Friday, May 21, 2010


Just some random thoughts here.  I'm not sure how much I actually believe all I wrote.  But I might.  Or not.
Maybe it began when I reconsidered my position and concluded that although I hate guns and as a matter of policy think they should be banned completely or their ownership severely restricted, the
Second Amendment contained an individual right to bear arms.  Maybe it was later, when although my hatred of guns and view of wise public policy remained as they were, I thought some more about it and determined that the purpose of the Second Amendment right had nothing to do with self-defense against bad guys or wild animals or for hunting for food or sport (and what follows, which is that insofar as the right is demanded for those purposes it can be severely limited without offending the Constitution).  Rather, the purpose was to ensure that the people have the means of effecting violent revolution against the government.  (There are consequences to that conclusion about which I haven't yet satisfied myself.)
Or maybe it was when I looked in vain for the constitutional underpinnings of the administrative state.  Or first noticed that the Commerce Clause does not seem to say that anything that can be thought to have some marginal relationship to interstate commerce falls within the ambit of the Constitution's delegation of authority to Congress
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
And if the Necessary and Proper Clause really permits Congress to do pretty much whatever it wants, then we haven't just abandoned the  idea of a government of enumerated powers but we've abandoned the idea of the Rule of Law (uppercase intentional) because there would be no limit.
Or maybe it was when I acknowledged that ohmygodScalia'sright that a living Constitution does mean that the Constitution is this week whatever 5 members of the Court happen to think it means, and will mean something different whenever the composition of the Court (or the views of a sufficient number of members) changes.  (Of course, the same is true for Scalia's preferred Constitution - an embalmed one - since it, too, will be subject to constant reinterpretation as the courts and the Court try to figure out what it means, but that's not my issue today.)
Or maybe it was just when I finally admitted to myself that if you believe in the Constitution as the fundamental law of the land, whether you like all its terms or not, then you have to accept as fundamental the parts you don't like just as much as you have to accept the parts you do.
And so I find myself (and this isn't particularly new, it's just that I'm using it as the set-up here) a civil libertarian who more often than many who so define themselves tends toward the libertarian.
That requires some clarification, I think.  
Libertarians (and yes, I know I'm oversimplifying to the point where I'm approaching, but I don't think reaching, misrepresentation) tend to be political conservatives.  They believe not merely in limited government but in small government.  They have a commitment to the free market as not only constitutionally endorsed but as a good thing in and of itself.  If pressed, they'd say that the most important provisions of the Bill of Rights are the 2nd, 4th (and maybe 9th and 10th Amendments). At the distant margins, they expect any day that the administration will admit it's but a stalking horse for world domination by the UN, which itself will be run by some conglomerated version of state socialism on the line of Stalinist Russia except intent on ethnic cleansing of white folk.
Civil libertarians (to oversimplify with the same reach) tend to be liberals.  They believe in government, big government in fact, but think there are a few areas in which the government ought not meddle.  They're not terribly fond of the free market, think that government should regulate the hell out of it.  If pressed, they'd point to the 1st (though perhaps not the Free Exercise Clause), along with the 14th (and also maybe the 9th and 10th) as the most important of the Amendments.  At the distant margins, they really do think that the administration is a stalking horse for a resurgent Nazi party intent on ethnic cleansing of non-white folk.
Drop the distant margins people (there are nuts everywhere after all) and you find that there are real differences but also serious points of contact between libertarians and civil libertarians.
Again, this is all preface.  I'm a fan of government.  I'm an opponent of the administrative state.  (Those don't strike me as contradictory positiions.)  I don't want the government telling me (or anyone else) what to think or what to do with our bodies.  I have policy, political, and also constitutional questions about the government's handouts to the financial services industry and to GM and Chrysler, though I'm bothered less by the latter than the former.  I'm no enthusiast of the free market and I don't think the Constitution mandates it, though it certainly puts some limits on government regulation.  I'm a free speech absolutist.  Enough.  The details don't really matter here.
What got me rolling on this, are Rand Paul's comments on the Civil Rights Act of 1964, Volokh Conspirator David Bernstein's response/attack to "Bruce Bartlett's Attack on Libertarianism," and David Rittger's piece at the Cato@Liberty blog warning that US v. Comstock provides a blueprint for efforts to deny Constitutional protections to those suspected of being terrorists (he's not the first to discuss it).
And what I found myself thinking was two things.  First, I'm in complete agreement with what Rittger has to say.  Second, while I find Bernstein's discussion interesting and informative, I really can't get past his claim (essentially one Rand Paul couldn't quite bring himself to state, but then he's running for office now statewide, not just within a political party) that
Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains.
I wasn't brought up short by the claim that most libertarians believe that private discrimination should be legal.  I was brought up short by the idea that it's something of a mainstream belief (insofar as the libertarian perspective can be considered mainstream, and I think that with an even moderately broad definition of "mainstream," it can.
Anyway, so what I tried to do, because I'm finding more and more that I really don't trust the idea of government to do much of anything, is figure out where the rub is between me and libertarian thought (as Bernstein presents it, anyhow) on private discrimination.  And what it came to is that I'm no fan of free markets.  My objection isn't to the idea that the owner of a business ought to have some right to decide how the business works.  It's that when I look at the free market, what I see isn't the mom and pop grocery.  What I see is Wal-Mart and Best Buy and Barnes & Noble and Amazon driving the independent (i.e., mom & pop) out of business.
And while I'm offended if mom & pop want to discriminate (which they too often do/did), I guess I see that mostly as a personal choice that they can sometimes be coerced out of by concerted action (boycots, sit-ins, general suasion) although sometimes not, but gee, that's mom & pop.  And that's how they want to run their business, and as long as they don't have monopoly power or jim crow laws backing them, I guess that's their business.
But that's mom & pop.
I'm no economist, but you don't have to be to notice that big business drives out small and that Adam Smith's world wasn't exactly a bagatelle for the laborers.  But that's sort of a side question.
One of the commenters on Bernstein's piece complained about the libertarian fetish over property rights.  Bernstein responded without actually addressing the point, but it's all connected and deserved more of an answer than he offered.  Because if you want government to stay out of private business, you're either saying that the free market is a good thing in absolute terms or that you don't really care whether it's a good thing - government meddling is a bad thing.  And tI suppose that's an intellectually defensible position, but I don't see it.  And more to the point, I don't see the Constitution obliging it unless the only thing that "[t]o regulate Commerce . . . among the several States means" is that states can't impose tariffs on goods from other states without federal approval.  To put that another way, unless the Commerce Clause is understood to be only the Dormant Commerce Clause, which is really an inferred Clause rather than an enumerated one, the Constitution may limit what government can do about private enterprise and free markets (though I think the Civil War Amendments really do say something about discrimination), but it simply doesn't strip government of authority.
Although how you get authorization for the EEOC, the NLRB, the SEC, the FBI, and the NSA, that's a whole different question.


  1. I see myself as a "left libertarian." I see the critical importance of property to liberty, and therefore believe everyone should have some -- at least enough to make self-employment a viable option for most, so that we're not all at the mercy of the employing class and can therefore negotiate better terms if we do freely choose to work for someone else. I believe great inequalities in the distribution of property are inimical to liberty, giving those in control of great concentrations of wealth too much power over public affairs.

    Here's an interesting essay on the subject, titled "Are You A Real Libertarian? Or, a ROYAL Libertarian?":

  2. But I should add, I see government as the greatest cause of the unjust economic inequalities that exist, rather than a potential cure. If the government stopped stealing from poor people or poorer people, there'd be fewer poor people.

  3. I'm not enough of a populist (or a small "d" democrat) to believe in government by plebiscite or by some random group of folk who have passionate beliefs largely unrestrained by actual knowledge other than perhaps anecdotes heard on the radio or at the watercooler.

    But if not that, then the system (any system) will essentially be run by those with power and position and (in the real world) money. Those people have an obvious interest in ensuring that those with power and position and money retain power and position and money. Tax policy (and pretty much all other government policy, but tax more than most) typically favors the rich - more so since we've reduced drastically in the last 30 years the progressivity of the income tax. And of course it ain't mom & pop that the Wall Street bailouts were propping up - at least not directly.

    But the idea that if you took government out of the equation, somehow the little guy would be better off? I don't see it. Certainly, since the end of feudalism I haven't seen it. Not in Western society, anyhow.

  4. Whether the little guy could flourish or society even function if the State as we've known it were completely eliminated is an interesting but merely theoretical question, since barring unforeseen and cataclysmic circumstances it ain't happening any time soon. But as you recognize, the State from its very inception and by its very nature favors the rich over the poor. The assistance it offers the poor are mere band-aids for the serious injuries and poverty the State itself in largest part causes. The regulation it imposes on Big Business is often the result of lobbying by the regulated industry itself to squelch competition from mom & pop.

    The point is that, while recognizing that the State is our Enemy and calling one's self a "libertarian," one can also demonstrate one's concern with true liberty and justice for all by one's priorities in choosing what parts of the State on which to focus opposition first. In my case, for example, I would certainly oppose (philosophically at least, since I don't go to the trouble of engaging in the fruitless and vain enterprise of voting) the elimination of government welfare programs until the State at least stops taxing the incomes of people who make less than the mean. Places like Reason Magazine (with many exceptions) seem to focus their ire elsewhere and therefore often come across as mere uncaring apologists for Big Business. But the fact that Reason does this and calls itself "libertarian" doesn't mean that libertarianism itself, properly understood, is harmful hogwash. It's just a word, a label, after all. What's right is right and what's wrong is wrong. If those of us who disagree with the Reason Magazine version of libertarianism want to clearly distinguish ourselves from it, we can simply call ourselves "left libertarians," as I did in my initial comment. But I'd rather just call myself a libertarian, and then go to the trouble of explaining what I think real libertarianism entails.

  5. We're back to that "the State itself in largest part causes." I don't think that's so.

    Then again, I don't pretend to be a libertarian, just a civil libertarian with something of a libertarian bent on some issues where most civil libertarians and I differ.

  6. Fair enough. I think in a just world everybody born into it would be entitled to an equal share of its natural resources, or the monetary equivalent. Thomas Paine recognized this in his essay Agrarian Justice, where he advocated the payment of a specified sum to every citizen upon their 21st birthday. (That probably doesn't sound like what you'd normally think of as libertarianism.) People not born into wealth shouldn't be required to start from less than zero, as they do today, and to pay someone else for the privilege of merely taking up space in which to work and sleep. It's the State, which has already parceled off to private interests all natural resources (particularly land), in line with its feudal antecedents, which thereby denies to newcomers / new generations their natural birthright. Not to mention all the other things the State does to create hurdles in the way of those aiming for economic independence, such as unnecessary occupational licensure laws and taxation of modest incomes.