Another Libertarian Idea Goes Mainstream


Columnist Michael Kinsley notes in the Washington Post the irony that just as the Supreme Court "got state governments out of their bedrooms, gays now want these governments back in." That is they want access to the state monopoly on marriage. Instead Kinsley promotes an old libertarian idea, why not privatize marriage? Sounds good to me.


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  1. Liberty magazine has a really good article this month regarding the topic of the government’s interference in the marriage contract and its effects on families and children. While it makes sense on the surface that the state should intervene to protect the rights of children in cases of parental neglect or abuse (or perhaps for divorcing spouces that didn’t clearly put things down about children when they set up their private marriage contract), the status the state has created now is such that it is overly likely to take children away from one or both parents (usually the father). The ‘family counciling’ programs intended to help keep families together actually encourages divorce and separation of children from fathers because of the finacial incentives those organizations have (more divorces = more ‘clients’ for counsellers and attorneys). Some working in the social services have even been quoted as saying they are working to discourage the idea that parents have some ‘right’ to their children!

    Some children will undoubtably be harmed by private marriage contracts, but getting the government involved may be yet another case of the cure being worse than the disease.

  2. Sure contracts are enforcable without the government. Just as the mafia.

  3. exactly, isn’t bloody war between gangs what anarchy is all about?

  4. D.A., When I started writing my post, I was attempting to figure out a way to defend the state’s legal system in contract law without feeling like a dirty statist, but in hindsight I do think that this falls under one of the two proper roles of the state (which are: defend the nation from outside attack, and defend the [negative] rights of the citizenry), and it falls under the latter. I’m a minimalist myself, but there’s something to be said about the legitimacy granted the courts through establishment by the Constitution.

    Of course, reprieve against the state’s courts themselves are not infinite; the Supreme Court is where it all ends, which sucks, because I’d like to challenge Justice O’Conner for not having any balls in the U of M decision.

  5. Well, I don’t disagree with Jim’s observation at all except to note that neither extreme (too much or too little state involvement) seems workable here. Not every slope is slippery.

    Actually, Neil, the Supreme Court was a principal agent in the usurpation of power from the states to the federal government, leading to the ability of O’Connor et al. to meddle as they do. (Local, small government meddling tends to be less onerous than national, large government meddling.) I’m as much in favor of a rigorous right to privacy as the next person, though I question whether “finding” it in the “penumbra” of the Constitution was the right way of getting one. And in fairness to Sandy Baby (as John Riggins once famously called her), I don’t really think she misses not having balls.

  6. Sure, let’s get the state out of the business of sanctioning and encouraging marriage.

    Why, our great successes in the welfare programs show the kind of things we can expect when the state stops pushing marriage on people…

    Of course as a man, I would say that. Wimmin and fatherless kids might have a different viewpoint.

  7. Ridgely, I like your line of reasoning. (Funny, too.)

    But Sandy Baby has intestines, doesn’t she?
    Does she really not miss their fortitude?

  8. Ronald Bailey, what do you mean by “another.”

    “Another Libertarian Idea Goes Mainstream”

    Which other such ideas went?




    That’s IT!??

  9. What Kinsley and libertarians alike miss in this pat “solution” is that some elements of marriage are hopelessly dependent on state sanction and state enforcement.

    Turning marriage into nothing more than private contractual arrangements between two people (or eight people, a sheepdog and a Hummel figurine) would allow some aspects of married life to continue as they have: joint property ownership, obligations to children, joint tax returns and inheritance, for instance.

    What no contract between two people can do is guarantee that a person can visit his or her spouse in the hospital or claim the right to make medical decisions on her or his behalf, or adopt their new spouse’s kids, or obtain a divorce in a jurisdiction other than the one the marriage contract was filed in, or be able to qualify as a “spouse” when buying medical insurance. All of these dismal realities that married people count on in a life together are up in the air without some basic state recognition of marriage and yes, the cursed laws that use marriage as the starting point.

    Take it away, and you’re either frantically calling hospitals when your spouse is having a heart attack to find one that allows their particular kind of contractually-bound loved one to visit, or you’re stuck passing a new set of laws that establish these customs as rights enforced for parties to these new private contracts, which would just be a new, more convoluted route to the status quo as far as I can tell.

  10. this is wonderful news. but how long before some libertarianut bashes Michael Kinsley for not being a pure 100% certifided true believer libertarian.

  11. In a pure marketing sense, I would define “going mainstream” as being supported or accepted by a majority.

    Michael Kinsley, regardless of what idea he’s espousing, can hardly be called mainstream.

  12. I, of course, agree, except insofar (and as Kinsley notes) that the “institution” of marriage profoundly affects more than the principal parties and most obviously and especially children.

    As you know, I’ve argued for years that marriage should be moved from a question of legal status which only the state may grant or dissolve to the law of contracts. Even so, “privatizing” has its own limitations and problems.

    One way of looking at the development of Anglo-American civil law is that it progressed from a status orientation (you’re basically stuck for life as a serf or a lord or, in any case, somewhere on the feudal food chain and that status defines most of your legal rights and obligations) to a contract orientation (you freely decide your rights and obligations among other persons by contract) and since World War II it has begun to revert to a focus on status again (you’re a manufacturer or a consumer or a member of a demographic group, hence we do or don’t hold you to certain obligations, etc.) Most libertarians would, I presume, find this latest trend highly unfortunate.

    But contracts aren’t really private if they are enforceable, traditionally by the state, and if they are not *somehow* enforceable, they aren’t useful (they aren’t even contracts). Moreover, private agreements *do* have public consequences. Of course, whether non-governmental institutions could adequately address those consequences and concerns is an open question.

    Bottom line, I think, is that the status of husband and wife (or husband and husband, or whatever) could easily be “privatized” within the ambit of contractual relationships among consenting adults, but the status of parent and child would be much more problematic.

  13. Leading off your point, I could see the creation of a private civil court that would underwrite and protect private contracts.. it would be a voluntary association, sort of like insurance for contracts. Is this line of thinking correct or am I a nutcase?

  14. Koppelman, good points, all. But now tell me, why should a nuptial arrangement COST MORE?

    In other words, why do you suppose married people have to fucking PAY MORE in taxes than singles?


  15. Well, bearing in mind that even nutcases are capable of correct thinking from time to time [smile], I suppose so. I’ve heard uber-lib arguments for the privatization of national defense, let alone privatized courts, but I see no reason why ideological consistency should always trump common sense or practical convenience. Personally, I have no problem with a minimalist state (making me something of a miniarchist, I suppose) and I rather suspect that the practical mechanics and inherent problems of a private civil court system wouldn’t be worth the effort. (For example, how would you determine the scope of enforcement and, more important, if the private court itself breached its contract with you, how would you enforce *those* contractual rights? You *sue* your insurance company.) Anyway, my original point was that there may still be valid legal statuses (i.e., parent and child) which require some state involvement. In fairness, I have not yet heard anyone arguing the contrary.

  16. Now if they can only make it legal to have sex with a dead obese woman’s fat rolls we’ll be on our way!!!

  17. There once was a guy named Dave,
    Who kept a dead whore in his cave.
    He said, “What the hell,
    You get used to the smell,
    And think of the money you save.”

  18. EMAIL:
    DATE: 01/25/2004 09:19:06
    There is no great genius without some touch of madness.

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