• Max Stearns

Why I am not a Libertarian


I have spent approximately half my career at each of two very different law schools: George Mason Law School (now named for Antonin Scalia), which tends to track right or libertarian, and Maryland Carey Law, which tends to track left or progressive. Along the way, I have made friends who are ideologically liberal and conservative, who are Democratic and Republican, and who decline such affiliations, identifying instead as Libertarian or Independent. I strongly believe that people of good faith can disagree on these matters and that such disagreements should almost never determine social relationships, even as I acknowledge the rare occasions on which, sadly, resulting choices have that consequence. At the same time, I do not believe that friendship should preclude careful reflection concerning what such decisions represent, especially at critical times. This admittedly long blog post is written in that spirit.

Why I am not a Libertarian

Libertarians eschew conventional left-right politics. They are bound, instead, to a specific set of principles: small government and individual liberty. This applies to regulation respecting both private markets and the economy, and to matters of personal conduct, including sexuality and sexual behavior, at least assuming proper legal age and consent. Libertarians espouse an almost unwavering commitment to small government, viewing it as a necessary evil, which, when properly structured and run, does the minimum necessary to protect personal liberties, to ensure that private markets are afforded the best opportunity to thrive, and to respond effectively to internal or external threats. Persons holding this ideological view tend to favor the traditional common law—contract, tort, and property—and to eschew manifold features of the regulatory state, which, they claim, intrudes upon too many aspects of our lives.

Libertarians sometimes claim that their ideology is embedded in the historical, as opposed to the judicially construed, United States Constitution. I’ve been teaching constitutional law for a long time, and I’m skeptical. The Framers of the Constitution violated these principles in, among other ways, condoning slavery, even for twenty years, although, in fact, for predictably much longer, until a Civil War and Reconstruction. Slavery is fundamentally at odds with both individual liberty and free markets as it infringes upon the rights of persons so held, while also disallowing robust market participation by a demographic group based upon a brutal and oppressive racial caste. Indeed, a man holding reprehensible views of race conferred the moniker “dismal science” upon economics for its implication that free markets demand full participation without such considerations. See here. The historical Constitution further condoned state-imposed restrictions on women, albeit consistently with then-dominant understandings of sex roles. Still, half the adult population was denied full participation, and also denied access to the ballot for much longer than emancipated male slaves. One might view our history as evincing the following progression: broadening access to meaningful citizenship and market participation based on demographic categories, while also condoning greater regulation of the markets to which more and more individuals gain access. This non-libertarian happily accepts the tradeoff.

I’ll return to libertarianism in a moment, but in the name of full disclosure, I’ll first reveal where I stand politically. I’m a longstanding, if ambivalent, Democrat. I view myself as generally left of center on social issues, and generally right of center on economic issues, but not extremely so on either side. To place this in context, consider this graphic created by Political Scientist Lee Drutman, which sets out four quadrants based on social liberalism or conservatism (the north-south axis) and economic liberalism or conservatism (the east-west axis).

(Reprinted here and in an earlier post with generous permission of Lee Drutman.) The “ideal point” for libertarians falls within the lower right quadrant. Liberals are lower left; Conservatives are upper right; and so-called Populists are upper left. (As I explained in an earlier post, the north-south center line, dividing economic liberals and conservatives should be moved leftward to reflect the true median.) Although I would also place my personal ideal point somewhere in the lower right, this post is not about the differing ideal points that citizens hold. As I said up front, people of good faith can and do disagree, even sharply, on such matters. Rather, this post is about the choices citizens make within the context of our actual political processes. The larger Drutman study (see especially Figure 3) reveals that those placing their ideal points within the lower right quadrant split roughly evenly in election 2016 as among Trump, Clinton, and “other.” I’m speaking here about the third group, which we might view as committed Libertarians.

Returning to my personal views, I believe the Democratic leaders hold excessive confidence in the capacity of government to identify and to correct what they perceive as market failures, which they tend to think ubiquitous, often without adequately considering whether what they observe is a feature of how markets operate rather than a systemic bug to be squashed. I am unable to align with the Republican party in part because its far-right elements, in my view, intrude too deeply into matters of personal intimate conduct and liberty, and more recently because, as indicated by its supporting or condoning the sitting President and Roy Moore, what was once the Grand Old Party has, in my view, gone tragically off the rails.

Some Republicans, and also some libertarians who so align, observe that theirs is the party of Lincoln and that contrary to conventional accounts of the liberal Democratic party as protecting civil liberties, Southern Democrats sought to block vital civil rights legislation. This historical framing is disingenuous inasmuch as it is intended to capture modern political divides. Today’s Republican party is not the party of Lincoln, see here, and Southern conservatives, who have since largely joined the Republican party, were Democrats precisely because of Lincoln and the history of the Civil War and Reconstruction. Just as Rockefeller Republicans do not represent today’s Republican party, nor do Southern Democrats represent today’s Democratic party. Political parties align and realign, and it is a doubtful exercise to ascribe credit or blame today based on historically superseded coalitions.

Libertarians tend to regard themselves as above the fray, hovering over such conventional left-right politics, embracing instead a near-religious devotion to what they regard as a purer set of ideals. Although my evidence is anecdotal, I have noticed that on social media, libertarians, more so than members of other groups, increasingly preface their posts with their ideological identity, ie., “As a libertarian, I believe . . . .” Libertarians contend that their ideology informs not merely their political choices, but also how they approach other social interactions, even child rearing and family relationships. And yet, many libertarians regard their normative ideals as placing them above any need to pick sides when faced with concrete political choices, such as those forged by our two-party system.

Although libertarians take pride in eschewing the major parties, within our political system, supporting third party candidates—Libertarian, Green, or Independent—proves either irrelevant or a means of empowering spoilers, throwing support to a more ideologically distant or otherwise problematic candidate. In election 2016, this was obvious. Some libertarians, for example, despite pitching themselves as “Never-Trump,” could not manage to vote for Hillary Clinton, the only candidate capable of defeating Trump.

Libertarians eschew the bundling of positions or policies that major party candidates represent. Like other polities, ours often presents hard choices. Avoiding those choices doesn’t make them go away. After long-fought campaigns, Democrats often confront the zero-sum reality of governance, a process characterized by tradeoffs implicating constrained budgets, looming deficits, inflationary policies, and the like, as opposed to the seemingly endless positive sum aspirations and promises that inform coalition building during the primary/caucus cycle. By contrast, Republicans, at least before Trump, generally embraced a common commitment to small government on the economic regulatory side, coupled with a willingness to close ranks on social issues even at the expense of making the tent less large than the best convention speeches sometimes tried to suggest. At least since Ronald Reagan, Republicans have assumed a “starve the beast” mantle respecting federal bureaucracy, joined more recently, in my view, by cynical and myopic approaches to tax and environmental policies.

These coalitions are not inevitable. And they also aren’t particularly appealing. Each side attracts, and sometimes welcomes, extreme elements whose views are informed by fringe media media rather than careful reflection and deliberation on critical issues, domestic and foreign. The resulting coalitions arise from a curious combination of history, path dependence, fortuity, and even luck. But the coalitions are ours, along with the hard choices they so often present.

Citizenship demands confronting and making hard choices, choices based not on what is immediately good for each of us, but that reflect the aspirational ideals of what will lead to a better society. This Democrat is, in that sense, perhaps more influenced by small “r” republican ideology than by small “l” liberalism. (Although I often write in public choice, broadly defined, I believe that properly understood, that theoretical basket ultimately helps to reconcile liberalism with important republican intuitions.) I don’t always enjoy the political choices I confront as a citizen, but at the end of the day, I feel compelled to choose.

I am not a libertarian because in my view and experience, libertarians too often think that holding a political ideology that’s pure is more important than meaningfully engaging in a political process that matters. I far prefer to pick from the egregiously imperfect sides and then fight from within, valuing voice over exit. Those motivated by social concerns and who also understand the value of robust markets can align with Democrats while pushing back against more problematic regulatory agendas (me); those persuaded that markets virtually never fail and who are also concerned about government intrusiveness into intimate matters can align with Republicans while pushing back against candidates advancing policies or judicial appointees bent on advancing a socially conservative agenda. Genuine political engagement does not make citizens impure; it marks them committed.

In recent months, I have observed some libertarians posting on the evils of socialism and communism in Russia, Eastern Europe, China, Cuba and the like on social media, decrying ignorant Democrats or other liberals, who, they believe, are blind to tragic history. At best, this is misleading; at worst, it’s insulting. A libertarian society needs a system of government capable of producing it. If the only means of getting there were to appoint a libertarian dictator, I’d far prefer a government with meaningful checks that brings with it inferior policies. We do not have our constitutional system because it somehow ensures the best substantive policies. That’s magical thinking. Instead, we have it because, one hopes, it avoids the competing threats of dictatorship, at one end, and majority tyranny, at the other. At any moment in history, it is important to take stock and identify where the greater threat lies, while also fighting to create, and pushing forward, the package of policies most apt to improve our society. Today, we do not face any serious or credible threat of a socialist or communist dictatorship, taking, for example, the form of Stalin, Mao, or Castro. Certainly, the Bernie Sanders campaign, the first major campaign in modern history led by a self-identified socialist, posed no such threat. If we faced such a threat, I would be among the first to join whichever major party best promised to put it down. This past election cycle, the existential threat instead emerged from the right and its willingness, as the price of gaining power, to support Trump.

If election 2016 was not the election that should have forced really picking sides, then it is hard to imagine what libertarians could possibly be waiting for. I spent fully a year, long before starting this blog, pleading with all who would listen, libertarians among them, that just this once, given the genuine threat that Trump represented, it was time to side with the only candidate capable of defeating him. I take no pride in having been right about something entirely obvious. And now, Trump is siding with Roy Moore notwithstanding ample, and amply credible, allegations of child molestation and other acts of sexual predation. This is all to ensure a Senate vote for a frankly disastrous tax relief package based on an economic theory that, if it ever holds, does so when the economy isn’t already humming and when interest rates are not already near the floor.

I respect libertarian principles and those who hold them. Even so, when faced with vital choices, those embracing such principles have, in my view, an obligation as citizens to commit meaningfully within our actual political processes. Libertarianism doesn’t place anyone above the fray. The real lesson of history is that no one is ever above politics. Those who pretend otherwise own the results.

I welcome your comments.

#DemocraticParty #RepublicanParty #Independent #DonaldTrump #ElizabethWarren #HillaryClinton #BernieSanders #CivilWar #Reconstruction #GrandOldParty #LeeDrutman #RonaldReagan #liberalism #republicanism

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