The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Cass Sunstein channels Hayek


In a column written just before the election, prominent Harvard Law School Professor and former Obama administration official Cass Sunstein channels the great libertarian economist F.A. Hayek's classic critique of conservatism in his advice to the new GOP majority in Congress:

Instead of conservatism, Hayek argued for a principled commitment to liberty—an approach that would sharply constrain government and "take an essentially radical position, directed against popular prejudices, entrenched positions and firmly established privileges." It's fair to say that in the current period, Hayek's "radical position" would entail a strong commitment to free trade, a rejection of protectionism, decreased regulation, deep skepticism about occupational licensing (and other barriers to entry), a firm commitment to religious liberty, and less frequent appeals to patriotism as a substitute for freedom-protecting reforms…

In his short essay, Hayek did not deliver a knockout punch against conservatism. But he did land some powerful blows, not least in his objection that conservatives cannot easily work with people whose values differ from their own….

In the coming period, however, Republicans will be under increasing pressure to define themselves affirmatively rather than by opposition. One of their chief goals should be to identify freedom-promoting initiatives that might attract support from people who cannot, by temperament or otherwise, be counted as conservative. They would do well to begin with a close reading of Hayek.

Sunstein's advice that the GOP pursue a "radical" Hayekian libertarian agenda may be in some tension with his recent critique of "paranoid libertarianism," (which I commented on here). Still, I agree with him that Hayek's critique of conservatism remains relevant today. And I would be very happy if the new Republican-controlled Congress were to advance Hayekian reforms of expanding liberty and cutting back government regulation, while also eschewing appeals to nationalism.

Obviously, however, the GOP does not consist solely or even primarily of libertarians who feel the same way as I do. It has many other elements, including a still-strong social conservative contingent that party leaders must cater to in order to hold their coalition together. I am also skeptical about how much support a "radical" libertarian agenda (or even a moderate one) would attract from Sunstein's fellow liberal Democrats.

That said, I think it is possible to envision the GOP evolving in a more libertarian direction over the next few years. With the very important exception of immigration, the party emphasized libertarian ideas far more than social conservative ones in the fall election. Significantly, they did not even make much of an issue out of the rapidly growing trend towards acceptance of same-sex marriage and marijuana legalization.

Some Republicans have even begun to rethink the War on Drugs and the mass imprisonment it generates. The Tea Party—the most dynamic part of the GOP in recent years—has largely focused on fiscal and economic issues, and has a substantial libertarian component (though it also has many social conservatives in its ranks).

Meanwhile, younger Republicans are far more socially liberal than their elders. For example, a recent survey finds that 61% of 18-29 year old Republicans support same-sex marriage, and many also support marijuana legalization. Generational succession will likely give such views greater weight in the party over time. By contrast, young Republicans are generally no less suspicious of government spending and economic regulation than older ones. The GOP is still very far from being a libertarian party, and it may never fully become one. But it could well become significantly more libertarian over the next few years than it has been at any time in the recent past.

It is also possible that libertarian-leaning Republicans can cooperate with liberal Democrats on some issues, including cutting back on the War on Drugs, and NSA surveillance, among others. At the same time, past attempts to build a "liberaltarian" alliance have had only extremely limited success, in part because the gap between libertarians and the left on many issues is very large.

In sum, I doubt that it is realistic to expect a "radical" Hayekian agenda from the Republicans. Even if party leaders wanted to do it (which is very doubtful), they probably could not bring it off. But it is possible that the party will become incrementally more libertarian over time, and that the more libertarian elements in the GOP will manage to find some common ground with liberals. At the very least, that scenario seems much more plausible today than even a few years ago.