Libertarianism Updated

As I describe in my new memoir, A Life for Liberty: The Making of an American Originalist, I have always been on the right. In 1964, at the age of 12, I debated on behalf of Barry Goldwater in front of my entire grade school student body. In my 12-year-old heart, I knew he was right.

But, in my junior year at Northwestern University, I went from being a William F. Buckley conservative to a libertarian. In my senior year, I organized and taught an accredited seminar on libertarianism. Then, in the fall of my first year of law school, I met and was befriended by Murray Rothbard and the entire New York circle of libertarian intellectuals. By my second semester of law school, I’d joined the board of directors of the Center for Libertarian Studies, which held annual libertarian scholars conferences, the papers from which were published in its Journal of Libertarian Studies. In my 3L year, on behalf of the Center, I organized a Liberty Fund conference on the philosophy of crime and punishment that was held at Harvard Law School.

Libertarianism in the 1970s was an internally contested intellectual project, not a rigidly fixed set of policy positions. But unlike originalism, which has benefited from 20 years of internal intellectual debate among originalists, libertarianism has largely been frozen in amber since the 1970s.

I see five distinct ways that libertarian theory needs to up its game.

First, the need for natural law ethics in addition to natural rights; second, the need to distinguish between libertarian ideal theory and second-best libertarianism in a world of governments and competing nations; third, the need for a libertarian theory of citizenship and civil rights; fourth, the need to separate the public-private binary from the government-nongovernment binary; and fifth, the need for a more refined theory of corporate power and corporate rights.

Let me offer a few words about each.

First, the Lockean conception of natural rights needs to be supplemented with a more Aristotelian-Thomist conception of natural law and the good for humans. I have in mind the kind of approach taken by my teacher, Henry Veatch, in his 1987 book Human Rights: Fact or Fancy?, which provides a persuasive account of how human flourishing and “the common good” relates to the natural and inalienable rights to life, liberty, and property. Along these lines, I recommend the “neo-Aristotelian” writings of Douglas Rasmussen and Douglas Den Uyl.

This position closely resembles that of National Review’s Frank Meyer, as he explained in his 1962 book In Defense of Freedom. Meyer has commonly been misunderstood to have advocated a fusion between libertarianism and conservatism. Yet he explicitly repudiated this aim and stressed that his actual intent was to create a fusion between libertarianism and the idea of virtue.

Even a radical libertarian like Murray Rothbard recognized this same relationship. As he wrote in 1981: “Only an imbecile could ever hold that freedom is the highest or indeed the only principle or end of life. Freedom is necessary to, and integral with, the achievement of any of man’s ends.” Freedom, he continued, “is the highest political end, not the highest end of man per se; indeed, it would be difficult to render such a position in any sense meaningful or coherent.”

A conception of natural rights that is informed by natural law ethics and the end of human flourishing can offer a coherent account of the common good. And it can rebut the claims of conservatives like Adrian Vermuelle and Patrick Deneen who assert that government should simply pursue the common good directly, rather than protecting the individual natural and civil rights of the people.

Second, libertarianism in its more radical varieties should be seen as a form of what philosophers call “ideal theory.” The natural rights that libertarians insist are primary adhere to persons by virtue of their humanity, and independent of any government. In this regard, libertarianism is a theory of ideal justice in the “state of nature” without any government. Such a world would, by definition, lack any national borders.

What libertarianism also needs is a theory of the second best. Libertarianism needs to be better accommodated to a nonideal world—aka, the real world—of competing nations. A libertarian approach to nationalism, for example, would take seriously the competition among differing forms of government that are better and worse from a libertarian perspective. It explains exactly why one should be proud to be an American based on the ideals for which it stands.

Third, the separateness and diversity of competing forms of government entails a need for a theory of citizenship that libertarianism now lacks. Because the ideal theory of libertarianism is based on natural rights—that is, the rights that all persons can claim in a state of nature or a pre-political state—libertarianism lacks a conception of civil rights.

Civil rights are those legally enforceable rights one receives when one leaves the state of nature and enters into “civil society” with others. These are the rights, privileges, and immunities that members of each civil society—holding the status of citizens—can claim against their fellow citizens, as well as against the government. As the American Express commercials used to say, “Membership has its privileges.”

While modern libertarianism lacks a theory of citizenship and civil rights, as Evan Bernick and I have explained elsewhere, both concepts were understood and asserted by nineteenth-century libertarian abolitionists, and eventually by the antislavery Republican Party. While continuing to assert the importance of natural rights, these nineteenth-century libertarians developed a conception of citizenship and the civil rights, privileges, and immunities that come with membership in one of many competing regimes.

Libertarians need to be more concerned about the threats to human freedom that come from private as well as public power—from nongovernmental as well as governmental actors.

Fourth, to flesh out the conception of citizenship and civil rights, libertarianism needs to recognize that “public-private” and “government-nongovernment” are not one, but two distinct binaries. Free citizens may rightfully be excluded from private-nongovernmental spaces such as our homes and our beds, and also from private-governmental spaces such as military bases.

But free citizenship may carry with it the privilege of accessing public spaces and services, whether governmental (like streets, sidewalks, and parks) or nongovernmental (like places of public accommodation and common carriers) without being subject to arbitrary discrimination. This too was recognized by Republicans when they enacted the Civil Rights Act of 1875, which barred such discrimination on the basis of race.

Finally, libertarians need to be as concerned with corporate state fascism as they are with state socialism. There are no corporations in the state of nature. As some nineteenth-century libertarians recognized—and some left libertarians insist today—there comes a point at which the size and scope of private corporations can pose as great, if not a greater, threat to liberty than government power—especially as the two become intertwined in ways that are difficult to disentangle in practice as we have witnessed in recent years.

Imagine, for example, if the current handful of cell phone providers began electronically screening our calls for subversive communications, canceling those who were found to transgress some alleged moral norm. Would the fact they are “nongovernmental” make them any less a threat to individual liberty?

I admit that reconsidering the rights of “private” corporations may be the most challenging of the five possible updates to libertarianism that I am suggesting are needed. A first step may be to recognize that not all corporations are created equal. Some, like Citizens United, the Boy Scouts, and the Little Sisters of the Poor truly are associations of natural persons whose natural and civil rights should be legally protected from the government. But others like publicly-traded corporations where ownership and control have been separated are more akin to artificial “creatures of the state”—the exact nature of which is subject to public regulation to protect the freedom of the individual.

Maybe the threats to individual liberty posed by corporate power can be completely handled by the fourth proposed update, which identifies such categories of places of public accommodation and common carriers. But the fifth update may be needed when large corporations claim that their constitutionally-protected speech rights trump these forms of legal regulation.

So, if libertarianism is updated or revised to incorporate some or all of these five features, it is still fair to call it “libertarianism”? To answer this, let me close with an anecdote I relate in A Life for Liberty. When I was a 3L, I did an independent study with Ronald Dworkin, who was visiting Harvard Law from Oxford. I wrote a paper criticizing a chapter of Dworkin’s newly published book, Taking Rights Seriously. In that chapter, he argued that it is “absurd to suppose that men and women have any general right to liberty at all, at least as liberty has traditionally been conceived by its champions.” There is no general right to liberty, Dworkin contended, because “I have no political right to drive up Lexington Avenue.” This is because, “if the government chooses to make Lexington Avenue one-way downtown, it is sufficient justification that this would be in the general interest, and it would be ridiculous for me to argue that for some reason it would nevertheless be wrong.”

In my paper, titled “Taking Liberty Seriously,” I contended that this was no refutation of a general right to liberty because liberty needed to be defined by a background scheme of property rights. In a libertarian world, you do not have the right to do anything you will. You only have the right to do anything you will with what’s yours.

Our meeting to discuss the draft of my paper was taught in the style of an Oxford tutorial. What impressed me most was that Dworkin did not push back directly against this criticism of his work. Instead, he got inside my argument to analyze what I needed to make it work. One of his challenges has stuck with me to this day.

He asked, “If you had a choice between a world of more liberty and less property, or more property and less liberty, what would you choose?” After pausing a moment, I answered, “More property.” This was, after all, the Rothbardian libertarian answer. “Well,” he replied, “then you’re not a libertarian. You’re a propertarian.”

I now think I would answer this question differently. Libertarians need to be more concerned about the threats to human freedom that come from private as well as public power—from nongovernmental as well as governmental actors. Unlike the left, however, who seek to collapse the public-private distinction and make everything “public,” libertarians, conservatives, and even modern liberals need to preserve the public-private distinction. That preservation poses a bigger challenge for us to identify exactly what limits on power wielded by nongovernment actors are warranted.

But this conceptual difficulty makes it no less important for libertarianism to come to grips with how the liberty that is needed for individual human flourishing merits protection in the real world from both government and nongovernment actors. Libertarians may need to be a bit more libertarian and a bit less propertarian.