Gary Johnson, Libertarian Party candidate for President, is polling extremely well for someone who isn't a Republican or Democrat. That will likely revive the questions "what is the Libertarian Party," anyway?" and "what is a libertarian, anyway?" It is traditional for those questions to be answered snidely, contemptuously, or with a disturbing degree of uncombed mania.
I'm not very interested in the first question. I'm a sort-of small-l libertarian, not a large-L Libertarian. And I'm deeply uncomfortable about labeling myself as even a small-l libertarian. I've explained why before: I think that embracing political labels leads to bad behavior. I ought to support something because I have thought it through and think it's right, not because members of my tribe support it and insecurity and cognitive dissonance will set in if I disagree with them.
That makes it awfully difficult to explain what libertarianism is when people ask because they're wondering if there's some sort of alternative to the horror show the major parties have served up this year. Nobody wants to sit through my discourse on what I think on a long series of issues, and then stick around while people bicker over whether that's libertarian or not. Yet I believe there are values underlying "libertarianism" that are worth promoting, and that the label might be a useful shorthand for defending them. So what to do? Accept a label with the baggage and thought distortions and compromises that it brings, or abandon concise and effective advocacy?
Maybe there's another way.
I'd like to propose presenting libertarianism as a series of questions rather than a series of answers or policy positions. Even if I don't agree with people's answers to these questions, getting them to ask the questions and confront the issues reflected in the questions would promote the values that I care about.
These are all questions that I think ought to be asked whenever we, as a society, decide whether to task and empower the government to do a thing.
Does the United States Constitution permit the government to do this?
This is the fundamental question. The Constitution is the rulebook. If it doesn't give the government power to do something, or doesn't let it do something to you, then we shouldn't do it unless we amend the Constitution first. You might think that's obvious. It's not. Taking the question seriously is important even when we don't agree on the answer or even the methodology. The norm is to invoke the Constitution only when you don't like a proposed law, and to scorn constitutional inquiry when it's an impediment.
What would this power look like if it were expanded dramatically in scope or in time?
Power given to the government tends to grow, not shrink. Folks don't give up power or money easily. What does the power you offer to the government look like if government actors fight to widen its scope?
Tell me if this sounds familiar: terrorists attack, citizens are killed, property is destroyed, the nation's confidence is severely shaken, and leaders propose a law dramatically expanding the power of the state temporarily to address the crisis. I'm not talking about 2001 and the PATRIOT ACT. I'm talking about 68 B.C. and the lex Gabinia, proposed to give Pompey extraordinary powers to fight pirates. That power led, some assert, to the fall of the Roman Republic and the rise of Imperial Rome.
Laws passed "temporarily" are often not temporary at all. Laws passed ostensibly for one purpose are often twisted to other purposes.
What would this obligation look like if exercised indifferently by unaccountable people?
We owe a debt to our veterans and the proposition that we're responsible for their health care is an appealing one, particularly when their health problems result from their service to our country. The question is how to provide that health care. Should we make the government a direct provider? Well, what would it look like if we charged a gigantic government bureaucracy to provide it, and maintained a civil service political and legal culture that made the bureaucrats almost completely unaccountable for how they run it? It turns out we already know the answer to that one.
What would your worst enemy do with this power?
Aye, there's the rub. Think of the politician you hate and mistrust most. Do you want that politician administering enforcement of the law you propose, particularly in a time when other branches of government are aligned or weak?
Does this power make a choice about morals, ethics, or risk that individuals ought to make?
Consider C.S. Lewis:
My contention is that good men (not bad men) consistently acting upon that position [imposing “the good”] would act as cruelly and unjustly as the greatest tyrants. They might in some respects act even worse. Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under of robber barons than under omnipotent moral busybodies. The robber barons cruelty may sometimes sleep, his cupidity may at some points be satiated; but those who torment us for their own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to heaven yet at the same time likely to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on the level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.
Does your proposed law empower the government to make the sort of moral, ethical, or risk-assessment decisions that individuals ought to be making for themselves? To combine this question with the last one: if you are empowering the government to make moral, ethical, or risk-assessment judgments for you, are you comfortable with that power being wielded by people with moral, ethical, and risk viewpoints you hate?
Here's another way to ask this question: how does this law treat you with respect to your ability to make decisions, and are you happy with the government constantly treating you that way with respect to other decisions?
Does this power represent the government putting its thumb on the scales to prefer some competitors over others, perhaps based on their relative power and influence?
Or, to use a specific example: if you make monks who hand-carve wooden caskets to support themselves take years of training to learn how to embalm bodies even though they don't have anything to do with dead bodies, are you working for the common good, or are you the puppet of mortuary owners seeking to manipulate the law to discourage competition?
Does this power set up a conflict between laws and rights?
The Constitution creates negative rights — things the government can't do to us. Laws sometimes create positive rights — our privilege to demand something from the government or each other. Does this proposed power set up a conflict between those rights? Does the law purport to give me the power to demand something from you that you have the right not to give?
Are we giving this power to the right level of government?
If we must give the government the power to do this, what part of the government should get it?
Are we acting out of fear, anger, or self-promotion?
Is this law named after a dead kid? Is it named in a way calculated to suggest somebody is awful and we're a-gonna kick their asses? Is it named to promote a politician? Is it named to promote our self-esteem? Is this law the equivalent of grocery shopping when we're hungry? Is it the equivalent of liquor shopping when we just caught our significant other in bed with our best friend? Are we too angry, tired, or scared to think clearly about this law right now? is the person proposing this law in a difficult re-election contest?
Is there any evidence the government is any good at this?
Say you've got a problem at work and you need someone to fix it. You'll probably give some thought to who is best suited for the job. If the server's down you're not going to send Ethel at reception who once tried to send an email from the fax machine. If you need someone to calm the boss down you're not going to send Wayne from sales who prides himself on "saying what people think." You give a shit about how it's going to turn out so you evaluate who has the skillset.
Often we don't do that with the government. We assume, based on habit or ideology, that if there's a problem that the government ought to solve it. Should we? Possibly. But not obviously, not definitely. So ask: what's the specific, evidence-and-experience-founded basis for thinking the government will make this better rather than worse?
Even if people don't agree with my answers to these questions, I think that the country would be a lot more libertarian — as I like to use that term — if people got interested in asking them.
Last 5 posts by Ken White
- Lawsplainer: The Eleventh Circuit Protects Doctors' Right To Ask About Guns - February 17th, 2017
- Eleventh Circuit Revisits Florida Law Banning Doctors From Asking About Guns, And I Can't Even - February 16th, 2017
- Erdoğan and the European View of Free Speech - February 10th, 2017
- Still Annoying After All These Years: A Petty Government Story - February 9th, 2017
- Rights And Reality: Georgia Cop Jails Ex-Wife For Facebook Gripe - February 6th, 2017