Saturday, January 01, 2005

Practical Libertarianism -- A Summary

This post consists of extracts of my series, "Practical Libertarianism for Americans." I have smoothed and revised the original text for the sake of continuity and clarity. I have necessarily omitted many supporting details and links to sources, which can be found in the original posts. Each of the main section headings below links to a corresponding part of the series; this outline provides links to all parts of the series, including several addenda.


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 sovereignty and strength is the shield of America's liberty, imperfect as it may be.

What is libertarianism, and why should you embrace it? Here is a formal definition of libertarianism, which has disappeared from Wikipedia:
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.
There are varieties of libertarianism. (See this excellent post for a legal theorist's take.) In this post I'll explain the variety I prefer, why I prefer it, and why you should prefer it. But what matters, in the end, is not so much the variety you prefer as 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. America could fulfill the Constitution's promise of liberty if enough of us believed that.


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.

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.


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, a few members of a regulatory body, or a court can be enforced by the coercive power of government.

Law-made privileges result in the diminution of income and wealth -- in vast amounts, as I will show.

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. 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, in that context, means freedom of action, which may very well arise from privilege, not liberty. I will not use "freedom" as a synonym for "liberty."


Where do rights come from? And are liberty rights the only rights?

This is where I where I enter a debate that splits libertarianism into two main camps, which I call the fundamentalists and the consequentialists. Fundamentalist (or "natural rights") 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. (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 is not that it must be taken on faith but that, in practice, it yields superior consequences (as I will show in the next main section). 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.

My Hypothesis

Fundamentalist libertarians argue that the only right is liberty, 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.

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 again, 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.

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.
Whatever longings we have for liberty are in competition with our longings for control, among other innate urges that are incompatible with liberty -- aggressiveness, avarice, envy, mistrust, and sloth, among our baser instincts.

Is it any wonder, then, that political bargaining has led to the recognition of both privilege and liberty as fundamental rights? We want liberty, but our "dark side" also wants us to control others and extract privileges fom them. Every grant of privilege erodes liberty.


Earlier, 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.

But, as I have just argued, the liberty right is neither innate in humans nor a right that flows exclusively from the evolution of human behavior. It must be fought for, in the political sphere and on the battlefield. To win the political argument for liberty it is necessary to show that it yields superior consequences for all but those who don't wish to play by the rules of libertarianism; that is, for all but predators and parasites.

In the next two subsections I will sketch the intellectual argument for libertarianism and the political conditions for its success.

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

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 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.
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; there's nothing beneath the "just because." A welfare-state demagogue, by contrast, has at his disposal many plausible, anti-libertarian arguments that appeal to self-interest by purporting show how life will be better (for some, at least) with the adoption of this government program, that form of income redistribution, or yet another regulation.

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. 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.

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). Otherwise, 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 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 fairly successful deregulation movement is one example. The nascent and temporarily stalled movement toward federalism is another example. The struggling effort to privatize Social Security is yet another example.


The logical incompatibility of liberty and privilege doesn't keep most people from wanting both. People want to be left alone, but it seems that almost everyone also yearns for some version of the welfare-regulatory state. People seem to believe that government does things that are more valuable than the freedom of action they forego because government does things. Most Americans simply don't understand the true costs and illusory benefits of the welfare-regulatory state.

Absent the welfare-regulatory state, most of the poor would be rich, by today's standards. And those who remain relatively poor or otherwise incapable of meeting their own needs -- because of age, infirmity, and so on -- would reap voluntary charity from their affluent compatriots.

The Cumulative Cost of Government Intervention

The cumulative cost of government intervention can be approximated by analyzing trends in Gross Domestic Product. GDP has its limitations as a measure of happiness, because happiness -- or personal satisfaction or self-interest, if you prefer -- cannot be aggregated, nor can it measured entirely in dollars:
  • Not everything that makes us happy is included in GDP. A compelling if brief list of exclusions: early retirement, having children, parenting one's own children in lieu of paid employment, fresh air and unspoiled scenery, tranquility, and freedom from worry about crime. In fact, large numbers of Americans forgo income (which is captured in GDP) for the sake of such things as having children (the enjoyment of which isn't included in GDP).
  • Not everything that's for sale is included in GDP (e.g., illegal transactions and barter).
  • GDP captures many things of negative value (e.g., the cost of government programs that restrict freedom of choice; the cost of cleaning up pollution; and the amounts of money we spend on crime, traveling on congested highways, and trying briefly to escape the daily grind of urban living).
But money can buy happiness, although GDP has become an increasingly unreliable proxy for happiness because of the unavoidable -- and often undesirable -- correlates of economic growth, namely, population growth and social change. Nevertheless, as I will show, the net effect of government intervention has been to reduce the aspect of happiness that is represented by GDP. We have paid a steep price for such interventions as these:
  • direct spending on government operations and capital acquisitions
  • disincentives to work, innovate, and invest arising from taxation (especially taxes on income, and more especially progressive taxes on income)
  • disincentives to work and save arising from social programs and transfer payments (including, but certainly not limited to Social Security, Medicare, and Medicaid)
  • diminution of competition and efficiency through myriad laws and regulations that hamper the design, production, and sale of goods and services ranging from aspirin to yogurt
  • restrictions on voluntary exchange (e.g., minimum wage laws, compulsory recognition of labor unions, and imposition of tariffs).
There are bottom-up estimates of the cost of government intervention. The usual bottom-up estimate includes:
  • the cost of government purchases of goods and services for current operations and capital (buildings and equipment)
  • the value of government transfer payments, which take money from those who produce and give it to those who don't produce (as in the case of Social Security, Medicare, and Medicaid)
  • the amount by which social and economic regulations reduce the level of economic output.
Government purchases of goods and services plus transfer payments absorbed more than 30 percent of GDP in 2004: $3.6 trillion out of a GDP valued at $11.7 trillion. A credible estimate of the regulatory burden is 15 percent of GDP. Thus the productive sectors of the economy sacrifice something like 40 to 50 percent of their current output to fund government purchases, transfer payments, and regulatory compliance.

But that is only an estimate of the heavy hand which government lays on current economic output. It doesn't capture the cumulative effect that government intervention has had on economic activity. Actions by government that discourage or diminish work, saving, investment, competition, efficiency, and voluntary exchange have irretrievable, long-term, negative effects on economic output. Economic opportunities, once forgone, cannot be recovered; they compound, like negative interest.

Consider, for example, a capital investment that isn't made because of high taxation or oppressive regulation. The return on that investment would have produced income that would have funded other investments, which would have produced yet more income that would have funded yet more investments, and on and on, in a reverse accelerator effect. There's an analogous effect whenever current economic output is reduced because of a government action that discourages or distorts incentives to work, save, invest, innovate, compete, improve efficiency, or enter into a voluntary economic exchange.

And that's what has happened in America. Real (inflation-adjusted) GDP began to rise sharply after the Civil War, thanks mainly to the Second Industrial Revolution. Despite the occasional slump -- which the economy worked its way out of, thank you -- things continued to go well until about 1906. Then the trajectory of GDP growth fell suddenly, sharply, and (it seems) permanently:

Data on real GDP for 1870-2003 are from Louis Johnston and Samuel H. Williamson, "The Annual Real and Nominal GDP for the United States, 1789 - Present." Economic History Services, March 2004, URL: Real GDP for 2004 estimated by deflating nominal 2004 GDP by the increase in CPI between 2000 and 2004.

The stock market -- an accurate, if volatile, indicator of the nation's economic health -- corroborates my judgment about the downward shift in economic growth. After 1906, the S&P 500 (as reconstructed back to 1870) dropped to a new trendline that has a shallower slope and an intercept that is 48 percent lower than that of the trendline for 1870-1906.

Real S&P price index constructed from annual closing prices of the S&P 500 Composite Index (series "S&P 500® Composite Price Index (w/GFD extension)"), available at Global Financial Data, Inc., and the GDP deflator (see notes for previous chart).

How much wealth has been forgone because of the vast amounts of income that have been destroyed in the past 100 years? I can't hazard a guess. But by drawing on the data presented in the two preceding charts I can estimate how much higher stock prices would be today if government were no more intrusive than it had been a century ago (data for 1870-1906 are plotted in green, data for 1907-2004 are plotted in red):

These three charts depict vast destruction of income and wealth in the United States since the advent of the regulatory-welfare state around 1906. Before I turn to the bottom line, I should explain what happened around 1906 -- and since -- to cause that vast destruction of income and wealth.

First, the regulatory state began to encroach on American industry with the passage of the Food and Drug Act and the vindictive application of the Sherman Antitrust Act, beginning with Standard Oil (the Microsoft of its day). There followed the ratification of the Sixteenth Amendment (enabling the federal government to tax incomes); the passage of the Clayton Antitrust Act (a more draconian version of the Sherman Act, which also set the stage for unionism); World War I (a high-taxing, big-spending, economic-control operation that whet the appetite of future New Dealers); a respite (the boom of the 1920s, which was owed to the Harding-Coolidge laissez-faire policy toward the economy); and the Great Depression and World War II (truly tragic events that imbued in the nation a false belief in the efficacy of the big-spending, high-taxing, regulating, welfare state).

The stock-market debacle of 1916-20 was as bad as the crash of 1929-33 (see chart of real S&P price index, above), and the ensuing recession of 1920-21 was "sharp and deep," as the unemployment rate rose to 12 percent in 1921. But Americans and American politicians didn't panic and scramble to "fix" the economy by adopting one perverse scheme after another. Thus prosperity ensued.

But less than 10 years later -- at the onset of the Great Depression -- Americans and American politicians lost their bearings and joined Germany, Italy, and Russia on the road to serfdom. Most Americans still believe that government intervention brought us out of the Depression. That bit of shopworn conventional wisdom has been debunked thoroughly by Jim Powell, in FDR's Folly: How Roosevelt and His New Deal Prolonged the Great Depression, and Murray N. Rothbard, in America's Great Depression. The bottom line of FDR's Folly is stark:
The Great Depression was a government failure, brought on principally by Federal Reserve policies that abruptly cut the money supply; unit banking laws that made thousands of banks more vulnerable to failure; Hoover's tariff's, which throttled trade; Hoover's taxes, which took unprecedented amounts of money out of people's pockets at the worst possible time; and Hoover's other policies, which made it more difficult for the economy to recover. High unemployment lasted as long as it did because of all the New Deal policies that took more money out of people's pockets, disrupted the money supply, restricted production, harassed employers, destroyed jobs, discouraged investment, and subverted economic liberty needed for sustained business recovery [p. 167].
All we got out of the New Deal was an addiction to government intervention, as people were taught to fear the free market and to believe, perversely, that government intervention led to economic salvation. The inculcation of those attitudes set the stage for the vast regulatory-welfare state that has arisen in the United States since World War II. You know the rest of the story: Spend, tax, redistribute, regulate, elect, spend, tax, redistribute, regulate, elect, ad infinitum. We became locked into the welfare state by the 1970s; the resulting regulatory burden on Americans is huge and growing.

Now, for the bottom line:
  • Real GDP (in year 2000 dollars) was about $10.7 trillion in 2004.
  • If government had grown no more meddlesome after 1906, real GDP might have been $18.7 trillion (from the chart entitled "Real GDP: 1870-1906, 1907-2004").
  • That is, real GDP per American would have been about $63,000 (in year 2000 dollars) instead of $36,000.
  • That's a deadweight loss to the average American of more than 40 percent of the income he or she might have enjoyed, absent the regulatory-welfare state.
  • That loss is in addition to the 40-50 percent of current output which government drains from the productive sectors of the economy.
  • Moreover, the stocks of corporations in the S&P 500 are currently undervalued by one-third because of the depradations of the regulatory-welfare state, which have lowered investors' expectations for future earnings. (The effect of those lowered expectations is shown in the chart entitled "Real S&P Index vs. Real GDP.") And that's only the portion of wealth that's represented in the S&P 500. Think of all the other forms in which wealth is stored: stocks not included in the S&P 500, corporate bonds, mortgages, home equity, and so on.
That is the measurable price of privilege -- of ceding liberty piecemeal in the mistaken belief that one more government program, a bit more income redistribution, or yet another regulation will do little harm to the general welfare, and might even increase it.

Wrong, wrong, wrong! The sum of human happiness -- or that part of it which can be measured in dollars -- has been diminished drastically and permanently by the corrosive action of TR's Square Deal, FDR's New Deal, HST's Fair Deal, LBJ's Great Society, and the other statist agendas of the past 100 years.

Lesson Learned?

Unless Americans become aware of the extremely high and largely hidden cost of the regulatory-welfare state, they will remain addicted to it. For reliance on government is an addictive drug -- and a very expensive one. We swallow each dose in the hope that it will make us secure, and when that dose doesn't make us secure we swallow another dose, in the hope that that dose will make us secure. And on and on. In the end, we are left with nothing but a costly addiction to government that impairs our liberty therefore ruins our economic health.

What Americans have failed to understand, is that there is less risk of coming to harm in a free-market economy -- where individuals have an incentive to take care of themselves -- than there is of coming to harm in the regulatory-welfare state. (See my series of posts on "Fear of the Free Market," in three parts; my post on "Free Market Healthcare"; my post on "Why Class Warfare Is Bad for Everyone"; and my posts about income inequality.) Free people do not stay mired in poverty and tend not to repeat their mistakes, if they are allowed to learn from those mistakes. As Arnold Kling says:
Ultimately, it is people who make decisions in markets and in government. People are fallible in both settings. The difference is that in a market setting mistakes are corrected more quickly than in a government setting. Thus, even if markets were wrong nine times out of 10 and government were right nine times out of 10, over time markets would achieve better outcomes.
But Kling is too generous to government, the imperative of which is aggrandizement, not self-betterment. Government isn't the people and cannot replicate what people would do if they were allowed to do it for themselves. (See these excerpts of Hayek's writings and my post on "Socialist Calculation and the Turing Test.") Michael Munger says it well:
Bureaucracy can not be improved, because its very nature is incompatible with a society of free citizens who take responsibility for their own lives and their own choices. The incentives and hierarchies in the two forms are fundamentally different.

To put it most starkly, citizens may say, and believe, that the problem is unresponsive bureaucracy, or corruption, but these are the essential features of the governments of large nations. The solution is a citizenry that understands the economic and political forces that make government inherently incapable of carrying out the tasks we want to assign to it. But the mainstream media, nearly entirely innocent of knowledge of basic economic principles, has no hope of aiding such an understanding, and more often than not contribute to the "we can do better" mindset by carrying sensational stories of corruption inevitably followed by demands for reform.

Economics can be as abstruse as the physics of special relativity. But it rests on two things that are easily learned:
  • Incentives matter.
  • There's no such thing as a free lunch.
When people are deprived of incentives through taxation, regulation, and welfare, they are less able and willing to strive for themselves. And it is self-striving that leads people to do things that are valued by others. Regulation and welfare (the "free lunch") impose costs (bureaucratic overhead), where there otherwise would be no costs, and distort the free-market signals that tell people how they can do better for themselves by doing better for others.

Quo Vadimus?

Will Americans learn that incentives matter and that there is no free lunch? The battle over Social Security may tell the tale. If partial privatization succeeds, perhaps something close to full privatization might follow. After that, anything is possible: the end of Medicare and more vigorous deregulation, for example.

Help may be on the way. America -- in spite of the past 100 years of creeping and galloping statism -- may be on the verge of rapid economic growth. (See this, this, and this.) A sustained burst of growth would obviate the felt need for many facets of the regulatory-welfare state: When times are bad people turn to government for succor; when times are good, people have more confidence in their ability to take care of themselves.

Whether a new era of rapid growth materializes will depend greatly on our ability to retain our collective sanity in the face of environmental hysteria. (Go here and follow the links. See this, also.) There are market solutions (e.g., nuclear power and clean coal), but their implementation will be resisted by contemporary "Bootleggers and Baptists." ("Bootleggers" are market incumbents -- as represented by the American Medical Association and the American Bar Association, for example -- who benefit from the suppression of competition, as did bootleggers during Prohibition. "Baptists" are self-appointed guardians of our health and well-being -- the sum of all our risk-averse fears, you might say.)

The next several years will see a showdown between the forces of darkness and the forces of progress in America. The forces of darkness -- having already greatly diminished the general welfare in the name of improving it -- will seek to tighten the shackles of the regulatory-welfare state in the name of environmentalism. The forces of progress will seek to tame the regulatory-welfare state -- if not repeal it. But they will be labeled evil, greedy, know-nothings for trying to protect us generally from the predations of the welfare-regulatory state and particularly from the ravages of environmental hysteria. As Ludwig von Mises put it,
if a revolution in public opinion could once more give capitalism free rein, the world will be able gradually to raise itself from the condition into which the policies of the combined anticapitalist factions have plunged it.14 (Quoted by Bryan Caplan.)
I am doubtful of a revolution in public opinion, especially because it would require a revolution in elite opinion and in the media -- both of which are in thrall to the god of the regulatory-welfare state. As I will argue below, we have come to our present state because public opinion, elite opinion, and the media have combined to undo the great work of the Framers, whose Constitution prevented tyranny by the majority. Unchecked democracy has become the enemy of liberty and, therefore, of material progress. As Michael Munger says, "The real key to freedom is to secure people from tyranny by the majority, or freedom from democracy."


If liberty is so bounteous, why don't we enjoy it in full? Why are our lives so heavily regulated and legislated by so many federal, State, and local agencies at such a high cost? What happened to the promise of liberty given in the Declaration of Independence and Constitution? The answers to those questions are bound up in human nature and the nature of governance in a democracy.

Human Nature, Liberty, and Democracy

Here, I will say more about the impulses and machinations that undermine our feeble instinct for liberty. They are impulses and machinations that the Framers tried to keep in check, but which have nevertheless been given rein through the corruption of the Constitution. As I said above:
Whatever longings we have for liberty are in competition with our longings for control, among other innate urges that are incompatible with liberty -- aggressiveness, avarice, envy, mistrust, and sloth, among our baser instincts.
It is easy to endorse liberty in principle and yet be its enemy in practice. Our need for control and our baser instincts lead many of us to become politicians and cause most of us to succumb to political rhetoric. Most of us simply lack the requisite temperament, or vision, for libertarianism.

Thomas Sowell, in A Conflict of Visions: Ideological Origins of Political Struggles, posits two opposing visions: the unconstrained vision (I would call it the idealistic vision) and the constrained vision (which I would call the realistic vision). As Sowell explains, at the end of chapter 2:
The dichotomy between constrained and unconstrained visions is based on whether or not inherent limitations of man are among the key elements included in each vision....These different ways of conceiving man and the world lead not merely to different conclusions but to sharply divergent, often diametrically opposed, conclusions on issues ranging from justice to war.
Thus, in chapter 5, Sowell writes:
The enormous importance of evolved systemic interactions in the constrained vision does not make it a vision of collective choice, for the end results are not chosen at all -- the prices, output, employment, and interest rates emerging from competition under laissez-faire economics being the classic example. Judges adhering closely to the written law -- avoiding the choosing of results per se -- would be the analogue in law. Laissez-faire economics and "black letter" law are essentially frameworks, with the locus of substantive discretion being innumerable individuals.
By contrast,
those in the tradition of the unconstrained vision almost invariably assume that some intellectual and moral pioneers advance far beyond their contemporaries, and in one way or another lead them toward ever-higher levels of understanding and practice. These intellectual and moral pioneers become the surrogate decision-makers, pending the eventual progress of mankind to the point where all can make moral decisions.
In sum, it's all about trust and its opposite: control. You can trust others to do the right thing because it's to their benefit to do so, as it is in free markets and free societies. Or you can control others, economically and socially, through a morass of statutes, regulations, and judge-made law.

Trust doesn't mean an absence of rules, but the rules have only to be minimal, socially evolved rules of acceptable conduct, such as the Golden Rule or the last six of the Ten Commandments. The clearer and more intuitive the rules, the more likely they are to be enforced by self-interest, by fear of social opprobrium, and by pride in reputation -- with swift, sure, and hard justice as a backup.

But none of that goes down well with those who think that the road to happiness must be paved with hard-and-fast rules for everything and everyone. Otherwise, how would people know what to do?

The demand for control is fed by economic illiteracy, the prevalent failure to grasp such simple principles as these:
  • Incentives matter. Taxation, redistribution, and regulation result in the reduction and misdirection of economic activity and social trust.
  • There's no free lunch. Government can't provide something for nothing. It never could, it never will. Every governmental action has an opportunity cost: that which the private sector could do with the same resources. There's no such thing as "federal money" or "government money"; there's only "our money."
  • Government doesn't add value. At best it protects what we value, by defending us at home and abroad.
  • The economy isn't a zero-sum game. Bill Gates is immensely wealthy because he has created things that are of value to others. When Indian computer geeks man call centers for lower salaries than those of American computer geeks, it makes both Indians and Americans better off.
  • There's no such thing as "market failure." Rather, there is only failure of the market to provide what some people think it should provide. Even defense and justice (both classic examples of a "public good") could be provided by the market, as anarcho-capitalists aver, but minarchists (as I am) fear the consequences (warlord rivalry) and reluctantly trust in the state for those essential underpinnings of a free society.
Most people simply don't understand the consequences of the rules that they so fervently seek to impose on others. They have little idea of the measurable costs of intervention -- the 40-to-50 percent of GDP that goes into government programs, for instance -- and they have no idea of the hidden costs of that intervention -- the additionale of an additonal 40 percent of income and untold amounts of wealth. They simply cannot comprehend the indivisibility of economic and social liberty (though the Supreme Court's recent decisions in Raich and Kelo may open some eyes).

Control-seeking politicians -- most of whom also suffer from economic illiteracy -- are able to draw power from the masses by appealing to the insecurity and economic illiteracy of the masses. Once having drawn that power, they seek always to aggrandize it. What happens, then, is a ratcheting of government power, in response to never-ending demands for government to "do something" -- because government's previous efforts to "do something" have inevitably failed to achieve nirvana.

Thus we have been following a piecemeal route to serfdom -- adding link to link and chain to chain -- in spite of the Framers' best intentions and careful drafting. Why? Because the governed -- or dominant coalitions of them -- have donned willingly the chains that they have implored their governors to forge. Their bondage is voluntary, though certainly not informed. But their bondage is everyone's bondage.

As Michael Munger says, in "Democracy is a Means, Not an End,"
blanket endorsements of majority rule make me wonder whether democracy is a fraud or just a conceit. As William Riker pointed out in his 1982 book, Liberalism Against Populism, the claim that "fair" processes always, or even often, lead to "good" outcomes ignores much of what is known about institutions and institutional change. If people disagree, and if there are several choices, democracy is manipulable, even dictatorial....

The pretense that in the multitude we find rectitude is dangerous: many of us would love to impose our "wisdom" on others....

The real key to freedom is to secure people from tyranny by the majority, or freedom from democracy. The problem, then, is what Fareed Zakaria has called "illiberal democracy." The metaphor we use to understand ourselves matters, because it figures in how we try to advise others.

For much of modern history, what characterized governments in Europe and North America, and differentiated them from those around the world, was not democracy but constitutional liberalism. The "Western model of government" is best symbolized not by the mass plebiscite but the impartial judge. (Fareed Zakaria, The Future of Freedom, p. 20.)

The framers of the U.S. Constitution fully recognized that there is nothing, nothing at all, inherent in democracy that ensures the freedom of persons or property.

But because we have undone the work of the Framers (as I shall come to), we have descended to tyranny by the majority, where the majority is a loose but potent coalition of interest- and belief-groups bent on imposing its aims on everyone.

Unchecked democracy undermines liberty and its blessings. Unchecked democracy imposes on everyone the mistakes and mistaken beliefs of the controlling faction. It defeats learning. It undoes the social fabric that underlies civility. It defeats the sublime rationality of free markets, which enable independent individuals to benefit each other through the pursuit of self-interest. As "anonymous" says, with brutal accuracy, "Democracy is two wolves and a lamb voting on lunch."

The Framers' Work Undone

The Framers understood human nature as a natural enemy of liberty. That is why they strove to check the passions of the mob and the power of government. As Madison wrote in The Federalist Papers: No. 51:
It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

There are but two methods of providing against this evil....The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.
But a not-so-funny thing has happened on the way to the state of liberty foreseen by Madison and the other Framers: Human nature has overcame constitutional obstacles. The governed and their governors have conspired to undermine the Constitution's checks and balances. People, given their mistrustful and ignorant nature, have turned to government for "solutions" to their "problems." Government, in its turn, has seized whatever power is necessary to go through the motions of providing "solutions." For rare is the legislator who doesn't want to legislate, the executive who doesn't want to act, and the judge who doesn't want to exercise his judgment by interpreting the law rather than simply apply it.

The upshot is what I have called "The Erosion of the Constitutional Contract." It would be more accurate to say "the torture of the constitutional contract," which is now a twisted version of the Constitution that was crafted to perfect the promise of liberty given in the Declaration of Independence. Judge Douglas Ginsburg calls it the "Constitution-in-exile," referring to those parts of the Constitution that have been either ignored or twisted out of all recognition. Professor Randy Barnett, in his recent book, Restoring the Lost Constitution: The Presumption of Liberty, makes these key points, as summarized at Wikipedia:

Over the years, the Constitution's original meaning has been slowly eviscerated.

The necessary and proper clause has been read to allow Congress to do whatever they find convenient for exercising their enumerated powers, starting with the creation of a federal bank in McCullough vs. Maryland (1819).

The privileges and immunities clause has been interpreted as meaningless redundancy, starting with allowing Louisiana to create a slaughterhouse monopoly in The Slaughterhouse Cases (1873).

Violating the Ninth Amendment has become Supreme Court policy, starting with the famous footnote four of United States v. Carolene Products Co. (1938), which held that only rights listed in the first ten amendments could be protected by the courts. (Carolene Products itself ruled that Congress could prohibit entire forms of milk.)

The Tenth Amendment has been made meaningless, now that Congress has the power to do almost anything.

The Commerce Clause has been interpreted as allowing Congress to regulate practically anything, starting with meatpackers in Swift v. United States (1905) and going all the way to country clubs in Heart of Atlanta Motel v. United States (1964). (The unchecked expansion finally ended when the Court drew the line at carrying a gun in United States v. Lopez (1995), but even this was heavily contentious.)

The police power of the states has been ruled as having no limit.

The Second Amendment has simply been ignored.

The Fifth Amendment's takings clause has been neutered by reading "public use" as "public purpose".

The Lost Constitution of Liberty

The Constitution was meant to be a contract between the States, acting on behalf of their citizens. In that contract, the States cede certain powers to a government of the "united States," which is a creature of the States. Thus, for example, in Section 10 of Article I, the States voluntarily deny themselves certain powers that in Section 9 they vest in Congress -- creation of money, regulation of trade among the States and between the States and other nations, conduct of foreign relations, and conduct of war.

The Preamble lists the States' reasons for entering into the constitutional contract, which are " form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity...." These are ends desired, not outcomes promised.

To further these ends, the Constitution establishes a government of the united States, and authorizes it to enact, execute, and adjudicate laws within a delimited sphere of authority. The Constitution not only delimits the federal government's authority but also diffuses it by dividing it among the federal government's legislative, executive, and judicial branches.

The Framers knew what we are now only re-learning: Governments -- even representative ones -- have an insatiable hunger for power. More power in the hands of government means less power for individuals. Individuals are better off when they control their own lives than when government, directly or indirectly, controls their lives for them. Thus the constitutional contract rests on a few simple principles:
  • The Constitution and constitutional laws are the supreme law of the land, but only within the clearly delimited scope of the Constitution. (As Alexander Hamilton explained, the Constitution "expressly confines this supremacy to laws made pursuant to the Constitution." [From The Federalist Papers: No. 33.])
  • The federal government has no powers other than those provided for by the Constitution.
  • The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the federal government or reserved by the States in the creation of the federal government.
Moreover, the "checks and balances" in the Constitution are there to limit the federal government's ability to act, even within its sphere of authority. In the legislative branch neither the House of Representatives nor the Senate can pass a law unilaterally. In his sole constitutional role -- as head of the executive branch -- the President of the United States must sign acts of Congress before they become law, and may veto acts of Congress -- which may, in turn, override his vetoes. From its position atop the judicial branch, the Supreme Court is supposed to decide cases "arising under" (within the scope of) the Constitution, not to change the Constitution without benefit of convention or amendment.

The Constitution itself defines the sphere of authority of the federal government and balances that authority against the authority of the States and the rights of citizens. Although the Constitution specifies certain powers of the federal executive and judiciary (e.g., commanding the armed forces and judging cases arising under the Constitution), federal power rests squarely and solely upon the legislative authority of Congress, as defined in Article I, Sections 8, 9, and 10. The intentionally limited scope of federal authority is underscored by Amendments IX and X.

In spite of all that, we now have myriad statutes, regulations, and court rulings through which the federal government -- acting at the people's behest and in their name -- has arrogated unconstitutional power to itself (and sometimes to the States). And the people suffer.


Is it possible to redeem the Constitution's promise of liberty? And if so, by what route?

The Options, in Brief

Rebellion: The central government has more than enough power at its disposal to snuff out anything that smacks of rebellion. Most State governments, as presently constituted, would join the central government. The Spirit of '76 died at Appomattox Court House.

Secession: Secession is as unlikely as rebellion, for the same reasons. The idea of "taking over" a State, propounded by the Free State Project, seems to be going nowhere. And what's the good of taking over a State when the central government already has usurped most of the powers of the States and many of the liberties of their citizens?

Nullification: The nullification of unconstitutional federal statutes by the States has been proposed by no less than Jefferson and Madison and tried by South Carolina. But the idea is as doomed as rebellion and secession. Anyway, nullification is a recipe for legal chaos. If there is to be any kind of federal government -- as there must be, for the common defense and a few other things -- there must be a binding set of federal laws.

Jurisdiction stripping or departmentalism: Removing power from the courts or defying the courts would be good solutions if the courts were the only problem. But jurisdiction stripping and departmentalism, to the extent that they're constitutionally valid, leave us defenseless against legislative and executive fiat. That is why I reluctantly subscribe to the doctrine of judicial supremacy. (See here, here, here, and here.) In fact, I will argue here that the reconstitution of liberty in America depends on the reinstitution of pro-libertarian federalism through the Supreme Court.

Federalism: The Supreme Court could help the cause of liberty by going beyond the Rehnquist Court's rather halting steps toward federalism, that is, the devolution of power and rights to the States and the people, in accordance with the Constitution's original meaning. But for federalism to succeed, presidents must nominate the right judges, the Senate must confirm them, and the Supreme Court must roll back 70 years of unconstitutional legislation and judicial usurpation.

At this moment in history, federalism seems the most promising option because the Left is now beginning to understand that the power of the federal government may be used not only to advance its agenda but also to thwart that agenda. Leftists, like conservatives and pragmatic libertarians, may be willing to settle for a "good" solution rather than hold out for the "best" of all possible worlds. But, as I will explain, the way to federalism isn't through a collaboration between Left and Right.

The Left Discovers Federalism

The Left's strange new respect for federalism arises from its petulant reaction to Bush's re-election. Pejman Yousefzadeh, writing at Tech Central Station a few weeks after the election of 2004, produced a roundup of post-election reaction from the Left, in which he noted that
secession is being openly talked about as an option -- with this geographic arrangement being one of the more popular ones in quasi-serious secessionist corners.
Fantasies about secession then morphed into a discovery -- by the Left -- of the merits of federalism. Consider a post-election post by publius at Legal Fiction (a regressive blog), which includes these tidbits (with my comments in bolded brackets):
From the New Deal on, the courts allowed the legislature to have the final say-so on whether a given law was related to interstate commerce. Maybe the legislature was right, maybe it was wrong – but it was the final arbiter. In the 1990s, the Rehnquist Court (for the first time in over half a century) [unthinkable!] found that a congressionally enacted law did not relate to interstate commerce and was therefore unconstitutional. [Imagine that!] The Court ruled that the law was outside the Article I enumerated powers in a case called Lopez and later in a case called Morrison....

So here’s what’s coming – and this will be the “first front” against the New Deal’s legislatively-enacted regulatory state. [That's an almost-accurate description, but don't forget the judiciary's acquiescence.] If Republicans keep appointing judges, the number of laws found to be outside of the commerce power and Article I will grow. [One hopes.] In the beginning, they will be politically appealing decisions such as striking down federal laws banning medicinal marijuana. [Wrong!] But with the principle firmly established, the courts will move on to bigger game. Though I doubt any of them will have the guts [a Republicans-are-racists slur] to declare the Civil Rights Act unconstitutional (it was enacted under the commerce power), they could very well strike down the entire environmental regulatory regime. Jeffrey Rosen (via Kevin Drum) recently wrote an excellent article that outlined just how much the administrative state could be threatened.
In short, the greatest danger from a Bush Court is not the overruling of Roe v. Wade but the overruling of the post-New Deal regulatory state.
That’s 100% correct. Rosen also makes the astute observation that, just like in the political sphere, conservatives scream about social issues like abortion to distract Americans from the economic consequences of approving Republican judges. But Rosen misses an essential point. Things like the EPA and the Endangered Species Act and anti-discrimination laws and workplace protections were all legislatively approved by democratic majorities. [So what, if they aren't constitutional?] Conservatives cannot get a political majority to overturn the Clean Air Act, so they’re systematically stocking the judiciary with judges who will. It’s exactly what Bork was talking about, except that the judges are thwarting the political process in the economic and regulatory arena as opposed to the social arena. You can see how it works – Lopez and Morrison shift the power to the judiciary to be the final arbiters. [No, the Constitution does that.] Once that principle is established, GOP judges will start using that power to strike down the regulatory state. [One hopes!]

So that’s the first front of the battle-to-come. The second front is a revival of Lochner. This is less likely, but as I explained earlier this week, Lochner revivals are stirring....What a new Lochner would do would be to establish a new obstacle in the form of a “right to economic freedom” that could not be unreasonably infringed upon....

A new Lochner (or even a new watered-down version of Lochner) would increase the “scrutiny” applied to economic regulations. [Actually, Lochner is bad law; the same result can and should be achieved through the Contracts Clause, as I explain here.] More regulations would be struck down on the grounds that they infringe upon people’s economic freedoms. [True.] But the big point, once again, is that such a move would shift power from the legislature to the judiciary. Judges, and not legislatures, would be the final arbiter of what economic laws are acceptable.... [True, and proper, according to the Constitution. Read Article III.]

If this happened, judges would be thwarting the [unconstitutional] will of the democratic majorities in order to enact their own minority political preferences [actually, their preference for constitutional laws].

If this is all too confusing, here’s the big point. Much of the conservative judiciary has adopted a judicial philosophy that is strikingly anti-democratic [that is, anti-socialist and pro-constitutional] in the economic sphere. This philosophy – if enacted – would shift the power to judge economic regulations from the legislature to the judiciary....[What a novel concept: The power to judge would reside in the judiciary. And it would be the power to judge the legislation that authorizes regulations, as well as the conformity of regulations to legislation.]
Given publius's leanings I am especially heartened by his forebodings as to the demise of the national regulatory-welfare state.

The Left's alternative to the national regulatory-welfare state is -- drum roll -- the devolution of power to the States (but not to the people, of course). Here's Jonah Goldberg, writing at NRO in December:

Federalism! It's not just for conservatives anymore! That's right. All of a sudden, liberals have discovered federalism and states' rights. I discovered this while listening to a recent episode of NPR's Talk of the Nation, in which host Neal Conan and various callers discussed the idea as if some lab had just invented it....It's not surprising that liberals would suddenly be interested in federalism, given that a sizable fraction of them think George Bush is an evangelical mullah, determined to convert America to his brand of Christianity. As conservatives have known for decades, federalism is the defense against an offensive federal government....

The problem with the last half-century of public policy is that liberals have abused the moral stature of the civil rights struggle to use the federal government to impose their worldview — not just on racial issues but on any old issue they pleased. But now, all of a sudden, because they can't have their way at the federal level anymore, the incandescently brilliant logic of federalism has become apparent: Liberals in blue states can live like liberals! Wahoo!

The Left's embrace of federalism may be more than a passing fad. Consider, for example, three articles at Slate (a semi-respectable sounding board for Leftists). In " The New Blue Federalists," Richard Thompson Ford, a professor of law at Stanford, notes that "Federalism is not just for conservatives, anymore." Jack Shafer, Slate's editor-at-large, writing about "PBS Unplugged," gives an example of how centralized power now threatens the Left's agenda:
The new CPB chairman, Republican Kenneth Y. Tomlinson, invokes the "objectivity and balance" clause to demand that PBS abandon what he considers to be its liberal line....

Left-wing activists fear that Tomlinson's meddling in CPB affairs will result in a media filibuster by the conservative majority. The activists want "the people" and "the local stations" to decide public broadcasting's future, not top-down partisans....

For the longest time, calling for the defunding of public broadcasting was a Republican pastime. Now that the GOP rules public broadcasters, who will be the first Democrat brave enough to call for the end of PBS and NPR as we know them?
Then there's what Slate's editor, Jacob Weisberg, calls " Interest Group Conservatism":
In this, the third year that Republicans have controlled everything, a variation on the old interest-group liberalism has emerged as the new governing philosophy. One might have expected that once in command, conservative politicians would work to further reduce Washington's power and bury the model of special-interest-driven government expansion for good. But one would have been wrong. Instead, Republicans have gleefully taken possession of the old liberal spoils system and converted it to their own purposes. The result is the curious governing philosophy of interest-group conservatism: the expansion and exploitation of government by people who profess to dislike it....

True, the clients, patrons, and causes are different. Instead of the Children's Defense Fund pushing to fully fund Head Start, we now have church-affiliated social service agencies lobbying to have faith-based drug treatment funded by HHS. Instead of Sen. Ted Kennedy of Massachusetts promoting a hate-crimes bill endorsed by the Leadership Conference on Civil Rights, it's Sen. Wayne Allard of Colorado introducing a constitutional amendment to ban gay marriage on behalf of James Dobson's Focus on the Family. Instead of the Environmental Protection Agency proposing higher air-quality standards, it's the Federal Communications Commission levying fines and threatening broadcast licenses on the basis of profanity and indecency.
The Left thought that it would hold the reins of power indefinitely, and so it gave little heed to the possibility that the power it vested in the national government would be used against the Leftist agenda.

The Left's Conception of Federalism

The Left may now wish for federalism, but in a decidedly anti-libertarian form. Consider "Reclaiming Federalism" (Dissent, Spring 2005), by by Prof. David J. Barron of Harvard Law School (emphasis added by me):
What would a progressive federalism look like? It might well be a mirror image of Rehnquist Federalism. It would give states and local governments much greater room to regulate the private market. This would check national and multinational business influence as Louis Brandeis and earlier progressives once imagined. It would also give the national government much more power to regulate nonmarket social relations....[that is, to completely undo freedom of association]

Progressives for too long have been strikingly unimaginative when it comes to federalism. They speak only in a national key. But it is clear that their faith in unlimited national authority was the contingent product of liberal control of national institutions. Circumstances have changed. We should now look at the Constitution's federalism with fresh eyes....

Federalism is what we make of it. Rehnquist and his conservative colleagues have been making the most of it for more than a decade. It's time for progressives to do the same.

In summary, the Left's vision of federalism is to devolve the central government's acquired anti-libertarian powers to somewhat less remote commissars at the State and local level. The Left simply isn't to be trusted as a partner in the shaping of a new federalism. A pro-libertarian federalism would not only limit the power of the central government but would also limit the power of State and local governments to advance the Left's anti-libertarian agenda.

Toward Pro-Libertarian Federalism

The only way to advance pro-libertarian federalism is to ensure that the Left neither controls the central government nor has little influence over its policies. This is especially true of the U.S. Supreme Court. For the surest way to return to a form of federalism that, in the main, advances liberty and prosperity is through Court rulings of the kind so feared by publius and his ilk: "the overruling of the post-New Deal regulatory state."

Something resembling pro-libertarian federalism will come about only if a Republican president, aided by a strongly Republican Senate, is able to stock the courts with judges who are committed to the restraint of government power -- at all levels of government. (Janice Rogers Brown is that kind of judge.)

Certainly not all decisions by all Republican appointees to the bench will satisfy all libertarians, many of whom seem to focus on narrowly tailored "rights," such as abortion and gay marriage. But by siding with the Left on such issues, libertarians effectively abjure more basic rights -- rights that broadly affect the ability of most Americans to pursue happiness -- such as freedom of speech, freedom of association, and freedom of contract.

In the real world there are real choices. The real choice for libertarians is between what seems "best" for a few and what is actually "better" for the many. I choose the latter, without hesitation.

Pro-libertarian federalism is the best practical way to redeem the promise of liberty. The surest route to pro-libertarian federalism, it seems to me, can be found through the Republican Party. The GOP may not be reliably anti-statist, but it is less statist than the Left. And it is more likely to defend our basic rights -- in the courts, in the streets, and in foreign fields.

Thus endeth the lesson about practical libertarianism.