It’s not just Brink Lindsey. Patrick Deneen writes,
Until recent times, America has never been so foolish to consider itself a libertarian nation, much less had such a view advanced by so-called “conservatives.” We have had a libertarian public policy imposed by the mainstream of each political party: libertarian economics by elites on the right, and libertarian social ethos by elites on the left. This elite coalescence is represented no better than today’s two Supreme Court decisions, one which gives precedence to a corporation’s rights of property and profit (U.S. Forest Service v. Cowpasture River Preservation Association), and the other which continues to elevate sexual autonomy as paramount libertarian good that trumps all contesting claims (Bostock v. Clayton County, Georgia). Will and Thompson mistake this aberration – foisted upon an increasingly recalcitrant and unhappy public – as the sum of the American tradition, rather than an aberration and deformation.
I stand by my critique of Deneen from two years ago.
Who else remembers Tom Lehrer?
Oh the Protestants hate the Catholics
and the Catholics hate the Protestants
and the Hindus hate the Moslems
and everybody hates the Jews
We are in the era of what political scientists call “negative partisanship,” where people feel at best lukewarm to their own side but are filled with fear and loathing for the other side.
(U.S. Forest Service v. Cowpasture River Preservation Association)
—
Strnge casse. Deneen claims the trailways act which transferred management of trails to the National Park Service was a grant of a national park status, a special and legal property rights for national parks which is different from federal lands. But the law specifically said no, the decision was to be deferred back to interior when land under the trail was federal.
All the parties were wrong, all four of them. The original permit request should have been deferred to interior. Was there some agreement with interior? Why didn’t interior just grant the permit and let someone else file a different suit? And why did the Supremes simply declare the suit moot, wrongly filed and send it back to interior?
I rule this a case of everyone wanted to be the savior. There were no libertarians, the libertarian judge would have declared whole whole mess wrongly filed and sent it back to dept interior, according to law.
I promise to keep this short, Arnold.
Here is another. Why didn’t Citizens United just file a class action suit on behalf of shareholders? And why didn’t the pipeline company just get a letter of confirmation from Secretary of interior?
The Constitution is simple, that is the problem, and the Supremes get bored, ignored and start hinting about making laws. Lawyers know this, and game them. Then the courts get jammed, the courts depend on clear legislation, and doing that is specified on the Constitution. But something went wrong. The Supremes need to embrace the idea of a wrongly filed suit, calling an apple a pear.
Capitalism – operating in a classical liberal, rule of law framework – rewards the so-called “bourgeois virtues” of self-reliance, persistence, dependability, thrift, diligence, honesty, creativity, tolerance, and civility. Free market processes also penalize vices such as profligacy, negligence, deceit, bigotry, and discourtesy.
Government policies spawned during the Progressive Era, the New Deal, and the Great Society severed feedback loops that link action and consequence, thereby undermining market processes that encourage virtue and discourage vice. The federal government’s role as universal insurer-of-last-resort shifts the consequences of people’s poor choices onto the backs of the taxpayers and, more often, future taxpayers.
Imagine how dangerous the world would be for a person without the ability to feel pain – as happens with certain forms of leprosy. Such a person could hurt himself terribly by continuing to walk on a badly sprained ankle or putting his hand on a hot stove without knowing it. Government’s Illiberal policies have created a sort of moral leprosy.
Patrick Deneen and his like see the fruits of government intervention, blame liberalism, and demand more government intervention.
A Tom Lehrer album was one of the only gems in my parents’ generally god-awful record collection. But the hatreds he was singing about were religious, racial, and ethnic. Now we’ve ‘moved on’ to hatred based on politics almost exclusively. And the idea of a ‘National Brotherhood Week’ where the red and blue tribes could even pretend get along seems far-fetched.
We are in the era of what political scientists call “negative partisanship,” where people feel at best lukewarm to their own side but are filled with fear and loathing for the other side.
This is a rational response to the political culture. Judging by their leading individuals, every side is pretty gross. I can’t get too attached to my guys because I see a lot of naked, cynical status-climbing, but your guys are just as bad plus they’re wrong about everything, so basically monsters.
I left the libertarian movement because I no longer supported ending the “drug war” and I no longer supported liberal immigration policies. I’m still a “never Trumper,” but I’m happy to identify as a secular conservative rather than as a libertarian.
Basically, whenever I read any article by Radley Balko, I head in the exact opposite direction.
Bostock seems ambiguous as far as libertarianism goes. As I understand Deneen, he sees it as a libertarian victory in that it frees certain identity groups to sue people who discriminate against them. The resulting litigation is thus considered liberating because it punishes the coercive power of individuals in the out group deemed to be small minded bigots unworthy of the freedom to live as they please. But I can remember back to a time before they were expelled from the fold and castigated, there were some people who claimed the libertarian mantle that believed in freedom of association. There might still be some keeping their heads down, but overall I get the impression that libertarians seek approval from the cool kids and are more than happy to join in hating on the adherents of older sensibilities.
As a populist, I don’t have a dog in the fight. No need to get worked up over the competing dogmas involved. I would just observe that in populist Switzerland, authentic democracy enabled the people to choose to adopt employment discrimination protection for the identity groups concerned. In a referendum in February of this year, 63.1% of the Swiss public voted in favour of expanding the anti-discrimination law. The issue had been previously debated in the legislature and everyone had a good understanding of how the law would be implemented.
In the tyrannical USA, however, the top barratry guild rain makers pulled an opinion out of their collective butts and unleashed anarchy on the land. Will employers be forced to maintain statistics on the various identity groups concerned? How about the Office of Federal Contract Compliance Programs? What constitutes discrimination? What are the relevant statistics for disparate impact analysis? Oh how the champagne is flowing in the barratry guild! It will take a billion billable hours to get it sorted.
The USA outcome may be a libertarian nirvana, I have no idea. I am sure libertarians, like every other identity group bravely insist that they are for good things and against bad things. I would be more sympathetic if I saw any sign that their professed devotion to constitutional governance and the rule of law actually meant something. And they could start by denouncing anti-democratic bigotry rather than embracing it when it suits them.
Show me a libertarian who prefers Switzerland to Singapore and I will show you a libertarian that I can make common cause.
I was going to make a top level response but then seen your comment so doing deeper in.
“I would be more sympathetic if I saw any sign that their professed devotion to constitutional governance … And they could start by denouncing anti-democratic bigotry rather than embracing it when it suits them.”
Neither of those things has anything to do with libertarianism and in fact, democracy is an antithesis towards libertarianism hence why the anti-democratic bias. Fundamentally at its core libertarianism from a governance perspective is a technocratic absolute divine authority model and populism via snout counting runs against that. The law is the law because it’s irrefutably “correct” and maximizes liberty IAW the NAP, not because it’s popular. You don’t get to punch your neighbor in the nose whenever you are bored just because your neighbors all got together to agree that’s OK because he’s Irish.
But back to the original post, whenever I read people like Mr. Deneen I smile because it’s just red meat so no need to give it more thought than that. Whenever I hear claims of the vaunted “libertarian influence” I say “show me”. Because in my five decades here I have yet to see a single libertarian anything in practice at the Federal or State, or at least my state, level. Not even any attempt or influence. Everybody hate libertarians because they don’t know any because almost none exist hence they are a convenient whipping boy. It has nothing to do with their beliefs nor non-existent influence.
I have yet to see a single libertarian anything in practice at the Federal or State, or at least my state, level. Not even any attempt or influence.
And yet, somehow a lot of things libertarians have long favored have come to pass:
– and end to the military draft
– gay rights and gay marriage
– drug decriminalization
– deregulation of many kinds
– greater protection of 2nd amendment rights (Heller)
– greater free speech protections (Citizens United)
– rollback of eminent domain abuse (in the wake of Kelo)
And right now there appear to be good chances of enacting police reforms that libertarians have been advocating all along (getting rid of no-knock raids, reducing police militarization, eliminating qualified immunity, limiting civil asset forfeiture, and so on). But perhaps you think libertarian thinkers and writers had no influence whatsoever on any of these things.
Those were just happy little accidents to quote Bob Ross. Just because something came about libertarians generally support, that doesn’t mean it had anything to do with libertarianism thought.
I’m indifferent on Radley Balko. Sure he’s darling of various people but find me a single thing he meaningful got changed of import. He’s just another talking head of the embarrassed conservative persuasion with a pet single issue peeve while swallowing the rest and likes to pretend he is a libertarian; like Cato, Reason, the Pauls, and the Libertarian Party. For all his talk over the years, and I respect much of what he was written, I’ve never found him to be an absolutist even on drug decriminalization which he champions or for that matter, even criminal justice reforms. He’s another one of those “I should be able to smoke weed if I wanted but heaven forbid if you think you should have the right to put cocaine in children’s cereal or be able to go buy chemotherapy cocktails or potent drugs with no recreational value such as statins, IV antibiotics, or anti-parkinson drugs in the grocery store medication isle next to the lube”. For all his talk over the years about criminal justice reform I just don’t recall him speaking out much again Obama’s assertion, now effectively law of the land, that the President has the right to kill his political oppositions children via personnel writ on whim as long as they are on foreign holiday. One could write books on the amount of police and prosecutorial misconduct he is fine with.
“Those were just happy little accidents to quote Bob Ross.”
Here’s an article with a rather long list list of Nobel prize winners who, at one time or another, worked with the libertarian Cato institute. A bunch of non-influential nobodies?
“You don’t get to punch your neighbor in the nose whenever you are bored just because your neighbors all got together to agree that’s OK because he’s Irish.“
Yup, that is where constitutionalism comes in. The vast unwashed masses are just too stupid to be left unconstrained, unlike elite know-it-alls and their stellar track record.
I will concede Deneen’s arguments are a bit ungrounded and abstract and it is hard to get worked up over semantic hairsplitting. Perhaps Steven Skultety does a better job of framing the argument.
He writes:
“When we consider the seven long-term causes Aristotle identifies as having the potential to transform otherwise peaceful citizens into would-be factionalizers, it’s startling to find that so many of the well-known proclivities of our contemporary ruling class are exactly those that Aristotle thought would undermine political cohesion and make civil war more likely.
[… …]
Now you would hope that our own American upper class would at least be wise enough to be discreet in its arrogance for the sake of social harmony. But, astonishingly, we live in a time when our credentialed class flaunts it.
Watch any of the popular comedy or news shows designed to flatter college graduates who are desperate to prove their membership in the managerial professional class. They openly mock the general populace for its stupidity.
[… …]
Perhaps there was a time when average people had such high regard for the competency of elites that they wouldn’t have minded a few hurtful excesses of status signaling. The problem, however, is that many Americas are increasingly having their own deep doubts as to whether our powerful institutions are filled with people worthy of their vast influence. “
That doesn’t seem too far off from what Deneen is arguing and it seems to describe the issue that Yuval Levin contends can be solved by the elites deciding to be more discreet.
Anyway, Skultety seems dialed in to the issue here:
https://amgreatness.com/2020/06/26/grim-lessons-from-aristotle-on-the-causes-of-civil-war/
If his book wasn’t so overpriced, I’d probably read it.
Nice link and I think you nailed in a roundabout way to often libertarian is used a synonym as “upper middle class ivory tower intelligentsia with authority problems”
“Yup, that is where constitutionalism comes in. The vast unwashed masses are just too stupid to be left unconstrained, unlike elite know-it-alls and their stellar track record”
I get the sarcasm and don’t disagree with your point but that isn’t a libertarian problem nor is the solution mob rule. Constitutionalism is simply a slower variant of mob rule as it imposes firebreaks and higher bars but nevertheless it’s still fundamentally populism.
Libertarianism is, and always will be, a utopian ideology in which most of its public vocal adherents (i.e. the synonyms above. You know the libertarians like Tyler Cowen that think it’s OK for the state to shoot people for not wearing masks) would decry as a dystopia if it was ever realized. It has always been an objective rational system and hence requires technocratic impartial rational implementation and execution .. until we have benevolent god king / AI that can establish/enforce that on the rest of us, it simply isn’t going to happen hence I scoff when I hear things like “Find me a libertarian who prefers Switzerland over Singapore and we can talk”. There are lots of reasons to have that preference but libertarian governance isn’t on that spectrum. Neither are libertarian nor pretending to be.
My experience is mostly in Brazil where proportional representation allows libertarians to participate in governance. We even have a libertarian governor. In a one party states and winner-take-all states there just isn’t room for libertarians to hold accountable positions. In a proportional representation system, the influence of someone like Dr Kling would be much greater and more libertarian ideas would likely be put to the test of practice. And the onus of persuasion would likely improve their arguments and practice. Populist Switzerland, for example, adopted a loan guarantee bailout program similar to something Dr Kling advocates.
Does not “everybody hates the conservatives” too? When not the target, the libertarians are hardly shy about piling on.
Right now nothing is needed more than a temporary alliance and unified front against progressive insanity. But the allies don’t get along.
If – total hypothetical here – the progressives launch a jihad against the very existence of police forces (but, mysteriously, not the FBI too) while city blocks are being burned and looted, do the libertarians join the few conservatives standing athwart history yelling stop, or do they say, “And here’s some *more* anti-police arguments, guys!”
At any rate, Deneen is confusing the progressive, expanded-anti-discrimination update to the old “Social Liberal” idea with libertarianism. To be fair, the Niskanen folks are doing their part to help confuse him.
The Civil Rights Act is hardly ‘libertarian’ and was not supported by most libertarians at the time and was opposed by both Ronald Reagan and Barry Goldwater. Even only 10 years ago then-candidate Rand Paul waffled on whether he might not have supported the parts of the act which affected private association, and it didn’t cost him the election.
I pay attention to the libertarian-leaning legal community and no one was popping champagne corks over Bostock. Quick the contrary. Not even Dale Carpenter, who, if anyone was going to, it would have been him. But even he wrote as if he is part of the crowd that understands that the holding in that case represents a kind of extinction-event level disaster and sad bookend of defeat at the hands of “Justice Windsock” for the 40 year attempt to reign in and constrain a wild judiciary via the jurisprudential approaches of originalism and textualism.
(As an interesting intellectual exercise, try to craft the alternative legislative language to “on the basis of sex” for Title VII that would both satisfy Justice Windsock – if any such thing is possible – and which would have also been understood in the early 60’s by, say, Senate President pro tempore Carl Hayden, born 1877, in the Senate for Arizona since 1927, as preventing disparate treatment between normal males and normal females, but still permitting discrimination on the basis of … all the other stuff. Based on the logic, as it were, of the opinion, talking about chromosomes wouldn’t be enough, but words like ‘cisgender’ weren’t even invented by avant-garde academics until the 90’s.)
Deneen’s characterization of Cowpasture is exactly the kind of nonsense I would expect to hear from some mushy-headed progressive legal analysis, in which the only question they care about was not whether a particular entity has the rights in a particular piece of real property to issue a permit, but only whether or not the result allowed for ‘evil’ such as economic activities and construction performed by bad corporations, disturbance of sacred, untouchable federal land, and extraction or handing of metaphysically bad substances like icky national resources.
If a conservative is going to go after libertarians, these two cases are really some of the worst instances to use to try and make that case, and Deneen is trying hard to squeeze the peg of his thesis into the differently-shaped hole of needing to constantly refer to current events to get retweets.
Very interesting. Well it is good to know that there is some questioning of Windsock going on in libertarian circles.
Windsock has done incredible, fatal damage to the whole multi-generational project to reign in a judiciary while preserving sufficient ‘legitimacy capital’ for the institution that both sides will continue to accept and obey it’s holdings.
In the not-too-distant past, and in most places in the world, the rule of ‘justice’ was the competitive, free market in violence, that is private, collectivized use of coercive physical force, revenge, vendetta, fued, badal, etc. One of yours does something to one of mine, we all show up and do some proportional harm to you all. This encouraged a lot of self-policing, at the cost of constant terror and a lot of lives.
The idea of the monopoly on violence for justice – that one has no right to do this on one’s own, that there is an arbiter who has use of the property right to adjudicate all such high-stakes disputes, and that the this judgment must be obeyed or else – was a positive development. But one that always and everywhere depends to some extent on the general belief that one has resort to such a system as the preferable alternative to private action. That is, when you deserve and need justice, you can use the system, and more often than not, justice will be done. Things don’t always go your way, but overall you come out ahead, so you still obey, even if you grumble about it.
The moment someone starts to believe that they will never get justice from the system is the moment they start to take things into their own hands.
Textualism was not just a jurisprudential theory but also a credible and intellectually coherent signal to non-progressives that there was way to avoid such an outcome while still denying the cynical perspective “legal realism” and appealing to the notion that some of the answers were objectively true and thus ties judges hands in a non-progressive direction.
Claiming one was an esteemed member of the Federalist society, an originalist and a “textualist” was thus a plausibly-deniable signal that one could be trusted to conserve the social rules as they were, and would not just turn the court into the place that sanctifies the 100% track record of progressive legal victories in the culture war, without a veil of a pretense of rigorous legal interpretation so thin any child could see through it.
Windsock has blown all that up forever. What respectable words can any judicial nominee use to signal that he won’t go Windsock on you? There are none, so none of the nominees can be trusted, and none of the so-called sophisticated and non-partisan theories of jurisprudence can be taken seriously. It completely destroys the whole structure of the grand political bargain at the heart of domestic peace.
You aren’t hearing a lot about how disastrous this decision is because obviously most people don’t want to complain too loud about it or they’ll be slandered as some species of bigot, but also because a lot of people really haven’t digested it, thought it through and considered the implications.
A lot of people on the right are going to transition from bitter grumbling but still respectful acquiescence, to feeling like utter chumps, to realize there is not no possible strategic path remaining to un-chump themselves in the system, to complete emotional divorce from the keystone of voluntary social peace in a free republic. Maybe you could call that “getting right-woke”. Some people first, then more and more.
And then what? You won’t like it. I won’t like it. No one is going to like it.
Every actual windsock in the country should be replaced with one with the pattern of an upside-down American flag, both to signal distress, and to remind everyone who is to blame and the manner of that betrayal, that is, not having taken a stand on principle as he promised, but pointing whichever direction the wind was blowing.
As an interesting intellectual exercise, try to craft the alternative legislative language to “on the basis of sex” for Title VII that would both satisfy Justice Windsock – if any such thing is possible – and which would have also been understood in the early 60’s…
Try to craft an alternative to ‘We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights’ that could have been used in the Declaration without us moderns going off the rails and thinking that this applies to all human beings regardless of race and sex. Did all of the signers think that statement applied universally? Clearly not. But should that ‘original outlook’ prevent us from understanding it that way now?
Similarly, yes, I agree, that those voting on the civil rights act in 1964 did not think that they were offering protections to homosexual ‘degenerates’ whose condition would still be designated a mental illness by the psychiatric profession for another decade (and their relationships a crime for much longer than that). But our understanding of sex/gender has obviously evolved greatly. And once we, as a society, reached the point where homosexuality became generally viewed as a normal human variation, there seems no way to justify maintaining the presumed carve-out excluding gays from the protections granted to everyone else by the plain text of the law. What are you going to say — “Yes, of course we don’t view them as moral degeneratesnow, but the legislators who passed the law did so back then, therefore we must continue to selectively enforce the law and exclude gays from its protections based on bigoted views from more than half a century ago?”
“Try to craft an alternative to ‘We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights’ that could have been used in the Declaration without us moderns going off the rails”
There is actually a fairly famous answer to this question which is to say that all you have to do is insert two letters, omitted because in the “original understanding” of literally every sane person at the time, it was so obvious such that no one would have thought it necessary.
The word is “in”, can you see where it goes?
I assume after the comma, before “that”.
A lot of moderns would have trouble with a capital C Creator “endowing”. That’s “injecting religion into politics”, which (see e.g., the abortion debate) is a big no-no.
I’ve heard far more conversations where progressives and conservatives bond over their shared contempt for libertarians. Progressives say things like “at least conservatives understand the importance of community” or “the need for government.” Some libertarians self-sort with progressives, some with conservatives, neither win any good will by doing so though. You constantly complain about libertarians always siding with the left against conservatives, which is ridiculous if you ever actually read major libertarians sources, especially the comments sections, which are almost always more ‘red tribe’ than ‘blue tribe.’
I think “at least we can agree libertarians are terrible” is a popular common ground because libertarians are few enough in number that they’re easy to hate and you’ll probably never meet one. Many progressives are still apprehensive about hating 40-50% of the population. 3% is a more manageable enemy.
What libertarians? Where?
Ther are no athiests in foxholes, and no libetrtarians when neighborhood property zoning is under review.
And what of the rights of street vendors, push-cart vendors?
Is there a libertarian right to pollute the air people breathe?
Polygamy here we come!
I promise to like libertarians…if i ever meet one.
Ach — zoning again. Yes, many libertarians oppose zoning. And support food carts. No, there’s no libertarian ‘right to pollute’, but there are emissions trading schemes and Coasean bargaining to help solve those kinds of disputes.
Re-read Arnold’s critique of Deneen linked above. I think Arnold is with due respect a little blind to Deneen’s point that people need a common culture. Maybe the problem is that Arnold assumes that everybody is a really nice person just like he is, and therefore we can all just get along without regard to our differences. Current events are giving that optimism the lie.
By the way, Jerry Taylor not exactly helping to clarify what exactly ‘libertarian’ means in the public mind with his latest tweets which are, shall we say, less than maximally supportive of the classical libertarian emphasis on the centrality of private property and the rights to bear arms and of self-defense.