I've been following with amazement and dismay the odd postings of Grande Conservative Blogress Diva Ann Althouse about Liberty Fund Conference that we both attended earlier this month. Her postings have created a bit of a tempest (Jonah Goldberg who attended the conference correctly called her post about the conference "odd") in the blogosphere. The Liberty Fund conference was on Frank S. Meyer. Apparently Althouse felt uncomfortable and she just had to let the world know in her rather oblique postings that she was "struck by how deeply and seriously libertarians and conservatives believe in their ideas." She found this "frightening."
Before I explain why her posts are "odd" let me offer a little background. The Liberty Fund runs a wonderful seminar series where participants discuss the works of philosophers (Rousseau, Montesquieu, Locke, Hume, Aristotle, Wittgenstein), economists (Smith, Marshall, Jevons, Bastiat, Hayek, Friedman), authors (Shakespeare, Austen, Flaubert, Thackeray, Camus) and other writers who shed light on the role of liberty, broadly defined, in human life. This particular colloquium focused on Meyer who is credited with advocating "fusionism" between conservatives and libertarians. My crude definition of "fusionism" (a term never embraced by Meyer) is an attempt to blend traditional conservative concerns with propagating virtue and order with libertarian concerns about excessive state power. A central theme is that a powerful centralized state would necessarily become corrupt and tyrannical undermining the values of both traditional conservatives and libertarians. For a former communist like Meyer, the perfect example of corrupt tyranny was the Soviet Union.
Anyway, Althouse bizarrely came away thinking that conservatives and libertarians were frightening "true believers." Why? Evidently because they took political and moral ideas seriously. Much too seriously for Althouse's comfort. For one thing, there was quite a bit of discussion about the relation of virtue to liberty. Meyer's argument is that liberty is the necessary prerequisite for practicing virtue. Apparently some conservatives, such as L. Brent Bozell, Jr. (see Bozell's 1962 essay "Freedom or Virtue?" which we read for the seminar) with whom Meyer was arguing, believe that the state has the right and obligation to coerce virtue. This is anathema to libertarians. The first concern of libertarians is state power and this paramount concern for the abuse of state power means that the state should stay out of private activities that traditional conservatives might consider vicious, e.g., personal use of recreational drugs, voluntary prostitution, and so forth. Anyway, this politico-philosophical discussion apparently confused Althouse. Perhaps her skills at abstract thinking have been dulled by all the time she spends dissecting the particularities of legal cases as a law professor.
In any case, I had never met Althouse before the colloquium nor even read her blog. When chatting with her over cocktails, she seemed pleasant enough if a bit vague. In casual conversation, she made sure that I knew that she had been a "hippie" back in the day. During the sessions when the group analyzed various texts from Meyer, she often seemed lost, not really following the discussion. As she has blogged, she was clearly out of her milieu.
One session at the end of conference was devoted to Meyer's defense of federalism-his idea is that the constitutional structure that divides state power among political subdivisions tends to limit the power of the state over individuals, thus enlarging the sphere of personal liberty. The tragic historical abuse of federalism was state-mandated racial segregation which Meyer defended. As I understood Meyer's argument, he believed that preserving federalism as bulwark against the growth of central government power was more important to him than vindicating the rights of black Americans.
Now here's where Althouse begins to get strange. During that session, as I recall, absolutely everyone around the table condemned Meyer's defense of federalism in the face of the real evil of state-mandated segregation. Everyone! But apparently not vigorously enough for Althouse. Although she did not say it during the sessions, she apparently believes that past racism means that federalism is tainted. She has not made very clear what that "taint" means for the future of federalism.
However, during the session, some participants did wonder if there was a way to rescue federalism and really re-establish states as 50 different "laboratories of democracy." Contemporary libertarians strongly favor federalism because it allows some states to permit gay marriage, physician assisted death, medical marijuana, concealed carry of handguns, and surrogate motherhood contracts and other private activities without interference from the Feds. I would be even more startled to discover that Althouse opposes these and similar cases of federalism. Of course, libertarians who are eager to prevent the state from interfering in the lives of citizens in order to enforce its version of virtuous behavior, support this kind of federalism. This point was made repeatedly in conference sessions. As I said, if Althouse thought America's shameful racist history meant that federalism is beyond rescuing (including the "good kinds" just mentioned), she had ample opportunity to make that point during the formal sessions. However, she can't expect everyone in the room who have been discussing these issues for years to just roll over and agree with her. Oh, by the way, did I mention that no one defended Meyer's views on federalism and racial segregation?.
During the session, in just the sort of intellectual exercise encouraged at Liberty Fund colloquia, another law professor sitting at the table offered an alternative legal analysis and history–as a thought experiment–in which the Supreme Court might have properly interpreted constitutional provisions and amendments in such a way as to outlaw state-mandated segregation and Jim Crow laws in the 19th century. That law professor pointed especially to Justice Harlan's powerful dissent in the infamous "separate but equal" Plessy v. Ferguson case in which he declared, "But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." This professor argued that following similar abstract constitutional logic would also have outlawed school segregation without recourse to the sociological reasoning that was used in deciding Brown v. Board of Education. But, of course, events didn't turn out that way.
Liberty Fund colloquia strongly encourage conversation among participants outside of the formal sessions. Participants dine together every evening and are usually seated at tables of six or so participants in order to facilitate conversation. (Althouse weirdly and incorrectly refers to these rules that aim to encourage discussion as "cult-like" here.) After dinner, conferees are invited back to a hospitality suite for cocktails and snacks where they can talk further with one another for as long they like. As it happens, I was sitting at a table at the dinner in which Ann Althouse had her apparent epiphany about tainted federalism and her panic attack about the racial sensitivities of conservatives and libertarians.
What happened is that since she had not joined several of us in the hospitality suite the previous night, she asked what we have been discussing until 2 am. Some of my tablemates at dinner told her that I had provoked a spirited debate (lasting perhaps and hour and a half) about the Civil Rights Act of 1964. I had asserted that state-sanctioned racial segregation was so egregious a violation of the rights of black citizens that it was absolutely necessary for the federal government to intervene to smash it. The whole political point of libertarianism is to strictly limit the power of the state over individuals. Mandating racial segregation via state power (as was done in the Southern states) is precisely the kind of state tyranny that libertarians detest. In any case, I think she found my view of the Civil Rights Act agreeable. During the discussion in the hospitality suite, absolutely no one defended state-sanctioned segregation and all agreed that Federal intervention was necessary to outlaw state-enforced Jim Crow segregation.
Once the topic had been broached over dinner, I turned to another tablemate who is a fervent Catholic intellectual to discuss some bioethical stuff. We had brought up transhumanism during one of the sessions earlier in the day. The two of us were having a perfectly civil conversation about the moral status of embryos. Anyway next thing I know, Ann Althouse is shouting at two of our dinner companions demanding that they prove to her (Althouse) that they are not racists! She kept asking over and over, "How do I know that I'm not sitting at a table full of racists?" This was completely bizarre! It should go without saying, but I will say it: No one at the conference could even remotely be accused of being racist.
Apparently, the three of them had been discussing the constitutionality of the public accommodations sections of the Civil Rights Act that forbids private businesses to racially discriminate among customers. That is an interesting issue where people ask serious questions about how to balance state intervention and individual choice. Anyway, it's an important issue over which people of good will may disagree-once state-enforced segregation is obliterated, will individual choices under equality of law and in a free market place end racial discrimination? Perhaps not. As Nobel Economics Laureate Gary Becker has argued if a minority group is a very small percentage of a population, then the costs of discrimination will be borne mainly by the minority and market forces may not be strong enough to overcome such discrimination. To me, the provisions of the Civil Rights Act of 1964 that compelled private businesses to serve people of all races have largely resulted in beneficial outcomes. But beneficial outcomes may not be the only desideratum of state intervention. Consider the egregious violation of property rights that took place in the Kelo v. New London case. After all, forcing Ms. Kelo to sell her house so that the city could give it to a private developer is beneficial to the city of New London's tax base. Again, people of good will can have serious disagreements on where the proper limits to state power should lie. For example, should the Feds outlaw gay marriage, medical marijuana, concealed carry, surrogate motherhood even though some states want their citizens to have the opportunity to participate in those activities? Some conservatives would say yes. Libertarians would say no.
In trying to explain to Althouse why private discrimination might be OK, I later pieced together that my tablemates had posed the question of whether or not Althouse would want to have the right to refuse to serve KKK members if she owned a restaurant–say, the KKK members were planning to have a weekly luncheon meeting at her cafe? My interpretation of what happened is that because she didn't want to appear to be hypocrite, she refused to answer and kept asking more and more abstract questions about their example. When she was backed into a corner, she lashed out, suggesting that people who disagreed with her feelings were racists. Eventually, she was so upset that she began crying. Of course, at that point the possibility of civil intellectual discourse completely evaporated.
I was also astonished by the poise with which my tablemates handled Althouse. Our companions did not raise their voices nor dismiss her (as I would have), but tried to calm her down. In fact, Althouse made the situation even more personal by yelling repeatedly at one of my dinner companions (who is also a colleague) that she was an "intellectual lightweight" and an "embarrassment to women everywhere." In fact, in my opinion, with that statement Althouse had actually identified herself. Before Althouse stalked away, I asked her to apologize for that insult, but she refused.
I sure hope that Ann Althouse's behavior at the Liberty Fund colloquium is not example how "intellectual discourse" is conducted in her law school classes in Madison, Wisconsin. In her bloggingheads.tv discussion with my friend Jonah Goldberg (who was a participant in the Meyer colloquium) she keeps telling him that he shouldn't be her enemy. I may not be her enemy, but given her outrageous behavior and completely baseless insinuations about intelligent humane people, I sure don't want to be her friend. As she said, "I need to be more vigilant."