TGIF: Why Liberty Matters

Why does liberty matter? It’s a fair question because, after all, not everyone thinks it matters very much, perhaps beyond some very basic point. If that’s an overstatement, we can safely say that for many people on the left and right, liberty is a lower priority than it is for libertarians and classical liberals. Most pundits and politicians, even most anti-war types, have plans for how to spend your money.

What can we libertarians say? We have lots to say. It's a multifront operation. Some libertarians press the case in terms of moral consequentialism, either utilitarian or egoist. Others take a duty-oriented, or deontological, route, stressing a rule-boundedness that may look like a rights theory. (Rule-consequentialism, as opposed to act-consequentialism, ends up looking like this.)

A third approach is eudaimonia, or virtue ethics, which has been inherited from the ancient Greeks, for example in Aristotle's Nichomachean Ethics. In this approach, consequences are not irrelevant -- in fact, they are baked into the conception of features (virtues) that tend toward the perfection of the individual person as a rational social being. In brief, respecting other people as ends in themselves is integral to respecting oneself. I like this approach.

The problem with persuading others about all this is that proof is difficult. It's not like mathematics or physics. Aristotle wrote that the quality of proof in one area of knowledge, say, mathematics, is not to be expected in other areas, say, ethics. You have to play the hand that reality has dealt.

Modern libertarians have been debating among themselves the proper foundation of the freedom philosophy for decades. I can recall a libertarian scholars conference nearly 50 years ago when Murray Rothbard and historian friends expressed frustration over yet another panel of philosophers arguing the fine details of their respective approaches. The philosophical debate is important, but it's easy to get lost in the weeds. Does it matter to the public? Most nonlibertarians are not philosophers or interested in philosophy.

Leaving all that aside (and to people more qualified than I am), what can libertarians say to regular people? The general public often takes positions and attitudes based on cultural and media signals, but that doesn't mean we should not try to win regular people over directly, say, through the internet. Lots of opinion-makers have an incentive to ignore us.

To make our case, I want to start by saying that we know one thing clearly: each individual's life is important to him or her. People care about themselves. Each cares about other people too, but those others are important to the one doing the caring. Far from ruling out regard for others, properly conceived self-interest requires regard for others. It's self-evident. We're social beings. We flourish partly through all sorts of instrumental and constitutive relationships with others.

Each person generally wants life to be long and satisfying. We can call that flourishing. Life is a project, and it consists of many sub-projects. We are not ghosts. Projects require material things: a place to live and work, nourishment, tools, products, and so on. In a word, possessions. If people are to flourish they need to know that their possessions are secure. They need rights, including property rights, to define zones in which they can act free of compulsion. Our nature requires it, so they are natural rights.

We can sum all this up with the term self-ownership, to which no coherent alternative exists. The American abolitionists called slave masters "manstealers." How apt. In 1864 Lincoln wrote in a letter that "if slavery is not wrong, nothing is wrong." (I know about Lincoln's faults.) Here's the logical corollary to that truth: if self-ownership is not right, nothing is right. That's the libertarian philosophy in concentrated form.

Does knowing this solve all social problems? Of course not. Exactly when conduct begins to become aggression can't always be decided in an armchair. Boundaries can be fuzzy; social conventions will emerge. Life is about grappling with problems. (Sowell says there are no solutions, only trade-offs.) Context matters. So peaceful dispute-resolution will always be necessary, preferably not provided by a coercive government. That doesn't keep self-ownership from being a strong and reasonable guide to grappling with interpersonal problems. On the contrary, it justifies a presumption of liberty.

Critics will ask about the blameless who have little, who wonder where their next meal will come from, and how they will get education or medical attention. Fair question, and we have answers. The primary one is that free people in a free market produce great abundance and variety, which they are eager to sell or rent to others. (Even the hampered market has done this to a great extent for a couple of hundred years.) The West's move toward markets brought the first mass production, which did not always please the aristocracy.

Moreover, the governmental causes of the worst times in history -- from war to domestic mass murder to depression -- can be readily demonstrated. They were not the product of freedom, which common sense tells you is the right way for rational social beings to live.

While these times seem unfriendly to the freedom philosophy, it's possible that this philosophy will eventually delight the people fed up with the woke progressives, national conservatives, and neoconservatives. Maybe time is on freedom's side.

TGIF: No One Has a Right to Make Immigration Policy

Florida Gov. Ron DeSantis says "no one has a right to immigrate" to the United States. "We determine as Americans," he says, "what type of immigration system benefits our country. When you're doing immigration, it's not for their benefit as foreigners. It's for your benefit as Americans. So if there's legal immigration that's harming America, we shouldn't do that either."

I'd turn that around and say that no one, including a state legislature, has a right to forbid or restrict immigration, the peaceful movement of individuals from outside to inside America. That doesn't mean that landowners cannot set rules for who enters their own property. That is not immigration policy.

We're talking about a political concept. You can see this in DeSantis's words "We determine as Americans." Apart from immigration, "we" do not "determine as Americans" who can and cannot come to my home. I do that as the owner. Normally I need no one's permission to invite or exclude. (It's more complicated in the business context, where association can be legally required rather than forbidden.) But if the person I wish to invite lacks the government's permission to be in the country, then it's a different story. That's not a natural limitation on a normal and natural right. It's the result of a decision by a group of politicians, a decision that may well conflict with what many people want to do. How dare the politicians interfere?

DeSantis says that a good immigration policy should benefit the country, or "Americans." It's hard to miss the conservative collectivism in theory and elitism in practice. The collectivism lies in what appears to be decision-making not by individuals, but by a purported entity, namely, the "country." What about dissenters? They don't matter. What counts, presumably, is the Rousseauian general will. Dissenters must be forced to be "free" by going along with the majority. In theory the majority rules.

But the elitism lies in the fact that majorities don't really rule. They pick the officeholders (although not the bureaucrats), but what happens next can hardly be called rule by the majority because what the majority may want on a given issue must pass through a very thick filter before it becomes enacted. That filter is administered by special interests inside and outside of the government that typically have preferences that can differ vastly from the majority of voters. To keep the people in the dark about this, those interests not only lie and propagandize, but they also obfuscate and use other tactics to make it difficult for the people to know what the government is really doing or to change it if they find out. (Charlotte Twight's Dependent on D.C.: The Rise of Federal Control over the Lives of Ordinary Americans spells out the theory and history of this.)

The upshot is that DeSantis's position -- which is widely shared on the right and left-- is incoherent. "America" does not and could not make immigration policy. Democracy is a facade that blocks our view of reality.

But even if "America" could make the policy, it would be unjust, not to mention self-defeating, to block or restrict immigration. No one, not even a majority of congressmen backed by a president, has the right to tell individuals, wherever they were born, that they cannot consensually enter other people's property to live, rent, buy, work, or otherwise associate peacefully. Even if a lot of people band together, they can have no right to block free exchanges between Americans and foreigners. A group cannot have any rights that its individual members do not have. Zero multiplied by any number is still zero. So "America" has no right to keep immigrants out. The right to move about while respecting other people's rights is universal, and anyone is innocent until charged and proven guilty. The Declaration of Independence speaks of rights that precede government as belonging not only to Americans but to all people. Those rights include the right to life, liberty, and the pursuit of happiness. What's so hard to understand about that?

The idea that the country ought to control immigration should disturb advocates of individual liberty. According to classical liberal principles, a country is not a country club with a membership committee. Rather, it's a free association where individuals and their associates may live and prosper in peace. And they are left in peace unless they harm other people's bodies or steal or damage their belongings. If one of them wants to sell to, rent to, employ, or befriend someone whom others regard as an outsider, no one has a right to interfere.

If anyone does interfere, he's not only interfering with the "outsider", he's also interfering with "insiders." It can't be otherwise, as political scientist Chandran Kukathas points out. Kukathas "put[s] freedom at the centre of the immigration question. At stake are the liberty of citizens and other residents of the free society and therefore the free society itself. To put it simply, immigration controls are controls on people. and it is not possible to control some people without controlling others. More to the point, it is not possible to control outsiders (aliens, foreigners, would-be immigrants) without controlling insiders as well…. The conclusion ... is that if we value freedom–as we should–we ought to be wary of immigration control."

Going further, Kukathas challenges the view that society is “made up of members“ and that it's “some kind of unit comprised largely of people who belong together in some way, and whose belonging entitles them to determine who may or may not become a part of that unit, or indeed even enter the geographic space or territory it occupies.”

"The thought running through this book [Immigration and Freedom]," he writes, "is that membership is an ideal that is not only overrated but also dangerous from the perspective of freedom. It is at odds with the idea of people living together freely, for it subordinates that freedom to an altogether different ideal–one that elevates conformity and control over other, freer, ways of being. If we are to live freely, we must be able to relate to one another not as members but as humans."

Where there are members, there must be nonmembers -- which licenses the politicians to do unlimited mischief. The young century has taught this lesson well.

DeSantis and all others who think "America" can forbid or restrict immigration without violating the natural rights of both foreigners and Americans, or without reducing all our own well-being, are knowingly or unknowingly mistaken. Once again we're being ruled by presumptuous social engineers, cheered on by unreflective supporters.

TGIF: The Mythical Right to Medical Care

This clever video juxtaposes footage of Bernie Sanders and the late Milton Friedman to create a debate over whether the central government should take over medical care in America. Sanders condemns as a "national disgrace" the lack of a medical care guarantee for all -- rich, poor, and in between. Medical care, he insists, should be "a right of citizenship." Then, echoing someone in the audience, he changes that to "health care is absolutely a human right."

The remarks by Friedman from the '60s and '70s chosen for the video address the efficiency problems with government-run medical services, including the inevitable restrictions on consumer choice. Politicians and activists may feel good when they passionately declare that the government should guarantee all people medical care. Unfortunately, such declarations neither create nor deliver quality care justly or efficiently. Friedman was a long-time advocate of the separation of medicine and state. In his 1962 book, Capitalism and Freedom, he called for, among other things, the end of medical licensing, and he defended that view in these recorded remarks before a group of presumably uncomfortable doctors at the Mayo Clinic.

Since Friedman spoke as an economist, not a political philosopher, in his remarks, I thought I'd say something about the rights issue that Sanders raises. To pick a nit: Sanders needs to make up his mind. Is medical care a right of American citizenship or a human right? I don't see how it can be both. The term human right suggests universality, while a right of American citizenship does not.

But let's leave that and look at this purported right. The first thing that occurred to me is that this "right" doesn't match its billing. Medical care is not like air or water; it doesn't appear naturally. On the contrary, the many services and products that constitute medical care must be created through human effort.

This ought to pose a problem for the right-to-medical-care set. A declared right to medical care would camouflage something even more ominous: a right to the labor of doctors, nurses, technicians, developers of medicines, inventors and producers of medical devices, and so on.

That raises a question: do those people have a say in the matter? If the answer is yes, then there goes the purported right; they would be free to decline to go along. But if the answer is no, they are no longer free people, but slaves. Don't we all agree that slavery is bad? (Well, almost everyone. Slavery still exists today, including in Libya, thanks to the U.S.-led regime change in 2011, and many other places. The number of slaves today is larger than in previous times, but it gets nowhere the attention still given to American slavery, which was abolished 158 years ago.) Abraham Lincoln correctly said that "if slavery is not wrong, nothing is wrong." It follows that if self-ownership -- the opposite of slavery -- isn't right, nothing is right.

Is Sanders calling for slavery?

No, no, he and his allies will protest. No one is talking about slavery. No one wants anyone compelled to produce medical services and products. (I'm not entirely sure about that. Would they not endorse conscription for doctors if enough of them opted out of Medicare and Medicaid because of the bureaucratic intrusions?)

If they don't favor slavery, what do they mean? They mean that the government should guarantee payment for medical services for all. (As if the government would pay for something without dictating terms.) But how can the government guarantee payment? Society's medical bill is huge (partly because of government intrusion on both the supply and demand sides), and politicians and bureaucrats certainly don't personally have that sort of money. So they'd have to get it from somewhere else, and we know where that is: the pockets of the people living in America. All that politicians and bureaucrats can do is rearrange existing wealth according to their own preferences. (Actually, it's worse than that; by intervening, they impede the creation of new wealth and innovation in the medical field.)

One way or another, the government would have to transfer wealth from the people who create it to bureaucrats. If the chosen method is taxation (and if it didn't create a tax revolt), the transfer would be straightforward. The dollars the government takes and spends are dollars surrendered under duress by the individuals who earned them. Okay, taxation is not slavery, but it is extortion.

On the other hand, if the government borrows the money, the Federal Reserve would monetize the debt by inflating the money supply, driving up prices (and distorting the structure of production). Depreciation of the money would constitute a transfer of purchasing power from consumers to bureaucrats. That's just a hard-to-see form of taxation. (By the way, without the power to tax, the government would be unable to borrow.)

Sure, everyone theoretically would eventually get some kind of medical attention (if they lived long enough; you know how government monopolies are), but would the system be worth it in terms of lost liberty and utility? It's not as though free people wouldn't arrange for decent medical services, insurance, mutual-aid associations, and philanthropy if liberated from government domination. (Bulletin: we don't have a free medical system.) 

Sanders and the Medicare-for-all brigade endorse an untenable situation in which two or more sets of people are in a conflict over the same money: those who earned it and those whom the legislators and bureaucrats claim to be serving. We ought to be able to agree that they can't both have a valid claim to the same money. (How could the earners, who include entrepreneurs, business owners, managers, and employees, not be entitled to their earnings?)

For a rights theory to do its job -- which is to define the moral-political zone in which each individual can act and flourish in peace -- rights must be mutually consistent, or compossible, as the political philosopher Hillel Steiner puts it. That means the test of any rights theory is this: could all people exercise their rights simultaneously without conflict? Under classical-liberal natural-rights theory, they could. Under the progressive theory, they could not. Thus the progressive theory fails.

Sanders's view would eviscerate the Lockean principle that each person is an end in himself and not merely a means to other people's ends. Sanders & Co. effectively repudiates self-ownership and the rights to life, liberty, and the pursuit of happiness, which is really a single right: the right to be free from aggression.

No right to medical care exists. Everyone has a right to engage in peaceful and consensual cooperative activities aimed at obtaining medical care. But a right to medical care per se? No way, not if we value liberty -- and quality medical care.

TGIF: Social Order through Liberty

Human beings are self-actualizing social animals. We need to cooperate with others to flourish fully and (but?) we also need the freedom to make of ourselves the persons we wish to be; we need autonomy.

Can we do both liberty and social order? The answer is yes, and that is where rights come into play. I'll go with Ayn Rand's definition: "A 'right' is a moral principle defining and sanctioning a man’s freedom of action in a social context." Also, "Rights are conditions of existence required by man’s nature for his proper survival." Although rights theory is fraught with the potential for abuse -- many many counterfeit "rights" have been conjured -- it's difficult to abandon the concept.

Liberty and social order are often seen as in conflict with each other. The conservatives' fondness for the phrase ordered liberty. It is meant to suggest that liberty too easily becomes license and chaos. So we often hear that rights must be balanced against one another or against other considerations (such as state interest), indicating that all people could not possibly exercise their rights at the same time because that would produce intolerable social conflict. Hence the need for external limits.

But thanks to the work of genuine liberals -- that is, libertarians, we have good reason to reject this concern.

One of the great synthesizers of individual and social welfare was one of the most unjustly reviled political thinkers in history: Herbert Spencer. In discussing the human "tendency toward individuation in his 1851 (and first) book, Social Statics, Spencer wrote:

[The person] is self-conscious; that is, he recognizes his own individuality. . . . [W]hat we call the moral law—the law of equal freedom—is the law under which individuation becomes perfect, and that ability to act up to this law is the final endowment of humanity.... The increasing assertion of personal rights is an increasing demand that the external conditions needful to a complete unfolding of the individuality shall be respected. Not only is there now a consciousness of individuality and an intelligence whereby individuality may be preserved, but there is a perception that the sphere of action requisite for due development of the individuality may be claimed, and a correlative desire to claim it. And when the change at present going on is complete—when each possesses an active instinct of freedom, together with an active sympathy—then will all the still existing limitations to individuality, be they governmental restraints or be they the aggressions of men on one another, cease. Then none will be hindered from duly unfolding their natures.

"None will be hindered"? Even with "activity sympathy," how then can "an active instinct of freedom be reconciled with required social harmony? Spencer addresses the paradox:

Yet must this higher individuation be joined with the greatest mutual dependence. Paradoxical though the assertion looks, the progress is at once toward complete separateness and complete union. But the separateness is of a kind consistent with the most complex combinations for fulfilling social wants; and the union is of a kind that does not hinder entire development of each personality. Civilization is evolving a state of things and a kind of character in which two apparently conflicting requirements are reconciled.

It may sound odd, but Spencer anticipated “at once perfect individuation and perfect mutual dependence.” He wrote:

Just that kind of individuality will be acquired which finds in the most highly organized community the fittest sphere for its manifestation, which finds in each social arrangement a condition answering to some faculty in itself, which could not, in fact, expand at all if otherwise circumstanced. The ultimate man will be one whose private requirements coincide with public ones. He will be that manner of man who, in spontaneously fulfilling his own nature, incidentally performs the functions of a social unit, and yet is only enabled so to fulfill his own nature by all others doing the like.

This reminds me of Spinoza's belief that to be fully rational an individual must be surrounded by other rational free, individuals with whom he interacts respectfully through reason, persuasion, contract, and trade, not force.

Spencer, of course, is well known for what in Social Statics he called the law of equal freedom: "Every man has freedom to do all he wills, provided he infringes not the equal freedom of any other man.” This sounds good, and it is. But Murray Rothbard, in his discussion of the impossibility and hence senselessness of egalitarianism (in Power and Market: Government and the Economy), made an important observation about Spencer's law. Rothbard wrote:

This goal [equality of liberty] does not attempt to make every individual’s total condition equal—an absolutely impossible task; instead, it advocates liberty—a condition of absence of coercion over person and property for every man.

Rothbard pointed out that the terms equality before the law and equality of rights "are ambiguous and misleading. The former could be taken to mean equality of slavery as well as liberty and has, in fact, been so narrowed down in recent years as to be." He also wrote that the term equal is problematic in the study of human affairs because it suggests a unit of measure that does not exist. (For libertarianism conceived at equality of authority, see Roderick Long's "Liberty: The Other Equality" and "Equality: The Unknown Ideal.")

Finally, Rothbard wrote:

Spencer’s Law of Equal Freedom is redundant. For if every man has freedom to do all that he wills, it follows from this very premise that no man’s freedom has been infringed or invaded. The whole second clause of the law after “wills” is redundant and unnecessary. Since the formulation of Spencer’s Law, opponents of Spencer have used the qualifying clause to drive holes into the libertarian philosophy. Yet all this time they were hitting at an encumbrance, not at the essence of the law. The concept of “equality” has no rightful place in the “Law of Equal Freedom,” being replaceable by the logical quantifier “every.” The “Law of Equal Freedom” could well be renamed “The Law of Total Freedom.”

Rothbard credits the point to Clara Dixon Davidson, who in 1892 wrote in Benjamin Tucker's magazine, Liberty:

The law of equal freedom, “Every one is free to do whatsoever he wills,” appears to me to be the primary condition to happiness. If I fail to add the remainder of Herbert Spencer’s celebrated law of equal freedom, I shall only risk being misinterpreted by persons who cannot understand that the opening affirmation includes what follows, since, if any one did infringe upon the freedom of another, all would not be equally free. [Emphsis added.]

This leads to the conclusion that all people may be free to exercise their rights simultaneously without jeopardy to life-serving social order. No need for balancing rights exists. If all "ordered liberty" means is liberty that is consistent with social order, then we can rest easy so long as people think soundly about liberty. How surprising is this? After all, the very notion of rights stems from each individual's need to act in the world without conflicting with others. (This insight about rights theory has been called "compossibility" by the Georgist libertarian Hillel Steiner. For an opposing view to the Davidson-Rothbard argument, see this from Matt Zwolinski.)

This does not mean the boundaries between people's zones of freedom are always immediately clear -- far from it. Disagreements (both good faith and malicious) are inevitable. That's why, in addition to liberal customs, free societies will have contracts, formal associations, policing agencies, insurance, mediators, arbiters, and judges. Governance does not require government.

It seems that Benjamin Tucker's magazine motto (borrowed from Pierre-Joseph Proudhon) had it right: "Liberty: Not the Daughter but the Mother of Order."

TGIF: Abortion Rights v. Abortion Permissions

Even if you cringe at last week's ruling in Dobbs v. Jackson Women's Health, it would be wrong to say that the five Supreme Court justices took away women's right to have abortions.

I say this because the Supreme Court, unfortunately, never actually recognized a women's right to terminate a pregnancy. Instead, what the Court did in 1973 in Roe v. Wade (and reaffirmed in 1992 in Planned Parenthood v. Casey) was to grant women permission to have abortions up to a judge-defined moment. (Such court permission-granting is not unique to abortion.)

A permission is obviously not a right; it is the opposite. Individual rights are commonly understood as principles that morally and legally protect activities that individuals by their nature are entitled to engage in free from aggression by others, even the people regarded as government officials. ("I know my rights!") Contractual rights are conditioned on the terms of the contract, but those are not the kind of rights we're talking about here.

Yes, the Roe and Casey opinions used rights language. And in their dissent in Dobbs, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor write, "Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child."

But we shouldn't be misled by that language because their dissent also states, in defending Roe and Casey, "Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions." (Emphasis added.) Not full choice -- just "substantial choice." Why not full choice? Because, write the dissenters, "the State had, as Roe had held, an exceptionally significant interest in disallowing abortions in the later phase of a pregnancy." Permission granted; permission revoked.

Specifically, the Roe Court said that women have a constitutionally protected right to privacy with respect to their pregnancies -- but only until the state's "compelling interest in the potentiality of human life" kicks in after the second trimester or (in Casey) when the fetus becomes viable outside the womb. This doesn't sound like a matter of rights, but rather an exercise in the Court's subjective balancing of competing interests. What the Court calls "constitutional rights" sound like something else. This take on the Court's views will please anyone who conscientiously objects to abortion as murder. But it ought to dismay those who believe with equal conviction that women do possess a right to end their pregnancies. The Roe Court misled them.

So what now? Everyone understands that the Court did not outlaw abortion. Instead, it sent the matter, to use conventional political language, to the people and their elected representatives in the several states. Who could object to that?

Well, lots of people could. Those who believe that individuals have a natural right to life, liberty, and property should be concerned about leaving the question of rights to majority rule. Majorities can be and often are wrong: they can call something a right that isn't, and they can deny that something is a right that is.

On top of that, the flaws intrinsic to representative democracy are well documented, starting with the perverse incentives and irresponsibility generated by the fact that a single vote is almost never decisive. (George Bush's remarkably close 2000 victory in Florida had a margin of 537 votes. But no individual voter had more than one vote.) If any voter doubts his electoral impotence, he should compare how he would prepare for an election in these two scenarios: the first in which, as normal, he has only one vote; the second in which he also has only one vote but has been assured by divine intervention that whomever he votes for is guaranteed to win.

Democracy also falls short of the textbook ideal because, in light of the impotence of a single vote, most people have better things to do than invest the time, money, and effort required to properly educate themselves about the consequences of what the candidates say they would do if elected. (That would require studying economics, among other things.)

Moreover, no single voter will incur more than a tiny fraction of the full social cost of his making a bad decision at the polls. (This assumes that candidates, who represent a shopping cart of positions on diverse issues, will even keep their campaign promises.) And we also have the problem that highly motivated and concentrated single-issue interest groups will often prevail over the far larger but unorganized mass of citizens. This is the plague of concentrated benefits and dispersed costs. (For an elaboration of these flaws, see Bryan Caplan’s The Myth of the Rational Voter: Why Democracies Choose Bad Policies. Ilya Somin and Jason Brennan have also written books on this subject. See also my "Is 'Free Election' an Oxymoron?" and "The Crazy Arithmetic of Voting.")

I join those who worry about having our rights determined by majority rule in the state legislatures. But what's the alternative? Until a free market in rights protection and conflict resolution is a live option, it seems the only alternative is what we now have: the U.S. Supreme Court.

But shouldn't advocates of liberty be concerned about that too? As many have pointed out, the Court resembles an unelected, life-tenured supreme legislature that allows no easy appeal. We may like the Court when it agrees with us, but what about when it doesn't? Even a court that seems committed to individual rights could have a different notion of rights than you or I have. It might sanction pseudo-rights, such as taxpayer-financed abortion, that conflict with authentic rights. Or it might refuse to sanction an authentic right. What do we do in those cases? Do we need a Supremer Court to correct the Supreme Court? And a Supremerer Court to correct the Supremer Court, ad infinitum?

Libertarians who don't want rights left to state legislatures should beware of the Nirvana fallacy, comparing real-world legislatures to an idealized Supreme Court. State legislatures are fraught with danger, but we won't soon see a Supreme Court full of justices who embrace the rights theory of Ayn Rand, Murray Rothbard, or [insert name of favorite libertarian]. The question, then, is: what is the least-bad alternative in the meantime.

Contrary to what many want to believe, the Constitution does not instruct us in how it is to be interpreted or direct us to someone's -- Madison's? Hamilton's? -- interpretation. But even if it did, an internal or external interpretation would also be subject to interpretation. “Any interpretation still hangs in the air along with what it interprets, and cannot give it any support,” Wittgenstein wrote about rule-following.

There could be no correct reading of the Constitution. One might say that a particular reading is more reasonable (here's one perhaps) and another less reasonable, but we have no way to pronounce a reading the correct one. A reading could be clearly wrong, but not clearly right.

It is not as if we could have a computer that could infallibly decide constitutional questions. To qualify, that computer could not be programmed by a human being, or else it would be vulnerable to the criticism above. It's human beings all the way down. (See Roderick Long's "Rule-Following, Praxeology, and Anarchy.")

The alternatives -- courts or state legislatures -- pose a threat to freedom. We can weigh the relative risks, but the threat won't disappear. For example, compared to a national supreme court, legislative decentralization would at least reduce the cost of voting with one's feet, that is, relocating. However, that is not always possible, especially for low-income people, and states can perpetrate what has been called "grassroots tyranny." (See Jacob T. Levy's Rationalism, Pluralism, and Freedom and my review of that book.)

Bottom line: regardless of institutions, liberty is never secure. Hence, the need for eternal vigilance and persistent efforts to teach people to cherish liberty.

TGIF: Disagreement without Conflict

Chandran Kukathas

I'll admit it: I'm a natural-rights guy. I think you can get to individual rights, including the right to property, from within the ancient Greek eudaimonist (virtue ethics) and Spinozist tradition.

But here's a separate point: rights-talk may not be the best way to bring unconvinced people over to the libertarian view of the good society. Heresy? I hope not.

This video interview with Chandran Kukathas, author of The Libertarian Archipelago, got me thinking about this subject. Kukathas (whom I've written about here and here) starts with what ought to be obvious to everyone: people disagree about all kinds of things. As he writes in his book:

In a world of moral and cultural diversity one of the subjects over which there is dispute, and even conflict, is the subject of justice. Different peoples, or groups, or communities, have different views or conceptions of justice. In these circumstances the question is: how can people live together freely when there is this sort of moral diversity?"

Even when they agree on ends, they often disagree about the means to those ends. Disagreement is here, has always been here, and ain't going anywhere.

So what, you ask? What does that have to do with winning adherents to the libertarian view of the good society? It has a lot to do with it. Much modern libertarian thinking has been shaped by theorists who at least implied that the way to a free society is to get widespread if not universal agreement about rights and hence justice -- in other words, assent to a libertarian law code deduced from the nonaggression principle. (Some even think the agreement must extend to other philosophical matters like metaphysics, epistemology, ethics, aesthetics.) As a libertarian I came up  (long ago) in that tradition. But now I wonder about its strategic, but not its truth, value.

If disagreement is and will be ubiquitous, how in hell can we hope for widespread agreement on a detailed code of law or rights theory? We can't hope for that, and we should stop acting as though we can because it looks to be a time-waster. It's been tried, so we must learn there are no magic words to do the trick.

Does that leave us in despair? Have we no hope for liberty? Maybe not. Chandran Kukathas gives us reason to hope.

Since broad disagreement is not going away, the most we can work for is an environment characterized as disagreement without conflict. I'm not a utopian. Conflict isn't going anywhere either, but it can be minimized through liberal institutions based on freedom of association within the current national territories, the "live and let live" principle, which would not require territory-wide agreement to a detailed doctrine. In other words, if we can't get universal agreement to a code of justice, how about to the principle of "mutual toleration"?

In this age of extreme and acrimonious polarization, doesn't that sound like a strategic approach worth pursuing? If no monopoly state is available, Group A won't have to live in fear that Group B will seize it and impose its preferences, and thus Group A won't have to seize the state apparatus first in self-defense.

Some may object to putting rights-talk on the shelf in favor of something less "pure." They may insist that in America, home of the Declaration of Independence with its stirring lines about inalienable rights that predate government, rights talk resonates as it does nowhere else.

That was my first thought. But then I remembered how the list of things that Americans are said to have a right to has grown exponentially over the decades. No one has been able to find the right incantation to stop, much less, reverse that growth. Believe me, many people have tried. And once you give flight to even legitimate rights-talk, you have no control over where it goes and what form it takes. Once "counterfeit rights" gain currency, we enter the realm of rights-balancing. And guess who's in charge of that.

So, Kukathas writes in The Liberal Archipelago, "The primary question of politics is not about justice or rights but about power, who may have it, and what may be done with it. Views about rights or about justice may have a significant bearing on any answer to this question, but this remains the important question."

As a consequence, Kukathas continues, "The principles of a free society describe not a hierarchy of superior and subordinate authorities but an archipelago of competing and overlapping jurisdictions." (Emphasis added. That is an extremely important adjective because it indicates that the authorities do not have monopolies even within "their" territories, suggesting a polycentric approach to law and governance.)

Kukathas clearly does not buy James Madison's famous line in Federalist 51: "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Thus those who value liberty must cultivate a distrust of power of all kinds. Kukathas says in the interview that the government is always a they that "co-opts us on a regular basis," and never a we. "In a free society ... only the freedom to associate is fundamental." The freedom of exit of course is the corollary.

As you might expect, Kukathas challenges the conventional view of what even constitutes the good society. He is "skeptical" about the need for "social unity," suggesting it

is not nearly as important as has been intimated. On the contrary, the good society is not something confined by the boundaries needed to make it one. Political authority is necessary in any good society; but political authority should be understood as something which has a place in the good society, rather than as something which circumscribes it.

In opposition to the body-politic metaphor, Kukathas offers a metaphor "of society as an archipelago of different communities operating in a sea of mutual toleration.... [T]he liberal archipelago is a society of societies which is neither the creation nor the object of control of any single authority, though it is a form of order in which authorities function under laws which are themselves beyond the reach of any singular power."

Importantly, he adds, "Implicit in this is a rejection of nationalism, and of the idea that we should start with the assumption that the nation-state is the 'society' which is properly the object of concern when we ask what is a free society."

Summing up in the interview, Kukathas says,

Having asked how can a diversity of peoples live together freely given their differences, [my theory] asserts that the answer lies in the way authority is allocated. More particularly, it argues that in a free society -- which is to say, a liberal society -- there will be a multiplicity of authorities, each independent of the others, and sustained by the acquiescence of its subjects. A liberal society is marked by respect for the independence of other authorities, and a reluctance to intervene in their affairs.

That reluctance would be reinforced by the fact that people who might like to control other people's peaceful conduct would have to pay out of pocket for the pleasure. They would not be able to socialize the cost by imposing it on a large number of otherwise indifferent taxpayers. The more something costs, the less people tend to buy. Call it libertarianism by default.

That seems like a vision that could win wide assent.

TGIF -- The Goal Is Freedom -- appears on Fridays.

Complying with Mandates

It's utterly conceivable that the government might mandate that we do (or not do) what we already ought (or ought not) to do, seeing as how social animals owe things to each other. In such cases, refusing to engage (or abstaining from engaging) in the mandated (or forbidden) behavior because the government has mandated (or forbidden) it is just wrong, edgy individualist rationalizations notwithstanding. Needless to say, I should have started this post with "Needless to say...."

TGIF: For the Love of Reason

Far be it from me to divide humankind in two, but were I so inclined, I’d divide it into those who love reason and those who are indifferent if not outright hostile to it. Members of the first group adore the reasoning process and their own reasoning faculties. The others find the process burdensome and discomforting, something that threatens long-held beliefs and intuitions. When I say the members of the first group adore their own reasoning faculties, I do not mean that they are arrogantly confident in their intelligence or immunity from error. Quite the contrary: a Spinozist love of reason contains within it humility, doubt, an awareness of one’s limits and fallibility, and a recognition of the inherently social nature of reason (and language) and the growth of knowledge.

Read TGIF at The Libertarian Institute.

TGIF (The Goal Is Freedom) appears on Fridays. Sheldon Richman, author of America's Counter-Revolution: The Constitution Revisited, keeps the blog Free Association and is executive editor of The Libertarian Institute. He is also a senior fellow and chair of the trustees of the Center for a Stateless Society and a contributing editor at Antiwar.com.

Become a Free Association patron today!

The Logical Flaw in Immigration Law

Apart from the obvious rights violation, I see a serious flaw at the very root of immigration law. Let's begin with an indisputable point: no law passed by Congress and signed by a president applies to people on the far side of a US border. Logically, that must include laws against entering the US. Since the US government has no jurisdiction over people in, say, Mexico, someone who crosses the southern border cannot do so illegally because the law in question did not apply to that person when he or she was crossing. No jurisdiction, no illegal entry. That's just logic.

Well, the immigration-control enthusiast may respond, we can change the law to say that no one can stay in the US without papers signifying permission to do so from the proper authorities. (Leave aside the general question of proper authority.) Now we have a new problem. According to this position, Person A, having been born here, needs no permission, but person B, having been born elsewhere, does need permission and can be expelled without it.

But that's discrimination by the government and thus a violation of equality under the law, a core liberal value (as long there are governments making laws). On what basis is that discrimination perpetrated? On the basis of birthplace -- hardly one that can withstand rational scrutiny. No one is harmed -- in the sense of having his or her rights violated -- merely because someone who was not born here resides in the US without government permission. No harm, no foul. The policy is simply vicious discrimination.

I remind the constitutionalists that their beloved document makes no reference to birthplace in its clauses related to rights. Rights and protections against their violation are said to apply to persons, not citizens. See the Fourth Amendment. All persons, no matter their birthplace, have the same rights.

Therefore, all legislative diktats relevant to immigration control fail the test of reason and should be stricken forthwith. No US law could have been broken by the entry, and on the matter of who can stay here, the government has no good grounds to discriminate between people who were born here and people who were not.

Simple Lesson

Doing good with others people's money taken at gunpoint is no virtue.

TGIF: How Many Rights?

So, libertarians, how many rights do people have? One (say, the right to life, albeit with countless applications)? Three (life, liberty, and property)? Or an unlimited number (the right to do this, that, and the other, ad infinitum)?

Because part of any strategy to achieve a fully free society presumably includes persuading nonlibertarians to be libertarians, formulating a clear answer to my question seems worthwhile. The simpler the answer the better (other things equal), because getting people to think about moral and political philosophy, especially when we appear to be challenging the reigning view, is tough enough without needlessly making it tougher.

TGIF: Unjust Immigration Law Is Not Law

I know better than to think that Obama’s executive order is the start of something big. But that is no reason not to rejoice. Because of his action, some human beings won’t be torn from their children by jackbooted immigration thugs. I can’t see how that’s not a good thing.

Read it here.

TGIF: What Social Animals Owe to Each Other

If I were compelled to summarize the libertarian philosophy’s distinguishing feature while standing on one foot, I’d say the following: Every person owes it to all other persons not to aggress them. This is known as the nonaggression principle, or NAP.

What is the nature of this obligation?

Read more.

Op-ed: What the Immigration Bill Overlooks

My latest op-ed points out that the Senate's "comprehensive" immigration "reform" bill missed a few things.

Crimes Governments Commit

From the BBC:

A judge in Malawi has sentenced a gay couple to 14 years in prison with hard labour after they were convicted of gross indecency and unnatural acts.

The judge said he wanted to protect the public "from people like you".

Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, have been in jail since they were arrested in December after holding an engagement ceremony....

"I will give you a scaring sentence so that the public be protected from people like you, so that we are not tempted to emulate this horrendous example," said Judge Nyakwawa Usiwa-Usiwa in the commercial capital, Blantyre.