When Pat Buchanan, of all Beltway belligerents, pleads for an "armistice in the culture war," you know something pretty funky is going on. And yet however surprising such a turn of events may be, Pitchfork Pat's recent call in The American Conservative for a conditional surrender on the issue of gay marriage is less interesting as an instance of right-wing capitulation and more provocative as a challenge to libertarian ideals of pluralism, tolerance, and federalism.
Before we get to that, though, let's take a moment to smell the napalm in the morning (it smells like, I don't know, George Michael's possibly pending nuptials?). After all, Patrick J. Buchanan is arguably the Robert E. Lee of the right wing, having launched a spirited, vitriolic, and ultimately ill-fated Lost Cause offensive against liberal Democrats, godless libertarians, and foul-mouthed pop stars during the 1992 Republican National Convention. Indeed, if anybody fired the first volley in the tedious, ongoing melee we call "the culture war," it was Buchanan. "There is a religious war going on in our country for the soul of America," he famously told the assembled GOP faithful in a controversial yet highly effective speech (Wikipedia claims that candidate George H.W. Bush received his single biggest bump of Campaign '92 the night of Buchanan 's prime-time stemwinder).
"It is a cultural war, as critical to the kind of nation we will one day be as was the Cold War itself." Right-thinking Americans had to stand up, he railed, to the normalization of homosexuality, to a vulgar popular culture, and to the celebration of alternative lifestyles. By 2005, though, Pat was channeling the disillusioned German soldier played by Marlon Brando in The Young Lions, zick of zis damn var and moaning to the Washington Times that "I can't say we won the cultural war, and it's more likely we lost it."
And now he's crying uncle, conceding that banning gay marriage, of all right-wing bugaboos, is a mistake not worth dying for. Rather than "clutter up the Constitution with a new amendment" making it impossible for Heather to Have Two Legally Hitched Mommies, Buchanan instead is now plumping for a "states' rights resolution of the issues that most bitterly divide us." Let the Sodomites have the Big Apple, says our latter-day Rhett Butler, who is already dreaming of how mighty Mississippi would use its new-fangled powers to create a magnolia-scented utopia:
Mississippi might outlaw almost all abortions; end forced busing for racial balance; forbid reverse discrimination against white folks; enact a state constitutional amendment defining marriage as between a man and women [sic]; allow Bible instruction, prayer, and posting of the Ten Commandments in public schools; and outlaw X-rated movies in all theaters. Mississippians could create the society they want, according to values in which a majority in which Mississippians believe.
Let's leave aside for a moment some oddities in Buchanan's argument (which, as of this writing, was not available online). For instance, even as he calls for a return to states' rights, he insists on overarching federal laws that would keep the U.S. Supreme court from ruling on the constitutionality of state laws (in doing so, he calls to mind the paradoxical behavior of antebellum Southerners who simultaneously insisted on states' rights and strict enforcement of The Fugitive Slave Act, which forced free states to return runaway slaves). Or the sneaking suspicion that Pat, a Washington D.C. homeboy if there ever was one, personally is more interested in a Mississippi of the Mind than actually relocating to a place where, thank God almighty, he could finally be free at last to live in a society that treated white folks as equal to black people and bored public school kids with mandatory prayers along with algebra.
For me, and I suspect for most libertarians, the really interesting part of Buchanan's argument is not his confession that conservatives have in fact lost the culture war, a defeat that was clear long before the mania around Queer Eye for the Straight Guy peaked. No, it's the challenge that Buchanan's dream scenario poses to classical liberal conceptions of the good society, which in the end are wedded to ideas of tolerance and pluralism. If "state's rights" is simply a pathway to a more repressive world, what is it worth?
As Nobel laureate Friedrich Hayek put it in The Constitution of Liberty, libertarians believe that "to live and work successfully with others requires more than faithfulness to one's concrete aims….[It requires] an intellectual commitment to a type of order in which, even on issues which to one are fundamental, others are allowed to pursue different ends."
Particularly from a Hayekian perspective, libertarians privilege both individual rights that should be respected always and everywhere and local customs and traditions that might curtail the same. Those two things can easily come into conflict, especially when folks have different conceptions of fundamental individual rights. I value free expression and reproductive rights extremely highly, so would I really want to live in a country with a state (or states) that banned not only "X-rated movies in all theaters" but "almost all abortions"? As long as the state is in the business of legitimizing marriage, should the state be allowed to treat some adults differently than others solely on the basis of sexual orientation? I don't think so.
By the same token, isn't it extremely oppressive to insist that every place be exactly the same in terms of law and custom? About a decade or so ago, California passed a law banning the most draconian form of rent control anywhere in the state. I fully agree with the arguments that full-blown rent control is a god-awful policy that causes housing shortages, degrades housing stock, and screws over the poor most of all. But I'm uncomfortable that it can no longer exist in any town in the Golden State, just as California's state-wide smoking ban bothers me. Why not let smaller jurisdictions decide what they want?
More uncomfortability (if that's a word): I remain extremely troubled that Buchanan takes for granted that majoritarianism rules—if most Mississippians, or New Yorkers, or whomever—believe in banning or restricting something, then that's all right, mama. "Society," Buchanan says, would then "be shaped according to the values of the people of the community, region, or state." Those are three very different things, however, and the larger the unit of governance, the more worrisome things become. The Bill of Rights, after all, is designed to defend minority rights against the will of "the people."
The less-charged term for what Buchanan calls "a return to states' rights" is, of course, federalism, the idea that different states—and other units of government on even smaller levels—will take different approaches to policy, law, custom, etc. As Hayek would have it, overlapping and competing jurisdictions would function as something like a market, or discovery process, for new and effective ways to do things. Thus, federalism is squarely in line with the classical liberal emphasis on decentralization, choice, competition, and cooperation in most human activities.
Key to a well-functioning federalist system is a right of exit. That is, as long as people are free to move around from jurisdiction to jurisdiction, they will sort themselves out according to their predilections and most noxious social relations will be minimized (though, realistically, never eliminated). A right of exit should also minimize repressive excesses. Who, after all, is going to stay in a place that treats them worse than the next town over? As a very different Buchanan—the Nobel Prize-winning economist James M. Buchanan—put it some years ago in Reason:
The potential for exit allows at least some matching of personal loyalties and politically promoted common values, and some relief from the abstracted neutrality of procedural liberalism. Mormon values may, in fact, be good for Utah, but they remain so only because those who do not share these values can move elsewhere at nonprohibitive cost.
Yet what if a majority in Utah—or wherever—suddenly decided that the right of exit was an affront to the values of the community? Then you call in the feds, right, to enforce the rights of the individual (just as the feds were called in to integrate state schools in Pat Buchanan's Mississippi and elsewhere during the Civil Rights era). Or what if—just for a hypothetical example—Utah decided to once again allow polygamy? Does anyone think the born-again state's righter Pat Buchanan be OK with that? Or would that trigger the Nixon loyalist in him and have him calling for national approaches to policies X, Y, and Z, just as Nixon did as president?
While a return to federalism—a perhaps more accurately, an actual trial run in the first place—is generally a welcome concept from a libertarian perspective, we shouldn't kid ourselves that it would somehow end debate, argument, stupid policies, and, most of all, attempts to tell other people how best to live their lives. The sad truth is that most of us—conservatives, liberals, and I suspect even many libertarians—are situational federalists. That is, we're for it when we like its real or potential outcomes. And we're against it when we fear or worry about the same.
I appreciate Buchanan's concession in the gay marriage debate and I think it's a welcome development, especially coming from a social conservative. But it's more than a little disturbing that he resorted to such an argument only when feeling utterly defeated. I'd feel a lot more comfortable if conservatives—and liberals—consistently voiced not only a devotion to federalism but to the great libertarian values of pluralism and tolerance. And even then, it would make sense to keep the watchdogs awake 24/7.