Topic: Political Philosophy

‘Security Is the New Freedom’

That’s what David Brooks declares in yesterday’s New York Times. In the column, he argues (yet again) that limited-government conservatism is dead, and that what should take its place is an orientation that focuses less on “negative liberty (How can I get the government off my back) and more [on] positive liberty (Can I choose how to live my life).” We also learn from Brooks that since “The ‘security leads to freedom’ paradigm is a fundamental principle of child psychology,” it must be the right way to look at man’s relationship to the state.

Since Brooks cites Tyler Cowen’s contribution to Cato Unbound, now’s as good a time as any to carp about that essay. I can’t agree with Professor Cowen that the libertarianism of the future ought to share the Left’s focus on ‘positive’ liberties and make its peace with big government. The 21st century libertarianism he’d like to see, a doctrine that seems to view principled distrust of government as an anachronism, isn’t libertarianism at all. It’s modern liberalism with a greater appreciation for markets — Thomas Friedman without the mixed metaphors. If modern liberalism moves in that direction, the world will be better off, and if libertarians can help encourage that transition, we should.

Yet I don’t understand why the continuing resilience of the welfare state constitutes an “intellectual crisis” for libertarianism. An ideology is in intellectual crisis, it seems to me, when certain of its core tenets turn out to be wrong. That people still like the idea of free stuff from government doesn’t count unless libertarianism has been in crisis from its inception.

In any event, my guess is that any political prediction that Cowen, I, or any other aspiring Hari Seldon might choose to make will, in a matter of decades, look as quaint as one of those 1950s magazine pieces on our Jetsons-style future. Given the difficulty of predicting the future, we might do better to focus on what’s true instead of what we believe to be politically possible.

If the welfare state impedes human flourishing, if the drug war is an abomination, if the New Deal constitutional revolution was an intellectual fraud from top to bottom, then libertarians ought to say those things. Because they’re true. Because they’re not said often enough. And because describing the world accurately is the first step towards changing it.

What sort of changes are possible? Who knows? But even if you think the best we can hope for is a less-awful welfare state, don’t underestimate the clarifying effect of bold, uncompromising ideas. Such ideas can help make positive, incremental reforms possible. The welfare reform we got in 1996 — generally a good thing — looks more like Robert Rector’s program than Charles Murray’s “end welfare” thought experiment in Losing Ground. But would we have gotten that sort of reform if Murray had decided that imagining a world without welfare wasn’t worth the effort?

One of the most wonderful things about Brian Doherty’s history of libertarianism is how little the ideology’s founding mothers and fathers cared about what sort of bills might plausibly get out of committee. There’s no denying that 20th century libertarianism had elements of apocalyptic pessimism. But it’s hard to miss the equally broad streak of insane optimism. To stand in the middle of the Century of the State and proclaim a vision of a world unshackled, a world governed by the rule of “anything that’s peaceful,” that is, a world hardly governed at all — what could be bolder or more hopeful? The Audacity of Hope!

Sure, Hayek and Friedman were willing to accept aspects of the modern welfare state. But it’s only when divorced from historical context that they look like Moderates for Capitalism. In the (sparkly) teeth of New Frontier liberalism, Capitalism and Freedom proclaims that Kennedy’s inaugural address — “ask not what your country…” — was founded on a worldview unworthy of free men in a free society. It was, for its time, a radical book.

Writing in 1949, Hayek had an effective rejoinder to the idea that classical liberals ought to limit their aspirations to what’s currently politically possible:

We need intellectual leaders who are willing to work for an ideal, however small may be the prospects of its early realization. They must be men who are willing to stick to principles and to fight for their full realization, however remote. The practical compromises they must leave to the politicians. Free trade and freedom of opportunity are ideals which still may arouse the imaginations of large numbers, but a mere “reasonable freedom of trade” or a mere “relaxation of controls” is neither intellectually respectable nor likely to inspire any enthusiasm.

The main lesson which the true liberal must learn from the success of the socialists is that it was their courage to be Utopian which gained them the support of the intellectuals and therefore an influence on public opinion which is daily making possible what only recently seemed utterly remote. Those who have concerned themselves exclusively with what seemed practicable in the existing state of opinion have constantly found that even this had rapidly become politically impossible as the result of changes in a public opinion which they have done nothing to guide.

I’ll stop the Braveheart speech there. But just one more observation: Brooks’ (and Cowen’s?) notion that the modern world has outgrown the Liberty vs. Power paradigm is bizarre. Barring some miraculous change in human nature and the nature of government, that paradigm’s as enduringly relevant as anything gets in politics. There’s a reason “Skepticism about Power” is the section that opens David Boaz’s Libertarian Reader. That heuristic flows from observable truths about man’s nature and the state’s. Distrust of government lies at the heart of libertarianism and at the heart of the American experiment. Liberty’s future depends on rekindling it.

Five Years Is a Long Time, Part 3

Here’s what McCain-Feingold did and did not do.

1. BCRA successfully prohibited most party soft money fundraising by federal officials.

So what? 527 groups took up most of the slack.

2. Parties raised as much hard money in 2006 as they had soft and hard money in 2002.

Yes, but they did not raise as much soft and hard money as they would have in 2006 if BCRA had not been passed. This had an interesting consequence…

3. BCRA cost the Democrats 20 House seats in the 2006 election.

Here’s why.

4. BCRA made it illegal to broadcast advertising for a movie criticizing the president of the United States.

If the ads were to run 30 days before a primary or 60 days before a general election. Unless, of course, the film enjoys the media exemption.

5. BCRA criminalized attempts to get people to contact their member of Congress.

If they mention a member’s name in an ad, if it’s 30 or 60 days, you know the drill. But the Supreme Court may yet overturn this part of the law.

6. BCRA may destroy the presidential public financing system.

By raising the hard money contribution limits, thereby making it possible for presidential candidates to run outside the system. But credit must also go to the Internet for lowering the costs of fundraising.

7. BCRA enabled a majority of the Supreme Court to be cowardly in the face of a frontal assault on the First Amendment.

Did I say cowardly? I meant BCRA gave the Court the chance to show “proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise.”

8. BCRA did not prevent corruption.

Remember why congressional Republicans were in trouble in 2006? BCRA didn’t prevent that corruption. Nor did it punish the malefactors. The voters did.

9. BCRA did not restore confidence in government.

Yes, I know. People should not have too much confidence in government. But justices of the Supreme Court care about such things. The American National Election Studies trust in government index fell in 2004 after rising continuously from 1994 to 2002. No prizes for guessing whether it fell or rose in 2006, surely one of the worst years on record for people’s faith that their government is not corrupt. So BCRA passes in 2002 and trust in government falls thereafter.

10. BCRA made John McCain a credible candidate for the presidency.

For now, at least.

11. BCRA did not hurt the Republican party.

They did that all by themselves.

Five Years Is a Long Time, Part 2

What has the Bipartisan Campaign Reform Act accomplished over the last five years?

Not much. But don’t take my word for it. Mark Schmitt helped fund the struggle for BCRA as a program officer at the Open Society Institute. Now he has written a candid and thoughtful analysis that begins:

Judged by the most visible results on promises like getting big money out of politics or cleaning up politics, campaign finance reform has been, to put it mildly, a disappointment.

Chemerinsky on Parker v. District of Columbia

On March 14, The Washington Post ran an op-ed by Duke law professor Erwin Chemerinsky. I sent the following letter to the editor in response:

Prof. Erwin Chemerinsky claims [“A Well-Regulated Right to Bear Arms,” March 14] that the federal court of appeals for the D.C. Circuit “interpreted the Second Amendment as bestowing on individuals a right to have guns,” and as “creating a right for individuals to have firearms.” Yet the court took great pains to explain that the amendment neither creates nor bestows the right to keep and bear arms. According to the court, “The wording of the [amendment] indicates that the right to keep and bear arms was not created by government, but rather preserved by it,” and that it is “a right that pre-existed the Constitution like ‘the freedom of speech’” [emphasis in original].

The fact that both Prof. Chemerinsky and the Post’s editorial page (which had previously criticized the court’s opinion) missed that laboriously made distinction suggests that they might have read the opinion more closely before criticizing it.

Prof. Chemerinsky also claims that even if courts conclude that the Second Amendment protects an individual right to keep and bear arms, the D.C. gun ban should nevertheless stand. He argues that the Supreme Court should not apply “strict scrutiny” to laws that curtail the right to keep and bear arms because he sees no reason to distrust legislatures in this area. Instead, he argues that the courts should apply the less rigorous rational basis test to such laws, which they have applied to laws restricting the constitutionally protected right to property. Chemerinsky concludes that the D.C. gun ban should be upheld as being “rationally related to achieving [the] legitimate government purpose” of reducing gun violence.

I see serious problems with Chemerinsky’s case. First, the Constitution gives no indication that some of the rights it secures should receive less protection than others. Second, even if one were to accept that premise, the right to self-defense is leaps and bounds more important than the right to property or the right not to be discriminated against by the government on the basis of race. Even if we accept that some constitutional rights are more equal than others, then by Chemerinsky’s rationale the courts should apply strict scrutiny because there is ample reason to doubt any legislative act that infringes on so important a right. Third, as my colleague Bob Levy points out, “In Carolene Products, economic and property rights are relegated to second-tier status, but the rights expressly secured by the Bill of Rights – like the right to keep and bear arms – get top billing. So Chemerinsky’s suggestion that rational basis applies is at odds with Carolene.”

Finally, the D.C. gun ban should not survive even the rational basis test. To do so, it would have to be shown that an effective prohibition on the use of firearms for self-defense is a reasonable restriction on the right to keep and bear arms. Such a severe law is not reasonable, because it leaves peaceful citizens defenseless against violent criminals. And neither is it a mere restriction of the right to keep and bear arms; it is outright repeal. If the rational basis test can be used to uphold the repeal of a constitutionally protected right, then neither that test nor the Bill of Rights have any meaning. Chemerinsky’s logic would allow the District to abolish private property so long as it had a “rational basis” for doing so.