Blogs Liberty and Power When "Libertarians" Go Bad: Conservatives Who Don't Go to Church

Aug 7, 2004

When "Libertarians" Go Bad: Conservatives Who Don't Go to Church

by Liberty and Power

About a year ago, on the heels of the Supreme Court decision striking down the state law in Texas prohibiting sodomy, the Washington Times had an altogether predictable massive anxiety attack because of what its editors saw as the impending collapse of Western civilization. In writing about the Times editorial, I quoted Skip Oliva (of Citizens for Voluntary Trade) as follows:

The Times editorial does not use the phrase"individual rights" once, but it does refer to"states' rights." It's no coincidence that"states' rights" was once used to justify segregation and slavery. Under the federal Constitution, sovereignty is vested with the people; the states are but a convenient mechanism for dividing government power. Since the function of sovereignty, i.e. government, is the protection of individual rights--and only the protection of individual rights--there does not exist any distinct"states' rights" which can overrule the individual's liberties. No matter how big a majority might wish to do so in any given state, the government may not regulate the private consensual sexual conduct of its citizens on the grounds of public morality.

Skip also noted that conservatives have long ignored the Ninth Amendment with"malicious forethought," which is indisputably true. You can read much more about the Ninth Amendment, and its guarantee that the individual is sovereign in his personal autonomy so long as he does not violate the rights of others, here and here.

In another post that dealt with the numerous errors in a Ramesh Ponnuru article about the constitutionality of the Texas sodomy law, I repeated what I myself had said earlier on the subject of"states' rights":

One other point: many conservatives, and even many libertarians, often advocate"states' rights" on issues such as abortion and sodomy laws. I think they are grievously mistaken about the underlying issue: if a right is, in fact, a legitimate individual right, it is not up for grabs by the individual states -- i.e., the various states may not properly decide to recognize an individual right or not. This is not to say that there are not many genuinely optional issues about which states may legislate in different ways. But again, with regard to individual rights -- such as the right to one's own body (under which right I include the right to abortion, the right of consenting adults to engage in sexual activity, and the"right to die" -- and I will address the last point in a separate post soon) -- these may not legitimately be infringed upon by any government, including a state government. But certain advocates of"states' rights" seem all too willing to trade in one centralized tyranny for 50 smaller ones. A tyranny of whatever degree and scope is wrong, and it is certainly wrong when it violates and disregards the most basic personal rights -- and the fact that a government does so only in a smaller geographical area does not make it any less wrong, or any less abhorrent.

As I noted, many"libertarians" make the same mistake that is more commonly associated with conservatives. Here, for example, is Ron Paul -- the only self-proclaimed"libertarian" in the United States Congress -- speaking to the House in support of the Marriage Protection Act, of which he was proudly an original cosponsor:

Mr. Speaker, as an original cosponsor of the Marriage Protection Act (HR 3313), I strongly urge my colleagues to support this bill. HR 3313 ensures federal courts will not undermine any state laws regulating marriage by forcing a state to recognize same-sex marriage licenses issued in another state. The Marriage Protection Act thus ensures that the authority to regulate marriage remains with individual states and communities, as the drafters of the Constitution intended.
The practice of judicial activism – legislating from the bench – is now standard procedure for many federal judges. They dismiss the doctrine of strict construction as outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case. For judges who see themselves as social activists, their vision of justice is more important than the letter of the law they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a social agenda than on upholding the rule of law, Americans find themselves increasingly governed by judges they did not elect and cannot remove from office.
Consider the Lawrence case decided by the Supreme Court last June. The Court determined that Texas has no right to establish its own standards for private sexual conduct, because these laws violated the court’s interpretation of the 14th Amendment. Regardless of the advisability of such laws, the Constitution does not give the federal government authority to overturn these laws. Under the Tenth Amendment, the state of Texas has the authority to pass laws concerning social matters, using its own local standards, without federal interference. But rather than adhering to the Constitution and declining jurisdiction over a state matter, the Court decided to stretch the “right to privacy” to justify imposing the justices’ vision on the people of Texas.

After further details about the alleged"need" for the Marriage Protection Act, Paul says that"[i]t is long past time we begin using our legitimate authority to protect the states and the people from judicial tyranny."

And lest anyone fail to understand what he is up to tactically, Paul spells it out for you:

Since the Marriage Protection Act requires only a majority vote in both houses of Congress (and the president’s signature) to become law, it is a more practical way to deal with this issue than the time-consuming process of passing a constitutional amendment. In fact, since the Defense of Marriage Act overwhelmingly passed both houses, and the president supports protecting state marriage laws from judicial tyranny, there is no reason why the Marriage Protection Act cannot become law this year.

In other words: it's just too damned hard to get a Constitutional amendment passed by Congress and approved by the required number of states -- so let's take this really neat way to get around all that nonsense, and do what we want without all that fuss and bother!

Scavenging for additional justifications for his views, Paul appeals to tradition and ignorance, in a manner that would make any conservative happy -- for example, this guy. Paul says:

While marriage is licensed and otherwise regulated by the states, government did not create the institution of marriage. In fact, the institution of marriage most likely pre-dates the institution of government! Government regulation of marriage is based on state recognition of the practices and customs formulated by private individuals interacting in civil society. Many people associate their wedding day with completing the rituals and other requirements of their faith, thus being joined in the eyes of their church – not the day they received their marriage license from the state. Having federal officials, whether judges, bureaucrats, or congressmen, impose a new definition of marriage on the people is an act of social engineering profoundly hostile to liberty.

It should be noted that, both in his general approach and in his specific use of language -- his criticism of federal judges as"social activists" more concerned with"promoting a social agenda," for example -- Paul is thus far indistinguishable from any run-of-the-mill conservative. But it is this paragraph that contains the worst intellectual error in Paul's approach, and that is the root of all his other mistakes:

Some may argue that allowing federal judges to rewrite the definition of marriage can result in a victory for individual liberty. This claim is flawed. The best guarantor of true liberty is decentralized political institutions, while the greatest threat to liberty is concentrated power. This is why the Constitution carefully limits the power of the federal government over the states. Allowing federal judges unfettered discretion to strike down state laws, or force a state to conform to the laws of another state, leads to centralization and loss of liberty.

First, please be aware that this is the one and only time that Paul even mentions"individual liberty" -- and he mentions it only to swat down those who oppose his support for this legislation out of misplaced concern (in Paul's view) for such"individual liberty." I fear I must remind you at this point that Paul presents himself as a"libertarian," supposedly concerned with individual rights above all. Obviously, I have to remind Paul himself, since he is willing to see individual rights attacked by the states at the most fundamental level -- and do precisely nothing about it.

This is simply the elevation of form over substance, and it represents a"rationalistic" approach to this question, completely cut off from facts and from the actual reality with which we are presented. By this, I simply mean the following: Paul begins with the unquestioned premise that"decentralized political institutions" are the"best guarantor of true liberty" -- and he will do everything he can to maintain such"decentralized" institutions, even if that means that states thereby have untrammeled power to destroy individual rights completely. To put the matter more simply: Paul has no principled objection to absolute tyranny, as long as such tyranny is exercised in a small enough geographical area.

To make this issue absolutely unmistakable, let us rewrite Paul's key paragraph, in part updating it to reflect what might be current concerns for a certain (hopefully small) segment of our fellow countrymen:

Some may argue that allowing federal judges to outlaw the institutions of slavery or involuntary servitude, or to prohibit the establishment of internment camps, for African-Americans and Arabs can result in a victory for individual liberty. This claim is flawed. The best guarantor of true liberty is decentralized political institutions, while the greatest threat to liberty is concentrated power. This is why the Constitution carefully limits the power of the federal government over the states. Allowing federal judges unfettered discretion to strike down state laws, or force a state to conform to the laws of another state, leads to centralization and loss of liberty. This would be true even if federal judges were to find that state laws in favor of slavery or involuntary servitude, or the establishment of internment camps, for African-Americans and Arabs constituted a violation of individual rights.

Are we clear on this now? I hope so.

Paul's reprehensible performance on this issue reminds me of a remark I have often heard about a certain type of devotee of Ayn Rand's ideas, the type who likes to think of himself as some sort of"radical," but who underneath is actually a hide-bound traditionalist: that this kind of person is actually"a conservative who doesn't go to church." In the same way, many"libertarians" -- when you peel away the veneer of superficial and unprincipled concern for liberty and individual rights -- reveal themselves as worshippers of state power, so long as that power is sufficiently small in scope or exercised in ways with which they happen to feel comfortable, on whatever basis which appeals to them at the moment.

And in this way, these"libertarians" are also" conservatives who don't go to church." Paul should either take up the mantle of what conservatism represents today completely -- or decide that he actually wants to fight for the rights and autonomy of the individual, against encroachments by any government, state or federal.

In the meantime, I truly wish he would keep quiet about this kind of issue. He is also the kind of person who gives genuine libertarians a bad name. I can't blame people who have no idea what libertarianism stands for today. It is people like Paul who create a multitude of confusions, and who make libertarians indistinguishable from, for example, the crowd at National Review.

Perhaps Paul should start writing for them. After a while, I think he would feel completely at home. And he and the others there can share stories late at night about how those"activist judges" will shortly bring about the destruction of everything good and decent in civilization, and that they can prevent it only if Paul and his ilk can manage to find a Constitutional shortcut to forestall that calamitous End of Days.

(Cross-posted at The Light of Reason.)

comments powered by Disqus

More Comments:

Arthur Silber - 8/10/2004

A few points, Eric. A matter of terminology: of course, the United States originally was not a democracy, but a constitutional republic -- based on the absolute supremacy of individual rights. The government's only proper purpose was to protect those rights against encroachment by others (either domestically or from other countries). (There were a few contradictions, but I'm talking about the most fundamental principles involved here.) Second, "democracies" might not be run by principles, but my view is that constitutional republics most certainly SHOULD be. That view will require a huge sea change to be accepted by a significant number of people, I well realize, but that is my view. And the major principle that should undergird any proper constitutional republic is what I said: that government's only proper task is the protection of individual rights. Moreover, what those individual rights consist of is not a matter open to debate or majority vote, with regard to what the state may enforce utilizing force against its citizens. (And that is true with regard to the government on any level, over any geographical area.)

I would not say that all libertarians who advocate federalism are of necessity "closet conservatives." Obviously, their reasons and their contexts vary enormously. However, if a "libertarian" maintains the view that a state government may legitimately pass laws regulating all kinds of personal conduct (and even prohibiting large swathes of completely personal behavior), conduct which violates no one else's rights at all (as Ron Paul does with regard to these issues, for example), then he is not a principled advocate of individual rights. And he does support localized tyrannies, whether he chooses to acknowledge it or not. The contradiction is theirs, not mine.

(All of these issues clearly require much lengthier discussion; I'm condensing the arguments enormously.)

Eric Hanneken - 8/10/2004

I was pointing out what I thought was an unattractive implication of your blog article, in the hope that that would cause you to reconsider what you wrote. However, it seems you are willing to follow your argument to its logical conclusion: the rejection of federalism.

I think that would be a mistake. Granted, the federalist system is already well eroded by democratic politics, but it still provides some protection against bad government, at least in states that are less bad than the U.S. government. If you're saying that if libertarians run the federal government, we won't need any checks on its power, I disagree. Democracies (and quasi-democracies) aren't run by principles; they're run by people who have differing knowledge and values. Just like participants in markets, participants in democracy behave self-interestedly, and respond to incentives and constraints.

Even if you disagree with this, I hope you'll at least agree that libertarians who advocate federalism are not necessarily closet conservatives, who secretly wish "to trade in one centralized tyranny for 50 smaller ones."

Eric Hanneken - 8/10/2004

I don't know. The 14th Amendment says that states shall not "deny to any person within its jurisdiction the equal protection of the laws." If that means the laws may discriminate, but they must be enforced equally, then the decision was wrong. If it means the laws themselves must not discriminate, then the decision was correct. I think precedent sided with the latter interpretation.

John Arthur Shaffer - 8/10/2004

O'Connor's opinion in Lawrence v. Texas used equal protection to strike down the sodomy law because it explicitly outlawed gay sodomy, leaving hetero's free to use the mouth and anus in the privacy of their homes.

I assume you at least agreed with this.

Arthur Silber - 8/10/2004

Sorry I misspelled your first name, EriC. My apologies. :))

Arthur Silber - 8/10/2004

Erik: I'll answer your questions, first in the way you ask them and then with two important notes: yes, if libertarians ever gained control of the federal government, they absolutely should pass the laws you identify. That is true, in my view, with regard to the underlying principles involved, and I hold that view without reservation. My view is based on the overall philosophic-political principles set forth in the Constitution, as well as the Ninth Amendment. (I add that, not being a constitutional scholar to any significant degree, there may well be additional bases or even a more compelling grounding for that view, but I think that is probably the preferable basis.) No state should properly have the power to violate individual rights, correctly understood, at all, in any manner. (Nor should any city or smaller subdivision; the principle remains the same.)

Here are the two notes: first, your question reduces the immense complexity of cultural, political and philosophical change to a question of principle only (so I answered it that way first), but entirely divorced from the overall context in which the issues would arise, and divorced from the manner in which they would be dealt with, in fact. Cultural and political change take vast stretches of time; the changes you indicate would never occur overnight -- they would occur very, very gradually, as more and more people came to accept the viewpoint I espouse, either in part or more completely. So, in fact and with regard to how societies change longstanding patterns of thinking and the concomitant behaviors (political, cultural and otherwise), the question would never arise in that form (except in the context of an abstract consideration of the issues, in the manner we engage in here).

Second -- and I stress that I am not saying this is true of you in particular: this form of argument often carries an unstated implication, which is a kind of implicit intimidation: "Surely you can't mean THIS, can you? No sane person could ever advocate such a view!" It is usually the element of intimidation that causes many people to give up their defense of the principle involved, rather than be subjected to ridicule. Again, I am not saying that is what you were doing; I don't know you at all, so I obviously have no idea what may lie behind the question in your case. But again, asking the question in such a form completely disregards the much more complicated reality of how such a profound alteration would occur. Just as it took centuries of intellectual, cultural and political development to culminate in the founding of America, so it will take a very long time to roll back the statism that has taken hold in the U.S. today. And libertarian ideas are still very much a minority position, so I would not expect to see even extremely minor changes for a great many years.

Eric Hanneken - 8/10/2004

Yes, that's correct. But the Constitution is not a charter for a national rights-protection agency. The interference you mentioned was a job left to the citizens of the several states.

M.D. Fulwiler - 8/9/2004

Erik:

Well, the unenumerated rights of the 9th Amendment are worthless if the states can violate them without interference, correct?

Eric Hanneken - 8/9/2004

John Gareth Morley:

I agree that if a state violates "due process" when depriving an individual of liberty, the 14th Amendment authorizes the U.S. government to act. I just assumed that passing a law and trying an individual in court counted as due process.

Eric Hanneken - 8/9/2004

Yes, the 9th Amendment says individuals have unenumerated rights. But the 10th says the U.S. government has enumerated powers. Protecting individuals from state or city laws against abortion or homosexuality is not in the list.

Granted, almost no politicians or bureaucrats confine themselves to the limited roles that the Constitution circumscribes to the U.S. government. But don't you think they should? How would you answer the questions I asked in my first message: "If libertarians ever gain control of the U.S. government, do you think they should pass laws that prevent states from outlawing drugs and prostitution? That abolish public schools?"

John Gareth Morley - 8/9/2004

You say, "the Constitution does not authorize [the federal government] to stop city and state governments from infringing those [i.e., natural] rights."

The Fourteenth Amendment clearly does authorize the federal government to prevent states from making or enforcing laws that abridge the "privileges and immunities" of US Citizens, or deprive any person of life, liberty or property without due process or deny any person under their jurisdiction the equal protection of the laws.

It is equally clear that states that forbid gay sex, or suicide or abortion are infringing liberties.

The real issue is whether a state statute with ordinary criminal law procedures, but that forbids some conduct harmless to others, exhibits "due process."

M.D. Fulwiler - 8/9/2004

Actually, the fear that the Constitution would be read as some sort of "litany of rights" led to the inclusion of the 9th Amendment, which states that there are "rights retained by the people."

The Declaration of Independence speaks of "inalienable rights." However, the "strict constructionists" would have us believe that states have a virtual legal carte blanche to violate individual rights under the Constitution. That does not make any sense.

Eric Hanneken - 8/9/2004

Isn't it possible to simultaneously believe

1. Individuals have natural rights to abort fetuses, have gay sex, and commit suicide.

2. Any government (including city and state) that interferes with the exercise of those rights is acting illegitimately.

3. The U.S. government should exercise only its enumerated powers, and the Constitution does not authorize it to stop city and state governments from violating those rights.

I'm curious to know what you think of the federalist system. If libertarians ever gain control of the U.S. government, do you think they should pass laws that prevent states from outlawing drugs and prostitution? That abolish public schools?