Broadly speaking, there are two strains of libertarianism or pseudo-libertarianism in modern politics. There's civil libertarianism, which aims to maximize individual liberty and protect it from federal, state, or local intrusion, often using the courts to urge broad readings of constitutional rights. Civil libertarianism wants all governments to leave us alone as much as possible.
And then there's federalist libertarianism, which aims to maximize the freedom of citizens to make rules through state and local government without federal interference. A few hot-button issues aside, federalist libertarianism is not especially concerned with protecting individuals from state and local government — it sees strictures passed by those governments as legitimate expressions of local will. In effect, federalist libertarianism spins state and local restrictions on individual liberty as exercises of liberty.
Perhaps you're beginning to guess which one I prefer.
Modern Republicans, particularly in these tea-party times, lean federalist libertarian, as do many prominent politicians who sometimes wear the label "libertarian" (like Ron Paul). Take, for example, the recently released Texas State Republican Party Platform for 2010. The platform leads with liberty issues:
We Believe in:
1. Strict adherence to the Declaration of Independence and U.S. and Texas Constitutions.
2. Preserving American Freedom and Texas Sovereignty.
3. Limiting the expanse of Government Power.
And indeed, many of the positions set forth in the platform are sensibly calculated to protect individual liberty, sometimes (on hot button issues) even from state and local action:
We oppose expansion of federal law-enforcement authority and use of military against citizens.
. . . .
We urge review and revision of those portions of the USA Patriot Act, and related executive and military orders and directives that erode constitutional rights and essential liberties of citizens.
. . . .
We support limiting the definition of eminent domain to exclude seizing private property for public or private economic development or for increased tax revenues.
. . . .
We urge the Legislature and Congress to repeal all laws that infringe on the right to bear arms, and to reject any monitoring of gun ownership, and all specific taxation or regulation of guns and ammunition.
Any hope of a civil libertarian approach evaporates, though, when the platform brings up the f-word.
You know. "Family."
We support the definition of marriage as a God–ordained, legal and moral commitment only between a natural man and a natural woman, which is the foundational unit of a healthy society, and we oppose the assault on marriage by judicial activists.
Okay. What does that mean?
We believe in the sanctity of marriage and that the integrity of this institution should be protected at all levels of government. We urge the Legislature to rescind no–fault divorce laws.
Oh. Wow. OK. Anything else?
We oppose the legalization of sodomy. We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.
Defend the liberty of Texans to jail adults for consensual private conduct!
We urge our governmental bodies to enforce laws regarding all forms of pornography. We urge more stringent legislation to prohibit all pornography including virtual pornography and operation of sexually–oriented businesses. We oppose the sale of “Not Rated” (NR) movies and video games to minors.
They left out comic books. I'm sure it's an oversight.
Is there more?
We urge the Texas legislature in its next biennial session to enact legislation requiring a sonogram be performed and offered as part of the consent process to each mother seeking an elective abortion.
Moreover, we oppose any further legalization, government facilitation, or financial guarantees relating to any type of gambling including casino, riverboat, video lottery terminals (VLTs), slot machine, video keno, eight-liners, multi-state lotteries, and other games of chance including on Indian reservations.
Any form of desecration of the American Flag is an act of disregard for our nation and its people and penalties should be established for such.
We encourage state and federal governments to severely prosecute illegal dealers and manufacturers of addictive substances and pornography. We urge Congress to discourage export of such substances into our country. Faith based rehabilitation programs should be emphasized. We oppose legalization of illegal drugs.
Every tribe has its mores and customs. Federalist libertarians believe that liberty necessarily includes the right to impose those mores and customs upon their immediate neighbors without interference. They view it as an intolerable infringement of liberty that some federal court could prevent them from doing so upon the theory that their neighbors had some higher protected liberty they are bound to respect. Federalist libertarians celebrate the liberty of Mrs. Grundy.
Moreover, federalist libertarians will have you believe that unrestrained judges represent tyranny. And they have a point — at least in the abstract. Rights often conflict. Judges can diminish my rights through an expansive and standardless interpretation of another fellow's rights — for instance, by finding that someone has a right not to be offended by me, as if we were in Canada or some goddam place. I can imagine my individual liberties being substantially impaired by a result-oriented judiciary that hews to no principled standard but pursues an ideological agenda.
But life isn't abstract. Life goes on in a specific historical and social context. In our particular historical and social context, we've made substantial strides towards protecting individual liberty from the efforts of federal, state, and local officials to dictate our lives. On some fronts (like free speech) we've done quite well; on others (like the regulatory state) we've suffered mostly losses. In that fight, state and local governments have been frequent and vigorous opponents of individual liberty, and courts have more often been the proponents and defenders of individual liberty. That's why I'm much more a civil libertarian, and not a federalist libertarian. In the real world, I'm more afraid of how the Mrs. Grundys of my neighborhood — embodied, in my mind, by the Texas Republican Party Platform — will restrict my liberty, and less afraid of how the federal courts will restrict my liberty. (And I live in California. If I lived in Texas, where they think Thomas Jefferson is some kind of commie homo, I'd be terrified.) Oh, relying on courts to enforce a civil libertarian worldview has drawbacks and inherent dangers — it empowers the central government, which ultimately threatens liberty. But it's the lesser of two evils.
Last 5 posts by Ken White
- Hate Speech Debate on More Perfect Live - September 5th, 2017
- Popehat Goes To The Opera: Un ballo in maschera - August 19th, 2017
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017