In the wake of Rand Paul’s departure from the presidential race, the question being asked is what is the best path to advance liberty? Should libertarians work within GOP, the Libertarian Party, or even the Democratic Party? Should libertarians be anti-establishment or should they try to become the mainstream? Should libertarians focus on politics, policy, or reject both altogether in favor of free market solutions?
The answer is all of the above. There is no one path to advance the ideas of liberty. Nor will there ever be a utopian society that is 100% libertarian, nor should there be in a pluralistic society. Liberal ideas and ideals advance and change over time.
There are some ideas we need to dismiss off hand.
Building a libertarian safe space. Congratulations to the Free State Project on getting enough people willing to move to New Hampshire to trigger the move. However, I still question its usefulness. What is the point of trying to move libertarians into a state and take it over as a utopian example to the rest of the world? Wouldn’t it best to have libertarians spread out all over to try and influence change everywhere? Besides, isn’t a mass migration to take over an argument against open borders?
Reject coalition building. Libertarians need to build coalitions with everyone. There are libertarian conservatives, libertarian centrists, libertarian progressives, and classical liberals (such as myself). Many Americans and others around the world have some kind of libertarian leanings and there are very, very few actual libertarians. Unless libertarians just want to yell in the wilderness, you have to work with others.
Lose the savior complex. The United States, or any country for that matter, will likely never elect a libertarian president, ever. The majority of voters are not libertarians and never will be. That’s fine, in a free and pluralistic society we need voters with all sorts of views. That’s what debate is for. Even if a libertarian did get elected president, libertarians would be disappointed because a president is not all powerful. Process matters as much as results do.
The prospects for liberty are great, regardless of the struggles of one particular presidential candidate. In fact, liberty means many things to many people and that’s good. While authoritarianism is rearing its ugly head in both political parties this year, I’m confident we can defeat it.
I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.
A growing legion of raving statists are now openly prepared to sacrifice individual liberty on the altar of social conformity; to dismantle more than 200 years of limited-power governance, checks and balances, and judicial review of government overreach, as the acceptable price of empowering political majorities to impose their collective will; to destroy the religious and economic liberties they support in the hopes of quashing the social liberties they do not.
What they fail to see is that this very deference to populist will has delivered the leviathan government under which we now endure, its millions of pages of rules and regulations, its $18,000,000,000 in debt, and its overarching micro-management of our lives through such legislation as the Affordable Care Act—upheld twice now by the judicial poster-child for the very deference the raving frothers demand.
What they fail to see is that there is no framework for constitutional governance that maintains a judicial check on legislative and executive infringement against the liberties they acknowledge, while simultaneously withholding judicial power to check legislative and executive infringement against the liberties they deny.
Chief Justice John Roberts sees it.
He understood with clear-eyed conviction that the results in NFIB v. Sebelius and King v. Burwell were the price of favoring legislative and executive will over individual liberty. And he did not fail to deliver.
Rather than double-down on this doomed path, conservatives should embrace the role of the judiciary in our constitutional framework.
SCOTUS Has No Power to Expand Government, Only to Protect Individual Liberty
The Supreme Court cannot enact legislation or regulation. It cannot order expansion of the other two branches. It can only respond to their actions. It does so in one of three ways: 1) upholding the action as constitutional; 2) declaring the action unconstitutional and therefore invalid; or, 3) requiring an otherwise permissible exercise of power to comply with the Equal Protection Clause.
Thus, the Court’s power lies solely in preserving individual liberty. It cannot initiate (although it can permit) an encroachment thereof. In that framework, “restraint” can only mean “abdication,” and complaints of “activism” have no meaning. The Court cannot create “new law.” It did not do so in Obergefell.
Obergefell involved two forms of state action, with distinct constitutional implications.
The first involved so-called “bans” on same-sex marriage.
In an effort to ameliorate the obvious political problems with “banning” people from marrying, even ardent opponents of same-sex marriage tend to acknowledge that free citizens have the right to pair-bond, cohabitate, share beds and raise families. But lest any forget, in 1924 police raided the home of Mildred and Richard Loving and charged them with a felony punishable by five years in prison for the “crime” of being married. Until 2003, U.S. citizens could still be arrested and jailed for engaging in consensual, adult sexual relations in the privacy of their own homes. As recently as 2012, North Carolina made it a crime punishable by actual jail time for ministers to perform marriage ceremonies for couples with no valid state-issued wedding license.
With respect to this issue, SCOTUS held that the right to pair bond with a willing partner, to identify such coupling as a marriage, and to be so treated by willing members of one’s community, all fall within an area of liberty so fundamental to the existence of free individuals and societies that it cannot be circumscribed by government force.
The second form of state action at issue in Obergefell concerned state licensing programs that give official imprimatur to certain opposite-sex couples, but deny such benefit to otherwise similar same-sex couples. SCOTUS held that if states voluntarily implement such programs, they must administer them commensurately with the Equal Protection Clause.
It did not hold that anyone has a fundamental right to the existence of a licensing program. It did not hold that private individuals, churches or business have to acknowledge same-sex couples as “married.”
It did not create new legislation.
Nevertheless, in response to this relatively innocuous decision about the limits of state power, the frothers have embarked on a path so dire and chilling it should keep any genuine defender of liberty awake at night.
A Dismantling of Liberty
A true proponent of limited goernment would embrace the concept of rights so fundamental to the existence of freedom that they cannot be surrendered to the collective; would defend the notion that the powers of government are few, narrow, and enumerated, while the rights of individuals are many, broad, and unenumerated; would include in that list of individual rights the accumulation and enjoyment of the fruits of one’s labor, the pursuit and acquisition of the trappings of “happiness,” the enjoyment of life and liberty; and would insist on judicial review as protection against federal and state encroachment of such rights.
Instead the frothers’ views run the gamut from disavowing individual rights beyond those enumerated in the first eight amendments and/or granted by a state legislature, to denying that even the first eight amendments have been incorporated against state action, and all the way to repudiating judicial review altogether.
Such views have found some degree of support from at least one 2016 POTUS candidate. In July, Senator Ted Cruz (R-Tex) held a congressional hearing focused on “reining in” the only branch whose power lies solely in protecting individual liberty.
This is shameless, inexcusable statist inanity.
Left to the whim of legislatures, the Constitution would literally have no effect. Of all the lunacy on the right this election season, this is the most chilling.
Absent the contempt action against Kim Davis, blue states can withhold gun licenses by employing clerks who object to their issuance on religious grounds.
In their irrational fear of the boogay man, statist conservatives have become their own worst enemy. And their weapon of choice in this self-defeating war continues to be the myopic insistence on “judicial restraint:”
For years, “judicial restraint” has been primarily about not thwarting the will of “democratic majorities.” There are myriad doctrines to accomplish this. For example, you adopt a “presumption of constitutionality” that cannot be rebutted. Or find a “saving construction” of a statute to avoid finding it unconstitutional. Or you “defer” to administrative agencies’ interpretation of statutes. Or you make a statute “work” as the “legislature intended” (even if that means ignoring the plain or natural reading of its words).
We have now seen the fruition of the decades-old demand for “judicial restraint.”
Despite conservative howls to the contrary, in both NFIB v. Sebelius and King v. Burwell, John Roberts did exactly what he had been programed to do by decades of Borkian restraintism. In the first, after finding that the Commerce Clause did not empower the federal government to mandate health insurance, Roberts nevertheless found a way to “save” the Act by rewriting it as a tax. In the second, he deferred to administrative interpretation of the Act.
Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. But they have contributed to this outcome. Their decades of populist praise of judicial deference to the political branches has borne this sour fruit.
Many good conservatives truly wanted Obamacare invalidated in NFIB because it was unconstitutional. And they then sincerely wanted it to be enforced according to its terms in King. But selecting judges with the judicial mindset of “judicial restraint” and “deference” to the majoritarian branches leads to the results we witnessed in NFIB and King. If conservatives persist in supporting presidents who select judges on this basis, they will persist in being disappointed.
* * *
Winning Obergefell on the grounds urged by Chief Justice Roberts in his dissenting opinion also gives you NFIB and King.
In fact, it gives us even more than NFIB and King. It gives us what has always been the goal of progressivism: removal of constitutional limits on government action, deconstruction of checks and balances, and dismantling of separation of powers.
It gives us unity of the branches in the wielding of unlimited power.
It gives us state legislatures empowered to require Christian bakers and wedding photographers to service gay marriage.
Because there is no government with the power to withhold marriage from individuals that does not also possess the power to impose marriage on individuals.
Is Gawker violating its writers’ rights if its chief executive editor de-publishes a controversial post?
What about if a company’s CEO is forced to step down in the face of a threatened boycott over the CEO’s political positions? Is an artist being “censored” if a comic book publisher cancels his covers and suspends him? Is it an unconstitutional “ban” on speech if Amazon and Walmart remove Confederate flag memorabilia from their offerings?
Across the web confusion abounds about what freedom of expression really means.
Most recently, in the messy wake of its sex-shaming post about a private citizen’s violation of Gawker’s neo-Victorian strictures on monogamy, founder and CEO Nick Denton (who pulled the post) had this to say to his editors:
What I can’t accept is an unlimited and subjective version of editorial freedom. It is not whatever an editor thinks it is; it is not a license to write anything; it is a privilege, protected by the constitution, and carrying with it responsibilities.
Literally, every part of that last bit is wrong.
The editorial autonomy of Gawker writers is not constitutional in nature. It is a license granted by their employer—i.e. Denton. Absent a binding contract, it can be revoked at any time without running afoul of anyone’s rights, and certainly not running afoul of anyone’s constitutional rights.
The constitutionally protected freedom that Gawker writers do have (as do we all) is not to publish at Gawker. The Constitution restricts the power of Congress, not the discretion of Nick Denton.
Nor is that constitutionally protected freedom a “privilege.” It is a right.
And it does not have to be exercised responsibly.
It vexes me when people who should know better get sloppy in their framing. Messy language leads to messy thinking and, in the process, dilutes effective defense of this crucial freedom.
Perhaps a libertarian(ish) review is in order.
“FREE SPEECH” V. FREEDOM OF SPEECH
Although routinely used in Supreme Court decisions, the words “free speech” do not appear in the Constitution. In my opinion, overuse of this terminology induces people to mistakenly believe their speech should always be costless and consequence-free.
That is not how it works.
Speech requires a forum, which must be paid for by someone.
Similarly, bookstores are not required to carry every book printed just because the author claims a “free speech” right. The corner market does not have to sell every conceivable magazine. Art galleries do not have to make room for every painting. Radio stations do not have to play every song.
And Gawker does not have to publish every post. (I would totally make it publish this one.)
If a speaker wants his speech to be “free” in the sense of not having to pay for the forum, he must either utilize a public forum or find a private owner willing to host the content gratis. Luckily, in this day and age, there are lots of options for that.
Gawker is not one of them.
Like other private publishers and forum owners, it exercises its right to decline hosting or publishing content it dislikes. There’s a term for that right.
It is tempting to say that Brendan Eich was “forced” to resign from Mozilla over his position on same-sex marriage. That Richard Albuquerque was “forced” to pull his Batgirl cover variant. That TLC was “forced” to cancel the Duggars.
That Nick Denton was “forced” to pull the now infamous Gawker post.
It sounds more melodramatic and provocative to phrase it that way. But to the extent it’s semantically correct, this is not the kind of “force” that runs afoul of the freedom of expression.
Wrongful force is actual physical force used to prevent or punish speech or other forms of expression.
Preventing forceful suppression of expression is a higher order principle. When triggered, that principle transcends issues about the content of the speech being defended.
Because speech is the most powerful weapon that ever has or ever will exist.
It has the power to topple kings, eviscerate falsehoods, destroy paradigms, provoke thought, change minds and hearts, alter the course of history, and transform the world.
And it can do all that without shedding a drop of blood.
A weapon like that cannot be entrusted to the exclusive control of the few. Enlightened rulers using force to curtail speech have too often gotten it wrong. Power once ceded can rarely be retrieved, and battles not fought with words and ideas will be fought instead with violence and bloodshed.
We cannot retain the best of speech without protecting its worst. We cannot extract its power to do harm without diluting its power to do good.
EVERYTHING BUT FORCE IS FAIR GAME
That being said, everything short of physical force is fair game.
A Congressional communications director can be pressured into resigning (or fired) for making snarky comments about the President’s daughters. TLC and A&E can cancel their reality television lineup for any reason consistent with the contracts negotiated. Customers can boycott wedding photographers or bakers in retaliation for expression of disfavored opinions. Landlords can refuse to rent to people with Confederate flags in their rear windows. Employers can bypass applicants over their social media postings.
Firing. Boycotting. Refusing to hire. Pulling advertising. Cancelling subscriptions. Social media flame wars. De-publishing. Disassociating. Shaming.
All of these are fair game. All of these are themselves protected acts of expression.
They may make life unpleasant for the target. They may feel coercive or even deeply wounding.
They’re supposed to.
If speech didn’t have that power, we wouldn’t bother protecting it.
Deciding to refrain from speaking because such consequences are too unpleasant is not a response to force. It is a response to speech.
GAWKER IS GETTING SPOKEN TO, NOT SUPPRESSED
If Gawker were being threatened with forceful suppression of its speech, defending against that violation would be a higher order principle that transcended all others. Personal feelings about the content of the speech would be secondary.
But where no force is imposed or threatened, those secondary principles are the only ones at play. The whole point of the higher principle is to create a circle of freedom in which ideas, without limitation, can be explored and judged on the merits. If we never got around to the judging part, we would destroy the very reason for preserving the freedom.
Nothing happening at or to Gawker (in this specific case) poses any threat to anyone’s fundamental right to free expression. The writers are free to write. The owners of Gawker are free to choose what to publish. The editors are free to “fall on their poisoned pens” in protest. Advertisers are free to abstain. Readers are free to boycott.
None of this constitutes a violation of anyone’s freedom. It’s what freedom looks like.
Free speech aside, why does anyone, ever, do or say or think or draw or write anything profane or blasphemous or provocative or controversial or impolite or mean-spirited or harsh or unkind?
Do only certain answers to that question justify the exercise of such freedom?
I sit as I write this in a crowded coffee shop. The tables are small and closely spaced. There are men seated at the two tables on either side of me. All three of us have matching disposable cups of overpriced coffee sitting precariously on the edges of our small tables crowded beside our silver laptops.
There is no way for me to turn my laptop to prevent them both from seeing the screen. After reading the Wikipedia entries for the artwork I mentioned above, I peruse galleries of Charlie Hebdo covers looking for examples of images targeting Christian and Judaic ideas.
I wonder to myself, what do these men sitting so closely beside me think of these images? By now, they have surely glanced over and seen them on my screen. What meaning have they ascribed to them, to my perusing of them here inside the narrow confines of this crowded coffee shop?
I find my mind flowing back through the years to another table in another time. It is more than a decade and a half ago. The table is bigger, square instead of round. In a lunch deli, not a coffee shop, and not at all crowded. I am having lunch with a friend. It is before the days of smartphones. We are reading different sections of a shared newspaper.
An article captures my attention. I summarize it aloud for my friend. A couple struggling with fertility sought help from a fertility clinic. Ultimately the wife was implanted with embryos that were successfully fertilized using her eggs and donor sperm. A baby was born.
Only there had been a mix-up with the donor sperm used by the clinic. The baby does not have the right look to her parents’ way of thinking.
Her skin is too dark. Her hair is too kinky.
The parents are suing. The article closes with a quote in which they insist they are not racist.
“Right. We aren’t racist,” I mimic, sarcastically. “We just don’t want this baby. For entirely nonracist reasons.”
My friend snickers. We both get it. We are young and smug and sure of ourselves, signaling our mutual membership in the best of all possible tribes. We start riffing off each other, back and forth, mimicking all the things we imagine people blissfully unaware of their own contrivances say in such circumstances.
We’re not racist. We just don’t think the races should mix.
We’re not racist. This is about the children.
We’re not racist. We have black friends.
A man at a corner table looks up from behind his own newspaper and frowns at us.
Jerk. I immediately assign him to one of those other, less desirable tribes. One whose members remain fatuously assured of their enlightened values right up until the moment they are handed that baby. The swaddled bundle of Other that forces them to confront the things they had until that point been able to deny existed inside their own minds.
Does he think we are the—?
Did he misunderstand? We were only…
What? I struggled to think of the right words to describe what we were doing.
I am fifteen years away from knowing what Charlie Hebdo is.
To avoid the inherent limitations of the views from our own tables.
But it is in those moments when self-doubt obliterates contrivance that paradigms shift. It is in the moments when we finally sense the chinks in our own armor of righteousness that we fully appreciate the limitations of our perspectives. It is where we straddle those lines that cannot be drawn that real debate occurs and social change is worked.
There is inherent value in the speech that drives us to the place where the curtain is pulled back.
And that is why.
As Caleb Crain, author of Necessary Errors, writes on his Steam Thing blog:
It’s possible, of course, to see the antiracist message of one of the Charlie Hebdo cartoons as no more than a cover for an underhanded relishing of the racist imagery deployed in it. Parody usually does participate to some extent in the energy of what it parodies; that is one of the risks it runs. Humor is not pure. It speaks to us through our flaws, as well as speaking to us about them—envies and hates, as well as greeds and lusts—and it can’t exist without the license to work with dark materials.
Last year at the University of Iowa, a visiting professor created a sculpture of a Ku Klux Klansman papered with articles about racial tension and violence over the last 100 years. Some people complained that it was racist, and the sculpture was removed. Its creator, Serhat Tanyolacar, intended the sculpture to confront the comfortable assumption that our racial frictions are all safely in the past.
Can one of these interpretations be pronounced objectively correct to the exclusion of the other? They are like conjoined twins—one good, one evil—and you cannot kill one without killing the other.
And that is why.
If the message cannot always be nailed down, neither can the direction of the punch, though that was a criteria for meritorious satire recently advocated by cartoonist Gary Trudeau. An LGBT couple denied photography, floral or catering services will undoubtedly perceive the balance of power differently than the Christian business owner bankrupted for expressing religious values that amount in others’ eyes to politically incorrect discrimination.
Are the targets of Charlie Hebdo’s satirical barbs victims, as Trudeau suggests, or are they oppressors, as Ayaan Hirsi Ali and others might argue?
[T]o portray an institution that mocks any religion’s sacred cows as villainously “punching down” ignores that religious institutions are very much part of the power structure and have been throughout history.
Can we say with certainty that Charlie Hebdo’s (alleged) punching down in France does not help people like Raif Badawi punch up in Saudi Arabia?
Like shifting sands, our perceptions of the balance of power change from setting to setting, issue to issue, moment to moment, always influenced by the view from our table. If we refrain from swinging except in the clear cut cases, satire is sidelined precisely at those moments when we stand on the brink, when social upheavals make the scores too close to call.
And that is why.
But it is not all.
Circumscribing speech based on the sensibilities of out-groups marginalizes and infantilizes the members of those groups. It treats them as children who must be shielded from the harsh confrontations that members of other, more superior groups might be expected to handle. As David Frum noted in responding to Trudeau:
It’s almost as if he thinks of underdogs as literal dogs. If a dog bites a person who touches its dinner, we don’t blame the dog. The dog can’t help itself. The person should have known better.
In this manner, Trudeau and his cohorts would return fierce debate to the exclusive province of those—white, male and Judeo-Christian—who by dint of their power and privilege can be expected to handle such heady and taxing matters responsibly.
Out-groups are not comprised of children. Nor are they homogenous. Among their many victims, extremists who call themselves Muslims kill moderates who also call themselves Muslims. Is Charlie Hebdo punching down against the latter—or punching up on their behalf?
People of good faith can reach different answers.
And that is why.
Finally, and here is the crux of it, we cannot make the world safe for the people who would punch up unless we find it our hearts to defend those who will use the same freedom to punch down.
I used to differentiate between government censorship and private consequences for unpopular speech. It was the wrong distinction. The meaningful difference is between non-forceful responses to speech—firing, boycotting, bankrupting, and shunning, all of which are fair game—versus forceful responses, which never, ever are.
It is not functionally different whether the thugs suppressing expression are the official ones we call “government” or a renegade band of religious zealots. If we give in to the latter on the theory that they are somehow exempted from the resistance we would put up against the former, the zealots simply become a shadow government of censors.
We are no less unfree.
Bosch Fawstin’s winning entry in the Garland, Texas “Draw Muhammad” contest.
If we want freedom to exist for the Raif Badawis of the world, we must defend its exercise by the Pam Gellars.
The peaceful way to do that, to render violence counterproductive to its own ends, is by mirroring the speech that would be suppressed. Even when it is offensive. Even when it is blasphemous. Even when it is rude, childish, stupid, unpopular, pointless or unnecessarily provocative.
Most people… At least most people in modern western democracies… Seem to have a fundamental and unconscious assumption about the nature of law and government, that goes something like this:
Law and government, are or should be, the expression of the will of the majority, for the purpose of making collective decisions, taking collective actions, fixing problems and righting wrongs.
If I gave that definition to most people as what government “should” be, or even what it is, I’d guess they would agree.
But that’s not what law and government are at all. In fact, that notion of the nature of law and government, is not only wrong, it is extremely harmful.
What are law and government?
Government, is the instrument of collective delegation of the legitimate initiation and use of force against others.
Law, is the body of rules by which that force is administered and applied.
The only legitimate purpose for which, is to secure and protect the rights of individuals governed by them.
So, what’s the other thing, and why is this a problem?
The other definition, is more properly that of society (as distinct from culture).
Government is NOT Society, and Society, is NOT Government
This conflation of government, and society, is a very serious social and political problem because those who hold it… and I firmly believe it’s a large majority… believe that law and government, should be used for “doing what’s good, and stopping what’s bad”.
They naturally wish to see government do what they think is right, or best, and stop that which they think is wrong, harmful, or wasteful… And not just in areas where force should be applied.
They conflate “legal” with “good” and “illegal” with “bad”, and try to make laws against things which they think are bad, or mandating things which they think are good.
They often even conflate “legal” or “attempting to make legal” with “approving and supporting”, and “dissapproving and opposing” with “illegal” or “attempting to make illegal”.
This is incredibly harmful
We have allowed… even encouraged people… to deeply hold the fundamental notion, that they get to vote on other peoples opinions, choices, and behavior; and if their “side” wins the vote, that it is legitimate to make those things legal or illegal.
It also means that these people automatically and reflexively try to solve personal, moral, social, or societal problems, with government and law, when it is entirely inappropriate, even harmful, to attempt to do so. Most of those problems cannot be solved by the use of force;, or at best can only be solved inefficiently, ineffectively, and while violating the rights of others.
In encouraging this misapprehension, we have in fact made the personal, the political, and the political, the personal.
How do we stop the harm?
We must correct this critical error in peoples fundamental apprehension of law and government.
People need to understand, at the most fundamental level, that government is force, and that law is how that force is directed and administered. No more, no less.
If we don’t correct this misapprehension, then we will continue to simply seesaw back and forth between majoritarian tyrannies, as social changes dictate.
Rights will continue to be violated and abrogated as the opinions of society fluctuate.
The favored, will continue to be privileged over the disfavored at the expense of the disfavored’s rights, until the pendulum swings again and the roles are reversed.
Yes, I realize, that is largely how it has always been… But never has law and government had such a depth and breath, had so great a reach into our personal lives, as it does today, and this unfortunately shows no sign of receding.
The absurdity of this reach… and overreach… is finally becoming apparent to many people, on all ideological “sides”; be it the “war on drugs”, the “war on terror”, privacy and surveillance, or gay marriage and wedding cakes.
So, we have to take action, now
Use this growing awareness of the overreach, to help people understand.
We have to show people these aren’t just outlying excesses. That they result from the way we think of, look at, and attempt to use, government.
We have to get people to understand, that if they can say “there ought to be a law”, and then get a law made banning something that they don’t like; then their worst enemy, can get a law made banning something they love.
We have to return to the notion that fundamental rights matter, and that the only legitimate purpose of law, and government, is to protect those fundamental rights.
That’s up to individuals, and to society as a whole, NOT GOVERNMENT.
Voluntary collective action. If it’s really what people want, then they’ll work for it, without the threat of force. If it’s not really what they want, then we shouldn’t be forcing people to do it.
I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.
Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra