Libertarianism Updated

5 ways libertarianism needs to up its game.

As I describe in my new memoir, A Life for Liberty: The Making of an American Originalist, I have identified as a libertarian since I was a junior in college. I still do. But for at least the past 10-15 years, I have felt that libertarianism as a political theory needed to be updated. In that same time period, I have noticed a growing schism among libertarians along lines that is difficult to define precisely. In recent years, many of those on one side of that schism, some of whom I have known since they were students, have started to avoid that label. I think that is premature. I believe libertarianism, with its core emphasis on individual freedom, remains a viable political philosophy that is superior to what is on offer from either progressives or conservatives, most of which is not systematic. As "national conservatives" have perceived, it is also at the core of those whose conservatism is based on liberty.

On Law & Liberty, I have a short essay entitled, Libertarianism Updated, discussing five possible areas where libertarianism could use some further development. I plan to develop these ideas into a future book. But because I write books, first and foremost, to discover what I think about ideas, these thoughts are still highly tentative--and I list them in descending level of confidence. That is, I feel more confident about the earlier points than the later.

This is from the beginning:

Libertarianism in the 1970s was an internally contested intellectual project, not a rigidly fixed set of policy positions. But unlike originalism, which has benefited from 20 years of internal intellectual debate among originalists, libertarianism has largely been frozen in amber since the 1970s.

I see five distinct ways that libertarian theory needs to up its game.

First, the need for natural law ethics in addition to natural rights; second, the need to distinguish between libertarian ideal theory and second-best libertarianism in a world of governments and competing nations; third, the need for a libertarian theory of citizenship and civil rights; fourth, the need to separate the public-private binary from the government-nongovernment binary; and fifth, the need for a more refined theory of corporate power and corporate rights.

Let me offer a few words about each.

You can read the rest here.

Comments

[dwshelf]

The second best item is the most crucial, and indeed, most of the others can be thought of as secondary to it.

We have real governments. We vote for real candidates. The libertarian ideal is useful, and worth developing, but we do not pursue it as an actual non-implementation of government.

[Slocum]

Imagine, for example, if the current handful of cell phone providers began electronically screening our calls for subversive communications, canceling those who were found to transgress some alleged moral norm. Would the fact they are “nongovernmental” make them any less a threat to individual liberty?

But corporations would have no incentive to do this (and significant incentives not to do this) absent arm-twisting or nudging by the government (or some perceived need to curry favor with the government). This would suggest The restraints we need are not on the size or heft of corporations but on the ability of the government to coerce them into doing its bidding. The reason this matters is that if we see the problem as one of corporations being able to grow 'too' large or 'too' influential, then the proposed solutions (some form of increased governmental control) seems likely to make the problem worse.

[Brett Bellmore]

"But corporations would have no incentive to do this (and significant incentives not to do this"

Corporations, in the abstract, have no incentive to do this. People who run corporations, on the other hand, may. There's a serious agent/principal problem here, with management pursuing policies that advance their personal goals while harming the corporation they're supposed to be acting in the interests of.

[Slocum]

There’s a serious agent/principal problem here, with management pursuing policies that advance their personal goals while harming the corporation they’re supposed to be acting in the interests of.

But that's temporary -- only until doing so damages the company's market share and stock price (e.g. the 'Bud Light' effect). See also 'The Acolyte' and Tractor Supply for more recent examples. Managers who, for ideological reasons, work against the interest of shareholders either change their tune, or are fired, or the companies they manage go into decline.

[Brett Bellmore]

Sure, for smaller corporations in competitive markets it's not a big issue.

For large corporations in markets that are trending monopolistic due to network effects, it absolutely is a problem. Remember, "We don't care. We don't have to. We're the phone company."?

Market power is the power to do inefficient things and piss off customers, and survive.

[Slocum]

Remember, “We don’t care. We don’t have to. We’re the phone company.”?

Yes -- but that was back when *the* phone company was a government-licensed monopoly in any given area and there were no viable alternatives. That's not true now for any given telephone or internet provider.

[Brett Bellmore]

Look, "the phone company" wasn't a monopoly because the government made it one. It was a monopoly due to network effects. There are a number of lines of business where, the more customers you have, the more efficient you are, the better service you can provide, so that once you get past a certain size, no startup can survive simply because it's smaller size guarantees it can't be competitive.

[David Nieporent]

No, it was a monopoly because the government made it one.

[Stephen Lathrop]

No, it wasn't a floor wax because it was a dessert topping.

[Aubrey LaVentana]

"But corporations would have no incentive to do this (and significant incentives not to do this)"

Didn't the Bells, early on, refuse to connect calls with non-Bell phone companies? Until they were forced to . .

[bernard11]

They may have no incentive to care about subversive conversations, but they could have substantial incentive to listen to other types. They do, after all, spend a lot of effort watching what we do on the Internet, and that can be sold.

[JasonT20]

But corporations would have no incentive to do this (and significant incentives not to do this) absent arm-twisting or nudging by the government (or some perceived need to curry favor with the government).

You don't read or watch enough cyberpunk sci-fi or similarly flavored fiction. You are not showing any concern to the possibility that corporations might want to influence the government. They could act in ways that don't help the company's profits, and might even hurt them in the short term, but being able to affect policy through its customers is something that corporations might pursue.

We already see this to some extent through the political spending of corporations and the very wealthy that own much of the stock. Just looking at the company's books, political spending on campaigns looks like a cost with no return. The incentive to do that is to have influence on tax rates, tax deductions, and regulations and other policies that affect the corporations ability to make a higher profit.

Personally, I have always viewed this as an intellectual weakness of libertarian ideas and politics. The possibility that corporations can and do exert power over government is not given significant weight compared to their worries over government interference with business.

[bernard11]

We already see this to some extent through the political spending of corporations and the very wealthy that own much of the stock. Just looking at the company’s books, political spending on campaigns looks like a cost with no return. The incentive to do that is to have influence on tax rates, tax deductions, and regulations and other policies that affect the corporations ability to make a higher profit.

Correct. And there are very serious principal/agent problems there as well. I'm glad to see that Barnett,unlike many other libertarian commenters, recognizes the distinction between corporations that truly "are associations of natural persons," while "publicly-traded corporations where ownership and control have been separated are more akin to artificial “creatures of the state.”

[Brett Bellmore]

" The incentive to do that is to have influence on tax rates, tax deductions, and regulations and other policies that affect the corporations ability to make a higher profit."

As well, remember that the people running the corporation can take profit in non-monetary forms, such as influencing national politics in a direction they approve of. I think you see a lot of that going on with internet platforms, for instance: Nobody taxes you on influencing the outcome of an election in a direction you like, but it's still a profit of sorts.

[Brett Bellmore]

I didn't really see anything to seriously disagree with.

Only thing I'd add is the concept of "path dependence"; Libertarianism has a lot of goals, and some of them depend on others being accomplished first. Start on them in the wrong order, and you'll stall, or even start losing ground.

That's a point Somin typically has trouble with, in urging open borders while we still have a welfare state.

[bernard11]

What part of the welfare state do you think should be eliminated?

Social Security?
Medicare?
Medicaid?
Public education?
Unemployment insurance?
Food stamps?
etc.?

[Brett Bellmore]

Yes.

There is, of course, a major reliance problem here, because the government has, by taxing people to provide these services, rendered most of them too poor to get by without them, and has caused the private charity system to atrophy. So they'd have to be phased out slowly.

It's all pretty irrelevant at this point, though. Back in the 70's, when I first got involved in libertarianism, we were a lot closer to a free market economy, with a much more libertarian population. It might have been politically feasible to start phasing out the welfare state.

Approaching a half century later, we're further than ever from a free market economy, and the population is much more accustomed to living in a welfare state. I think libertarianism had it's shot, and blew it. Our chance has passed.

[bernard11]

Thanks for the clear answer.

[David Nieporent]

Back in the 70’s, when I first got involved in libertarianism, we were a lot closer to a free market economy, with a much more libertarian population.

No, we were farther from a free market economy. Deregulation was an actual thing that started in the 1970s and continued onwards. That's as a legal matter; as a practical matter, the Internet has made the economy far freer.

[JasonT20]

It kind of depends on the industry, perhaps. In some industries, there is a lot more competition than there once was in the U.S., but in others, competition is largely an illusion because they are really all the same company. (Think of the beverage aisle at the grocery store, for instance.)

[Brett Bellmore]

Or restaurants.

[David Nieporent]

The beverage aisle at your grocery store has products from Coke, Pepsi, Dr. Pepper, National Beverage, Nestle, Evian, Red Bull, and of course store brands. Plus smaller niche companies.

[Rev. Arthur L. Kirkland]

" Back in the 70’s, when I first got involved in libertarianism, we were a lot closer to a free market economy, with a much more libertarian population. "

That is an intensely inaccurate, even silly, statement. Those chemicals you mentioned may have pickled your already substandard synapses, Mr. Bellmore.

[David Nieporent]

Only thing I’d add is the concept of “path dependence”; Libertarianism has a lot of goals, and some of them depend on others being accomplished first. Start on them in the wrong order, and you’ll stall, or even start losing ground.

That’s a point Somin typically has trouble with, in urging open borders while we still have a welfare state.

I'll take "Things only nonlibertarians who won't admit that they aren't libertarians say" for $1,000, Alex.

You would never accept this about liberties you actually care about, Brett. You would never say, "Sure, the RKBA sounds like a good idea, but we can't do that until after we solve the drug problem."

[Brett Bellmore]

Since we already had the RKBA, and have been fighting people trying to take it away, there's no path dependence problem. At least, not on MY side of that particular fight.

[David Nieporent]

You did not in fact "already have the RKBA." Before Heller, what gun laws had been struck down on 2A grounds?

[Brett Bellmore]

You're asking the wrong question. What infringements were already in place, NEEDING to be struck down? In most of the country, gun control hadn't put down roots yet, to need to be uprooted. That's why CCW reform could march across the country so easily: The gun control jurisdictions are outlier jurisdictions. They're self-absorbed outliers, who think they're the whole country, but still outliers.

Before Heller, what gun laws had the Supreme court upheld as not violating the 2nd amendment? The NFA ban on short barreled shotguns, and that's about it, and even that was a trial in absentia where only the government's side got argued. There isn't any anti-2nd precedent in need of overturning. Or wasn't until Rahimi, anyway.

The Justices all come from 'elite' institutions, part of that outlier segment of society, so they give the anti-gun perspective more respect than it deserves, but this isn't a march to a place the nation hasn't been in generations, it's just beating back a recent assault.

[Rev. Arthur L. Kirkland]

"The gun control jurisdictions are outlier jurisdictions. They’re self-absorbed outliers, who think they’re the whole country, but still outliers."

They are the educated, diverse, productive, reasoning, modern jurisdictions, the ones with our strongest research and teaching institutions, cultural amenities, communities, and economies. Gun nuts tend to congregate in the poorly educated, bigoted, economically inadequate, superstitious, desolate, dying, parasitic areas.

[Brett Bellmore]

They're narcissistic, too. Thanks for reminding me of that.

[Archibald Tuttle]

First, the Lockean conception of natural rights needs to be supplemented with a more Aristotelian-Thomist conception of natural law and the good for humans.\

Ay ay ay. Anything stated in academic nonsense language like that turns me off immediately. I'm sympathetic to the theme, but I'll wait for someone to translate it into English.

[bernard11]

Amen.

[The Margrave of Azilia]

OK, you libertarians, I upped my game...now up yours.

[SRG2]

Two issues. First, if you're going to be honest, you have to recognise that natural rights are convenient fictions and hence explain why the necessity of the particular set of fictions you've chosen.

Second, all political systems have implicit models of human behaviour. What is your updated libertarian model, and is it reasonably accurate?

[Brett Bellmore]

Depending on how they're defined, natural rights can be something real.

The is/ought distinction prevents them from being something we are objectively required to respect, but they COULD be defined as a Kantian conditional imperative: "If your goal is X, you must respect Y set of rights."

[SRG2]

“If your goal is X, you must respect Y set of rights.”

Better, "if your goal is X, Y set of rights seem in practice to be the best way to achieve that goal.

[Brett Bellmore]

Sure, that's more accurate, given that we're not dealing with symbolic logic, where things can actually be proven 100%.

[Ed Grinberg]

.

[F]ree citizenship may carry with it the privilege of accessing public spaces and services, whether governmental (like streets, sidewalks, and parks) or nongovernmental (like places of public accommodation and common carriers) without being subject to arbitrary discrimination.

Sure sounds like Jack Phillips is SOL in your "updated-libertarian" society, just like in ours. Oh well, it's all for "the common good," I suppose.