These days, people are less hyped about "The Libertarian Moment" than they seem worried about an "Authoritarian Moment" that's exemplified by Donald Trump's political success.
"He's an authoritarian," says Washington Post columnist and Fox News contributor George Will. "He believes that government we have today is not big enough and that particularly the concentration of power not just in Washington but Washington power in the executive branch has not gone far enough."
In late February, Will sat down with Reason's Nick Gillespie and Matt Welch for an opening-night interview at the International Students For Liberty Conference, which was attended by nearly 2,000 people from all over the world.
The official topic was "Is The Libertarian Moment Over?" and the conversation was as wide-ranging as it was at times depressing. "Today, 67 percent of the federal budget is transfer payments," announced the 74-year-old Pulitzer Prize winner. "The sky is dark with money going back and forth between client groups served by an administrative state that exists to do very little else but regulate the private sector and distribute income. Where's the libertarian moment fit in here?"
Gillespie and Welch, who coined the "Libertarian Moment" term in a 2008 Reason story and expanded its meaning in The Declaration of Independents: How Libertarian Politics Can Fix What's Wrong With America (praised by Will, incidentally), argued that many things are moving in a decidedly libertarian position. As Welch pointed out, in 2008, recreational pot legalization, marriage equality, and criminal-justice reform were barely discussed at the national level. Now, all three have proceeded or are proceeding apace, as is judicial support for liberalized gun rights. And there's this: "In the last 25 years, a historical number of people—1 billion people—have been lifted out of extreme poverty," said Welch. "Even the United Nations says this is because in large part due to globalized reductions in tariffs and barriers to trade."
For all his gloom, Will acknowledged that "there are good signs underway." Specifically, he cited Reason Senior Editor Damon Root's Overruled: The Long War for Control of the U.S. Supreme Court (2014), which makes the case for "libertarian judicial engagement" as a constitutionally legitimate way of reining in government action. Root and others such as Georgetown Law's Randy Barnett and Institute for Justice's Clark Neily argue that "what we need is an engaged judiciary asserting the fact that the essence of America is not majority rule, it is liberty," said Will, who applauded the rise and power of this argument. He also cited the Supreme Court's controversial ruling in the Citizens United case, which invalidated many campaign-finance rules. "The court," noted Will, "overturned prior decisions and overturned certain clear principles enunciated by elected officials around the country by saying that when Americans band together in corporate form, they do not, for the purpose of advocacy, forfeit their First Amendment rights."
What happens if Donald Trump actually becomes the Republican nominee? Will, who had few kind words to say about leading Democrats Hillary Clinton and Bernie Sanders, prophesied that the GOP will be reduced to a "husk" and there will almost certainly be an independent run by a leading Republican.
About 37 minutes long. Cameras by Meredith Bragg and Todd Krainin; edited and produced by Krainin.
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THIS IS A RUSH TRANSCRIPT. CHECK ALL QUOTATIONS AGAINST THE VIDEO.
Nick Gillespie: All right, thanks very much. Thank you for coming out, Students for Liberty. I know I spoke at one of the first conferences, I know Matt has been speaking at these for a couple of years. Thank you guys all for coming out and for giving us on the stage at the very least some hope for the future.
OK, so what we're going to be talking about is whether the "libertarian moment" is over or did it never exist?" Matt and I, in 2008 coined the term "the libertarian moment" to describe what we talked about as "a time of increasingly hyper-individualized, hyper-expanded choice over virtually every aspect of our lives."
We were talking about, at the depths of the financial crisis, hopefully a world in which it was more possible than ever to live on your own terms because of technology, because of change happening in politics globally, technological innovation and what not. And since then, the idea of the libertarian moment captured the public imagination.
In 2014, for instance, the New York Times Magazine wrote a cover story "Has the Libertarian Moment Finally Arrived?" It was on the heels of Rand Paul's ascendancy–he had been the called the most interesting man in politics by Time Magazine, and we of course know what happened to Rand Paul's candidacy. And now we're being told that Rand Paul and the libertarian moment never existed. The libertarian moment wasn't really happening. The false rise and fall of Rand Paul. What we're going to talk about tonight is the ways in which the libertarian moment is or is not happening and whether or not we're going there.
And with George Will, we're going to be talking about whether we should be actually confronting "The Authoritarian Moment" rather than the libertarian moment.
And what I want to do just to set the scene: In 2013, Matt and I interviewed George Will for Reason and we talked about him having written, again this is a few years ago, "America is moving in the libertarians' direction not because they have won an argument, but because government and the sectors it dominates have made themselves ludicrous. This has opened minds to the libertarian argument."
And we asked Mr. Will–Dr. Will–whether or not he still thought that in 2013 and you answered, "Yes, for several reasons, the first is that I've lived in Washington now 44 years and that's a lot of folly to witness up close. Whatever confidence and optimism I felt towards the central government when I got here, January 1. 1970 has dissipated at the hands of the government."
And second, you said, "I participate, although I'm in my 70s and too old to learn to much, in the changing technological assumptions. Give you an example, when I was growing up I wanted to hear the songs of the day, Bill Haley and the Comets, the Platters and all that stuff. I would turn on the radio and hope the disc jockey would play three or four of the songs I wanted to hear in the next hour. When my daughter and other children want to hear songs, they just go on the internet and have 50,000 at their fingertips."
So before we get into trying to convince you, George, that the libertarian moment is still happening, what is your sense of things? Are we past the libertarian moment and have we entered the authoritarian moment? And if so, what's the leading indicator of that?
George Will: Well, the leading indicator is in the moment the leading Republican candidate for president. That is the leading candidate of the party which, if there is a party with a libertarian streak, it would be it.
Gillespie: Can we name this man? Or will he appear?
Will: He's like Voldemort. (laughs and applause) By last August, he was pledging to have a new federal police force, a new federal police force, charged with fulfilling his promise to deport 11 and a half million people in two years. That's about 225,000 a month. He will need a new police force for that. Five, six hours ago he was on Fox Network, Fox Television, and he said that he wanted to "open up" the libel laws to make it easier to sue people for writing negative things, which is by the way, how I earn my living. In the debate the night before, the man we are thinking about giving nuclear codes and Lincoln's chair, said that his sister, who's a "brilliant lawyer,"–we have his word for this, she's a judge actually–that she signed the same bill that Justice Alito signed. Now we have a man who's the leading candidate of one of our two major parties to be president of the United States who thinks judges sign bills. In other words, this candidate would flunk an 8th grade civics exam.
If this is your libertarian moment, you can look at the other party. The other party has a socialist running. Now he's of course nothing of the sort. Time was socialism meant the public ownership of the means of production, distribution, and exchange. You could understand that. Then they watered it down a bit, particularly the post war British socialists to say no, socialism is government ownership of the "commanding heights" of the economy: heavy industry, steel, railroads, communications combined. Then they watered it down- and this is Bernie Sanders' socialism- it is heavy government regulation of the private sector and ambitious redistribution of wealth which is what we've had for at least 40 years in this country. Today, 67 percent of the federal budget is transfer payments. The sky is dark with money going back and forth between client groups served by an administrative state that exists to do very little else but regulate the private sector and distribute income. Where's the libertarian moment fit in here?
Gillespie: Well that is, uh Matt, you're up. I'm off the book. So why don't you talk a little bit about some of the signs of the time?
Matt Welch: I'm going to defend a headline here. We're getting a lot of guff here now that Rand Paul kind of stalled out at 3 percent and never went any further. Everyone loves to proclaim libertarians to be full of dookie because we don't fit normally into the political categories of Democrat and Republican and so they're having a lot of sport at our expense.
As Nick mentioned, this piece that we wrote in 2008, we wrote for the 40th anniversary of Reason magazine, which like all great revolutions started in May of 1968. And we were coming up with various things to put in this issue and right as we were writing this essay, the financial crisis happened and George W. Bush, head of the Republican Party on September 24th I think it was, 2008 stood in front of the world and said "Normally, I'm in favor of free market capitalism, BUT…." There was no hope.
John McCain, the Republican who was running for president at the time, the Republican who, in a way, influencing George Will here very strongly [to be in favor of ending campaign-finance laws], was someone who believes in censoring political speech. That was the major achievement of his senatorial career. He suspended his campaign so he could go back to Washington to support the bailouts. There was no hope in September of 2008.
So when we wrote the headline "The Libertarian Moment," what we were telling people was "Look, we know it's super, super dark right now" just as it was in many ways, as we lead the essay with, in 1971. There's a lot of dark business happening in America in 1971. There's wages and price controls which we can't even fathom right now was happening in 1971. And yet, if you look in the right places, you would notice that there were glimmers of hope happening and by the end of that decade, there was all kinds of interesting, very explicitly libertarian action happening, not least of which was the abolition of the military draft, which is a pretty amazing accomplishment.
Gillespie: And can we get some of the slides up on the side so that we can, Matt do you want to talk about some of the–
Welch: Yeah yeah, so we said this isn't a moment to despair. We're actually in an era, going forward, in which good things happen. So in September 2008, no one in America was talking about legalizing recreational marijuana. It wasn't even on anybody's radar. That wasn't happening. We heard earlier today two great congressmen, I hope they're here, they're probably not, Justin Amash and Thomas Massie. Very funny, very principled people, those people were not in Congress in September 2008. There was a popular revolt against large government known as the Tea Party Movement, that produced people like Rand Paul, produced these things. Criminal justice reform, which is on the verge of happening and I hope still can happen, wasn't on anyone's lips in 2008.
So even though we're living in this dark moment and an authoritarian and scary moment as George Will rightly points out, a lot of very promising, great things are happening, including some things that were unfathomable to some of us older people for years, for decades. The fact that guns were recognized, now recognized that the Second Amendment gives an individual right, was not something that a lot of people were thinking about back then. So all of these things are happening and this is something that is worth thinking about since you are younger than me out there and I heard questions earlier with Congressmen Amash and Massie, that were like "Well, how do you affect change?" and these kinds of things and a lot of these changes happened with some politics in it and some of the changes happened because people were rooting all around politics. Politics, major party politics, is not the only game in town to try to make these changes happen.
This slide here talks about something–and I want to spin this into a question for you George, which is that we live in this really weird moment where in the last 25 years, a historical number of people, 1 billion people, have been lifted out of extreme poverty. Even the United Nations says this is because in large part due to globalized reductions in tariffs and barriers to trade. It's an amazing human accomplishment and yet we are living in America at a time when Bernie Sanders and Donald Trump and Hillary Clinton increasingly (although her heart's not necessarily in it) are running as heavy protectionists.
How is it that America, in your judgment, lost the plot about what is literally the most tremendous story in modern times, which is the liberation of the individual and the de-povertization around the world, by people using policies that have absolutely nothing to do with Bernie Sanders?
One quick [aside] before I actually ask him the question. When Barack Obama went to Sweden a couple of years ago, three Swedish Social Democratic trade unions asked to meet with him in order to tell him, "Please President Obama"–this is in Sweden, this is in Bernie Sanders' Sweden– "Please President Obama, can you make sure to reduce trade barriers because that's the best way for trade unions in Northern Europe to work?" So why have we Americans lost the plot of what made the prosperity that's helping the rest of the world?
Will: I don't think they have. I think the political class has clearly lost it. Donald Trump thinks the way to make America great is to retaliate against Oreos being made outside the country. (laughter)
Welch: Did you watch it? He said that last night!
Will: And he believes it, about as much as he believes anything. Look, it is a fact that for non-college educated white males, their wages have been stagnant–not yours I'm sure. Their earnings have been stagnant for 40 years. You'd be irritable and you would be wary and you would be anxious about immigration and you'd be susceptible to protectionist arguments too if you felt that you were treading water and making no progress.
That said, I don't think the American people are that open to protectionism. The last time we went through one of these was 1980 when John Connally, running against Ronald Reagan, decided that he would stake out a protectionist position. He won one delegate, some woman from Arkansas, for his efforts. In 1984 I believe it was–or was it '88?—[Iowa Rep. Richard] Gephardt decided to be a protectionist and he got nowhere. I think the American people understand this. I mean, Donald Trump is waging war on China, which is to say waging war on Walmart, which is the biggest importer of Chinese goods, and is, by the way, with 1.4 million employees, our largest private sector employer. [Walmart is] where a lot of Donald Trump supporters or voters presumably shop. So there's kind of madness in the air. But I don't think the American people are really swept up in it.
Welch: So why is [protectionism] expressing itself politically? Is it just that the last 15 years have been lousy for private sector job growth for everybody and the aforementioned 40 years of badness for my fellow college dropouts?
Will: I think so. There's nothing wrong with this country in a major way that can't be cured by the difference between 3 percent and 2 percent growth. I think the political class believes that the difference between 2 percent and 3 percent is 1 percent. It is of course, 50 percent and it makes an enormous difference. Any institution in this country, anyone on the board of a school, a museum, a symphony orchestra that has an endowment knows that at 3 or 3.5 percent growth, America is happy because we don't have the politics of allocating scarcity, about which our institutions are not very good. But at 2 percent growth, everyone is sour, elbows are thrown and government becomes a matter of carving with increasingly sharp elbows and nastiness a stagnant pie.
Gillespie: Well let's got to the next slide which feeds into this. George, you were saying, or you were implying if not outright saying, that Donald Trump is an effect of the breakdown of the way the political class, or the way the economy is working. He's not the cause of it.
Will: Partly. His people say, "Well, we're mad because nothing's getting done in Washington." Then you say, "Well, what do you want to get done?" and you get this blank stare. I think it's entertainment. I think there's been a kind of rage machine cranked up in this country and people get addicted to rage and whatever part of the brain is engaged with that.
Gillespie: We'll call it the Trumpimum.
Will: Well, before there was Trump in politics, there was Bill O'Reilly in journalism and it's the kind of constant sense of indignation. We're not quite clear about what, but indignation becomes its own pleasure.
Gillespie: I cannot disagree.
Welch: Great historian I hear though, that Bill O'Reilly.
Will: Terrific. I'm waiting for his new book.
Gillespie: You're trashing your own partial employer: Aren't you with Fox News?
Will: Yes, yes. (laughter)
Gillespie: So here is one of the things that Matt and I in our book, The Declaration of Independence, which grew out of the "Libertarian Moment" essay. Over the past 40 years or so, the number of people who are willing to tell random strangers on the phone that they belong to either the Republican or the Democratic Party has been shrinking.
Welch: And it's not just belonging to a party, it's general affiliation, like "do you feel like a Democrat or do you feel like a Republican?"
Gillespie: Do you identify with one of these parties, not necessarily if you're registered with them or if you vote for their candidates all the time. Gallup does a couple of polls once a year, and in their governance poll one of the things that they found recently is that there is a recent record low number of people who call themselves Democrats. It's at 29 percent. It had been in the high 30s just a few decades ago. Republicans are at 26 percent which is one point up from their lowest point, which you can see in this chart. Independents, people who are either unaffiliated or say they're Independent, has been growing. [The numbers of] people who are willing to talk about being a member of the GOP or the Democratic Party have been failing.
On top of that, Gallup also does a thing where their pollsters use two questions to key in on people's perspective about the role of government. From those answers, they create typologies, four typologies: you're either a conservative, a libertarian, a liberal, or a populist.
And they ask these two questions. The first one is "Some people think the government is trying to do too many things that should be left to individuals and businesses. Others think the government should do more to solve our country's problems. Which comes closer to your view?" So that's one question. The other is "Some people think the government should promote traditional values in our society. Others think that the government should not favor any particular set of values. Which comes closer to your view?"
And if you look on the chart here, for the first time, the libertarian group, which came in at 27 percent based on that index, is the highest. There's 26 percent that call themselves conservatives, 23 percent that call themselves liberals, 15 percent populist, and 10 percent for any other category that fits into that.
So I guess my question then to you, George, is: Where does the Trump–and in an odd and interesting way the Sanders–anger element, where is it coming from? Or how does that counter the idea that government or a strongman is going to solve all our problems, very authoritarian, how does that fit with some of the developments that Matt was talking about both in U.S. politics and globally? And with attitudes that we're seeing in the American population where they're leaving the parties and they seem to be moving towards libertarianism?
Will: I think the explanation is cognitive dissonance. That is a fancy way of saying people hold in their minds with equal fervor and sincerity flatly incompatible ideas. The American people have always talked like Jeffersonians but they have almost invariably wanted to be governed by Hamiltonians, by a large, omnipresent, omniprovident state.
Gillespie: Now Hamilton, he's that rap artist on Broadway, right? (laughter)
Will: Today, I think 42 percent of Americans identify as Independents. First of all, most of them are behavioral Democrats or behavioral Republicans. It's a pose. They may really think they're Independents, but they're always going to vote one way or another. The Pew Research Group recently did a survey. They gave a huge sample of Americans a list of 19 things and they said, "Do you want spending on them increased, held the same, or cut?" Most of the categories they said "please increase." A few said "hold the same." The one thing [everyone] said to cut was foreign aid which is 1 percent of the federal budget. So limited government with Americans is a rhetorical position. It's avowed but not constraining I'm afraid.
Donald Trump said in South Carolina at a town hall, "I am the only of the Republican candidates who won't cut the hell out of your Social Security." Of course no one can even get either party to move [simply to link the increase in benefits to the] CPI [Consumer Price Index], which would be a minuscule reduction of the inflation adjustment of Social Security. Everyone acknowledges it would be a more accurate measure of inflation. But no one will go near that.
And Social Security of course is the small problem compared to Medicare. We have 10,000 baby boomers every day becoming eligible for Social Security and Medicare. They vote and they vote increasingly for the Republican Party, which means the Republican Party is least apt to make a serious attempt to reform the entitlements. And Donald Trump again, since he's no longer unmentionable, Donald Trump's social policy in a few words is "we're gonna take care of everybody." That's a quote, that's his view.
Gillespie: And it's gonna be great. It'll be beautiful. (laughter)
Will: It'll be huge.
Gillespie: The deficits will be huge. Matt, how do you respond to—or what is the interplay–between "we're going to take care of everybody" but first "we're going to remove 12 million people, or 11 and a half million people from the population"? And does that actually play well?
Welch: I think that it's very interesting when you look at exit polling or entrance polling in the first primary states. They asked in Iowa and New Hampshire: What issues do you care about? The biggest issue in Iowa, I believe, was the size of government. No one really was campaigning on that in Iowa or talking about it. That wasn't driving media cycles partly because Republicans control both houses of Congress so any conflict between Republicans and Democrats over spending is out the window. Republicans just put things in omnibuses, tear up the sequester. We're no longer talking about spending anymore. The debt ceiling? Remember when we had that? We don't have one anymore. They got rid of it in October. We'll talk about it again in March 2017. So that political conflict is gone, yet that thing which animated a lot of the early Tea Party Movement is still a large concern for GOP voters in Iowa and New Hampshire. Immigration was not.
So what does that tell us about Donald Trump? I think, and this is just a postulation here, people saw immigration for him as a kind of threshold or signaling issue–not necessarily that they want to deport illegal immigrants. Actually I think the majority of Republicans generally don't want to.
Gillespie: I get that all surveys are subject to you know, phoniness, but Gallup has found among others, that the majority of Republicans favor a path to legalization, maybe not citizenship.
Will: I think they favor a path to citizenship.
Gillespie: Citizenship, even. Among the general population, it's even higher.
Welch: So I think what's going on here more is that it is a cultural situation. Donald Trump, God bless him, God damn him, whatever, every single day, several times a day, he says things that you're not supposed to say. That the people who have been talking about politics, who have been making written and unwritten rules about what's between the 35 yard lines and all that kind of stuff. They've all just decided there's a way that we do this. There are certain mores that you have. And you can see, some candidates do have those mores; Marco Rubio has those mores. He is always declared the winner of every debate by journalists because they can recognize themselves in him. He talks about policy with a certain kind of mastery. He wants to bomb a lot of countries, and journalists love that. (laughter) Sadly, it's true.
But Donald Trump breaks those rules. He broke the rule when he said Mexicans were rapists. He broke the rule when he said he was going to deport Syrian refugees who are already here. He's going to deport the 4 million kids [of illegal immigrants]. But it's not only that.
It's also just the use of language, you know. Repeating it when someone called Ted Cruz a "pussy." You know, every little thing like that is a rebuke to those who have looked down on everybody who speaks in a way that the elites find to be kind of unwashed and hinky.
So I think it's more that. It's not necessarily that there's this rising tide. If you look back, Republicans had a pretty good election in November 2014, right? They retook the Senate, that's kind of a big thing. They had record gains in state houses and everywhere. Democrats have no bench because of this. Did they do that because of Trumpism? There's maybe one Trumpish politician in this country, the governor of Maine, right? LePage, whatever his name is, he's kind of this crazy character like Rob Ford up in Toronto. It wasn't because of Trumpism. So I think it's because he broke through those thresholds and people respond to that culturally. "Yeah, he's saying stuff that's wrong, that I personally disagree with" people will tell you. But he's saying it and he has the chutzpah to say that. That is more important than the actual content of his policies, I think.
Gillespie: George, do you think if we go back actually to the party identification and recognizing that there's limits to this data, are we in a place where if Trump proceeds to the nomination of the Republican Party that the Republicans become the Whigs of their day? [The GOP] came out of the Whigs, who disappeared before the Civil War. I mean, can the Republican Party withstand Trump actually being their standard bearer?
Will: No. Well there'll still be a husk of the Republican Party, but there would I think be a third-party candidacy if it's still possible at that point to get on enough ballots. And if the sore loser laws [don't] preclude some of these candidates from holding the banner for that party.
Furthermore, if he's the nominee, it'll be the first election in a very long time when there's no one remotely conservative at the top of the ticket. Should he run, he'll run, I think, to the left of Hillary Clinton because he'll be after the Bernie Sanders vote and he'll get a fair amount of it. He'll be running against one of the most unliked candidates the Democrats have put forward ever. And therefore, it's conceivable he would be elected. If elected, he would run presumably for reelection in 2020 which would mean that it would be at least until 2024 when there would be a conservative choice for president.
Gillespie: How are you defining conservative in that? Because on issue by issue, he's pretty conservative. Trump says he's anti-abortion, which is a big issue. He's super anti-immigrant and National Review now says that your attitude on immigration is the key issue for conservatives. He talks about bombing foreign countries, very identified with conservative foreign policy in the 21st century. How is Trump not conservative?
Will: He's an authoritarian. He believes that government we have today is not big enough and that particularly the concentration of power not just in Washington but Washington power in the executive branch has not gone far enough. Conservatism, it seems to me is the congressional supremacy of the Article 1 Project that Mike Lee and others are fostering. It is to tame executive power, particularly the prerogative, the royal prerogative that has crept back into our life from George III now with–
Gillespie: George III or George W.?
Will: All three of them. It's free markets. There's no free market dimension to Donald Trump. If we ever see his "beautiful"–his words– "his beautiful tax returns" we're going to see that he is a crony capitalist through and through.
Gillespie: On the free market issue: The conservative Republicans–when you look at somebody like Ted Cruz (Marco Rubio I'm not sure about), but Ted Cruz is against the Trans-Pacific Partnership (TPP), which is more or less the inheritor of NAFTA. You know, there are questions about it and what not, but it's clearly a free trade agreement. It seems the Republican Party is against that as long as President Obama is going to get the credit for it.
Will: That is part of it.
Audience Member: Intellectual property provisions!
Gillespie: Yeah, they're terrible. I said there's problems with TPP, but still it's a free trade agreement in a way that is recognizable the way these things get parceled out.
Will: That's right. And Cruz, who to his great credit became the first person in modern history to run against the ethanol industry in Iowa and carried Iowa, knows better than this, would have to know better. It's part of the depressing response of the political class to the needs of the nominating season.
Gillespie: Well, if we can go back to the slides for a second…you know, I had quite honestly expected this conversation to go differently. I thought we were going to be talking about how libertarian everything is and, you know, "Come on kids, catch a rocket ride here!" I put together these slides of three recent issues of Reason Magazine. After talking about how great and how libertarian everything was getting–you know free ponies and all of that kind of stuff (laughter)–we were going to talk about threats to the libertarian moment.
But I think instead what we're talking about are the people who are vying for the Authoritarian Moment here.
Will: Well, let me try and cheer you up. Rand Paul did the country and the Republican Party a favor by making foreign policy heterodoxy possible within the Republican Party. And because of that rethinking, you can see it in Ted Cruz. Ted Cruz is not quite as bellicose as Marco Rubio. Rand Paul's campaign died the day that ISIS released the first beheading video. It was over. Because he was going to stake out a rethinking that we much need because of Libya particularly.
Gillespie: Do you think that it died because he did not double down [on non-interventionism] or explain why even if freelance journalists are being killed, we should not invade? Or just, it was over?
Will: [South Carolina Sen.] Lindsey Graham is the only guy I know who really wants to invade, who has had the courage of his convictions. No, it died because people didn't want to hear that anymore. Because instantly, national security went above all other issues.
There are good signs underway. For example, your colleague, Damon Root, has written a wonderful book. Overruled, I believe is the title, everyone here ought to read it.
The most interesting argument in American governance today is not between Republicans and Democrats, it is between conservatives–using the term inclusively here– who believe that we need, as conservatives have been saying for years, a deferential judiciary, passive and deferential to the majoritarian branches of government and, on the other hand, those like Clark Neily, who wrote the wonderful book Terms of Engagement.
Gillespie: He's a lawyer at the Institute for Justice.
Will: Damon Root, me, others–Randy Barnett–who argue on the contrary that what we need is an engaged judiciary asserting the fact that the essence of America is not majority rule, it is liberty. And that it is a dereliction of judicial duty not to squat down, not to presume that government has a burden of proof that when it acts, it has reason to act. (applause)
The libertarian premise, as I understand it, is that before the government interferes with the liberty of the individual or the liberty of two or more individuals contracting together voluntarily, it ought to have a good reason. And it ought to be able to demonstrate that to a court which says you are violating not only the enumerated rights of the Constitution but those unenumerated rights affirmed in the Ninth Amendment.
And therefore we need a more robust judiciary.
What are the two decisions that we most enjoy in the 21st century so far from the Supreme Court? One that we hated the most was Kelo, wherein the court behaved the way conservatives have urged the court to behave, which is deferential to an elected body. In this case, it was the city government of New London, Connecticut when it stole the property of the people in that neighborhood. The good decision we like most is Citizens United, wherein the court overturned prior decisions and overturned certain clear principles enunciated by elected officials around the country by saying that when Americans band together in corporate form, they do not, for the purpose of advocacy, forfeit their First Amendment rights.
We need a more engaged judiciary. This is a rising intellectual force in this country with a libertarian purpose and with libertarian consequences. On the one hand in foreign policy, it's now discussable to say Libya was a mistake, second only to the invasion of Iraq in perhaps [all] American, and certainly recent, American history. Domestically, there is an understanding that our first duty is not to preserve majority rule, which is just another way of saying "might makes right" but to protect the enumerated and unenumerated rights, which is what America's about.
In that sense, we have a new vocabulary, a new intellectual movement. And that's why, if I can say parenthetically, why I think it's a shame we're not going to have hearings and a floor vote and a full debate on an Obama nomination. A) because that would educate the country as to what the issues are and B) it would force the Republicans to decide what they think. Most of them have no clue on the subject.
Gillespie: We are just about out of time. Matt, could you talk about some of the ways to break the authoritarian tendency in American politics? When you look at the three major candidates–Trump, Hillary Clinton, Bernie Sanders–they all have authoritarian tendencies. They're majoritarian or they're authoritarian in the way that Trump is. Where do you look for a moment of optimism?
Welch: I'm in the business of arguing with and of not supporting politicians. But I find that it's very valuable, especially in this moment where there's no one to really think about rooting for in any tangible way, to say, "OK, great, let's talk about every single one of these issues. Let's talk about a $15 minimum wage, imposing that in Columbus, Ohio in addition to Seattle, Washington, and how absolutely utterly bonkers that is."
This election is a great chance to talk about Kelo v. New London, which Donald Trump totally supports. (impersonates Donald Trump) "Great decision, love it, why not?" (audience laughs). So to have these kinds of discussions about what these people stand for. Hillary Clinton has one of the worst track records on free speech in the country, if not the worst. Great, so let's talk about that on an individual basis. And also always recognize that political change happens in many cases outside of politics, not inside of it, and taking some comfort in that. (applause)
Gillespie: We're going to leave it there, thank you very much for listening to us. I want to thank Matt Welch, my Reason colleague, and George Will of the Washington Post, maybe of Fox News on Sundays. Thanks so much.
I also want to thank Students for Liberty. This is a group that is young and vibrant and you are the change not that Obama wanted you to be, but whatever you want the world to be. And do it in politics, do it outside of politics, but for God's sakes, do it. Thanks so much.