Saturday, July 04, 2015

Happy Anarchy Day


Stop compromising
Embrace the logic of 1776
Individualist Market Anarchism

Friday, July 03, 2015

TGIF: Clarence Thomas's Confused Notion of Freedom

Compared to Supreme Court Justice Antonin Scalia, his colleague Clarence Thomas is well regarded by at least some devotees of liberty. This is not totally unjustified. Thomas has demonstrated a familiarity with the philosophy and history of natural law and natural rights, which he (at times) sees rooted in individual persons. For this reason, in some areas he has opposed expansion of government power; for example in U.S. v. Lopez, he broke long precedent and held that the commerce clause of the Constitution is not a blank check to the government.

However, this background knowledge has not kept him from taking positions abhorrent by libertarian standards. For example, he voted with the minority in Lawrence v. Texas, in which the court struck down a law criminalizing intimate acts between gay and lesbian individuals. To be fair, Thomas said his objection to the majority opinion was constitutional not substantive: "I 'can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy.'" (On the right to privacy and the Constitution, see my 1993 article "Dissolving the Inkblot: Privacy as Property Right.") He called the particular law in question (quoting another case) "uncommonly silly," adding, "If I were a member of the Texas Legislature, I would vote to repeal it."

He also dissented in U.S. v. Windsor, which struck down the part of the Defense of Marriage Act that denied the surviving spouse of a state-recognized same-sex marriage exemption from the federal estate tax. Thomas has supported civil asset forfeiture, drug testing of student athletes in government schools, and broad presidential war-making powers. So he has not opposed to government expansion across the board. Far from it.

Of course in Obergefell v. Hodges (PDF), Thomas voted against the proposition that state laws which deny recognition to same-sex marriages are unconstitutional because they violate the due-process/liberty and equal-protection clauses of the 14th Amendment. Even so, his dissenting opinion has material of interest to libertarians.

Thomas's main point is that Justice Anthony Kennedy's majority opinion did not demonstrate that denying recognition to same-sex marriage constitutes a violation of liberty. A denial of state benefits? Yes. But, he pointed out, to deny state benefits is not to deny liberty. Some quotes:
  • Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.
  • The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.
  • “Liberty” most likely refers to “the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.”
  • It is hard to see how the “liberty” protected by the Clause could be interpreted to include anything broader than freedom from physical restraint.
  • The founding-era idea of civil liberty as natural liberty constrained by human law necessarily involved only those freedoms that existed outside of government.
  • Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.
  • Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney.
  • But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.
  • As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits.
That's a lot of repetition in a fairly short opinion. I guess Thomas wanted to make sure we got the point. And it's a fair point. Liberty means freedom from aggression, not access to a government benefit, which itself must be produced by aggression against people as taxpayers, employers, etc.

But this doesn't mean that Thomas's opinion is sound overall, for it suffers from serious flaws. He seems oblivious of the fact that most states which refused to recognize same-sex marriage also refused to enforce private marriage contracts. That being case, same-sex couples wishing to marry definitely had their liberty violated.

Moreover, Thomas says nothing about Kennedy's claim that denying recognition violates the principle of equal protection under the law. One can agree with Thomas that no liberty was violated but still object on classical-liberal and constitutional grounds to the denial of equal protection.

Finally, parts of Thomas's opinion show the same lack of understanding of liberty that Scalia showed in his dissenting opinion. Thomas writes:
  • To protect that liberty from arbitrary interference, they [the people] establish a process by which that society can adopt and enforce its laws. In our country, that process is primarily representative government at the state level, with the Federal Constitution serving as a backstop for that process. As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated. [Emphasis added.]
  • That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.
What Thomas is saying here is that liberty is not, as Benjamin Constant put it, "the enjoyment of security in private pleasures." Rather, it's the right merely to participate in the democratic process. If your position fails, fret not. Your civil liberty has been vindicated.

Like Scalia, Thomas sides with the ersatz "liberty" of the People (a collectivist notion) against the real liberty of the several persons. When you get down to basics, he's no friend of freedom.

Wednesday, July 01, 2015

Scalia's Anti-Enlightenment Anti-Individualism

Conservatives warn that the so-called liberals on the Supreme Court endanger our liberties. This is certainly true, although not exactly as the conservatives mean it. Now it’s time for them to acknowledge that the court's conservatives do the same.

Case in point: Justice Antonin Scalia’s dissent in Obergefell v. Hodges (PDF), the case that declared state laws forbidding legal recognition of same-sex marriages unconstitutional. Scalia’s opinion is worth examining apart from the particulars of Obergefell. As he points out -- let’s take him at his word -- what he objects to in Justice Anthony Kennedy’s majority opinion has nothing to do with same-sex marriage per se. What concerns him is not the content of the opinion but the activity the majority engaged in to arrive at it.

Sunday, June 28, 2015

Do We Have a Right to Marry?

Do we have a right to marry? It depends on what we mean by marry. If we mean making a contract with another consenting adult setting up a arrangement we'd want to call marriage, then the answer is yes.

But if we mean participation in the specific government-fostered institution characterized by marriage licenses, then the answer must be no.

Here's why: if the government-fostered institution were abolished tomorrow, as libertarians favor, no one's rights or freedom would be violated. (Justice Clarence Thomas seems to recognize this in his dissenting opinion.)

We have the inherent right to make contracts but we have no right to anything provided by the state, an inherently coercive organization. That's why the best argument for legal recognition of same-sex marriage is an equal-protection argument, not a liberty argument. It's not so much that we have a right to equal protection; it's that equal protection limits the discretion of government officials -- and that tends to be a good thing. The exception to this equality-but-not-liberty principle would be in those states that both forbid same-sex marriage and refuse to recognize private marriage contracts -- which seems to be all the states affected by the Obergefell ruling. As Ilya Somin writes:
In most states that banned same-sex marriage before today, a same-sex couple could not sign an enforceable marriage contract, even if its content was limited to purely private marital obligations between the two parties.
Thus such couples were not only denied equal protection; they were also denied liberty.

Friday, June 26, 2015

TGIF: The Libertarian Case for Legalizing Same-Sex Marriage

I tried to come up with a solid libertarian argument for why the Supreme Court should not have struck down state bans on same-sex marriage (SSM). (By a 5-4 vote, the court this morning declared those bans unconstitutional.)


I couldnt do it. 

Tuesday, June 23, 2015

Charleston and Gun Rights

Dylann Roof’s racially motivated murders of nine black churchgoers have brought predictable calls for new restrictions on the right to keep and bear arms.
How ironic this is we shall soon see.

Friday, June 19, 2015

TGIF: Another Silly Jab at Libertarianism

The problem with responding to Alan Wolfe’s feeble attempt to critique libertarianism is that one might appear to be defending the particular people he targets: namely, Rand Paul and Ayn Rand. (Rand Paul was not named after Ayn Rand. At least Wolfe avoided that error.) I want to defend the libertarian philosophy without defending Rand Paul or Ayn Rand because: