Topic: Political Philosophy

This Month’s Cato Unbound: The State, the Clan, and Individual Liberty

The great classical liberal sociologist Henry Sumner Maine theorized that societies progressed from status to contract: In a status-based society, one is born into a place in a hierarchy. That place may change, but typically it doesn’t change very much, and your place governs your rights and obligations. Societies of status are stable, rigid, and often deeply illiberal. They tend to be dominated by kinship groups, or clans, and those can be quite collectivist and hostile to individual liberty.

Contract-based societies are very different: In a contract-based society, individuals tend to be legally equal at birth. Family ties are affective and not quite so legally binding. Obligations tend to be voluntarily undertaken rather than assumed at birth. Societies of contract are flexible, may change rapidly, and will often act to protect individual liberty.

At Cato Unbound, this month’s lead essayist, legal historian Mark S. Weiner, argues that the state performs a sometimes unappreciated role in keeping away the status-based society: without a state that’s strong enough to break the power of the clans, then the clans will return, and individual liberty will suffer.

But how real is the danger? Do we really have the strong state to thank for our liberty? Economist Arnold Kling argues that other institutions, including the nuclear family and consensual transfers of property, make clannishness unappealing. The American Conservative’s editor, Daniel McCarthy, suggests that even liberal government is at times a very collectivist, and thus clannish, activity. Legal historian John Fabian Witt will weigh in on Monday, and we welcome your comments as well.

On Corrupting the Constitutional Order

Michael Gerson, former speechwriter to Bush the Younger and perennial libertarian antagonist, has denounced Rand Paul’s foreign policy views. That should surprise no one, but the manner in which he did so bears discussing.

Gerson’s bill of particulars is as follows:

The younger Paul has proposed defense cuts, criticized foreign aid, led opposition to U.S. involvement in Syria, raised the possibility of accepting and containing a nuclear Iran and railed against “possible targeted drone strikes against Americans on American soil.”

Each of these is its own argument, but what’s more interesting is how Gerson broadens the discussion in an attempt to paint the younger Paul in a conspiratorial light:

His libertarian foreign policy holds that America is less secure because it has been “too belligerent” and that decades of international engagement have both corrupted our constitutional order and corrupted other nations with our largess or militarism.

Reasonable people can disagree about the extent to which U.S. foreign policy has gone off the deep end in recent decades. Also, with due acknowledgment of the victims of U.S. “engagement” in places from Laos to Iraq, people could also disagree about the extent to which our militarism has “corrupted other nations.” But nobody with a lofty perch like Gerson’s should dispute the idea that international engagement has corrupted our constitutional order.

You could fill a library with the volumes that demonstrate how war and preparation for war—which is what Gerson means by “engagement”—have contributed to the growth of the state and the evolution of American political, economic and legal institutions. As that last link shows, influential American legal scholars are hailing Nazi jurist Carl Schmitt as “our hero” in providing the legal case for an unchecked presidency, with James Madison playing the republican bad guy.

And it is the height of irony that Gerson holds up for ridicule the idea that our foreign policy has corrupted our constitutional order the very same week that a U.S. Senator—who is a strong partisan of the CIA—gave a 40 minute speech lambasting the Agency for spying on the legislature in the context of the latter’s investigation of the CIA’s use of torture, or if you prefer, “enhanced interrogation techniques.”

Warrantless NSA spying on Americans, senior Executive Branch officials baldly lying to Congress about it with no consequences, the tortured legal reasoning that led to Guantanamo Bay, the American president claiming the power to assassinate a US citizen with no meaningful legal or legislative oversight on the grounds that he’s talked it over with his legal team, the internment of more than a hundred thousand American citizens for the crime of having had the wrong ancestors… One could go on.

The people who framed our constitution were the sort of people who opposed forming a standing army at a time when European empires were mucking around in the Western hemisphere. So whatever his disagreements with Rand Paul on foreign policy, Gerson could stand to consider—or better yet, do some reading—about how war and militarization have “corrupted our constitutional order.” It’s a bit of an open-and-shut case.

When Tolerance Becomes Intolerance

Individual liberty took another hit with Arizona Gov. Jan Brewer’s veto of legislation enhancing protection for people’s religious principles while doing business. Gov. Brewer suggests that if you hang out a shingle you should leave your deepest beliefs at home. 

The issue in Arizona was not a lack of tolerance by those in business. There is no dearth of firms across the state willing to serve gays.

Instead, the question was tolerance for those in business. Should you be expected to abandon your conscience the moment you step into the commercial world? 

Indeed, why would a gay couple insist that a Christian opposed to gay marriage photograph their wedding or prepare their cake? There’s no need to force those with unfashionable views to affirm what they reject. 

ObamaCare’s contraception mandate has a similar effect—and almost certainly received vigorous support on the left for precisely this reason.  As I pointed out in the American Spectator online:

the point was always state-mandated intolerance rather than health care. The objective was to force Catholics, mostly, and the few fundamentalist Protestants who hold similar theological views, to pay for what they oppose. In fact, there is no better way to humiliate those you dislike. It is pure and unadulterated intolerance, the ultimate Washington triumph: Make those you despise pay for what they despise.

Leaving people largely left alone to manage their own lives should be what a free society is all about. Of course, those who are on the receiving end of social disapproval understandably don’t like the result. But no one has a “right” to be served by any particular person. Forcing someone into servitude is infinitely worse than simply finding someone else to do the job. 

The right response is to change social attitudes. My friend Sheldon Richman at the Future of Freedom Foundation pointed to the use of “boycotts, publicity, and ostracism” to penalize those who refuse service. Such activism is why gay marriage has gone from a policy wish to dominant law in just a few years. 

Unfortunately, throughout history newly empowered minorities often learn the wrong lesson. Rather than create barriers to new state injustices, some people use law for their own advantage. Hence state persecution of the New Mexico wedding photographer who felt she could not promote gay ceremonies which she believed to be wrong.

Cambridge Resists a Changing World

The noted biographer Justin Kaplan, who won both a Pulitzer Prize and an American Book Award for his biographies of Mark Twain, Lincoln Steffens, and Walt Whitman, has died at the age of 88. He had a long and distinguished career in American letters, not just with his biographies but as an editor of such writers as Bertrand Russell, Will Durant, Nikos Kazantzakis, and C. Wright Mills.

He also edited the 16th edition of Bartlett’s Familiar Quotations, published in 1992. I wrote a review of that book. I can’t recall where it appeared, nor can I find it on the web. But along with praise for many of the changes he made, notably in making it fresher and more multicultural, I did note one concern with his selections, which I suggested was common among East Coast intellectuals:

The dozen years since the fifteenth edition have been marked by a worldwide turn toward markets, from Reagan and Thatcher to the New Zealand Labor Party’s free-market reforms to the fall of Soviet communism.  This historical trend seems to have escaped editor Kaplan, of Cambridge, Mass., who has given us more quotations from Karl Marx, Vladimir Lenin, and Robert Heilbroner, while virtually eliminating F. A. Hayek and Milton Friedman, the intellectual gurus of the free-market revolution.  A bust of Hayek now sits in the Kremlin, but Cambridge is holding out against the tide.

Hayek has been reduced to two quotations, neither of which reflects his particular contributions to social thought.  Friedman is represented by three, including the wrongly attributed aphorism, “There’s no such thing as a free lunch.”  Meanwhile, the towering figure of John Kenneth Galbraith receives 11 citations.  (William F. Buckley, Jr., is unrepresented.)

As in 1980, the Bible is second only to Shakespeare in the number of quotations included.  But Ayn Rand, who came in second to the Bible in a 1991 Gallup survey on most influential authors, gets only three citations.  Margaret Thatcher likewise is represented with three quotations, none of which captures her free-market radicalism.

End the Drug War: The American People are Not the Enemy

Drug use is bad. Arresting people for using drugs is worse. With the states of Colorado and Washington leading the way, the federal government should drop criminal penalties against those who produce, sell, and consume drugs.

The so-called Drug War has been a violent, often deadly, assault on the American people. There’s no obvious moral reason to demonize the use of mind-altering substances which are widely used around the globe. Obviously, drugs can be abused, but so can almost anything else. 

Some people still may abhor drug use as a matter of personal moral principle, but the criminal law should focus on inter-personal morality, that is, behavior which directly affects others. Basing criminal strictures on intra-personal morality essentially puts government into the business of soul-molding, a task for which it has demonstrated little aptitude. 

Moreover, whatever one’s moral sensibilities, drug prohibition has allowed extremely high use while yielding all of the counterproductive impacts of criminalization. The direct enforcement costs run more than $40 billion a year and affect every level of government. Forgone tax revenue is even greater. Attempting to suppress an enduring and profitable trade also has corrupted virtually every institution it has touched—police, prosecution, judiciary, Drug Enforcement Agency, and even military. 

As I point out in my article for the Intercollegiate Studies Institute,

Perhaps the most perverse impact of the Drug War has been to injure and kill users.  Far from protecting people from themselves, prohibition actually makes drug use more dangerous.  For instance, actor Philip Seymour Hoffman chose to use heroin, but he could never be certain as to its quality, purity, and potency.

Threatening addicts with jail also makes them less likely to seek assistance. The drug war encourages needle-sharing by IV drug users. Congressional lawmakers fight to keep marijuana off-limits to the ill.

Obama Administration Rips Off Middle Class and Threatens Elephants

As I’ve written before, the Obama administration plans to effectively ban the sale of all ivory in America, even if purchased or inherited legally years ago. If you can’t prove its age, you can be arrested and have your property confiscated—unless you are well-connected and exempted.

Elephants are being killed for their ivory. Activists unable to protect the animals now are targeting Americans who followed the law in buying and selling legal old ivory objects. 

But as I point out my latest piece in the American Spectator:

advocates of banning antique sales seem more interested in punishing people who bought and sold ivory legally because they bought and sold ivory, not because doing so would prevent poaching.  It is an exercise in moral vanity and political posturing, not practical conservation.

Some ban proponents complain of the difficulty of distinguishing between new and old ivory. Actually, European carving disappeared decades ago. Asian carving continues, but old and new differ in character, subject, wear, age, coloring, quality, and more. 

Nor do collectors of and dealers in antiques seek out poached ivory. Punishing people who followed the law and invested in legal objects might make a few extremists feel good, but won’t save a single elephant today.

Ivory entered America legally until 1989. Antiques with proper certification could be imported after that. But in mid-February the administration announced that if you had followed the law, it planned to render your collection or inventory essentially valueless.

The new guidance from the U.S. Fish and Wildlife Service indicated that most every auctioneer, collector, and dealer—and anyone else who has purchased or received something made of ivory—better hire a lawyer before selling their ivory possessions. 

The prospective rules are biased against average folks. If you represent the non-profit cultural establishment, you’ll get around the rules.

Point one, no “commercial” imports even of antiques will be allowed. However, the rules apparently will exempt “museum and educational specimens.” According to the administration’s reasoning, non-profit institutions will have a unique right to continue driving elephants to extinction.

Point two, exports are banned, except antiques in what the government calls “exceptional circumstances.” But “certain noncommercial items” will be allowed, so people with friends in government likely will be able to hurdle any new burdens in a single bound. Everyone else better hire a lawyer or lobbyist.

Freedom on Film

It’s Oscar time again, and once again there are some Best Picture nominees of special interest to libertarians. Dallas Buyers Club is a terrific movie with a strong libertarian message about self-help, entrepreneurship, overbearing and even lethal regulation, and social tolerance. 12 Years a Slave is a profound and painful movie about the horrors of slavery in a country conceived in liberty. Philomena is a tender personal story that sharply attacks the Catholic church and its censorious attitude toward sex, themes that would resonate with some libertarian viewers. This wasn’t the best year for libertarian movies – 2000 was pretty good – but libertarians will have some rooting interest Sunday night.

As I told Washington Post film critic Ann Hornaday in 2005, “America is basically a libertarian country, so Americans are going to put libertarian themes into the art they create, and sometimes it’s more explicit and sometimes it’s less so. But it’s not a big surprise to see individualism, anti-totalitarianism and fighting for freedom and social tolerance showing up in American art.” Here are some of my favorite examples (and of course they’re not all American):

Shenandoah, a 1965 film starring Jimmy Stewart, is often regarded as the best libertarian film Hollywood ever made. Stewart is a Virginia farmer who wants to stay out of the Civil War. Not our fight, he tells his sons. He refuses to let the state take his sons, or his horses, for war. Inevitably, though, his family is drawn into the war raging around them, and the movie becomes very sad. This is a powerful movie about independence, self-reliance, individualism, and the horrors of war. (There’s also a stage musical based on the movie that’s worth seeing, or you could listen to the antiwar ballad “I’ve Heard It All Before” here.)

War may be the most awful thing men do, but slavery is a close contender. Steven Spielberg’s Amistad (1997) tells a fascinating story about a ship full of Africans that turned up in New England in 1839. The question: Under American law, are they slaves? A long legal battle ensues, going up to the Supreme Court. Libertarians like to joke about lawyers. Sometimes we even quote the Shakespeare line, “The first thing we do, let’s kill all the lawyers” — not realizing that that line was said by a killer who understood that the law stands in the way of would-be tyrants. Amistad gives us a picture of a society governed by law; even the vile institution of slavery was subject to the rule of law. And when the former president, John Quincy Adams, makes his argument before the Supreme Court, it should inspire us all to appreciate the law that protects our freedom.