Arizona, Gay Rights, and the Unhappy Marriage of Libertarianism and Conservatism (or, why saying “I’m a libertarian” doesn’t give you a free pass)

Libertarianism, just as much as “social conservativism” poses a danger for minority rights of all kinds.  If you support the cause of gay marriage, anti-Jim Crow civil rights, etc., you should not be a libertarian.  If you think homophobic laws are wrong, you should also think economically unequal social arrangements are just as bad.  I’ll try to explain why.

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The Lazy Media Narrative of “Economically Liberal and Socially Conservative”

The media coverage of the recent debate over legislation that would have allowed business owners to refuse serve to gay couples all seemed to agree on one thing, that can be paraphrased as follows: “this legislation and the argument over it highlights tensions within the Republican party between ‘traditional conservatives’ on the one hand and the ‘newly emergent libertarian wing’ on the other.”

Here’s a good example: this New York Times article from 2/28/14 says “…many libertarians do not embrace the typical conservative view on this issue.”  The idea sounds plausible: there are some people – “social conservatives” who believe that gay people shouldn’t exist, or if they’ll allow them to exist, they shouldn’t have access to major social institutions like marriage, and everything that goes with the, because we shouldn’t “promote their lifestyle.”  But, according to the conventional wisdom, those people are bad.  Not to worry however, that’s not all the “big tent of the Republican party” includes: there are also supposed “libertarian” members of that party, and they are much more “socially liberal” even if they are also “economically conservative.”

Those on the libertarian wing act like those on the “social conservative” wing are backwards – and they’re probably right.  But what the libertarian wing misses is that IT’S socially backwards too, just in a more hidden, and therefore more pernicious way.  The more we allow people to say “yeah, but I’m a libertarian, I’m not one of those crazies,” the more we miss that their ideology is actually helping the crazies just as much, if not more.

“Economically conservative but socially liberal” is an unstable, inconsistent position: the gay rights issue allows us to see this clearly.

A pretty core libertarian position asserts that things like taxes and environmental regulations on businesses should be kept to a minimum or eliminated entirely.  Why?  Because they “restrict liberty.”  I, as a small business owner, should be able to invest my capital how I see fit, regardless of whether it violates what you think is a good idea, like not causing global warming acid rain.  And I, as a small business owner, shouldn’t have to pay a lot of taxes to support the “liberal welfare state,” again, a big statist attempt at social engineering that I may or may not agree with.  For the most part, I should get to spend my money how I like.  I’ve previously argued that this position itself is already incoherent – because my taxes actually do help pay for the system that allows my business to exist in the first place, but let’s set aside that argument for now.  Let’s suppose that the libertarian preference for low taxes and minimal regulation has somehow been justified.

Next question: as a libertarian (which, to clarify, I AM NOT ONE OF THESE), should I have to serve a gay person with whom I disagree?  Should I have to serve a black person whose presence offends me? For the libertarian, the answer HAS TO BE “no, I shouldn’t have to” to both of these questions.  If it makes sense that a small business owner shouldn’t in general be subject to taxation or regulation that furthers social interests with which that business owner may not agree, then it also makes sense that that same small business owner should not have to serve members of minority groups (or anyone else) that he/she doesn’t want to serve.  Libertarianism means tolerating racism and homophobia: in Arizona, in the Jim Crow south, wherever.  And that’s a bad thing.

Discrimination is Something Libertarianism Can’t Object To – or Else it Will Cease to be Libertarianism (but would be a good thing)

The natural rejoinder here will be something like “but the small business owner has no right to discriminate.”  I agree, but if this is true, I would argue, that small business owner ALSO has no right not to be subject to taxes or environmental regulations.  All three of those obligations grow out of the social context in which being a business owner arises, and for libertarianism, social context is generally not the sort of thing that justifies restrictions.

The above-referenced New York Times article includes this snippet:

“This bill instinctively struck people as a violation of individual liberty,” said Ari Fleischer, a conservative who was White House press secretary under President George W. Bush. “The notion that because of your orientation or your religion that you can be denied food service because of someone else’s sincere religious belief went too far.”

Ari Fleischer appears to be making a reasonable point, right?  Something seems “instinctively” wrong with this type of discrimination, that is not “instinctively wrong”, presumably, with ordinary libertarian opposition to tax laws and environmental regulations.

My argument can be roughly summarized as follows:  the “instinct” Fleischer is referring to is actually a BIG PROBLEM for the libertarian-conservative side of things.  The “instinct” that the government has a legitimate interest in the regulation of businesses for anti-discriminatory purposes comes from a place that, were it thought through consistently, would require that businesses be subject to all the other regulations that most libertarians find objectionable.

One of the most important passages in John Rawls’s A Theory of Justice says just this:

Even if [something like libertarianism] works to perfection in eliminating the influence of social contingencies [i.e., discrimination on the basis of race, gender, or sexual orientation], it still permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents [it still allows economic inequality].  Within the limits allowed by the background arrangements, distributive shares are decided by the outcome of the natural lottery, and this outcome is arbitrary from a moral perspective. There is no more reason to permit the distribution of income and wealth to be settled by the distribution of natural assets than by historical and social fortune. (73-74 – my emphasis and brackets)

In other words, if you think it’s unfair to for people not to have access to resources because they are black, or because they are gay, you ALSO need to think it’s unfair for them not to have access to resources because they were born poor.  Each is just as “arbitrary from the moral point of view.”

Discrimination is bad for the same reason environmental destruction and not helping poor people have health care are bad – they are damaging to people and others on this planet.  And if “not damaging people and others on this planet” is something that falls within the legitimate purview of the government, and it can regulate businesses in that basis, then the libertarian arguments against each of these three kinds of restrictions -taxes, environmental regulations, discrimination against minority groups – all of these arguments stand and fall together.  If you are really “socially liberal” you need to become “economically liberal” too, at least at the level of principle.

Another way to put this – if there really is a “right” for a gay person not to be discriminated against by a business (and I believe there is) that right most likely comes from a source that can also be used to justify the “rights” of people not to live in a world destroyed by acid rain, or the “rights” or people not to live in a world where they do not have access to health care because they are poor.  And the business owner, insofar as he/she exists within a world that respects those rights, has to pay taxes, obey regulations and also not discriminate against his/her customers.

Not Expanding The Interstate Commerce Clause Means Racism, Homophobia and No Affordable Care Act

Another way to see this is to reflect on libertarian opposition to the expansion of the Interstate Commerce Clause in the constitution.  The normal libertarian argument against this is that it should only be used to regulate commerce between states, but not commerce within states.  Both Rand and Ron Paul (and their followers) are very fond of this argument.  One of the big arguments against the Affordable Care Act (one the court did not accede to) was that the Interstate Commerce Clause would be unduly expanded by having an individual insurance mandate.  This, it was argued, was an anti-libertarian restriction on individuals.  The court, more or less, upheld that this use of the Commerce Clause was legitimate.

The commerce clause has come under fire from “traditional conservatives” too – back in the civil rights era.  One of the first cases that ruled on the Civil Rights Act was Heart of Atlanta Motel vs. United States.  Wikipedia’s summary of this case: “a landmark United States Supreme Court case holding that the U.S. Congress could use the power granted to it by the Constitution’s Commerce Clause to force private businesses to abide by the Civil Rights Act of 1964.”

Do you know what the Heart of Atlanta Motel was suing for?  They said, roughly, “we should be able to refuse service to black people.  The Civil Rights Act places a restrict on our commerce which does not fall under the purview of the Interstate Commerce Clause.”  The Supreme Court disagreed, and desegregation of businesses and the dismantling of Jim Crow proceeded apace.

My argument is that it’s not a coincidence that the Interstate Commerce Clause was instrumental in both the Supreme Court’s decision to uphold most of the Affordable Care Act, and its decision to uphold the Civil Rights Actin back in 1964.  In both cases, libertarian interests were seen as not as important as what I would call an interest in justice as fairness.

And just the same with Arizona: there is a legitimate public interest in forcing business owners to do ALL of the following:

  1. allow black people to say in their hotels
  2. pay taxes that fund social welfare programs
  3. follow environmental regulations to protect our planet
  4. sell gay people items for their weddings.

Note that 1 and 4 are issues we typically connect with “socially liberal”, and issues 2 and 3 we typically connect with being “economically liberal.”  My argument is that they all come from the same place: an insistence that our world be ordered along the lines of justice, whether economic or social.  If you want to be a libertarian, in other words, you may have to tolerate racism and homophobia, whether you want to admit it or not.  And if you want NOT to tolerate racism and homophobia, you might want to consider not being a libertarian.

And – let’s all stop giving free passes – in the media or in our own lives – to that most obnoxious of pseudo-political cocktail party distinctions “I’m economically conservative but socially liberal.”  You’re not – you’re just selfish and wanting to disguise that selfishness behind a facile distinction.

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13 Responses to Arizona, Gay Rights, and the Unhappy Marriage of Libertarianism and Conservatism (or, why saying “I’m a libertarian” doesn’t give you a free pass)

  1. Nates says:

    You’re surely right that a consistent Libertarian should be OK with a law allowing individuals to discriminate against others (assuming no fundamental individual rights are being violated). So, they ought to believe that bakers, for example, should not be forced to sell wedding cakes to gay couples.

    But I don’t think this ends the discussion. Presumably, our ideal Libertarian will acknowledge this as a regrettable consequence of their position, but will then go on to argue that these negative consequences are outweighed by the many positive ones. So, you might not be able to buy your wedding cake from a particular baker, but, on the positive side, it never would’ve been illegal for you to get married in the first place!

    Libertarians believe that many of our worst, most discriminatory cultural practices (notably, slavery and Jim Crow, but including more recent racist practices inherited from these institutions) have been created and reinforced by means of state powers–powers that would never have existed on a Libertarian model. So, to fully assess the view, we may need to consider a much bigger picture–including some broad historical counterfactuals. At any rate, I don’t think the argument above is decisive.

  2. Josh says:

    Nates –

    Thanks for your comments. I don’t quite think I was making the argument you take me to have been making. I’m not arguing – “libertarianism means overturning the civil rights act, therefore you shouldn’t be a libertarian.” I think that’s a defensible argument, one I could have made, perhaps should have. But what I was saying is milder – you can’t have both. You can’t use “libertarianism” as a way to say “I’m conservative but I don’t support this kind of discrimination.” Because logically, if you’re a libertarian, you ought to support not necessarily the discrimination, but the right of others to engage in it.

    If someone wants to say “fine, but the negative aspects of allowing things like the civil rights act are worse” that’s a different dialogue. My point was to highlight a certain kind of theoretical inconsistency – one that is very popular on the right, and quite often used as a way of understanding why there’s an internal rift within the GOP. I submit that the two positions are actually more simpatico than libertarians, in their “I’m not yesterday’s conservatives” attitude are unwilling to acknowledge. That’s what the Commerce Clause part of my post was meant to display – there is a historical continuity between anti-regulation anti-civil-rights era conservatism and contemporary anti-health-care libertarianism.

    Your (hypothetical) marriage argument doesn’t work though – marriage rights are exactly the kind of thing that are actually a government entitlement that looks only like a “you live your life I’ll live mine”-type action. Gays can already get “married” in the sense of having a private body (like a more liberal-minded church) recognize their union. The state recognizing their marriage is another thing that a strictly libertarian position would say shouldn’t happen. It’s saying that certain people, by virtue of loving one another or intending to raise children or whatever, deserve different tax treatment, etc. than others. It is not a institutional action. The strictly libertarian gay-marriage solution is “private institutions can marry people but the state shouldn’t be involved in it” not “the state should let anyone get married regardless of who they are.” This is, again, a non-discrimination action, analogous to the civil rights act.

    Libetarians can “believe” whatever they want about Jim Crow – the fact of the matter is that absent something like the Civil Rights Act, PRIVATE acts of racism WERE largely responsible for sustaining Jim Crow. A group of businesses saying “we don’t serve black people” was a private decision. A group of businesses building white and black bathrooms was a private decision. Even the institution of slavery was, in some sense, a set of private decisions that the government allowed to happen, rather than stopping it. Which “state powers” or laws gave rise to these things? It was more the lack of laws that gave rise to them. It was a set of socially accepted traditions (like the expectation that black people should ride at the back of the bus). A lot of the civil rights movement was libertarian-friendly protesting – boycotts of businesses, etc. But without the state-level action recognizing civil rights, arguably, most of those things wouldn’t have changed on their own.

    That’s a more empirical point, but it’s also not one that’s central to my argument. I don’t think I need counterfactuals to disprove the claim that the libertarian model has no principled reply to discriminatory action taken on the part of businesses. “If things had always been the way we want them to be, those businesses wouldn’t have been like that in the first place” strikes me as the kind of utopian theorizing that’s verging on the unfalsifiable. But to the extent that it’s empirical, it’s not immediately relevant to what I was arguing.

  3. Nates says:

    Josh writes: “You can’t use ‘libertarianism’ as a way to say ‘I’m conservative but I don’t support this kind of discrimination.’ Because logically, if you’re a libertarian, you ought to support not necessarily the discrimination, but the right of others to engage in it.”

    Well, there’s a huge difference between these two ways of putting the last point, and I’m worried that you’re blurring the difference in the original post, which would be unfair. For example, I’ve heard that you’re against people discussing TV shows on the CTA. But now I’m wondering: if you aren’t willing to have these kids arrested, aren’t you really just a supporter of these conversational topics? If that inference doesn’t follow, then it doesn’t follow that being a Libertarian means supporting discrimination. A person can be strongly against Arizonan bakers refusing to serve gay couples, while still believing it’s best not to have a law banning this discrimination.

    So, it’s potentially misleading how you end the post:
    “If you want to be a libertarian, in other words, you may have to tolerate racism and homophobia, whether you want to admit it or not. And if you want NOT to tolerate racism and homophobia, you might want to consider not being a libertarian.”
    If by ‘tolerate’ you mean ‘don’t criminalize’, then we all tolerate a certain amount of racism and homophobia. And it would be a frightening restriction on freedom of speech if we didn’t! So the question is just where we draw the line on tolerance. The Libertarian, for principled reasons, draws the line in a different place than you do. It doesn’t mean they’re somehow pro-homophobia.

    If you actually want to address Libertarianism, the philosophical position, then you’ll have to take it more seriously. I was gesturing toward this in my previous comment. If your goal is to take down some of the people who call themselves Libertarians (or “economically conservative, socially liberal”), that’s fine. I see the political value of this task. And I’m convinced by your argument that they’re being inconsistent. But in this and other posts, you keep framing your position as a critique of Libertarianism itself. This is what I’m objecting to. Imagine how you would react if someone tried to dismiss Liberalism by pointing out the confused and inconsistent ramblings of some congressional Democrats!

    For example, you write:
    “Libertarianism, just as much as “social conservativism” poses a danger for minority rights of all kinds. If you support the cause of gay marriage, anti-Jim Crow civil rights, etc., you should not be a libertarian.”
    Well, no. A Libertarian can consistently be against laws that grant special status to heterosexual marriages, but not homosexual marriages. And they can see removing bans on gay marriage as meaningful progress. As you note, their ultimate goal is surely the privatization of marriage, removal of tax benefits, etc. But this would still be achieving equality between gay and hetero couples–a civil rights victory.

    I get that there’s a long history of people using Libertarian principles in a very selective and inconsistent way to defend their bigoted practices. Similar moves are made on the left. But it only muddies the waters to judge the political philosophy based on these inauthentic/incoherent appeals to it. And if you don’t want to judge Libertarianism, then why keep implying that you are?

  4. Josh says:

    Hmm… lots to argue about here. I’ll try to figure out how best to organize it.

    First – the general outline of my claim. It’s something like this: “if you have libertarian sympathies, you have to be ready to be intellectually consistent. If you were, you’d discover yourself committed to a bunch of things you probably don’t really agree with. Which is a reason to reconsider those sympathies. If, upon doing so, you’re comfortable with the outcome, and you’re okay with things like the civil rights act not being a law, etc., then you’re not inconsistent, but there might be larger problems.” This particular post did not adduce those larger problems – my earlier ones did though. Those arguments logically belong there. I believe they’re right, and we can talk more about them, but it’s not like I haven’t made other arguments (even if you didn’t find them persuasive).

    Second – I think you underestimate the real-world perniciousness of the particular form of inconsistency I’m discussing. In addition to being logically inconsistent and therefore not a good thing, it’s also extremely popular, and has a tendency to reproduce structures of inequality and providing pseudo-intellectual cover for those structures by garnering support from people that wouldn’t otherwise support them had they thought things through a little more. Rand Paul, etc., are not just RANDOM FRINGE CHARACTERS who happen to be inconsistent. They’re fairly major regular influences on our national agenda.

    Third – there’s a kind of equivalence game your post is playing, without warrant. I agree that congressional democrats are at times inconsistent, as are all people. I don’t think it’s right that their inconsistencies are either (a) as inconsistent, or (b) as influential in the national conversation.

    It’s instructive that you didn’t actually POINT OUT any of these allege inconsistencies, you just asserted their presence. If they were inconsistencies that, rendered consistent, produced an undesirable theory, one which I would not want to advocate, OF COURSE that would be a problem. But you have made no such argument. Nor, I suspect, could you. My argument is that one particular kind of inconsistency on the right is often given a pass, and that very inconsistency is, in some sense, instrumental to the ideological appeal of conservativism. If there is a similar problem with liberalism, I wouldn’t say it was irrelevant. But you haven’t actually pointed out, so I can’t say.

    Not all inconsistencies are created equal: if a Democrat says or does two things that are inconsistent, and so does a Republican, it doesn’t mean, local-news-style, that “they’re both crooks” or whatever. We owe it to ourselves to parse these inconsistencies out wherever they arise, weigh their relative importance, etc.

    Third – I’m not sure why “libertarianism leads to a lot of politically problematic counter-intuitive conclusions” isn’t a form of critique against it, isn’t, as you put it, “taking it seriously.” If the logical conclusions of a position have intuitive problems, that’s a modus-tollens type reason to set aside that position. My earlier post’s attempt to demonstrate that consistent liberatarianism ends up in a hyperprivitized dystopia that means no public police, fire departments, libraries, schools, health care systems or even armies, and that the reason why libertarianism generally seems appealing is that it soft-pedals some of those conclusions, how exactly is this not “taking something seriously?” Again, if you think that’s not true, you should provide an argument why it is not. But it seems fair to call it “taking it seriously” for me to have made such claims.

    Fourth – you’re missing the point on the gay marriage issue. REMOVING marriage laws is exactly the opposite of what’s going on with the gay-marriage movement right now. Private gay marriage is available now. Removing all marriage laws from the books would be a solution, but the point is, it’s diametrically opposed to most current civil-rights efforts. Again, when libertarians say this more loudly, they’re revealed as counterintuitive in a way they don’t want to be. The GOP would take a HUGE hit in the press if they were like “okay, we think there shouldn’t be any marriage laws.” They’re currently skirting the line by being like “well, libertarians aren’t opposed to gay marriage – if you’re one of them you can be one of us too!”

    You write:

    “If by ‘tolerate’ you mean ‘don’t criminalize’, then we all tolerate a certain amount of racism and homophobia. And it would be a frightening restriction on freedom of speech if we didn’t! So the question is just where we draw the line on tolerance. The Libertarian, for principled reasons, draws the line in a different place than you do. It doesn’t mean they’re somehow pro-homophobia.”

    If we’re talking about “where to draw the line,” then, to my mind, the libertarian argument has lost its bite. Because now we’re saying “okay, we’re all in this society together, and we have to create AS A SOCIETY a set of lines.” The problem with libertarianism is that it tries to make a sort of burden-of-proof end-run around such conversations by appealing to things like “the presumption of liberty” or attempting to prove that there is no useful construct to be called “the basic structure of society” (or further, as Margaret Thatcher put it, “there is no society, only individuals”). Lest you think that is straw-person-ish, look to Nozick’s chapter-title that’s something like “how to Create a Government without really trying,” the gist of which is to work really hard to avoid discussing “fair terms of social cooperation.” We’ve now begun the conversation WITHIN a much more Rawlsian framework, not one that invokes any sort of “presumption of liberty.” And that’s progress. Rawls’s “The Basic Structure as Subject” is really important here. Insofar as you’re making an argument within its confines, and abandoning presumption-type arguments, libertarianism is now a much different (and more reasonable) beast.

    You also write: “if you aren’t willing to have these kids arrested, aren’t you really just a supporter of these conversational topics?”

    I’m not arguing that such kids’ (and adults’) conversations are substantially harming anyone’s life-chances or social status. Discrimination and discriminatory actions taken on the part of businesses DOES do that. If those people were engaged not in annoying blather about tv shows, but in offensive hate speech, I sure WOULD intervene, and would think I WAS complicit in if just let happen, especially if it was being spoken in the presence of actual members of minority groups they were criticizing.

    As for whether there should be laws against such hate speech – I don’t necessarily think so, but I think that for reasons other than because of any sort of “presumption for liberty.” I think we could derive some freedom of speech FROM the initial SOCIALLY driven conversation about the basic structure of society. And while I’m thinking about it – I’m not sure I do agree there is some valuable reason to protect speech like that in a public setting. That’s obviously a much bigger argument though and I realize I’m not providing a reason for it here.

    “If that inference doesn’t follow, then it doesn’t follow that being a Libertarian means supporting discrimination. A person can be strongly against Arizonan bakers refusing to serve gay couples, while still believing it’s best not to have a law banning this discrimination.”

    Yes, they can believe that. But if they believe that, I’m trying to argue, there’s a whole host of other things they need to believe as well. Many of them are things a lot of those same people allege that they DON’T believe. I explained this above.

  5. Josh says:

    A brief addendum: it’s not as though non-libertarian liberal political theory doesn’t make room for liberty and its defense. It does, it just derives that defense from notions like equality, fairness, social cooperation etc. But insofar as it’s derived, it’s much less likely to be defended on an absolute basis, or in ways that don’t lead to other counterintuitive social policies. Kymlicka’s chapter on Liberty/libertarianism (don’t remember the exact title) in Contemporary Political Theory: An Introduction does a good job at explaining the argument I’ve just rehearsed, but in much more depth obviously.

  6. Nates says:

    Josh, we seem to be talking past one another in an unproductive way, and I’m not sure how to get things lined up again. Let me try one more time, in a stripped down way.

    To begin with, I AGREE that there are a bunch of people guilty of the inconsistency you point out, many of them in positions of great power. So your pointing this out is a valuable thing. I think you think I’m challenging this point, but I’m not. At all.

    However, in various ways you keep identifying this problem as a problem for Libertarianism itself. THIS is the move I’m resisting. People who hold the inconsistency you identify are NOT Libertarians. They might call themselves Libertarians, but they clearly are not. (Again, you’ve done a great job of showing how they fail to live up to core Libertarian principles.) But there are plenty of smart Libertarians who are not guilty of this inconsistency. So, for example, they recognize that Libertarianism requires being against criminalization of many forms of discrimination that they themselves disapprove of. So, really, the only point I’m trying to make is this: it’s misleading to suggest that you’ve identified a problem with Libertarianism.

    What I’m resisting, then, is a kind of bait-and-switch strategy I’m seeing in this series of posts. It feels as if a very flawed version of a philosophical position is being challenged, where this challenge is then allowed to stand in as a successful critique of the position as a whole. Instead of suggesting that Libertarianism is flawed, stupid, wrong, etc., why not just say the following: “Libertarianism is not as popular as it might currently seem, for many of the people who claim to be Libertarians do not consistently uphold its principles”? This is the conclusion that follows most naturally from the argument you’ve made. It supports your broader aim of attracting people to a broadly Rawlsian Liberalism, and it avoids the problem I’ve been trying to point out.

    In your second latest comment, there’s a place where we do finally seem to be on the same wavelength. There you say:
    “Third – I’m not sure why ‘libertarianism leads to a lot of politically problematic counter-intuitive conclusions’ isn’t a form of critique against it, isn’t, as you put it, ‘taking it seriously.’ If the logical conclusions of a position have intuitive problems, that’s a modus-tollens type reason to set aside that position.”
    Yes, if Libertarians left it at that, they’d have a problem. But, of course, they don’t stop there. The view is that you have to look at the net benefits and drawbacks. Good Libertarians do not deny that there will be some bad stuff that happens when you weaken state powers–especially in the short term. The claim is that, over time, the advantages will win out. So, if this is the Libertarian position, pointing out that there will be a negative consequence to Libertarianism is not an objection at all–the point is already built into their utilitarian calculus! To raise this sort of consequential challenge, I don’t see how you can avoid looking at the broader effects.

  7. Josh says:

    I agree that I’m trying to emphasize that libertarianism properly stated would be less popular than the inconsistent versions that have gained in popularity by their inconsistencies. But I also think there are deeper moral reasons not to embrace libertarianism, ones that aren’t adequately described by saying it’d be “less popular.” So here – I’ll make the “libertarianism means there’s no civil rights act, and that’s a reason not to embrace it” argument now. I think I’ve already made most of it, but I’ll recap.

    If the claim is, were things radically different in the way libertarians want them to be, and most of the objections would resolve themselves, this strikes me as more of a statement of faith than a theoretically sophisticated position. It also strikes me as a consequentialist reply to a deontological argument. when I said “leads to counterintuitive political conclusions” I mean libertarianism’s theoretical embrace forces an embrace of other theoretical consequences that are deontologically objectionable, not just ones that might be empirically bound to fail. This latter might be true as well but it’s not what I’m arguing. I would have thought all the invocation of Rawls and Kymlicka would have made that clear.

    I’m not pointing out negative CONSEQUENCES in the sense of bad things that would HAPPEN if the libertarian position were adopted, I’m making a deontological argument against the position: it requires the embrace of things that we have independent reasons to resist.

    I’ve proposed a couple of those bad things, but you’ve sort of sidestepped them by not responding, which makes this feel a bit like shadow-boxing. There’d be no laws about marriage, no civil rights act, no public schools, no health care, and no many other things – this is bad because these things are things there are moral reasons to preserve.

    Here is a restatement of some of the problems with the ideal world libertarians would construct:

    1) They require allowing businesses to discriminate against customers on the basis of race, gender, sexuality, etc. etc. if they want to, largely vitiating things like the Civil Rights Act, and to some extent, the 14th amendment and the jurisprudence that has arisen from it.

    2) They require gutting the social-welfare safety net insofar as any of it is paid with taxes, including public schools, medicare, medicaid, public libraries, publicly funded roads and train systems etc. etc.

    3) They require the dismantling of large swathes of environmental regulations, including regulations in the emissions of greenhouse gases, emissions of things that cause acid rain, and then a whole host of other health-related regulations.

    I know that the general shape of the argument is – “if we just cleared all of that out, though there’d be problems ‘in the short term’ they’d all be sorted out through the magic of the market.” If “magic of the market” sounds dismissive, I’m willing to believe there are really nuanced arguments discussing small test-cases of things like all of the above but ultimately, libertarianism requires a radical revisioning of our society with little else than what seems to me to be a misplaced faith in markets.

    I also think that for at least 1 and 2 above, consequences are not the point – there are deontological reasons (which I’ve discussed in previous comments, which you’ve also not replied to) for the existence of anti-discrimination laws, and the existence of a social safety net. Even if libertarians are right about 3 – that the market, left to its own devices, would sort out health, safety and environmental concerns (and to emphasize, that is a huge leap of faith that has relatively little empirical confirmation outside of very small sample sizes), it takes a HUGE STRETCH to see things like #1 and 2 as being solvable by market forces, or even how they could be. If people have a moral obligation to treat each other with respect in public in certain ways, it doesn’t matter if libertarianism would ultimately lead to there being more respect, if it ALLOWED disrespect in the first place.

    The idea that absent any governmental forms of discrimination, everyone would just be mostly nice to everyone else across racial, religious, gender- and sexuality-based lines, especially given status quo inequalities and structures of privilege, is dangerously naive, almost verging on intellectually irresponsible. I know you’re not endorsing this argument, just pointing to it, but you’ve suggested it’s a position worth taking seriously. It is not. “Short term consequences” is a huge understatement here. I’m really not sure we wouldn’t in a few years have a series of walled kingdoms of rich white people with private security forces. In places like Florida, Arizona, Mississippi, Alabama and Louisiana, where libertarianism has gotten the most traction, this has already started to happen. This is a horrible vision of social life.

    Regarding 1 – you did not reply to my argument about Jim Crow and how private actors could and DID perpetuate it by things like unstated social codes and insistence that within one’s business, things like separate drinking fountains and seating areas (and in the north, things housing covenants) came about. And that slavery itself was something that arose in the absence of regulation, not as a result of the abuse of government power.

    It’s all well and good to say that discrimination would be a “short term problem” – but there’s a lot of on-face harm that would be done in that “short term.” I don’t see some sort of libertarian “five year plan” as anything close to a good idea, but I don’t think I need to prove that to show that there are deontological problems in not respecting people’s dignity in the way that left-leaning social democracy does.

    Something else you haven’t quite responded to is the Rawlsian point about the perspective from which we need to ground discussions about social institutions. Respecting the interests of everyone, and building that respect into some basic decision procedures, makes the libertarian alternative pretty tough to produce. That’s why libertarians tend to rely on relatively fanciful Lockean-type idealized historical accounts of the state, with all their attendant problems.

    Maybe I’m just beating a dead horse but the utopian libertarian fixation on markets, etc. really feels like wishful thinking designed to justify status quo economic, racial and gender inequalities, and nothing more. I know that’s an ad-hominem, strictly speaking, but after a while, one has to call a spade a spade. One encounters very few people who have actually had to confront male and/or white privilege on a regular basis in their lives thinking this stuff is a good idea. I know there are black people and women who are libertarians – I also know they serve as convenient ideological cover.

    I know you’re not defending the libertarian position per se, just suggesting I take it more seriously – but I do think it’s necessary for you to point to something like a theoretical/deontological defense of libertarian principles from the ground up, something that has some sort of reasonable moral psychology and sense of political institutions and the place they have in our lives and doesn’t do all its work with utopian counterfactuals before this discussion can progress.

  8. Nates says:

    Again, I think you’re misidentifying my concern, Josh. I haven’t addressed many of your other arguments against Libertarianism because I already agree with them! (I’ve said this before, so I hadn’t bothered saying it again, but I do so now.) More generally, I think Libertarianism is clearly grounded on a problematic conception of human nature and human freedom, so it’s in trouble from the get go. (Again, I’ve said this in previous posts. I also suggested that there might be better ways of grounding some important Libertarian insights, and I hope to return to this point soon, but, clearly, this would not be the standard version of Libertarianism.)

    My problem in this post has always been much more localized, having merely to do with the way you were using the inconsistency point. My thought is that the “Libertarians have to tolerate discrimination” claim doesn’t actually do any work as a critique of Libertarianism. By itself, it’s not telling at all, because Libertarians already acknowledge the point and they have a utilitarian calculus (short version: it’s for the greater good) that directly addresses it. If we want to challenge their calculus on consequentialist grounds (as we should), then we have to look at the system as a whole, and do the messy cost-benefit analysis, rather than cherry-picking one bad thing as if its decisive on its own. Alternately, if we want to challenge Libertarianism on non-consequentialist grounds (as we should), then we end up talking about moral psychology, the nature and significance of human freedom, etc. Again, the particular discrimination claim turns out not to do any philosophical work against Libertarianism.

    We already agree that the Discrimination Claim shows that many people who claim to be Libertarians are not. If you agree with the above, then I don’t think we have any more disagreement.

    But perhaps you think there’s another way of using the claim that I’ve neglected: namely, that any position that advocates this sort of discrimination is just directly, deontologically wrong–where this problem stands on its own, independently of any broader critique of Libertarian foundations. (In other words, a reductio.) If this is your view, then we might have a genuine disagreement, for I’m skeptical of this argument. As I said before, everyone can come up with situations where they’d be willing to tolerate morally bad treatment of others for the sake of defending some larger principle. Free speech is the obvious and perennial candidate here. And I just don’t see how refusing to bake a cake for someone is so much morally worse than directing horrible, abusive language toward them. If the latter doesn’t directly refute the free speech principle, then I don’t see why the former would directly refute Libertarian principles.

    In which case, we might be back to agreeing with one another.

  9. David says:

    Great discussion. I’ll distill, at the risk of oversimplifying and distorting.

    Josh, you come close to explicitly summarizing your argument as follows:

    1. Any political ideology that would endorse opposition to the Civil Rights Act is immoral and ought to be abandoned.
    2. Libertarianism endorses opposition to the Civil Rights Act (so-called ‘Libertarians’ who don’t see this are simply being ‘inconsistent,’ or, better, failing to see what their own core premises commit them to).
    3. Therefore, Libertarianism is immoral and ought to be abandoned.

    Nates’ central point, as I understand him, is that (1) is tricky and needs clarification. On the one hand, none of us here are racists or bigots so opposition to the CRA looks very worrisome. But as Nates suggests, (i) that opposition should not be understood in isolation from the Libertarian’s broader commitments, and, more importantly, (ii) there is nothing in Libertarianism as such which endorses bigotry and racism. So the Libertarian might with perfect consistency say: I abhor racism, and homophobia too, for that matter, but per my Libertarian principles I don’t endorse the use of State power when it comes to telling individual citizens who (among legal adults) they may and may not enter into commercial exchanges with. Moreover, as Nates suggests–and of course this will require some argument–the ideal Libertarian we are imagining (reasonable, liberal) presumably believes that a society of EQUALS will be better off in the long run if there are what in particular cases seem like unfortunate limits on the use of the State’s incredible coercive powers.

    It probably won’t surprise you, Josh, to find that I’m inclined to side with Nates on this issue. I can’t put it any better than he has, but my main gripe is similar to his: it seems like rather than criticizing Libertarianism in its strongest form, you’re criticizing a faux-Libertarian who is simply, whether aware of this or not, appealing to quasi-Libertarian principles in order to ‘justify’ some sort of illiberal -ism (racism, sexism, hetero-ism, etc.). Or–to put the complaint in a way that avoids any scent of ad hominem–it seems like you’re suggesting that Libertarians are ‘companions in guilt’ with illiberal jerks, because, after all, the policies they endorse qua Libertarians agree at time with the policies supported by illiberal jerks. But, again, as Nates as pointed out, it’s also true that Libertarians will support policies that illiberal jerks don’t support, so it’s not clear how far this gets us.

    A final thought, which may be a point that Nates was making in somewhat different terms: why can’t Libertarians, like Rawlsian welfare egalitarians, help themselves to a kind of ideal/non-ideal theory distinction? In this way, the Libertarian could say, consistently, that in ‘ideal Libertarian theory’ there would be no CRA, but under the conditions that prevailed in 1964 America it was the right thing to do. After all, it’s not like the situation in 1963 America was the result of a 200 year old Libertarian society. So there’s wiggle room even here, in what you claim the Libertarian is ‘committed to’ when it comes to particular policy claims.

    Anyway–just wanted to ‘join the conversation,’ as the kids say these days…

  10. David says:

    Just to clarify–I hope unnecessarily: I think Arizona is an embarrassment, and I’m glad the bill was vetoed, even if for all the wrong reasons.

  11. Josh says:

    Okay, we’re getting closer but I must say I’m a bit confused by the gist of both of your comments – something on the order of “libertarianism relies on many false premises and reaches unpalatable outcomes which have only the thinnest of empirical defense, but you’re still not treating it fairly!” But I’ll try to respond to specifically to your words so I don’t mischaracterize what you’re saying.

    Nates writes: “My problem in this post has always been much more localized, having merely to do with the way you were using the inconsistency point. My thought is that the “Libertarians have to tolerate discrimination” claim doesn’t actually do any work as a critique of Libertarianism. By itself, it’s not telling at all, because Libertarians already acknowledge the point and they have a utilitarian calculus (short version: it’s for the greater good) that directly addresses it.”

    One claim I want to make is that for the most part, “it’s for the greater good” is only the thinnest fig-leaf of an argument, one I find intellectually dishonest on the part of libertarians. It fills the space that “supply side economics” does in the lower-taxes-for-the-rich discussion. It’s actually exactly the same space, and is being presented for the same reasons: viz, to make a theory whose principal motivation is to gut civil rights and other protections seem like some sort of intellectually rigorous theory.

    Again, I know that argument is ad-hominem. But who’s advocating libertarian arguments and why is relevant. This is largely an ideology cooked up by think-tanks looking to provide intellectual cover for a certain very narrow form of selfishness, one that serves the short-term interests of much of corporate America. That it has now gotten others to see it as a free-standing intellectual doctrine is problematic, though it is amusing that it has begun to turn on forms of corporate welfare all the same.

    I don’t think this is true of ALL conservativism, or even ALL libertarianism, but it is an important-enough contributing factor that it can’t be set aside as just the work of some “illiberal jerks” as David terms them.

    Further, Nates writes: “If we want to challenge their calculus on consequentialist grounds (as we should), then we have to look at the system as a whole, and do the messy cost-benefit analysis, rather than cherry-picking one bad thing as if its decisive on its own.”

    My previous comment gestures at this. I was making a non-empirical framing argument about such a “messy cost-benefit analysis” – namely, that there is relatively little convincing empirical work out there to support libertarian claims. One is repeatedly met, ironically, with Marxist-sounding “no that wasn’t pure libertarianism, so that example doesn’t apply” type reasoning. Utopian theories can always do this – cite counterfactual “evidence,” and rule out criticism of actual evidence on the grounds that it doesn’t criticize the “pure” form of the idea.

    To give an empirical argument that goes the other way: the United States is one of the most “market-friendly” governmental systems in the developed world. Libertarians can carp about all the regulations, but the fact of the matter is, compared with the other actually existing systems, it’s a lot more libertarian. It’s also much more radically unequal, exhibits less social mobility, has much worse educational results and much higher infant mortality rates than almost everywhere else worth being compared to. Also, its people report being less happy, more stressed, etc. The one thing going for the US is a high per-capita GDP.

    Now it seems to me it would be QUITE unlikely that the reason why the US is failing at all this stuff even though we have more than enough GDP to go around is that we’re not libertarian ENOUGH. This is where the libertarian account has to enter into contortions about ideological purity and odd counterfactuals to prove things. Or it has to start making false claims (or misleading generalizations) about all the other much more socialistic systems, like about how the Scandinavian systems are more homogenous or have so much oil revenue comparing their systems to ours isn’t necessary. Or they need to assert that the European liberal-democratic welfare system is in tatters. Or they need to assert ethnocentric lies about how long all the waiting lines are. And so on.

    I know none of that is empirical argument per-se, because I’m speaking in generalities, but I think the overall utopian nature of the libertarian argument gives me the right to be suspicious of its empirical claims.

    Further, Nates writes: “Alternately, if we want to challenge Libertarianism on non-consequentialist grounds (as we should), then we end up talking about moral psychology, the nature and significance of human freedom, etc.”

    I thought I was doing this too, with all the Rawls, Kymlicka, etc. references.

    “Again, the particular discrimination claim turns out not to do any philosophical work against Libertarianism.”

    The discrimination claim functions as an access point into the above consequentialist and deontological claims. It’s something like “hey look, this libertarianism thing, it would lead to the elimination of the Civil Rights Act. Doesn’t that sound counter-intuitive? Doesn’t that sound like something that would be bad? That’s because it would be. If we look further into the theory, we find libertarians are really just (a) rationalizing their own selfishness through just-so-stories about “overall net benefits” that have little empirical backing, insofar as they’re not just offering rationalizations they don’t believe, (b) are engaging in utopian theorizing that requires leaps of faith to make their “evidence” believable, and (c) are violating deontological norms against discrimination. The civil rights act is not a “cherry-picked” example, because it points towards a very telling nexus of other problems, and is similar in nature to many other examples that could be given (about health care, education, marriage, environmental regulations, etc.).

    To amplify (c) – of COURSE there is a directly deontological argument against allowing business owners to discriminate against minority groups. This is where the conversation about the kids on the CTA is important, and why it’s important that Nates respond to my argument there. The deontological argument against business owners being able to act like that is that it damages individuals life-choices for reasons that are arbitrary from the moral point of view. It creates low self-esteem, low self-respect, desires for people to do things like “pass as white” or “stay in the closet”, etc. It’s not that ANY objectionable behavior anyone engages in should be subject to our censure (the point you tried to use the CTA example to prove), it’s that certain types of discriminatory behavior are disrespectful and damaging and ought not to be tolerated in a democratic society.

    Or put another way – repealing the Civil Rights Act would be a HUGE deal on its own, regardless of whatever other positive consequences might accrue as a result of doing so. Even if that discriminated-against person would pay lower taxes, be able to open their own business more easily, and so on, that person would be subject to belittling behavior by others. Even if libertarianism has an account of how eventually, such a person wouldn’t have to suffer that discrimination because it wouldn’t make good business sense for the business to discriminate, a deontological theory allows a much more direct objection to that business’s conduct: it is wrong, regardless of whether or not it is profitable.

    Nates also writes: “As I said before, everyone can come up with situations where they’d be willing to tolerate morally bad treatment of others for the sake of defending some larger principle. Free speech is the obvious and perennial candidate here. And I just don’t see how refusing to bake a cake for someone is so much morally worse than directing horrible, abusive language toward them. If the latter doesn’t directly refute the free speech principle, then I don’t see why the former would directly refute Libertarian principles.”

    It’s not a reductio, so much as a deontological argument against discriminatory behavior. Your use of the free-speech example is to some extent question-begging. I’m not so sure that certain types of hate-speech SHOULD be subject to protection. For example I have no reason to respect someone’s being directly hostile to me in public, insulting me, making fun of my race, etc. That’s a bigger argument that could come out either way, but the broader issue is more important: we’re now talking about the social desirability of these sorts of arrangements. It’s certainly an open question whether in something like the original position, there would be limits on free speech. But your earlier argument is the kind of question-begging reductio you’re saying mine is: “that would lead to restrictions on free speech, which would clearly be bad.” I’m not so sure it would clearly be bad. It’s a topic for discussion that libertarian accounts often try to sideline through talk of side-constraints and the presumption of liberty. Once those sorts of notions are set aside (as you’re previously written, where liberty isn’t some “mysterious birthright”), its boundaries become much more porous, which is fine).

    Okay – so David’s argument:

    “there is nothing in Libertarianism as such which endorses bigotry and racism. ”

    I’m reminded of the old couplet about treason. Libertarianism obviously doesn’t make assertions about racial superiority, but its willful benign-neglect strategy towards it/insistence that market forces will resolve it is perhaps just as bad. If we see racism as a system of privilege that operates on society as a whole, not as individual bad actions that offend individuals, then yes, absolutely, Libertarianism endorses bigotry and racism. Because it refuses to acknowledge the sorts of systemic forces that perpetuate it. This is a more provocative way of putting Rawls’ move from the “system of natural liberty” towards the difference principle. Not creating a system that constantly mitigates against certain kinds of structural inequalities is a certain kind of endorsement of those inequalities.

    That’s a broader discussion too, but perhaps gets to an important point we haven’t yet discussed: part of the reason for liberalism endorsement of things like the CRA or the ACA is that in the absence of systemic work to mitigate social and economic inequalities, they tend to reassert themselves. Programmatic commitments to individualism ARE a form of racism/homophobia, etc., just racism’s “color-blind” cousin, the far more pernicious variety in fact. A refusal, even an intentional naivete towards considerations of the socially mediated nature of human relationships is a classic way for privilege to insulate itself from criticism. This is the libertarian version of “you’re the one that’s talking about race, I don’t see its relevance here, I didn’t even bring it up.”

    When the libertarian says (as David summarizes their argument):” I abhor racism, and homophobia too, for that matter, but per my Libertarian principles I don’t endorse the use of State power when it comes to telling individual citizens who (among legal adults) they may and may not enter into commercial exchanges with” they are making the kind of argument that perpetuates that racism by refusing to contest it at the level of policy.

    David writes: “it seems like you’re suggesting that Libertarians are ‘companions in guilt’ with illiberal jerks, because, after all, the policies they endorse qua Libertarians agree at time with the policies supported by illiberal jerks.”

    My argument is not a guilt-by-association argument. It’s that an intrinsic problem with color-blind focus on individual actions as not subject to government scrutiny is exactly the sort of focus that creates those conditions. It’s not that libertarians are in league with illiberal jerks, it’s that they themselves ARE those very illiberal jerks.

    David lastly writes: “why can’t Libertarians, like Rawlsian welfare egalitarians, help themselves to a kind of ideal/non-ideal theory distinction? In this way, the Libertarian could say, consistently, that in ‘ideal Libertarian theory’ there would be no CRA, but under the conditions that prevailed in 1964 America it was the right thing to do. After all, it’s not like the situation in 1963 America was the result of a 200 year old Libertarian society.”

    They can have an ideal/non-ideal theory distinction, that’s fine, unless it becomes too utopian (as I’ve described above). But I don’t think it’s so true that “it’s not like the situation in 1963 America was the result of a 200 year old Libertarian society.” In fact I think libertarian urges, intuitions and legal structures had A LOT to do with the condition of the pre-CRA south. This is again why I thought it was important for Nates to answer the arguments about the role that non-governmental actors played in slavery and Jim Crow. To repeat: those forms of inequality that arose within that society had a lot to do with the rhetoric of privatization and entrepreneurial decision making.

    Perhaps one could argue that slavery, being a violation of libertarian principles, and being the root cause, never would have happened under an ideal libertarian society. But WAGE-slavery (i.e. sharecropping then, Walmart now)… absolutely. I’ve never really understood what the libertarian in-principle objection to even indentured servitude would be – someone wants to exchange their labor for 5 years, for money up front… isn’t it “social engineering” to tell them that’s bad?

    You seem to think it’s just run-0f-the-mill inconsistency that allowed slave-holders and Jim-Crow-south residents to think of themselves as pro-liberty. I’m suggesting there’s a deeper connection, one that also is telling w/r/t libertarianism’s continued popularity in regions and among people whose ancestors were those very Jim Crow enforces/slave-owners.

    An open question – what would the “ideal libertarian society” look like? One of the problems in this discussion, one you’ve both brought up, is that I’m allegedly attacking straw-people. I really don’t think I am. I’m attacking a family of views, all of which have some core similarities. One of the core commitments is that there would be a relatively minimal state, and many things that are done by the government now would be done by private actors voluntarily. I’ve tried to explain moral-psychological objections to that way of seeing things. Another of the core commitments is to some sort of “if that’s how things had always been, most of what’s bad and has happened in our society wouldn’t have happened.” I’ve tried to express skepticism about the empirical validity of such a claim.

    As you can see, I’m really struggling with how I’m missing the point…

  12. David says:

    Hi Josh,

    I didn’t mean to suggest that you were ‘missing the point.’ In fact, I agree wholeheartedly with most of what you say in your original post, and I’m a bit worried that by continuing to respond to this thread my general agreement will be occluded by what is probably not a very consequential disagreement. But there is disagreement, I think, as I want to claim that I have no difficulty imagining a disagreement between myself and a Libertarian that meets the following conditions:

    i. We both think that some form of behavior (discriminating in one’s business against homosexuals, say) is wrong/objectionable/pernicious.
    ii. We disagree about whether that behavior should be criminalized.
    iii. Our disagreement (ii) reflects a more basic disagreement about the proper way to determine trade-offs when our interest in liberty/freedom clashes with our interest in reducing a certain kind of objectionable behavior.
    iv. The Libertarian is not–and certainly not by virtue of (ii)–insincere in his alleged opposition to discriminating against homosexuals.

  13. Josh says:

    Okay David. This is a a helpful and mercifully efficient summary of the argument we’re having. I think I agree with (i)-(iii), but I have something more to say about (iv).

    I would agree that the libertarian is not insincere in affirming (i) *just by virtue of* disagreeing with me about (ii). But two more points:

    1) Some libertarians, even MANY, even the doctrine’s founders and advocates at places like the Heritage Foundation ARE insincere in their affirmation of (i). This is of course hard to prove. That doesn’t mean it might not be true. Heritage especially has revealed itself on numerous occasions as a slippery, opportunitistic organization willing to use is perceived media status as a “serious conservative think tank” for ideological intent. For example – in the 90’s, they advocating something like Obamacare (b/c at the time, the Clintons were proposing something different). Now, they claim Obamacare is some sort of socialist menace. Nothing has changed, except that now the party they do not support has changed its advocacy, so they now change. I think quite often when people say “I detect homophobia as much as you”, they do not really. I think a lot of parties to this dispute are that sort of person. I don’t think YOU are, to be clear, but I do think a lot of them DO.

    2. At some level, whether they are being “sincere” in their claims about (i) is less important than whether their substantive commitments make people who believe the opposite of (i) gain in power and influence, and also make homophobia embraced by opposite-of-(i) believers more powerful and dangerous. If I say (to use an absurdly simplistic example) “I don’t agree with racism any more than you do, but I think the KKK has a right to burn crosses on people’s lawns because that represents a legitimate expression of religious liberty” it does not matter if I was being “sincere” when I affirmed that I don’t agree with racism. It’s just that I’m embracing a policy that makes racism worse. In these sorts of arguments, willful naivete to the real-world consequences of policy can be as dangerous as outright lying.

    I suppose (1) represents a form of argumentative deception, and 2) is a form of argumentative negligence. And negligence is often as problematic as intentional deception.

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