But if we allow for discrimination — if we pass a law that allows for discrimination on the basis of religion — literally, we’re gonna open up a can of worms when it come stop discrimination of all forms, starting with Muslims … who knows. You’re narrowly looking at a situation where if you broaden that, I just tell you — on the basis of religious freedom, being able to discriminate — something that is currently not allowed — discrimination will exist in places we never dreamed of.
If I understand him correctly, he would be ok with prosecuting a wedding cake-baker who refused to bake a cake for a gay wedding.
I am reminded of Jacob Levy’s thesis that rationalism and pluralism are in tension with one another. A pluralist would say that the cake-baker has a right to discriminate. The rationalist would say otherwise. For more on Levy’s thesis, see this discussion forum, listen to this podcast, or read his (very expensive) book.
I am currently reading Robert Nisbet’s The Quest for Community (for an obvious reason). Nisbet saw individualism and statism as going together, part of the process of “liberating” people from the oppression of traditional communal institutions. What Levy calls rationalist liberalism is consistent with that. Nisbet did not view this “liberation” as such a wonderful thing.
So the Libertarian party candidate believes it is the job of the Federal government to prevent discrimination in all cases. Wow. Has anyone heard if the Green party candidate was declaring support for Fracking?
Gary Johnson is Exhibit A of why Libertarianism fails as a political movement. Not only does Johnson fail to articulate a logical, principle-based argument for liberty but he displays utter confusion about the role of government in protecting liberty and ensuring it thrives and is vibrant in communities. Liberty cannot flourish without law defending the presence of liberty and laws cannot have efficacy without government (ie the state) having power to enforce the law. Time and again this is where Libertarians trip up and fall down – they do not see the necessary connection between liberty and good law that gives space for freedom to be exercised.
One problem with the discussion of discrimination is the term is so poorly defined. I am confident that Johnson, despite his denunciations of discrimination, is quite glad he and all Americans are free to discriminate about the products they consume each day. When a person chooses to watch Colbert rather than Fallon (or none of them) we don’t demand the person justify why. We don’t demand the person prove they are not harboring hateful feelings for that decision. We accept that people should have the freedom to choose to consume what they want to consume, no matter the reason.
I think it is good for society to have expectations of public accommodation for service providers. A business that advertises itself as open to everyone ought to serve everyone. At the same time it is common sense that a business that performs custom or personalized service cannot serve everyone. Such a provider must discriminate, if only due to constraints on the provider’s time. To demand that a provider of custom service must serve every request is to deny that provider his Liberty – it is to make that person a slave to the law and to those wishing to impose the demands of the law on that provider.
“If I understand him correctly, he would be ok with prosecuting a wedding cake-baker who refused to bake a cake for a gay wedding.”
That’s the way I understood him as well — Gary Johnson is a squish on this issue. As a politician, though, it’s probably a sensible move, since so few people seem able to get it. The cases having to do with the bakers and florists are not actually about discrimination and public accommodation but about first amendment rights. The businesses were not refusing to serve customers because they were gay (in some cases, they knew the customers well and had been selling to them for years). What they felt their religious beliefs compelled them to do was not participate in the celebration a gay wedding — and they would have declined just the same if the customer placing the order and writing the check was straight (the wedding planner or a parents or friend of one of the couple).
Has any black baker refused to make a cake for a Klan rally and been prosecuted? Would they ever be?
This isn’t about principle. It’s just the “elite” forcing their values on others.
I’m fine with gays and would happily bake the cake. But I can imagine how it feels to be on the receiving end of this kind of bullying.
+1
Not a chance a baker would be prosecuted for that. Simple elite hypocrisy.
This experiment has been tried, reporters have gone into Muslim bakers and asked for “Jill and Jill” wedding cakes and get laughed out of the store. Nobody cares.
Thus is what Gary Johnson is talking about, even if he himself is vaguely aware of it.
The practical result will be the “oppressed” groups getting to discriminate.
The “oppressor” groups will get a lot of “pharisaical” rules that don’t actually add to their liberty but make them kneel before Zod, so to speak.
See legal versus illegal immigration.
Fourteenth Amendment Libertarian.
When I put that phrase in google with quotes for exact results, I get exactly one hit, from Lew Rockwell’s site, and when I substitute the ism, one additional hit, from Root’s Overruled, regarding Griswold.
It’s unfortunate that a term like this doesn’t have more currency, since it gives an appropriately reductive name to a conceptual category that maps accurately to reality, and in a way that describes an important political phenomenon: Libertarians who are willing to cut a deal with the statist Devil to get one of their wishes, but then end up paying a hefty price like Brendan Fraser in Bedazzled every time.
And people have huge trouble thinking about ideas when those concepts aren’t typically discussed by reference to commonly used words, to the point where they have difficulty even recognizing that such a category even exists, let alone how much it would improve their understanding of how their world really works.
In this case, “14th Amdt. Libertarians” are those who have, for a variety of reasons (which are not necessarily mutually exclusive) made their peace with an extension of the Lochner principle and the idea that the central government should actively intervene in any affair to defend the civil liberties of individuals against improper restriction from local or subordinate governments. The holding in Obergefell provides a good example.
In the pre-New Deal Lochner era, those liberties were mostly conceived of in economic terms and included a very broad notion of freedom of contract.
But that didn’t survive, and the reason is simple to understand. The limits of the fuzzy word ‘liberty’ in the 14th Amendment are not absolutely clear, and so any motivated (‘activist’ / ‘results-oriented’) set of jurists with enough votes can abuse their interpretive discretion, treat the rule like a blank canvas onto which anything they want can painted, and cast out of the concept everything they don’t like, and include in the concept everything they want, regardless of any traditional understanding of the term.
The logical end-point of tyranny is that everything is prohibited or mandatory in accordance with the tyrant’s preferences, and going about that process under the cover of an Orwellian version of ‘constitutional liberty’ which the opposition obeys and reveres as sacred to a point where they are blinded to the charade and neutralized in their efforts to recognize and fight the abuse, is a particularly subtle and devious way to accomplish it. But that’s what happened, because the members of the opposition are apparently chumps.
Instead, the post-1937 Court relegated all economic regulations into the ‘rational basis’ bin, which in practice gave the states complete free reign to do nearly anything they wanted to regulate market activities. The exceptions prove the rule. Furthermore, the central state itself embarked on a regulatory crusade and generated a fluorescence of agencies to regulate an ever-increasing scope of economic activities in a uniform way at the federal level, in ways to which the Court granted increasingly wide latitude and independence. Some liberty!
If the first half of the equation was to permit all economic regulation, the second half was to annihilate locally legislated inequalities through an ever-expanding concept of egalitarian anti-discrimination, which necessarily and inevitably included any laws imposing traditional concepts of a behaviorally-constrained social order through rules based on majoritarian moral beliefs.
Eventually this lead to the Marcusian-style regime of ‘repressive tolerance’ we so enjoy today and which has done wonders for open discourse, racial healing, and group harmony. But in the early days it meant enabling many aspects of the sexual revolution which satisfied some of the ‘libertine’ anti-moralistic preferences of many libertarian ideologues. But now California bureaucrats are telling college students what the legally prescribed way to have sex is, and that if they don’t say the magic words to each other at exactly the right times, no matter how unnatural it is or how frequently ignored in reality – they’ll still face a risk of getting expelled and maybe even jailed. Liberty!
Anti-discrimination jurisprudence – centralized and uniform with no allowance for ‘exit’, diversity, or experimentation – has now gone so far and enabled so much that it probably doesn’t even matter anymore if even the Civil Rights Acts and other similar laws were all repealed tomorrow – the justices would obviously just resurrect the rules from out of the ever-pliable 14th Amendment. That’s highly likely today, and a complete certainty once Hillary Clinton creates Warren Court II.
There are of course slightly different reasons for Libertarians today to jump on the 14th Amendment train, mostly because any opposition to anti-discrimination (aka, support for ‘total freedom of association in all affairs’) means you are the most evil kind of person in the world and all the cool and important people will not just shun you but try to get you fired and excommunicated. I can understand some people feeling they have no choice but to pay lip service to that notion.
But the idea that this terrible authority is anything but putty in the hands of their enemies who are happy to have the deluded help of any useful idiots, and that any Libertarian support for these central powers can and will ever actually expand liberty in a direction that progressives don’t want for their own, different reasons, is naive in the extreme.
Having followed the link to the Yuval Levin stuff, I just don’t get why he seems to be so widely promoted. He’s basically conservative intellectual mac & cheese, there is nothing new or unusual about what he says. When he says left and right are both nostalgic . . . OK, but the future is always understood on the model of the past until spontaneous order generates something new. He seems like a combination of Brink Lindsey/Virginia Postrel “enemies of the future” libertarianism plus Straussian doom mongering, but there is a vast disconnect between the diagnosis (spiritual rot) and the solution (Paul Ryan policy agenda).
People don’t understand the specifics at-hand. I don’t know that Johnson does, either but I have mostly witnessed mood affiliation.
The nuts and bolts of it is that we have protected classes. So the nits and bolts would be creating protected class that is allowed an exception to discriminate against the other protected class. Gary Johnson is saying there are problems.
In a world where people are absolutely convinced Trump wants to assassinate Hillary I’m not holding much hope on convincing anyone of this one.
People overestimate both ideology and karma when thinking about how treating others will effect how they treat them.
It’s true that if you mistreat someone, it may make them want to mistreat you back. If you are kind to someone, it might make them be kind back.
There is no guarantee though. Being kind to someone might just make them think you are weak and a good target. Or they could decide you’ve mistreated them even when you’ve done no such thing.
Honestly, the best way not to get persecuted isn’t to say, “I didn’t persecute you, so you can’t persecute me.” That has a mixed track record at best. What has a good track record is having power. Powerful people don’t get persecuted much. Christian bakers aren’t getting persecuted because of what they’ve done, but because they have no power and the people that do have power get something out of persecuting them. Even if its just the sadistic thrill of trampling over someone.
Of course, all this “might makes right” stuff can quickly descend into endless strife. That’s why we tried to come up with some quid pro quo rules like the Constitution. The constitution doesn’t enforce itself though. People do. And generally people only do so if they want to. Historically, that kind of social cohesion and understanding hasn’t been a universal, and we shouldn’t assume it can be a universal.
Yea, it is pretty clear Gary Johnson is screwing up here in this election by noting to Mormons that religious freedom does not allow you to shoot other people. If it was not for Trump dominating the media cycle, he would probably be paying for that comment. I do think this nation should roll back private clauses in the Civil Rights Voting Act but that is not going to anything much to improve local institutions.
Nisbet saw individualism and statism as going together, part of the process of “liberating” people from the oppression of traditional communal institutions.
How can one of the most libertarian economist say they support for traditional communal institutions? The global economy has broken these communities up and if you liberate rich people economically from communal institutions than you have broken down these communal institutions. For instance, the local churches and government struggling to support white working class citizens because all the smart and successful people left.
The simplest reason why I assume the Libertarian Party has had limited growth is because it is a coalition of Peter Theil and Laura Ingalls. In 2012 Ron Paul was able to represent both constituents but long term that is a hard coalition to keep together. (One reason I believe Rand Paul did so poor in 2015.)
Laura Ingalls wrote Little House on the Prairie. Maybe you mean Laura Ingraham?
Or perhaps Laura Ingalls’ daughter, Rose Wilder Lane?
She’s certainly a very important libertarian, though not well known today.
Well, Rose Wilder Lane is the true believer in libertarian but they needed the Laura Ingalls stories to make it real for audiences.
No I did literally mean Laura Ingalls who was quite the libertarian farmer and I believe had lots of issues with the New Deal agricultural policies. Her story did represent the libertarian the importance of local church and governments improving their lives. Her life did represent the increased need of local institutions versus large Federal Government but whose life is the complete opposite of Peter Thiel life. (And that the small community would have not accepted Peter Thiel either.)
Laura Ingram is a Alt Right Trumpism type.
Johnson should know better.
As Lawrence Auster pointed out, there is no logical limiting principle to the ideology of state-enforced anti-discrimination, which can, and has, been expanded and abused to justify anything the proponents of that ideology wish to do, regardless of supposed rights or liberties of the individual, when they gain control over the instruments of government power.
There are only two stable Schelling points at respective, simplified extremes of the debate: total liberty of association free of government interference, or universal state supervision of any selective decision in interpersonal interaction, to ensure the results of such selections comply with whatever goals the state wishes to accomplish, which increasingly involve serving the interests of one party’s loyal voting clients.
No one in this day and age should be able to call themselves an informed libertarian without recognizing that this particular state power will inevitably be stretched to infinity in the name of ‘oppressed’ groups and social equality and abused to erase many key elements of personal liberty which, until just yesterday, were considered fundamental to the ability to live a free existence.
Johnson is not a libertarian, he is a Libertine Liberal. He’s essentially a business friendly version of Bill Maher – you should be free to have fun things like drugs and prostitution, but the state should retain enormous coercive power over the non-fun stuff. Johnson sees a larger role for the private sector than Maher, but that’s because it works better, not because the government shouldn’t have that power in the first place.
Trouble is, it doesn’t work better. Without State reorganization in the 30’s and debt surge that started in the 80’s, capitalism and “free markets” would be dead. Free Markets are parasitical to tradition and they need persistent expansion.
It simply doesn’t work for survival. Surviving is as tough as it gets.
Discrimination has been whined about to death since the 1700’s. Liberalism since the 1700’s has been about freeing the masses from the “system”. When the “Feudal Aristocracy” knew the gig was up and merged with the merchant caste creating the “Bourgeois” and “Capitalism” it started a process of ‘liberation’ that is still going on today. In many respects, this Protestantism ideal was very Christian in that very basic ideal. Many who feel the state should prosecute people who want to discriminate are doing it because of the Christian ideal of fairness. Whether you are religious or not. The Jesus Christ Pose on “Traditional” Christianity is no different than the jewish influenced Calvinism did on European society in the 1500’s.
I completely disagree with Gary Johnson’s stated position here, but I do not disagree with him stating it.
You disapprove? Well, too bad! We’re in this war for the electorate, boys and girls. It’s simple numbers. They have more. And every day Gary Johnson has to make decisions that send hundreds of purist libertarians like you to their social media feeds. [with apologies]
To the great majority of the population, libertarianism is a strange idea, at odds with everything they have learned throughout their lives save the founding principles of the country. Hardcore parroting of the non-aggression principle as the reason behind every answer is a sure way to shut their ears to hearing what you’re saying.
Furthermore, the media is highly biased toward government interventionism, generally with a liberal slant. Choosing to battle against liberal positions only where they (a) matter and (b) yield less emotional reaction is the best way to get fair coverage from the media. Fight against government incompetence, government overreach, government regulation, government taxation, government subsidy. Those (a) matter in sheer volume, wealth, and freedom and (b) can be argued without emotion using faceless principles. Baking cakes simply doesn’t matter except to emotional ideologues on the two sides, and battling on that turf dilutes anything that you could say that will actually convince someone to vote for you.
So if Johnson doesn’t agree with broad public accommodation status for bakers, I’m fine with his public position because it’s smart politics. If he does agree with broad public accommodation status for bakers, I’m fine with it because he is still far and away the most sellable Libertarian candidate ever.
I would say the media is predisposed to a government interventionism via a neocon slant. The consistent interventionism is why “Islamism” exists now. The financing from the west. The economic ruin of neocon policies.
“Progressives” are the modern Christians no matter religious faith they have or don’t have. They are Jesus Christ Posing “Traditional Christianity” and demanding them become “real” Christians.
Thank you. Exactly. Fundamentalist libertarianism is a religion – a respectable one, but it’s not one many people share. Political libertarianism needs room to be practical.
The business of America is business and their only valid discrimination in selling is money. If they want to discriminate in other ways they are not a business but a charity/cloister/club/commune and shouldn’t mislead others.
So if the “business” posted a sign on the window that said, “We do not bake cakes for gay weddings or Nazi functions,” you’d be okay with that? Or would they have to also post “This is a club. By entering these premises you agree to abide by club rules”?
No. One thing they couldn’t do is advertise or be open to the public, including signs beyond identification. They would have to have a membership, operate by referral or direct sales to their chosen customers, or as part of a commune with no sales involved. And it is done. It is the choice of the really religious. Or they could remain a business and sell to the public as long as they don’t make these distinctions, such as standard cakes. The alternative of having everyone wear long lists around their necks of who they are and what they find acceptable so everyone entering into a sales negotiation can check off what is acceptable would be obnoxious.
Finding the one Christian baker in town that you know would object and then purposely targeting them in an effort to use anti-discrimination law to destroy their business is obnoxious.
This isn’t the deep south under Jim Crow. People have a ton of options and are widely accepted if not worshiped by the majority and most of the elite. You have to go out of your way to find someone that won’t serve at a gay wedding. The fact that people do go out of their way shows its about ego trips and hate rather then the love that is supposed to fuel the lifelong commitment of marriage.
Are you being facetious? I can’t tell. I can’t tell if you can tell.
OK, so I do think that it is imprudent in most cases for businesses to focus social issues at the expense of the bottom line.
But the idea that the only valid discrimination for a business is whether or not a transaction is profitable is nonsense and completely divorced from any notion of business or human society.
There is of course the obvious exception (almost not worth mentioning) for transactions that would be profitable but are illegal. A business is perfectly legitimate in refusing illegal transactions even when the risk/reward evaluation is profitable.
There are also cases where such discrimination may be a part of the business plan. What about a restaurant that only serves vegan cuisine? Is that discrimination or just the business model?
I’m sure there are other such issues, but even if you could sort them out, your comment could really only makes sense for publicly traded companies where they have a legal obligation to maximize share-holder value.
For privately owned businesses, especially for small family businesses, the business is essentially the owner’s life. They are two intertwined to be able to talk about them as separate entities (even if legal the business is registered as an LLC) and to place such a restriction on the kinds of transactions such individuals can participate in is an unconscionable violation of their freedoms.
“Nisbet saw individualism and statism as going together, part of the process of “liberating” people from the oppression of traditional communal institutions. What Levy calls rationalist liberalism is consistent with that.”
Nisbet was wise.
There is something annoying though about Levy using the term “rationalism” for his views. There is a long tradition in Christian thought and philosophy (particularly Catholic philosophy in the Aristotelian-Thomistic tradition) that suggests human beings are rational creatures and we can reason together about the common good and even about tricky questions like what is good for us (hence the natural law tradition in philosophy.) So it is rational for a Christian baker to refuse to participate in a same-sex wedding ceremony because we have to ask first what is marriage and then we realize that it is absurd for two people of the same-sex to be getting married in the first place. So it should be offensive to everyone, not just Christians and not just bakers (although Christians do have additional religious reasons on top of the basic natural law if we are forced by an insane society to appeal to our religious traditions.)
Everything about “liberals” who do philosophy is confused and crazed. I’d recommend diving into some Aristotelian-Thomistic philosophers (Ed Feser is great but J. Budziszewski’s books might be more accessible for the general reader:
http://www.undergroundthomist.org/obtain-books.)
Handle mentioned Larry Auster — one of his friends, James Kalb, wrote a great book about the dilemma that liberalism finds itself in with respect to the individualism it promotes called “The Tyranny of Liberalism”: http://antitechnocrat.net/node/2836)
As usual media has skewed things. He’s saying that we need to follow the current civil rights laws which also protect the 1at Amendment rights of business owner. They must sell the cake that they would sell to anyone else, but they don’t have to decorate it in a way they don’t offer to general public. So yes they have to make cake, no they don’t have to put two men or two women on top, don’t have to put swastika on cake, etc…. That’s what courts have ruled.
Good explanation, but to nit-pick I’m not even sure that is exactly what he’s saying. What he actually said is that he wouldn’t pass a law on top of the current laws making religious exemptions to anti-discrimination laws.
He didn’t actually state, as I read it, that he wouldn’t, given the oxymoronical libertarian supreme-emperor-for-a-day opportunity, unravel the civil rights laws (and judges creating law and unintended interpretations out of whole cloth) that have created this untenable problem.
I also get a whiff from Johnson of the idea that the unintended consequences of adding to the pile of law would be worse than the tiny problem.
Remember what happened when North Carolina legislated on cross-dressers in bathrooms? Obama came back with Federal fiats regarding all schools. Sometimes you just let the sleeping dog lie even if he really pisses you off. Johnson is also speaking as a Governor and a (small “g”) governor and not as a free-handed, armchair libertarian. I suspect that he understands, even if vaguely, that any new laws would basically backfire against net liberty.
Note that he never says that they were “right to fine the photographer for not photographing the gay wedding.”
He basically didn’t also say they were wrong to follow “the law.”
What I wish he had said was that (1) it’s not “The Law” and it’s not even legislation (if it is based on whole-cloth changes to interpretations of existing legislation).
That is the fact. and (2) my opinion is that you are not discriminating against gays. You are discriminating against gay weddings. It’s different. It’s ironic that the left glommed onto gay weddings as being integral to gayness. But that’s politics, strange bedfellows as they say.
I’m not allowed to share my 30% off discount code in public, but if people e-mail me at jtlevy@gmail.com saying that Arnold told them to read my very expensive book, I’ll send it along. (At $35 rather than $50, it’s a bargain.)
Eventually, nondiscrimination trumps everything.
So what they’re trying to do is make the Libertarian candidate say that he’s opposed to the Civil Rights Act of 1964. You know that’s the question that follows the wedding cake question.
These wedding cake questions are designed to be gotcha traps that divert discussion of issues that might actually be important. Rand Paul learned that one the hard way. The progs are still painting Paul as practically a klansman for going down that rabbit hole.
My take is that Johnson is trying to keep it light and avoid the traps as best he can. Good luck.