are old?

It is no coincidence that there are so many competing threads of “conservatism.” While some conservatives are indeed advocates of liberty, many others favor sweeping intervention or long for some idealized past. I contend that this ideological muddle comes from the lack of consistent foundations for conservatism. As to the Declaration of Independence, I find it fascinating that both conservatives and libertarians alike claim its mantle. I see the libertarian case, naturally. But I just can’t see how privileging marriage or prohibiting obscenity can possibly jibe with protecting “life, liberty, and the pursuit of happiness” or advancing the government’s stated end of securing those rights.

Three: The “common” good: common to all, or just to some?

It is indeed a non sequitur to claim that, because only individuals exist, there is no such thing as a “common good.” But libertarians do not claim this. Instead, libertarianism calls for great caution about claims that something is, indeed, a common good. A marriage or an orchestra is an intelligible and voluntary association of individuals sharing a common good. But the claim weakens for larger groups such as political associations, cities, or armies; their sheer size makes information difficult to obtain, and limits the scope of what is common to participants. Think of a university: perhaps the faculty, administration, and trustees are associated for a common good (the pursuit of the truth, or education). But it is just as easy to imagine a public choice story with competing factions that do not, in fact, share a common good, beyond the opportunity to seek rents from the university’s resources. At the national level, it is meaningless to speak of any “common” good beyond an institutional umbrella that allows for individual rights and cooperation. This is, in fact, mostly what the US constitution provides: justice, domestic tranquility, common defense, general welfare, and securing the blessings of liberty. But the prohibition of pornography, the banning of drugs, privileging heterosexual marriage over other types of associations, and all activities that violate the rights of some can hardly be considered a “common” good.

Four: Libertarianism rejects the causing of harm—physical or moral—to others.

There is a big difference between causing moral harm to others and allowing others to cause moral harm to themselves. If the individual is indeed endowed with unalienable rights, then only the individual is in a position to determine what actions he wants to undertake, so long as those actions do not violate the rights of others. This is not to say, however, that libertarianism is passive. Schlueter ends this paragraph with the rhetorical question “why should society be forced to treat [morally corrupting] action with indifference”? It is not—and libertarianism agrees. Civil society has long frowned upon certain behaviors, from prostitution to drug abuse. But that does not mean that these actions should be coercively banned by the state. As I explain in my initial article, it is dangerous—and immoral—legislatively to regulate activities that some may consider to be immoral, but that do not harm others.

Five: The limits of coercion.

Just as multiple strains of conservatism exist, there are two principal schools of libertarianism. Both believe in the protection of individual rights; they disagree on appropriate methods. Minarchists believe a small state is necessary for the defense of rights. Anarcho-capitalists observe that the state is, by its very nature, coercive; it is also incapable of delivering much of anything, so there is no reason to believe that it can effectively protect rights or refrain from violating them. Markets and civil society provide everything else more efficiently and morally than government; why not security? I am tempted but not convinced. However, conscription is dodgy at best in a world of public choice. And libertarianism rejects taxation for anything but the defense of individual rights. I point the reader to Frederic Bastiat’s superb essay “The Law,” where the French political economist decries “legalized plunder”: if I take half of my neighbor’s money, that is rightly called theft. But if I convince a legislative majority to take it through the state, that is somehow “statesmanship.”

Six: Virtue cannot be coerced; government should not legislate morality.

Governmental attempts to coerce morality violate individual rights—and, let’s be honest, conservative euphemisms such as “assisting” or “thwarting” ultimately come down to coercion. I ask again if we really want to politicize virtue. There is a difference between the use of law to protect individual rights and the use of law to impose virtue. Schlueter seems equally preoccupied with segregation, pornography, and marriage; but these are philosophically distinct. Segregation involves a violation of individual rights. Pornography and marriage do not. Segregation is a question of interpersonal virtue, whereas pornography and marriage are private questions of intrapersonal virtue. Many actions have indirect effects on others—but that does not make them the bailiwick of the law or the state. Civil society and markets have traditionally done a superb job of advancing virtue. I shudder to think of a society where the state imposes “virtuous” behavior, whether class-conscious Marxism, environmentalism, conservatism—or even libertarianism. I do not conflate the morality of these visions; but none is the province of the law.

Seven: Government should not interfere in the free market.

The results of a free market are the results of freely interacting individuals. Thus, to restrict the outcomes of a free market merely amounts to imposing one’s private preference over voluntarily achieved outcomes. Drugs, prostitution, and obscenity may indeed be “intrinsically immoral”—but to the extent that they are the result of free interactions, they are outside the purview of government. Schlueter worries that libertarians remake all human associations into contracts; but this is emphatically not the case. Libertarians recognize that individuals interact in different settings, which can loosely be lumped into three categories: markets, civil society, and government. Each one has different rules, and different applicabilities. As I explained in my earlier piece, it would be foolish to apply market rules to the family, or family rules to the market. No goodnight kiss for little Susie, because she hasn’t earned enough money as a five-year-old working in the mines. Here, dear customer, eat this meal for free, because I have grown to love you! The latter gives us bankruptcy, the former an abomination. Families and churches teach virtue; markets generate honesty, trust, and industry. Neither is perfect. But regulating them through legislation leads to disaster.

Eight: Liberty or tyranny.

Many interventionist regimes are illiberal, if not totalitarian. Most governments throughout history have been oppressive; this does not mean that libertarianism—as the only ethical system of government, because it is the only one that respects individual rights—is a “fantasy” or is not an ideal to which we can aspire. Schlueter claims that libertarians rely on an arbitrary assertion about the limits of government power. In fact, libertarianism has a very clear standard—something conservatism’s ad hocery plainly lacks—for the acceptable use of coercion. The purpose of government is the protection of individual rights. Period. The danger comes from “prudence in the service of principle,” or other philosophically unjustified uses of coercion. Once one has conceded that the state may be used for something other than the protection of individual rights, then the floodgates have been opened without a philosophical dam, and “prudence” becomes a mere matter of legislative coalition. Finally, Schlueter contends that the remedy to social ills does not involve facilitating debauchery by eliminating props to good moral character, but from reinforcing those props. Of course! But the need for food does not mean the state should (or can) provide it. Likewise, the need for morality does not mean the state should (or can) provide it. Being against state provision (imposition) of morality is not the same as being against morality.

Nine: Libertarianism is based upon a realistic understanding of human nature; conservatism is based on wishful thinking.

Conservatives somehow believe that a government that fails at just about every task (from ending poverty to advancing education, and from drug prohibition to nation-building) can magically be successful at imposing virtue. They believe that if we could just get the right people into politics, then all would be well. Libertarianism believes this too, but doesn’t believe it’s possible—hence the reliance on institutions. Federalist 57 clearly reflects aspiration and reality, aim and precaution: wouldn’t it be nice (“the aim”) to have the wise and the virtuous seek for us the common good? Sure. In the meantime, “let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution” (“the precaution”). Thus spoke Thomas Jefferson to Madison’s concerns.

Ten: “Freedom Works”? Sure it does!

Well, at least it works better than central planning. Freedom isn’t perfect. Free markets aren’t perfect. People aren’t perfect. But freedom provides the best incentive structure, the best generation of information, which we know. Freedom is the best system humanity has devised—or stumbled into—for obtaining prosperity, flourishing, and, yes, virtue. Think of the corrupt, depraved, inhuman life under communism versus the blossoming of commercial society.

Liberty is a framework for hard work, cooperation, and virtue—a school of hard knocks that punishes bad behavior and encourages good behavior. It’s also the best we’ve got. And it’s pretty darn good if you consider the interventionist alternative, be it from the left or from the right. “Beware high-minded voters,” warned legal scholar Richard Posner. The same goes for those who would tell us how to live our lives—and force us to abide by their preferences through central planning.