Affirmative Action: Two Views from the Academy

First comes Michael Bérubé, a professional academic who is evidently bereft of experience in the real world. His qualifications for writing about affirmative action? He teaches undergraduate courses in American and African-American literature, and graduate courses in literature and cultural studies. He is also co-director of the Disability Studies Program, housed in the Rock Ethics Institute at Penn State.

Writing from the ivory tower for the like-minded readers of The Nation ("And Justice for All"), Bérubé waxes enthusiastic about the benefits of affirmative action, which -- to his mind -- "is a matter of distributive justice." Bérubé, in other words, subscribes to "the doctrine that a decision is just or right if all parties receive what they need or deserve." Who should decide what we need or deserve? Why, unqualified academics like Bérubé, of course. Fie on economic freedom! Fie on academic excellence! If Bérubé and his ilk think that a certain class of people deserve special treatment, regardless of their qualifications as workers or students, far be it from the mere consumers of the goods and services of those present and future workers to object. Let consumers eat inferior cake.

Bérubé opines that "advocates of affirmative action have three arguments at their disposal." One of those arguments is that

diversity in the classroom or the workplace is not only a positive good in itself but conducive to greater social goods (a more capable global workforce and a more cosmopolitan environment in which people engage with others of different backgrounds and beliefs).

Perhaps Bérubé knows the meaning of "capable global workforce." If he does, he might have shared it with his readers. As for a workplace that offers a "cosmopolitan environment" and engagement "with others of different backgrounds and beliefs" I say: where's the beef? As a consumer, I want value for my money. What in the hell does diversity -- as defined by Bérubé -- have to do with delivering value? Perhaps that's one reason U.S. jobs are outsourced. (I have nothing against that, but it shouldn't happen because of inefficiency brought about by affirmative action.) Those who seek a cosmopolitan environment and engagement with others of different backgrounds and beliefs can have all of it they want -- on their own time -- just by hanging out in the right (or wrong) places.

Alhough Bérubé seems blind to the economic cost of affirmative action, he is willing to admit that the practice has some shortcomings:

Affirmative action in college admissions has been problematic, sometimes rewarding well-to-do immigrants over poor African-American applicants--except that all the other alternatives, like offering admission to the top 10 or 20 percent of high school graduates in a state, seem to be even worse, admitting badly underprepared kids from the top tiers of impoverished urban and rural schools while keeping out talented students who don't make their school's talented tenth. In the workplace, affirmative action has been checkered by fraud and confounded by the indeterminacy of racial identities--and yet it's so popular as to constitute business as usual for American big business, as evidenced by the sixty-eight Fortune 500 corporations, twenty-nine former high-ranking military leaders and twenty-eight broadcast media companies and organizations that filed amicus briefs in support of the University of Michigan's affirmative action programs in the recent Supreme Court cases of Gratz v. Bollinger and Grutter v. Bollinger (2003).

Stop right there, professor. Affirmative action is "popular" because it's the law and it's also a politically correct position that boards of directors, senior corporate managers, and government officials, and military leaders can take at no obvious cost to themselves. Further, those so-called leaders are sheltered from the adverse consequences of affirmative action on the profitability and effectiveness of their institutions by imperfect competition in the private sector and bureaucratic imperatives in the government sector.

As I wrote in "Race, Intelligence, and Affirmative Action," here's how affirmative action really operates in the workplace:

If a black person seems to have something like the minimum qualifications for a job, and if the black person's work record and interviews aren't off-putting, the black person is likely to be hired or promoted ahead of equally or better-qualified whites. Why?

• Pressure from government affirmative-action offices, which focus on percentages of minorities hired and promoted, not on the qualifications of applicants for hiring and promotion.

• The ability of those affirmative-action offices to put government agencies and private employers through the pain and expense of extensive audits, backed by the threat of adverse reports to higher ups (in the case of government agencies) and fines and the loss of contracts (in the case of private employers).

• The ever-present threat of complaints to the EEOC (or its local counterpart) by rejected minority candidates for hiring and promotion. Those complaints can then be followed by costly litigation, settlements, and court judgments.

• Boards of directors and senior managers who (a) fear the adverse publicity that can accompany employment-related litigation and (b) push for special treatment of minorities because they think it's "the right thing to do."

• Managers down the line learn to go along and practice just enough reverse discrimination to keep affirmative-action offices and upper management happy.

As if in answer to Bérubé's reflexive defense of affirmative action, now comes Richard Sander, another academic, but one who actually looks at the numbers. Sander, a professor of law at UCLA who has published "A Systematic Analysis of Affirmative Action in American Law Schools," is without a doubt a liberal of the modern persuasion and a proponent of diversity. He is nevertheless critical of affirmative action as it is practiced at law schools. Here's the gist of his analysis, as reported at FindLaw:

The Heavy Weight Placed on Race in Admissions in Virtually All Schools - the Cascade Effect

Professor Sander lays the foundation for his critique by describing the kind of race-based affirmative action that law schools use today. Under the Bakke and Grutter Supreme Court precedents, public (as well as private) law schools are prohibited from making use of quotas, two-track admissions schemes, or fixed points added to the numerical indices of minorities....

Professor Sander argues that, in fact, the Michigan law school program, despite its seeming flexibility and inscrutability, employs race in just as ambitious (critics would say aggressive) a way as did the Michigan undergraduate plan [which the U.S. Supreme Court found unconstitutional in Gratz]....

Moreover, and more important, Sander argues, the way race is used at the Michigan law school is the same way race is used in many if not most law school affirmative action programs. Indeed, Sander says that he has "been unable to find a single law school in the United States whose admissions operate the way Justice O'Connor describes in Grutter" - that is, where race is used as a flexible plus factor that does not effectively dominate over all other diversity criteria. The system of aggressive racial preferences is not, Sander says, confined to the "elite" law schools. Rather, "it is a characteristic of legal education as a whole."

According to Sander, law school affirmative action across law schools is characterized by a "cascade" effect. As the elite schools "snap up" the blacks who otherwise would have been admitted to and have attended the next tier of schools, that next tier of schools snaps up the blacks who would have otherwise attended the tier below. And so forth.

The Mismatch Effect

This systematic cascade phenomenon is important, because when race is being used so weightily in schools all the way down the ladder, the result is that the African Americans who are admitted to each school under an affirmative action program are significantly less numerically qualified than are their white competitor students at that school, who were admitted outside the affirmative action plan. Sander calls this phenomenon the "mismatch" effect - black beneficiaries of affirmative action are "mismatched" at schools whose non-affirmative action students possess better credentials and skills.

Because of the pronounced mismatch effect that extends down the law school hierarchy, blacks tend to suffer poor grades in law school. According to the data Sanders adduces, the median black law student's GPA at the end of the first year of law school places him at the 7^th or 8^th percentile of his class. Put another way, more than 50% of black law students are in the bottom one-tenth of their law school class (in terms of grades) at the end of the first year.

The Long-Term Costs of the Mismatch Effect - Bar Passage and Job Placement

This poor academic performance in law school, in turn, creates two distinct costs for African Americans. First, Sanders argues, the poor grades lead to a very poor bar passage rate. As he points out, "only 45% of black law students in the 1991 cohort completed law school and passed the bar on their first attempt." That number is far worse than the comparable number for whites.

Sanders goes on to argue that many of these blacks with poor grades would have had better grades - and have ended up with a higher chance of passing the bar - if they had been at law schools more commensurate with their academic skills. Sander's data suggests to him that black students at any law school who have the same law school grades as white students at that school pass the bar in the same percentages. In other words, blacks with good law school grades don't fail the bar any more than whites with the same grades.

The problem, Sanders suggests, is that law schools have "mismatched" blacks in schools where they are unlikely to get good grades. By placing black students in environments where their grades will be higher - less competitive law schools -- the system could improve their overall bar pass rate....

From all this, Sander argues that if race-based law school affirmative action were eliminated or reduced, the black bar passage rate would actually go up. According to his calculations, in the absence of preferential admissions, this rate would rise to 74% from the 45% he observed....

If affirmative action were eliminated, most black law students wouldn't be ousted from law school entirely - they would simply attend law schools that "match" their numerical credentials more tightly. In other words, elimination of affirmative action would simply eliminate the mismatch effect - blacks would simply be attending less competitive and less prestigious schools than they are currently attending. And of those blacks who would be displaced from the bottom of the legal academic system altogether (i.e., those who need affirmative action simply to get into the least competitive schools), many of them today do not end up passing the bar and entering the legal profession in any event....

Sander says that blacks at better schools, but with poor grades, get worse jobs than they would if they were at lesser schools and had better grades. In other words, Sander argues, at all but the most elite schools, grades matter more than the school from which one graduates for black law job applicants. The upside of attending a better school is more than outweighed - in terms of employment options - by the downside of getting weak grades at that school, compared to the better grades that could have been obtained at a less competitive school....

So whether one focuses on passing the bar, or getting a good job, Sander says, there is a case that race-based affirmative action hurts, rather than helps, black law students.

Sander's article has drawn howls of outrage from politically correct academicians, not to mention a long critique, to which Sander has responded at length. But Sander's fact-based argument make eminent sense, not only for the effects of reverse discrimination at law schools but also for the effects of reverse discrimination generally, in the academy and in the workplace.

As is often the case, a government policy meant to help a particular group of people actually harms that group of people -- and many others, as well. The effects of affirmative action illustrate the truth of the adage that there's no such thing as a free lunch. Instead of forcing universities and employers to accept and hire unqualifed blacks, it would be better -- for everyone -- simply to give education vouchers to blacks. Such a program would eliminate the costly effects of affirmative action, make blacks more productive, and lift them economically.

Favorite Posts: Affirmative Action and Race

Practical Libertarianism for Americans: Outline

I am posting this very long essay in parts (listed below). This is a work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .

I. Introduction

II. Terminology

Addendum to Part II: Notes on the State of Liberty in American Law

III. The Origin and Essence of Rights

IV. Liberty and Its Prerequisites

Addendum to Part IV: More Hayek

V. The Economic Consequences of Liberty

Addendum to Part V: The Destruction of Income and Wealth by the State

VI. The Broken Promise of Liberty

VII. Redeeming the Promise of Liberty

VIII. Practical Libertarianism -- A Summary

Practical Libertarianism for Americans: Part I

This is a work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .

I. INTRODUCTION

This essay is an explanation and examination of libertarianism by a libertarian who comes to his "faith" from experience, rather than from the precincts of philosophy or law. Die-hard libertarians will find nothing new here but my particular interpretation of libertarianism. I am writing for neophyte libertarians and curious non-libertarians who seek a practical guide to the origins, principles, and policy implications of libertarianism.

My focus is on American libertarianism because the Constitution of the United States of America holds the promise of liberty. Building on that promise, Americans can strive to perfect liberty in the United States. But the rest of the world isn't bound by our Constitution, and it is foolish to think that the rest of the world prizes America's liberty. America's stance toward the rest of the world should, therefore, be aimed first at preserving the lives and liberty of Americans. We should next strive to promote America's prosperity through free trade -- to the extent that trade doesn't weaken our defenses. Finally, we should intervene diplomatically and militarily in the affairs of other nations to the extent that such intervention is necessary to preserve the lives, liberty, and prosperity of Americans. And we must be prepared to intervene until that glorious day when the whole world (or any part of it that may threaten us) is bound in -- and acts according to -- a constitution of liberty. America's sovereignty and strength is the shield of America's liberty, imperfect as it may be. The terms of intervention are debatable, the need for it is not.

What is libertarianism, and why should you embrace it? Here is a formal definition of libertarianism, which has disappeared from Wikipedia but survives (for now) at wordIQ.com:

Libertarianism is a political philosophy which advocates individual rights and a limited government. Libertarians believe that individuals should be free to do anything they want, so long as they do not infringe upon what they believe to be the equal rights of others. In this respect they agree with many other modern political ideologies. The difference arises from the definition of "rights". For libertarians, there are no "positive rights" (such as to food, shelter, or health care), only "negative rights" (such as to not be assaulted, abused or robbed). Libertarians further believe that the only legitimate use of force, whether public or private, is to protect these rights….

Here's my rendition:

If you are doing no harm to anyone, no one should harm you physically, coerce you, defraud or deceive you, steal from you, or tell you how to live your life. "No one" includes government, except to the extent that government is empowered -- by the people -- to defend life, liberty, and property through the circumscribed use of police, courts, and armed forces.

Those principles are consistent with the concept of self-ownership: No one can "own" you; therefore, as a matter of principle, you can "own" no one else. You may vest limited power in government to defend your life, liberty, and property -- and to tax you just enough to defray the cost of that defense.

Whether or not you subscribe to the abstraction of self-ownership -- a concept that I will address later -- there are practical reasons to favor libertarianism. Think of yourself as a business. You know that you are good at producing certain things -- as a family member, friend, co-worker, employee, or employer -- and you know how to go about producing it. What you don't know, you can learn through education, experience, and the voluntary counsel of family, friends, co-workers, and employers. But you are unique -- no one holds the key to what you should produce, how you should produce it, and what you should do with the love, friendship, goodwill, and money you receive from others in return for producing it. If you are left to your own devices -- and as long as you don't harm, coerce, or steal -- you will make the best decisions about how to run the "business" of getting on with your life. When everyone is similarly empowered, a not-so-miraculous thing happens: As each person gets on with his or her own "business" of life, each person tends to make choices that others find congenial. As you reward others with what you produce for them, they reward you. If they reward you insufficiently, you can give your "business" to those who will reward you more handsomely.

If all of that seems too subtle, consider this, from Wikipedia:

Some libertarians do not attempt to justify their beliefs in any external sense; they support libertarianism because they desire the maximum degree of liberty possible within their own lives, and see libertarianism as the most effective political philosophy towards this end.

But remember that your liberty is only as secure as the liberty of your neighbors. If you use the law to advance your interests at your neighbors' expense, your neighbors can do the same thing to you.

I hope that this brief introduction to libertarianism entices you to read the rest of this essay, where I have more to say about the origins, principles, and practical implications of libertarian principles for Americans. (I will have little to say about the many internecine controversies of libertarianism. For a taste of those controversies go here and here, for example, and follow the links.)

As you read what follows, please keep these points in mind:

• Equality before the law is a noble ideal, as long as the law serves everyone's liberty.

• Liberty is indivisible; to restrict economic liberty is to restrict social and political liberty.

• Prosperity is a concomitant of liberty, not its enemy.

• Prosperity isn't a zero-sum game. Absent corporate welfare and protective regulation (both of which are anti-libertarian), the wealthy get that way not by robbing others but by providing jobs, products, and services for them.

• Liberty comes from the people -- or the liberty-minded among them -- not from the state. Yet, the state -- properly governed by the people's representatives -- can serve as a bulwark of liberty.

• The American state's first and foremost obligation is to protect the lives and liberty of American citizens; the Constitution is not a suicide pact.

Finally, there are many paths to libertarianism, as I'll discuss. But there are libertarian purists who put great stock in following the "right" path. I'm not of that ilk. What matters, in the end, is whether you believe that life would be better with a much smaller, far less intrusive, and far less costly government -- one that's focused on defending your liberty -- and whether you act accordingly.

Practical Libertarianism for Americans: Part II

This is a work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .

II. TERMINOLOGY

Introduction

American law -- that is, the Constitution of the United States, the constitutions of the 50 States, statutory law, and case law -- effectively recognizes two fundamental types of right: liberty and its opposite, which I will call privilege. Liberty and privilege are implemented through procedural rights (e.g., a qualified right to vote, a qualified right to Social Security benefits). There is much confusion about "freedom" -- which sometimes means "liberty" and often means more than that -- so, I prefer "freedom of action." The concatenation of rights and "freedoms" in America has evolved through the influence of politics on government, under the aegis of the state.

In this part of "Practical Libertarianism for Americans" I explain what I mean by the italicized words and phrases of the preceding paragraph.

A Right

I will use this definition, from Wikipedia:

At its most fundamental, a right is a claim, on other persons, that is acknowledged and reciprocated among the principals associated with that claim. The most basic of rights is a principle of interaction between people which amounts to the simplest version of the Golden Rule (do unto others as you would have them do unto you). In other words, it is a mutually beneficial agreement between two or more people; each of them agrees to behave in a certain way towards the others so that they will behave in the same way towards him/her….

Liberty

The core of libertarianism is liberty: briefly, the negative right to be left alone -- in one's person, pursuits, and property -- as long as one leaves others alone. I am using "liberty" here to encompass what the Founders intended by "life, liberty, and the pursuit of happiness" in the Declaration of Independence. But in the libertarian ideal -- unlike the world of the Founders -- the right of liberty is an equal right, one that should be enjoyed by all persons.

I will leave aside, for the moment, the basis of liberty; that is, whether it is innate in human beings (akin to Original Sin), or a primordial "instinct" that has been honed through eons of conflict resolution, or a desideratum that humans sometimes strive to attain through politics and warfare.

I will say here that libertarians do not believe that liberty is somehow a gift of the state, though something like liberty may be secured through the creation of a state -- as in the American experience.

A person living in liberty receives nothing from others by compulsion. The only legitimate role for the state is to protect peaceful, honest citizens from predators, both foreign and domestic.

Privilege

A privilege, by contrast to liberty, is a positive right, that is, a grant of special (unequal) treatment. As Wikipedia puts it (in the context of defining rights):

Other than [the reciprocal behavior exemplified by the Golden Rule], an entity (person or group) can make any sort of claim on other persons, but those claims remain simple assertions until the other persons acknowledge that claim as binding upon them. At that point, the claim becomes a privilege (a one-sided acknowledged claim). If all parties (including the originating claimant) also agree to reciprocate acknowledgement of such a claim, it becomes applicable to all, that is, applicable to everyone in the same sense and at the same time, and thus a right….

A small, bonded group of persons (e.g., a band of hunter-gatherers) may consent mutually to the acceptance of a privilege as a right, if all stand to benefit from the privilege (e.g., sharing of food in the event of drought). But such conditions are inconceivable for the United States (or for almost any political entity within the United States), where laws made by a bare majority of a relatively small legislative body -- or by a few members of a regulatory body -- can be enforced by the coercive power of government.

Law-made privileges result in the direct and indirect redistribution of income and wealth through welfare and regulation. We tend to think of welfare as a subsidy or other special treatment based on age, gender, race, level of income, infirmity, or other condition of being. Welfare also includes unequal taxation; e.g., progressive taxation of personal income, a city's granting of tax breaks to entice a business to locate there.

Regulatory privileges are accorded by specifying the conditions of economic activity for the purpose of promoting certain outcomes (e.g., "protecting" domestic manufacturers from foreign competition) and proscribing other outcomes (e.g., prohibiting the sale of certain types of drugs before they undergo a lengthy approval process). Regulation in the name of "protecting the public" is really a privilege because it (a) is accomplished by an elite group, (b) usually provides psychic satisfaction for a group of do-gooders, and (c) often does not protect the public. (The most egregious example of spurious protection of the public is the Food and Drug Administration's lengthy process for the approval of new drugs, which does more harm than good.)

Privilege therefore differs fundamentally from liberty in that it attempts to make some persons better off through the compulsion of others persons, with the result that it usually makes almost everyone worse off. (I will have more to say about the effects of the welfare-regulatory regime in a later part of this essay.)

Procedural Rights

Liberty and privilege are given force through procedural rights. Certain elements of the Bill of Rights (e.g., freedom of speech, freedom from arbitrary searches) are, in effect, procedural rights -- guarantees of freedoms that are inherent in the concept of liberty. The qualified right to vote is a procedural right that is thought to be necessary to the preservation of liberty. (The right to vote -- coupled with the desecration of the U.S. Constitution -- actually ensures the creation and entrenchment of privileges, thus eroding liberty.)

There are many, many procedural rights that flow from law-made privileges. Perhaps the most notorious example is the preferential treatment of blacks in university admissions and hiring.

Freedom of Action

"Freedom" is often used as a synonym for liberty. In practice, freedom usually means freedom of action, which includes the freedom to choose from among many options. For example, the definition of freedom in Wikipedia includes this example:

Economic freedom means having more choices due to being wealthy or having more economic choices and not being subject to very many natural or institutional constraints....

Economic freedom, among the other things that we call freedom, may very well arise from privilege, not liberty. Economic freedom is really freedom of action. To avoid confusion, I will not use freedom as a synonym for liberty.

Politics, the State, and Government

I defer again to Wikipedia regarding politics:

Politics is the process and method of decision-making for groups of human beings. Although it is generally applied to governments, politics is also observed in all human group interactions including corporate, academic, and religious....

In sum, politics precedes the state, and continues within and independently of the governance of a state. As for the distinction between state and government, here is Wikipedia again:

Looked at from the point of view of an individual nation, the state is a centralized organization of the whole country. Those studying this dimension emphasize the relationship between the state and its people. The English political philosopher Thomas Hobbes argued that in order to avoid a multi-sided civil war, in which life was "nasty, brutish, and short," individuals must necessarily surrender many of their rights -- including that of attacking each other -- to the "Leviathan", a unified and centralized state. In this tradition, Max Weber and Norbert Elias defined the state as an organization of people that has a monopoly on legitimate violence in a particular geographic area. Also in this tradition, the state differs from the "government": the latter refers to the group of people who make decisions for the state....

Although I subscribe to the Hobbesian view that life in the state of nature is "nasty, brutish, and short" -- thus necessitating the state's near-monopoly on violence -- I do not subscribe to the Hobbesian view that individuals surrender rights to the state. Rather, I hold the Lockean view of the Founders, which is that individuals can create a state in order to secure their rights -- in particular, their liberty rights -- while retaining those rights, and their ultimate sovereignty over the state. Among the rights retained by individuals is the right to self-defense, should the state fail in its duty to protect its citizens from predators of the foreign or domestic variety.

Practical Libertarianism for Americans: Addendum to Part II

This is a work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .

NOTES ON THE STATE OF LIBERTY IN AMERICAN LAW

As noted in Part II, I am using "liberty" to encompass the full spectrum of liberty rights, which the Founders captured in the phrase "life, liberty, and the pursuit of happiness." This fragmentary addendum is a provocative gloss on that evocative phrase.

Life

Liberty is nothing without life, of course. The right to life doesn't extend to those who would take your life: a foreign enemy who is scheming to harm the United States or an armed thug who breaks into your home, for example.

The state may act to preserve the life, liberty, and happiness of its citizens by going to war against their enemies, even at the cost of the lives of American warriors and foreign bystanders. The alternative -- stubborn, moralistic, libertarian "defensism"-- is an invitation to aggressors.

The state may act to preserve the life, liberty, and happiness of its citizens by punishing those who prey on their fellows, with execution as an ultimate form of punishment. Whether or not capital punishment succeeds in deterring homicide (and I believe that it does), there must be a hierarchy of certain penalties for crime, and that hierarchy must culminate in the ultimate penalty if criminals and potential criminals are to believe that crime will be punished.

But, in America, the state isn't supposed to hold a monopoly on righteous violence. Self-defense should be an absolute right when the police or armed forces of the state are not at hand, or when they fail in their protective duty. The right to self-defense implies the right to bear arms. It is no coincidence that the most rabid opponents of the right to bear arms are statist left-wingers whose politically correct agenda reveals scant regard for liberty. As a balanced commentary on the Second Amendment puts it:

[A] state facing a totally disarmed population is in a far better position, for good or ill, to suppress popular demonstrations and uprisings than one that must calculate the possibilities of its soldiers and officials being injured or killed.

Liberty

Liberty, narrowly understood, is a set of negative rights -- things that the state may not prevent individuals from doing unless and until they infringe on others' life, liberty, or pursuit of happiness. What are those negative rights? The U.S. Constitution enumerates specific rights in Article I, Section 9; the First through Eighth Amendments; and Amendments Thirteen, Fourteen, Fifteen, Nineteen, Twenty-Three, Twenty-Four, and Twenty-Six. The rights thus enumerated are a combination of purely negative liberty rights (e.g., freedom of speech, freedom of the press) and procedural safeguards of liberty (e.g., warrants issuing upon probable cause, no excessive bail).

Life and law and law are too complex to permit unadulterated rights, of course. Consider liberty of speech: the right to express one's views without prior restraint on the part of government (which does not mean immunity from criticism by private parties exercising their liberty of speech). Liberty of speech is fraught with limitations, most notably and recently the restrictions placed on the expression of one's political views through so-called campaign-finance reform. There are many other examples of restricted rights, but the point I'm making is this: Operating under the aegis of the state, the branches of government can, and do, collude to convert absolute liberty rights into circumscribed ones. I'll have more to say about the flight from the Framers' vision of liberty in Part VI.

The Framers envisioned rights other than those enumerated in the original Constitution and the First through Eighth Amendments of the Bill of Rights. Thus we have the Ninth Amendment, which says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." What rights did the Framers have in mind when they crafted the Ninth Amendment? What were those "certain unalienable rights," not included in "life, liberty and the pursuit of happiness" by the drafters of the Declaration of Independence? What more could there be, after liberty and its token (the right to vote) had been made universal by Amendments Thirteen, Fourteen, Fifteen, Nineteen, Twenty-Three, Twenty-Four, and Twenty-Six? It seems that Madison had nothing particular in mind:

It is clear from its text and from Madison's statement [upon presenting the Bill of Rights to the House of Representatives] that the [Ninth] Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

A mere 174 years after the ratification of the Ninth Amendment, the U.S. Supreme Court found discovered such a right, in the majority opinion in Griswold v. Connecticut (1965), delivered by Justice William O. Douglas:

[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance….Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."…

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."…

We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

To which Justice Potter Stewart, dissenting, replied (same source):

[T]o say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annual a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.

What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.

At the oral argument in this case we were told that the Connecticut law does not "conform to current community standards." But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases "agreeably to the Constitution and laws of the United States." It is the essence of judicial…duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.

Justice Hugo L. Black joined Justice Stewart's dissent, adding (same source):

The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used….For these reasons I get nowhere in this case by talk about a constitutional "right of privacy" as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional….

While I completely subscribe to the holding of Marbury v. Madison…and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of "civilized standards of conduct." Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination - a power which was specifically denied to federal courts by the convention that framed the Constitution….

[Justice Arthur Goldberg, who joined Douglas's majority opinion] has adopted the recent discovery that the Ninth Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks violates "fundamental principles of liberty and justice," or is contrary to the "traditions and [collective] conscience of our people."….[O]ne would certainly have to look far beyond the language of the Ninth Amendment to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine….That Amendment was passed, not to broaden the powers of this Court or any other department of "the General Government," but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the "[collective] conscience of our people" is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that for a period of a century and a half no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention.

Having been cautioned against over reliance on the Ninth Amendment, the Court shifted ground, somewhat, in deciding for abortion (Roe v. Wade) and private, consensual, homosexual conduct between adults (Lawrence v. Texas) as a matter of due process. Here is Justice Anthony Kennedy, writing for the Court in Lawrence v. Texas:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

In other words, the majority found repugnant a Texas law against homosexual conduct, and so ruled that the law denied equal protection because it applied to the class of persons who practiced acts prohibited by that law. I suppose that if the Court found repugnant the Texas law that sets a 70 mile per hour speed limit on interstate highways in Texas, the Court would undo that law on the ground that it doesn't afford equal protection to speeders.

You may like the outcomes in Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas because they seem to be in keeping with the essence of liberty, which is the right to be left alone. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in "penumbras, formed by emanations" of the Constitution. A Court that can do such things is a Court that can just as easily interpret the law so as to restrict liberty, all in the name of meeting a pressing social need -- as it has in done in many instances, some of which I will discuss in Part VI. The Court has gone down many a slippery slope, and I am especially concerned about the slippery-slope implications that its decisions on abortion might hold for euthanasia, as I will discuss in Part VIII.

It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt's play about Sir Thomas More, A Man for All Seasons:

Roper: So now you'd give the Devil benefit of law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that.

More: Oh? And when the last law was down--and the Devil turned round on you--where would you hide? Yes, I'd give the Devil benefit of law, for my own safety's sake.

(Thanks to The Delian's Commonwealth for the dialogue, which I had remembered in essence but forgotten in detail.)

The Pursuit of Happiness

The "pursuit of happiness" gives a somewhat more positive cast to the concept of liberty. The pursuit of happiness is the advancement of one's personal satisfaction, wherever that may lie, as long as that pursuit doesn't trample the liberty of others. The pursuit of happiness necessarily includes the right to acquire and use property for the purpose of advancing one's satisfaction.

The law seems bent on making happiness ever more elusive. Take smoking, for example. Governments now routinely prohibit smoking in their office buildings and in certain other places (e.g., bars, restaurants, and public parks). Such prohibitions usually are justified because of some research that links cancer to second-hand smoke. Given the uncertain state of the science on that score, it's safe to say that smoking prohibitions serve mainly to satisfy the desire of non-smokers to avoid exposure to an irritant that makes their clothing smell bad. It's also safe to say that the crusade against smoking is a form of reverse class warfare in which well-educated, well-paid, non-smokers are striving to dictate the mores of their social and economic "inferiors." Instead of allowing the market to provide non-smoking bars and restaurants -- which surely the market would do, given the relatively low incidence of smoking these days -- do-gooders rush in to ban informed risk-taking (smoking) in the pursuit of happiness. Why not outlaw sky-diving? No, it's a yuppie sport, can't do that.

The anti-smoking crusade is a relatively benign manifestation of the modern reign of censoriousness. Sexual harassment laws and campus speech codes (many of them extant at government-run universities) are aimed directly at stifling the pursuit of happiness by limiting what we may say within the hearing or vision of the easily offended. For, who can deny that happiness is sometimes found in the enjoyment of humor and other forms of expression -- which is sometimes racist, sexist, or just plain crude. And who is to say what forms of expression are out-of-bounds? Apparently not just the offended person, the offended person's employer (who has a right to establish conditions of work), or the offended person's friends. No, the majesty of the law must be invoked. Thus, saying the wrong thing in front of the wrong person in the workplace can get you fired, and it can get your employer in big trouble, too. Saying the wrong thing in front of the wrong person on campus can get you expelled.

In sum, it's becoming ever more difficult to pursue happiness without violating the burgeoning "right" not to be offended, even if the offense does no harm. (If being offended is being harmed, then how can "we" allow James Carville and Chris Matthews to spew their idiocies over the "public" airwaves?) Happiness is becoming a positive right -- a privilege -- which allows those who are merely offended by the words and actions of others to control those words and actions through the law.

Summary

The great forest of American law -- which imperfectly sheltered life, liberty, and the pursuit of happiness until the 1930s -- has since been laid waste in the pursuit of various Devils, among them: self-defense (at home and abroad), personal responsibility (the main antidote of poverty, illiteracy, and crime), lower-class vices (smoking), (white) racism, (male) sexism, "offensive" (non-leftish) speech, "excessive" political spending and speech (especially by non-incumbents), all forms of pollution (except those necessary to finance a yuppie's lifestyle and to propel his SUV), and life's uncertainties in general. Now we are in the open, practically defenseless against the biggest Devil of all -- the state -- which dictates how much of life, liberty, and happiness we may enjoy.

I will have more to say about this in Part VI: "The Road Not Taken in American Law."

Practical Libertarianism for Americans: Part III

This is a work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .

III. THE ORIGIN AND ESSENCE OF RIGHTS

This is where I where I enter a debate that splits libertarianism into two camps: fundamentalists and consequentialists. Fundamentalist (or "natural right") libertarians say that humans inherently possess the right of liberty. Consequentialists say that humans ought to enjoy liberty because, through liberty, humans are happier and more prosperous than they would be in its absence. In spite of this rather fundamental split, all libertarians agree that it is better to live in liberty than not. (For more about this debate, read the online symposium, The Transformation of Libertarianism?.)

I stand with the consequentialists. Fundamentalist libertarianism reduces liberty to a matter of faith. If libertarianism cannot stand on more than faith, what makes it any better than, say, socialism or the divine right of kings?

The virtue of libertarianism, as I will discuss in Parts IV and V, is not that it must be taken on faith but that, in practice, it yields superior consequences. Superior consequences for whom, you may ask. And I will answer: for all but those who don't wish to play by the rules of libertarianism; that is, for all but predators and parasites.

I will focus in this part on the question whether liberty is an inherent right and the only right that arises from human nature. Libertarians must understand such things before they can hope to convince others that libertarianism is a superior political philosophy.

My Hypothesis

I begin with the negative right of liberty and its opposite -- the positive right of privilege -- both of which I defined in Part II.

Fundamentalist libertarians argue that the only right is liberty -- the right to be left alone as long as one leaves others alone -- and that it is a natural right with which human beings are endowed a priori. In one rendition, liberty is immanent -- something that simply is in human nature, perhaps as a gift from God. In another rendition, humans are endowed with liberty as a logical necessity, because humans own themselves.

But appeals to immanence and self-ownership are no more meaningful than appeals to faith. Such appeals fail because they take liberty as a first principle. Liberty, which is a condition of existence, cannot be a first principle, it can only serve the first principle of existence, which is self-interest. Only experience (of the right kind) and reason can show that liberty serves self-interest.

The appeal to liberty as a first principle is unconvincing, except to those who already want to believe in the immanence of liberty because they understand that liberty serves their self-interest. A belief in the immanence of liberty -- whether it is God-given or simply axiomatic -- is a skyhook: "a materially unsupported (and thus implausible) entity or process."

The concept of self-ownership as the basis of liberty is simply another skyhook. Yes, "I" am "me" and not "you," but what gives me the right to be left alone by you, without sharing your burdens? Where does my self-ownership come from? Who or what imprinted it on me? And there we are, searching for a skyhook.

Rights -- though they can exist without the sanction of government and the protection of a state -- are political. That is, although rights may arise from human nature, they have no essence until they are recognized through interpersonal bargaining (politics), in the service of self-interest. It is bargaining that determines whether we recognize only the negative right of liberty, or the positive right of privilege as well. The preference of human beings -- revealed over eons of coexistence -- is to recognize both liberty (usually constrained to some degree) and privilege (which necessitates constraints on liberty).

The problem for libertarians, therefore, is to convince the body politic of two complementary truths: Self-interest dictates that liberty should be the paramount right. The recognition of privilege as a co-equal right undermines the benefits that flow from liberty.

Immanence and Self-Ownership, Scrutinized

A First Look at Immanence

Liberty, as I have said, is my right to be left alone as long as I leave others alone. Is it really a right? If it is, what makes it a right -- a claim that you are obliged to respect -- and not merely my desire? Nothing. Until you accept my "right," it is merely a desire on my part.

If I do not think that my liberty right descends from God, or is a Platonic universal, or is somehow innate to me as a human being, who are you to say that it is one of those unprovable things? If you do say it, you are merely substituting dogma for reason. Moreover, you are putting me at the mercy of your dogma. For, you have assumed the power to define my "right," which means that my "right" isn't really a right but, rather, an arbitrary and capricious construct of your mind.

My "right" to be left alone actually begins as a desire on my part. If you have the same desire, we can agree to respect each other's claim. We will then have created a right from a common desire.

By the same token, if we also agree that we will come to each other's aid in a time of emergency, we will have created another right from a common desire. For, a right "is a claim, on other persons, that is acknowledged and reciprocated among the principals associated with that claim."

A Second Look at Immanence

Some readers may still object that rights cannot be created or defined by human beings. Those who object are likely to say that rights simply "are" -- that they exist in and of themselves and require no recognition or agreement.

Suppose that you and I are the only two persons in the world, and you harm me. Have you violated my right to be left alone, or have you simply harmed me? There is no essential difference, unless you had already agreed to leave me alone. If you had done that, then you have violated our contract, and my obligation to leave you alone is at an end.

I say, therefore, that rights arise from human desires (yearnings) and are agreed through political bargaining among humans (either before or after the creation of a state). Then, to be realized (given effect), those rights must be enforced by someone or something: individuals acting in self-defense, by stateless groups (e.g., bands of hunter-gatherers), and even by the state, if it happens to be the right kind of state (e.g., the one envisioned by the Founders of the United States).

I say that rights do not necessarily depend on the existence of a state, but do arise from politics because politics "is the process and method of decision-making for groups of human beings…[which] also observed in all human group interactions…." And those "group interactions" began long before the creation of a state. As Wikipedia puts it, "rights must be understood by somebody in order to have legal existence, so the understanding of rights is a social prerequisite for the existence of rights."

Now, even if politics has transformed my desire to be left alone into a right, that right is meaningless to me unless it is enforced -- by me, by my friends, by my community, or by the state. I may have the right to be left alone, but if that right is violated by a thug, having the right does me no particular good, especially if the thug does me irreparable harm. The only good that can come from such a harm is swift and severe punishment of the thug -- as a lesson to him and others -- and the redoubling of vigilance among my friends, my community, or the state to prevent other acts of thuggery.

A Third Look at Immanence

Consider the following though experiment:

1. If I am alone in the world, it is meaningless for me to say that I have the right to be left alone by other humans, as long as I leave them alone. Why would I need such a notion? And where would I get such a notion, from God or my "nature" as a human?

2. If I am in the world with one other person -- call him Joe -- do I have the right to be left alone by Joe? What gives me that right? God? My "nature" as a human? It is more likely that I developed a desire to be left alone because I caught Joe filching food that I had gathered, and had noticed that Joe is more interested in sleeping than gathering food, even though he looks well fed. In other words, experience and reason gave me the idea that Joe should leave me alone, so that I could devote my limited energy to my own survival -- to my self-interest.

3. Does Joe have the right to be provisioned by me? A libertarian fundamentalist would say "no"; my right to be left alone is a "real" right because it's a negative right that places no demands on Joe, whereas Joe's desire to be provisioned is a positive right that places demands on me. Well, given that Joe and I are alone in the world, who decides that my right to be left alone is real, whereas Joe has no right to place demands on me? At this point, the fundamentalist would have to deploy the skyhook of immanence or self-ownership.

4. Thus, as far as I'm concerned, I have the desire to be left alone but I don't have the right to be left alone, unless Joe agrees to leave me alone in exchange for something (my leaving him alone, perhaps). Then I have a right and Joe has a right -- and we created those rights by a political process (i.e., interpersonal bargaining), in the absence of a third party authorized by (or imposed on) Joe and me to define and enforce our rights (i.e., the state). In the absence of the state, Joe and I must rely on each other (and self-defense) to enforce our rights -- as we have defined and agreed them.

5. Women come onto the scene, and Joe and I beget progeny. Our progeny pick up on the idea that being left alone as a right, and they establish a state that they empower to enforce that right. And so it goes...until a bigger, badder band of humans comes upon the scene. What happens to the right to be left alone if the bigger, badder band of humans (flying the banner of a predatory state) doesn't recognize the right to be left alone? Joe's and my progeny can -- through their state -- fight to defend that right. I hope they win, but if they lose, they can no longer exercise the right to be left alone. Do they still have the right to be left alone. In their minds, yes, but not in the minds of the citizens of the predatory state.

Now, I have explained how I think rights come into being, but until a fundamentalist libertarian explains how he thinks the liberty right comes into being I can only conclude that he must think that (a) everyone has the same conception of rights -- a proposition that seems to defy experience -- or (b) everyone is somehow (mystically) endowed with the same right to liberty.

Does the Immanence of Liberty Arise from Self-Ownership?

Perhaps the answer to my challenge lies in the self-ownership argument. That argument, as forumalated by Robert Nozick, goes like this (according to R.N. Johnson's summary of the political philosophy of Robert Nozick):

The self-ownership argument is based on the idea that human beings are of unique value. It is one way of construing the fundamental idea that people must be treated as equals. People are "ends in themselves". To say that a person is an end in herself is to say that she cannot be treated merely as a means to some other end. What makes a person an end is the fact that she has the capacity to choose rationally what she does. This makes people quite different from anything else, such as commodities or animals. The latter can be used by us as mere means to our ends without doing anything morally untoward, since they lack the ability to choose for themselves how they will act or be used. Human beings, having the ability to direct their own behavior by rational decision and choice, can only be used in a way that respects this capacity. And this means that people can't be used by us unless they consent.

The paradigm of violating this requirement to treat people as ends in themselves is thus slavery. A slave is a person who is used as a mere means, that is, without her consent. That is, a slave is someone who is owned by another person. And quite obviously the reverse of slavery is self-ownership. If no one is a slave, then no one owns another person, and if no one owns another person, then each person is only owned by herself. Hence, we get the idea that treating people as ends in themselves is treating them as owning themselves.

In summary (and reverting to my relationship with Joe):

1. I own myself because I am capable of making rational choices for myself.

2. If Joe "uses" me without my consent (e.g., enslaves me or steals food from me), he is denying my self-ownership.

3. Therefore, when Joe "uses" me he is treating me as a means to an end, whereas I am an end in myself because I own myself.

Oops. I went in a circle. I own myself; therefore, I can't be used by Joe, because I own myself.

Nozick's proposition amounts to nothing more than the assertion that everyone must act from the same principle. Immanuel Kant made essentially the same assertion in his categorical imperative:

Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.

Well, what if the person making that statement believes that his end is to be a slave-owner -- and he has the power to make me a slave?

The fact is that people, all too often, do not act according to Nozick's or Kant's imperatives. As Dr. Johnson said, I refute it thus: Look around you.

Self-Interest Trumps Philosophy

Returning to my old friend Joe, why should he not steal my food if he thinks he can get away with stealing it? (He might even think that I would steal from him if he had food and I didn't have any.) Joe -- being Joe, and knowing nothing of immanence and self-ownership -- must be given a reason not to steal my food. It probably wouldn't matter to Joe if I were to tell him that I wouldn't steal his food. After all, Joe doesn't have any food, except what he steals from me. Joe might stop stealing my food if I were to tell him that I'll hurt him if he doesn't stop. But that would work only if I were bigger and faster than Joe, and if I were willing to spend time watching out for Joe instead of gathering food. In any event, Joe is willing to run the risk of being hurt by me because he thinks that stealing is in his self-interest: Stealing enables Joe to enjoy a lot of leisure, which he prizes.

The most likely way to deter Joe's thieving is for me to tell him that I will send a group of my friends to beat him up if he doesn't desist. Joe may then be convinced that he'd be better off if he were to stop stealing my food and become self-reliant. And he probably would be better off, once he becomes used to the idea of gathering his own food. It's called the pursuit of self-interest.

Am I suggesting that might makes "right"? No! It's just that the right to liberty can't be pulled out of the air in the form of propositions about immanence and self-ownership. Those are philosophical "oughts" that cannot, in themselves, dictate the "is" of human behavior. It is the actuality of human behavior that matters. To influence that, we must turn to reason -- for the acceptance of the proposition that liberty serves self-interest -- and (as necessary) to the use of force to compel adherence to the dictates of reason.

For, the logic of liberty, as I have said, lies in its superior consequences. Liberty can prevail through mutual assent. But it will not always prevail through mutual assent, because the yearning for liberty competes with other aspects of human nature. The upshot is that humans, for the most part, fail to comprehend that unalloyed liberty is the best servant of self-interest.

Humans in the State of Nature

Human instincts -- as they have accrued over eons and become "hard wired" -- are far from purely libertarian. Consider this (from Denis Dutton's review of Paul H. Rubin's Darwinian Politics: The Evolutionary Origin of Freedom:

The scene of evolution is the Environment of Evolutionary Adapted-ness, the EEA, essentially the Pleistocene, the whole, long period lasting from 1.6 million years ago up until the shift to the Holocene with the invention of agriculture and large settlements 10,000 years ago. Our present intellectual constitution was achieved by about 50,000 years ago, or 40,000 before the Holocene....It was in the earlier, much longer period that selective pressures created genetically modern humans....

Rubin’s summary of the political impulses and preferences of the Pleistocene presents a mixed and contradictory picture. This makes it possible for most political theorists to find inspiration for a favored point of view somewhere in hunter-gatherer psychology. Looking at life in the EEA, fascists and militarists can take heart, and so can Rawlsian egalitarians, Peter Singer socialists, and liberals of either the free-market or welfarist stripe. Still, the big picture for Rubin shows behavioral tendencies that we ignore at our peril. One, for example, is that as practiced in recent U.S. history, affirmative action programs are liable to create social friction and undermine the legitimacy of the state, perhaps outweighing benefits of such programs in the long term....

Before anyone jumps to the conclusion that Rubin is using evolution­ary psychology merely to support his own political predispositions (an antipathy to affirmative action being one of them), we should note what he says about libertarianism. Rubin confesses that libertarianism — the minimal interference by the state in the life of the individual — appeals to him personally: “in a libertarian regime, government would define and protect property rights, enforce contracts, and provide true public goods, but would do nothing else.” That is obviously not what people want, or there would have been more libertarian governments, Rubin says. Libertarianism was not a viable strategy for the EEA. The actions of individuals produce by-products to affect whole communities, and “we have evolved preferences to control these actions.” We are genetically predisposed, it seems, “to interfere in the behavior of others,” even where the behavior has little demonstrable adverse effect on a community....We are fundamentally meddlesome creatures.

Rubin speculates that this impulse to control our fellows, even in matters that have little or no material effect on living standards or resource allocation, is an adaptation designed to increase group solidarity.

More support for the notion that we humans are essentially communitarian and meddlesome creatures comes from Alan Fiske's essay, "The Inherent Sociability of Homo Sapiens":

People typically seek to join with others and belong, to defer and take responsibility for others, to exchange gifts and take turns for the sake of the social relationships themselves. It is rare for social interaction to be primarily a means to extrinsic asocial ends; the only people who persistently organize their lives this way are sociopaths. Sometimes people even buy and sell for the satisfaction of the social game, not just for the material objects they acquire. Even when people act in pursuit of material goods, they typically do so for the sake of the social significance of the goods: to create or transform social relationships. Your house, your car, your clothes, your meals, and of course your money mediate your relationships with your social world. Even your health or your life may be valuable to you primarily because of the social relationships that it permits.

The inherent sociability of Homo sapiens must stem from the adaptive advantages to our ancestors of socially organized production, exchange, consumption, decision-making, moral judgment, and sanctioning. Our unique communicative abilities, complex technical capacities, and delayed maturation resulted in unique opportunities for kin selection and reciprocal altruism to generate ultrasocial adaptations. These adaptations involve extraordinarily strong social motives, such that humans need to engage in relationships—and are strongly disposed to judge and sanction others.

One of the "drawbacks" of liberty -- which carries with it responsibility for one's own future -- is that responsibility is in conflict with instant gratification. On the other hand, one allure of statism (e.g., communism) and communitarianism (e.g., quasi-socialist "welfare democracy") is the (false) sense of being provided for without first having to work and save. Work by David Stephens ("Impulsive behavior may be relict of hunter-gatherer past") suggests that

taking rewards without hesitation may have paid off for our foraging ancestors, as it does for blue jays and other foragers. Modern society forces us to make either-or decisions about delayed benefits such as education, investment and marriage; the impulsive rules that work well for foragers do more harm than good when applied in these situations.

"Impulsiveness is considered a big behavior problem for humans," said Stephens. "Some humans do better at binary decisions like 'a little now or a lot later' than others. When psychologists study kids who are good at waiting for a reward, they find those kids generallly do better in life. It looks as though this is a key to success in the modern world, so why is it so hard for us to accept delays? The answer may be because we evolved as foragers who encountered no penalties for taking resources impulsively.

Finally, J. Philippe Rushton suggests that

evolution has shaped people's attitudes of social responsibility making them genetically inclined to help others.

"People are innately good," said J. Philippe Rushton, professor of psychology at the University of Western Ontario, "…If educational systems, families, and preaching all stopped tomorrow, children would still grow up with "social glue.'"…

[Rushton's] study compared identical twins with non-identical twins to see how much they agreed on 22 questions, such as "I am a person people can count on," "It is important to finish anything you have started," and "Cheating on income tax is as bad as stealing," using a scale from 1 (strongly disagree) to 5 (strongly agree). Answers are known to predict real-life behavior such as whether a person votes in elections or volunteers to help others….

If monozygotic [identical] twins agree more than dizygotic [fraternal] twins it suggests that that morality has a biological basis and is part of our evolved psychology.

The answers of the identical twins were almost twice as alike as those of the non-identical twins. The results showed that genes account for 42% of the individual differences in attitudes, growing up in the same home for 23%, and differences within the same home for the rest….

In previous research Rushton has shown that genes influence people's levels of altruism and aggression--including feelings of empathy like enjoying watching people open presents and acts of violence such as fighting with a weapon. Rushton has also demonstrated that the male sex hormone testosterone sets the levels of aggression and altruism.

When asked about his findings Prof. Rushton noted, "They join a host of recent research in showing that both genes and upbringing influence almost every human behavior. It is especially interesting to see that this applies to moral attitudes."

The key point here is not the particular brand of "goodness" or "social glue" being touted by Rushton -- which smacks of communitarianism -- but the apparent fact that "moral attitudes" of the kind outlined by Paul Rubin, Alan Fiske, and David Stephens seem to be genetically and environmentally heritable. We humans at are war with ourselves. Whatever longings we have for liberty are competing with our longings for communism (in its pure form), control, aggression, and gratification of a kind that isn't always compatible with liberty.

The Upshot: A Constellation of "Rights"

Is it any wonder, then, that political bargaining has led to the recognition of both privilege and liberty as fundamental rights? (See Part II for more about liberty, privilege, and rights.) We want liberty, but we also want things that are incompatible with liberty because the getting of those things requires taking from and controlling our fellow human beings. Consider, for example, the following excerpts of the UN's Universal Declaration of Human Rights, a collectivist manifesto that undoubtedly has billions more adherents (witting and unwitting) than libertarianism:

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status….

Article 3

Everyone has the right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination….

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks….

Article 22

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23

1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

2. Everyone, without any discrimination, has the right to equal pay for equal work.

3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

4. Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control….

Article 26

…Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups ….

Article 29

Everyone has duties to the community in which alone the free and full development of his personality is possible….

It begins in liberty and devolves into a platform that might have been written by any leftist political party in the world. In fact, it reads much like the de facto Constitution of the United States: the "living" Constitution that has been created through legislative, executive, and judicial assumption of powers neither granted nor intended by the pact of 1789.

Conclusion

I would like to be able to say, with fundamentalist libertarians, that liberty is an innate human right -- and the only innate right. But that would be nothing more than an assertion, however cleverly I might clothe it in the language of philosophy.

I would like to be able to say that liberty is a paramount human instinct, honed through eons of human existence and experience. But we are surrounded by too much evidence to the contrary, both in recorded and natural history. The social and intellectual evolution of humankind has led us to a mixed bag of rights, acquired politically through cooperation and conflict resolution, often predating the creation of governments and the empowerment of states. The notion that we ought to enjoy the negative right of liberty is there among our instincts, of course, but it is at war with the positive right of privilege -- the notion that we are "owed something" beyond what we earn (through voluntary exchange) for the use of our land, labor, or capital. Liberty is also at war with our instincts for control, aggression, and instant gratification.

I do not mean that the social and intellectual evolution of humankind is right -- merely that it is what it is. Libertarians must accept this and learn to work with the grain of humanity, rather than against it. There is no profit in simply asserting the inherent wrongness of laws and government actions that undermine liberty. Nor is there much profit in arguing the unconstitutionality of illiberal laws and government actions; it is obvious that appeals to the Constitution will be of little avail unless and until we have a Supreme Court that abides wholeheartedly by the Constitution.

There can be much profit in demonstrating, logically and factually, how illiberal laws and government actions make people worse off -- often the same people who are supposed to benefit from those laws -- and in offering superior alternatives. In other words, consequentialist libertarianism can make real gains for liberty by appealing successfully to self-interest. But self-interest must be seduced by reason (Part IV) and bribed by the promise of greater rewards (Part V).

Practical Libertarianism for Americans: Part IV

This is a work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .

IV. LIBERTY AND ITS PREREQUISITES

Introduction

In Part II, I defined libertarianism and the liberty right in this way:

The core of libertarianism is liberty: briefly, the negative right to be left alone -- in one's person, pursuits, and property -- as long as one leaves others alone. I am using "liberty" here to encompass what the Founders intended by "life, liberty, and the pursuit of happiness" in the Declaration of Independence.

In sum, the liberty right is a triune concept, with life as its basis and the pursuit of happiness (personal satisfaction or self-interest) as its end.

I argued in Part III that the liberty right is neither innate in humans nor a right that flows exclusively from the evolution of human behavior:

I would like to be able to say, with fundamentalist libertarians, that liberty is an innate human right -- and the only innate right. But that would be nothing more than an assertion, however cleverly I might clothe it in the language of philosophy.

I would like to be able to say that liberty is a paramount human instinct, honed through eons of human existence and experience. But we are surrounded by too much evidence to the contrary, both in recorded and natural history. The social and intellectual evolution of humankind has led us to a mixed bag of rights….The notion that we ought to enjoy the negative right of liberty is there among our instincts, of course, but it is at war with the positive right of privilege -- the notion that we are "owed something"….Liberty is also at war with our instincts for control, aggression, and instant gratification.

As I said also in Part III:

The virtue of libertarianism…is not that it must be taken on faith but that, in practice, it yields superior consequences. Superior consequences for whom, you may ask. And I will answer: for all but those who don't wish to play by the rules of libertarianism; that is, for all but predators and parasites.

By predators, I mean those who take liberty from others, either directly or through the coercive power of the state. By parasites, I mean those who seek to advance their self-interest through the coercive power of the state rather than through their own efforts. I also classify as parasites those who seek political power for its own sake or on the basis of their service to parasites. (The term "parasites" doesn't include those persons who are truly incapable of taking care of themselves. Such persons, in fact, stand to benefit from liberty, as I will discuss in Part V.)

In other words, a people who band together in liberty -- and who successfully defend their liberty against encroachments from within and without -- not only will be able to pursue happiness, but also will reap greater happiness (call it personal satisfaction or well-being, if you will). For, the pursuit of happiness isn't a zero-sum game; you can advance your happiness by helping me advance mine, and vice versa. But we can do so only if we are at liberty to do so -- untrammeled by predators, parasites, and constraints -- other than those constraints of law and custom that help to secure our liberty. A firm, communal commitment to liberty is therefore a matter of self-interest to all but predators and parasites.

The Evolution of Libertarian Thought: The Unification of Economic and Personal Liberty

Libertarianism, like physics, has evolved from rudimentary beginnings. Physics has evolved because physicists have expanded their store of facts about the physical world and found truer ways of describing the forces that make the universe what it is -- in the large and in the small. Libertarianism has evolved beyond the assertion that humans have "certain unalienable rights" because such thinkers as Adam Smith (1723-90), John Stuart Mill (1806-73), and Friedrich A. Hayek (1899-1992) observed the workings of society -- in all of its aspects -- and told us how liberty serves self-interest.

Smith, writing in The Wealth of Nations (1776), took libertarianism a step beyond its mystical origins in the writings of Locke and that proto-Communist, Rousseau: Here is Smith:

As every individual, therefore, endeavours as much as he can both to employ his capital in the support of domestic industry, and so to direct that industry that its produce may be of the greatest value; every individual necessarily labours to render the annual revenue of the society as great as he can. He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it. By preferring the support of domestic to that of foreign industry, he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for the society that it was no part of it. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it.

Smith wasn't a libertarian by today's standards, but his understanding of the economic benefits of free markets put us on the road to empirical (consequentialist) libertarianism.

Then came Mill, who recognized the value of liberty in non-market behavior. Wikipedia tells us that Mill's vastly influential essay, On Liberty (1859), is

about the nature and limits of the power which can be legitimately exercised by society over the individual. One argument that Mill formed was the harm principle, that is, people should be free to engage in what ever behaviors they wish as long as it [sic] does not harm others.

That's the sum of Mill's argument. Now, the meat of it. First, with regard to freedom of speech, Mill says, in Chapter II of On Liberty:

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.

In other words, freedom of speech advances the truth, and we are better off for knowing the truth, however much we might resent hearing it in some instances. Similarly, in Chapter III Mill argues that we are better off if we respect individuality rather than impose uniformity of behavior:

As it is useful that while mankind are imperfect there should be different opinions, so is it that there should be different experiments of living; that free scope should be given to varieties of character, short of injury to others; and that the worth of different modes of life should be proved practically, when any one thinks fit to try them. It is desirable, in short, that in things which do not primarily concern others, individuality should assert itself. Where, not the person's own character, but the traditions of customs of other people are the rule of conduct, there is wanting one of the principal ingredients of human happiness, and quite the chief ingredient of individual and social progress.

Having established the importance of freedom of speech and action, how does Mill balance these freedoms in a societal context? In Chapter IV, Mill says this:

Though society is not founded on a contract [though the government of the United States is founded on a contract: ED], and though no good purpose is answered by inventing a contract in order to deduce social obligations from it [touché, Rousseau: ED],...the fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct towards the rest. This conduct consists first, in not injuring the interests of one another; or rather certain interests, which, either by express legal provision or by tacit understanding, ought to be considered as rights; and secondly, in each person's bearing his share (to be fixed on some equitable principle) of the labours and sacrifices incurred for defending the society or its members from injury and molestation. These conditions society is justified in enforcing at all costs to those who endeavour to withhold fulfillment. Nor is this all that society may do. The acts of an individual may be hurtful to others, or wanting in due consideration for their welfare, without going the length of violating any of their constituted rights. The offender may then be justly punished by opinion, though not by law....In all such cases there should be perfect freedom, legal and social, to do the action and stand the consequences.

That is, the state acts legitimately when it punishes those who attack our liberty, and it may tax us for its protective services. But a person who merely says or does something that offends others may be punished only by the force of opinion and reason, to which he may or may not choose to bow.

But Mill comes up short in Chapter V:

Again, trade is a social act. Whoever undertakes to sell any description of goods to the public, does what affects the interest of other persons, and of society in general; and thus his conduct, in principle, comes within the jurisdiction of society: accordingly, it was once held to be the duty of governments, in all cases which were considered of importance, to fix prices, and regulate the processes of manufacture. But is now recognised, though not till after a long struggle, that both the cheapness and the good quality of commodities are most effectually provided for by leaving the producers and sellers perfectly free, under the sole check of equal freedom to the buyers for supplying themselves elsewhere. This is the so-called doctrine of Free Trade, which rests on grounds different from, though equally solid with, the principle of individual liberty asserted in this Essay. Restrictions on trade, or on production for purposes of trade, are indeed restraints; and all restraint, quâ restraint, is an evil: but the restraints in question affect only that part of conduct which society is competent to restrain, and are wrong solely because they do not really produce the results which it is desired to produce by them. As the principle of individual liberty is not involved in the doctrine of Free Trade, so neither is it in most of the questions which arise respecting the limits of that doctrine....

Thus, despite his acknowledgment that commerce is a social act, and despite having made a good defense of free trade, Mill posits an essential difference between personal and economic liberty.

It was left to Hayek to unify personal and economic liberty. Virginia Postrel, writing in The Boston Globe, explains:

Hayek's most important insight, which he referred to as his "one discovery" in the social sciences, was to define the central economic and social problem as one of organizing dispersed knowledge. Different people have different purposes. They know different things about the world. Much important information is local and transitory, known only to the "man on the spot." Some of that knowledge is objective and quantifiable, but much is tacit and unarticulated. Often we only discover what we truly want as we actually make trade-offs between competing goods."

The economic problem of society," Hayek wrote in his 1945 article ["The Use of Knowledge in Society"], "is thus not merely a problem of how to allocate `given' resources -- if `given' is taken to mean given to a single mind which deliberately solves the problem set by these `data.' It is rather a problem of how to secure the best use of resources known to any of the members of society, for ends whose relative importance only these individuals know. Or, to put it briefly, it is a problem of the utilization of knowledge which is not given to anyone in totality."

The key to a functioning economy -- or society -- is decentralized competition. In a market economy, prices act as a "system of telecommunications," coordinating information far beyond the scope of a single mind. They permit ever-evolving order to emerge from dispersed knowledge.

"What's the single most important thing to learn from an economics course today?" economist Lawrence Summers said in an interview for "The Commanding Heights," Daniel Yergin and Joseph Stanislaw's 1998 study of the resurgence of economic liberalism. "What I tried to leave my students with is the view that the invisible hand is more powerful than the hidden hand. Things will happen in well-organized efforts without direction, controls, plans. That's the consensus among economists. That's the Hayek legacy." Summers, who was then deputy treasury secretary and is now president of Harvard, recently reaffirmed those views in an e-mail.

Information technology has strengthened Hayek's legacy. At MIT's Sloan School, Erik Brynjolfsson uses Hayek to remind students that feeding data into centralized computers doesn't necessarily solve a company's information problems. In any complex operation, there is too much relevant information for a single person or small group to absorb and act on.

"As Hayek pointed out, the key thing is to have the decision rights and the information co-located," says Brynjolfsson. "There are at least two ways of achieving that. One is to move information to decision maker. The other is to move decision rights to where the information is."

This analysis, which applies as much to culture as to economics, informs Hayek's best-known work, The Road to Serfdom, which he wrote as a wartime warning to a popular audience. Published in 1944 and dedicated "to the socialists of all parties," the book argued that the logic of socialist central planning implied the erosion of personal freedoms. Britain's well-intended socialists were headed down the same path as the National Socialists whose rise Hayek had witnessed in Austria....

[H]e argued that to fully control the economy meant to control all aspects of life. Economic decisions are not separate from individual values or purposes. They reflect those purposes."We want money for many different things, and those things are not always, or even rarely, just to have money for its own sake," explains Jerry Z. Muller, a historian at Catholic University...."We want money for our spouses or our children or to do something in terms of the transformation of ourselves -- for everything from plastic surgery to reading intellectual history or building a church. These are all noneconomic goals that we express through the common means of money."

Hayek argued that only in a competitive market, in which prices signal the relative values placed on different goods, can people with very different values live together peacefully. And only in such a market can they figure out how best to meet their needs and wants -- or even what those needs and wants are.

Postrel's précis captures the thrust of Hayek's argument, but not its richness. (For much more by and about Hayek see the addendum to this post.) Moreover, Postrel focuses on Hayek's warnings about the dangers of totalitarianism and central planning, which seemed imminent in the socialist-leaning Britain of 1944 and 1945. But, as Hayek argued so well, economic and personal (or social) liberty are always indivisible; an encroachment on one is necessarily an encroachment on the other. The modern welfare-regulatory state is far from totalitarian, but it smacks of totalitarianism in many of its actions -- and it is certainly very far from libertarian.

Consequentialist Libertarianism, in Summary

Smith observed that when we are at liberty to advance our own economic interests we must necessarily advance the economic interests of others.

Mill instructed us that personal freedoms should be preserved because through them we become more knowledgeable and more capable. Therefore, the state should intervene in our lives only to protect us from actual harm, as opposed to mere offense.

Hayek made the case that economic and personal liberty are inseparable: We engage in economic activity to serve our personal values, and our personal values are reflected in our economic activity. When the state restricts economic liberty, it necessarily restricts personal liberty, and vice versa. The state, simply cannot make personal and economic decisions more effectively than individuals operating freely within an ever-evolving socio-economic network.

To return to a metaphor from Part I, think of yourself as a business. You are good at producing certain things -- as a family member, friend, co-worker, employee, or employer -- and you know how to go about producing those things. What you don't know, you can learn through education, experience, and the voluntary counsel of family, friends, co-workers, and employers. But you are unique -- no one but you knows your economic and social preferences. If you are left to your own devices you will make the best decisions about how to run the "business" of getting on with your life. When everyone is similarly empowered, a not-so-miraculous thing happens: As each person gets on with the "business" of his or her own of life, each person tends to make choices that others find congenial. As you reward others with what you produce for them, economically and socially, they reward you in return. If they reward you insufficiently, you can give your "business" to those who will reward you more handsomely. But when government meddles in your affairs -- except to protect you from actual harm -- it damages the network of voluntary associations upon which you depend in order to run your "business" most beneficially to yourself and others. The state can protect your ability to run the "business" of your life, but once you let it tell you how to run your life, you compromise your ability to make choices that are right for you.

Thus liberty serves self-interest. And it is self-interest that should motivate us to embrace liberty -- not a belief in a mystical essence that is somehow innate in humans.

The Prerequisites of Liberty

If only it were as easy to enjoy liberty as it is to explain how it serves self-interest. But the attainment of liberty -- or an approximation of it -- requires several things of a band, tribe, or nation:

• an agreement among a controlling faction that liberty is the paramount right;

• the willingness and ability of that faction to defend liberty against predators and parasites;
  

• forbearance from meddling in the economic and social affairs of individuals, except to deter and punish actual harms; and

• replacement of the controlling faction and/or curtailment of its power when it uses that power to subvert liberty.
  

It is easy to agree to the fundamentalist view that humans ought to enjoy liberty "just because." (After all, there are precious few persons who don't want liberty for themselves, "just because.") But it is equally easy to abandon the fundamentalist view because of its shallowness. A welfare-state demagogue, by contrast, has at his disposal many spurious arguments that appeal to self-interest.

It is best, therefore, if the commitment to liberty arises from an understanding of consequentialist libertarianism. But the consequentialist view is subtle and non-intuitive. It is the philosophical equivalent of special relativity: Just as one cannot move rapidly in space without slowing time, one cannot enjoin the government to intervene in private affairs without diminishing the welfare of all but predators and parasites.

The defense of liberty against predators is the easier defense to arrange, but only relatively so, as we know from the long-running debates about how to deal with foreign enemies and domestic criminals. It is rather more difficult to defend liberty from parasites: those who seek privilege, for themselves or on behalf of others. The difficulty of that defense arises in part from the subtlety of consequentialism, in part from meddlesome and collective human instincts that conflict with liberty, and in part from the inevitability that those who are entrusted with power will sooner or later abuse it.

Forbearance from meddling in the socio-economic order implies laissez-faire, except to prevent or remedy an actual harm (discussed below). As Hayek pointed out, liberty requires a degree of stability in society; otherwise, how can you decide, with any degree of confidence, what sort of life and livelihood to pursue? Of course, there can be such a thing as too much stability (as Hayek also argued), as well as too much instability. Thus it is equally damaging to liberty to use the law to bar interracial marriage, to foster affirmative action as it is practiced in the United States, to prohibit smoking on private property, or to regulate economic activity on the basis of environmental hysteria rather than sound science.

To paraphrase what I wrote here, you may want government to meddle in certain private matters because that meddling seems to advance liberty. But it should bother you that government can just as easily restrict liberty, all in the name of meeting a pressing social or economic need. Government has taken liberty down a slippery slope, and every instance of meddling -- always for a "good" cause -- creates a precedent for another step down the slope. It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt's play about Sir Thomas More, A Man for All Seasons:

Roper: So now you'd give the Devil benefit of law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that.

More: Oh? And when the last law was down--and the Devil turned round on you--where would you hide? Yes, I'd give the Devil benefit of law, for my own safety's sake.

Not only are economic and social liberty indivisible, but also is liberty itself indivisible. To reap the full benefit of liberty we must be willing to accept "bad" outcomes as well as "good" ones. That is, we must adhere to the principle of liberty and ignore the occasionally unhappy outcome that flows from it. For, as I will discuss further in Parts V and VI, liberty can improve the lot of all but predators and parasites.

By what criteria, then, should we decide where to draw the line between governmental action and private action? I propose these principles:

1. Government may not act or condone action (e.g., civil litigation) except when it seeks to deter, prevent, or remedy an actionable harm to liberty.

2. An actionable harm to liberty is one that arises or would arise directly from the commission of a specific act or acts by any person or entity, domestic or foreign. An expression of thought is not an act, for this purpose.

3. An expression of thought cannot be an actionable harm unless it

a. intentionally obstructs or would obstruct governmental efforts to deter, prevent, or remedy an actionable harm (e.g., divulging classified defense information, committing perjury),

b. intentionally causes or would cause an actionable harm (e.g., plotting to commit an act of terrorism, forming a lynch mob), or

c. purposely -- through a lie or the withholding of pertinent facts -- causes a person to act against self-interest in an economic transaction (e.g., misrepresenting a product, inflating a corporation's statement of earnings).

4. An expression of thought cannot be an actionable harm until it has led or will lead directly to the commission of an act. A mere statement of fact, belief, opinion, or attitude cannot be an actionable harm, regardless of the subject of the statement, unless it amounts to slander or libel (both of which are offenses against liberty). Othewise, those persons who do not care for the facts, beliefs, opinions, or attitudes expressed by other persons would be able to stifle speech they find offensive merely by claiming to be harmed by it.

5. An act of omission (e.g., the refusal of social or economic relations because of some form of bias), other than a breach of contract or duty, cannot be an actionable harm. It is incompatible with liberty for government to judge voluntary actions that are not otherwise actionable harms.

In other words, to enjoy the benefits of liberty we must enjoy broad latitude of action (or inaction), speech, and thought.

When the controlling faction persistently abridges the principles of liberty it must be replaced and/or its power must be curtailed. I am cynical about the ability of any controlling faction to resist the thrall of power. The more feasible alternative is to garner enough support to curtail the power of government, a bit at a time. The deregulation movement is one example. The nascent movement toward federalism is another example. The effort to privatize Social Security is yet another example. I'll discuss such remedies in Parts VII and VIII.