In his new book, Burning Down the House, Andrew Koppelman argues that libertarianism has gone down a dangerous path inspired by Ayn Rand, Robert Nozick, and Murray Rothbard. He joined host Rachel Lu for a spirited debate and discussion about limited government and the role of the state.

Rachel Lu:

Hello. Welcome to Liberty Law Talk. I am Rachel Lu, associate editor at Law and Liberty, and with me today, I have Andrew Koppelman. He is the John Paul Stevens professor of law at Northwestern University and the author of several books. But today, we are going to be talking about his newest Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed. Thanks so much for being with us today, Andrew.

Andrew M. Koppelman:

Thanks for having me.

Rachel Lu:

So, I think we should really just dive right in and talk about this title here. I don’t think there’s a need for some fancy preamble on my part. I actually thought the title was very clever because there is a metaphor in here, but there’s also an actual burning house that you refer to in the book, which you take as an example that will help us to understand what’s gone wrong with libertarianism. So, talk about that a little bit. What is the burning house and why did that become your title?

Andrew M. Koppelman:

So, Obion County, Tennessee did not have its own fire department. It contracted with a nearby town for fire protection, but it didn’t do the contracting. Each individual citizen made a private contract with the fire company for protection, and there was an old man named Gene Cranick who had been paying his fee for years and he’s getting old. One year, he forgot and his house caught fire. His wife called the fire department, and the fire department told him, “Sorry, you didn’t pay your fee. We can’t help you.” Eventually, they came down in order to make sure that the fire didn’t spread to his neighbor’s houses because his neighbors had paid the fee and his house burned down.

This generated a furious debate in the press afterward about whether this was appropriate behavior and there were folks on the right and the left who agreed that this was the true face of libertarianism. This was the vision of the future that libertarianism was offering. It wasn’t really so much about the house in particular where this was 2010. What they really were debating was Obamacare. What they really were debating was whether society has any obligation to take care of people who suffer misfortunes that are not the consequence of rights violations by other people.

Rachel Lu:

Right. Very good. An interesting example, also good, because I remember this and probably a lot of people do, right? I remember this debate about the burning house, and this is going to go on thought to have a metaphorical edge to it, right? Because you want to think about the way that libertarianism as a philosophy has burned down in a sense. I want to talk about that in just a moment, but first, I wanted to get in a question to make sure that I don’t forget it. You indicated in the book that you became interested in libertarianism at this time, at the time of the burning house.

Then as you say, this was a debate really about Obamacare in many ways. I know you were really interested in Obamacare. Before that point, you’re an established scholar who’s been mixing it up with intellectuals for a long time. Presumably, you already had some familiarity with libertarianism. So, what did you think before that? Did the research pick up on notes from a youthful libertarian phase or was it a total about phase for you? How did this fit into your intellectual life?

Andrew M. Koppelman:

Well, I always believed that we should have a society that accommodated weirdness and difference and idiosyncrasy. My earliest scholarship was about gay rights and anti-discrimination law, but I wanted to respond to the idea that was being offered by libertarians like Richard Epstein, that the culture was none of the state’s business. It seemed to me that one of the things that anti-discrimination law did, first, it interfered with freedom of contract for larger purposes. I thought that that was entirely appropriate. It also was an intervention in the culture to try to change the culture. I thought that that was appropriate.

So, I was interested in libertarianism from quite early, but the Obamacare case took me out of the areas that I’d worked in, which were law and political philosophy with respect to individual rights to larger questions of government power. I thought what was strange about the challenge to Obamacare was that its proponents were trying to cripple the power of the federal government because they thought that that would promote liberty. I thought that that was strange. I thought that people weren’t understanding the extent to which the Obamacare challenge rested on this strange philosophy. In the course of writing a book about the Obamacare fight, which I did, I got deeper into libertarian philosophy.

I was surprised to discover that I liked Friedrich Hayek and his original formulation of libertarianism in 1944 better than I expected to. I was more sympathetic than I had been when I had read him in college and in graduate school. I also, for the first time, read Ayn Rand. Lots of people read them in high school. I did not. I was absolutely horrified and I found this stuff repellent. One of the remarkable things about the fire story is that I found a lot of libertarians treating them as if they were the same, Rand and Hayek, but they’re in fact radically different.

Hayek would never have a fire department stand back and watch a house burn down. He was just less doctrinaire than that. He was a big fan of free markets. He thought that people on the left should not sufficiently understand the value of free markets, but he also thought that there was a role for government to take care of a huge range of human needs that markets weren’t going to supply.

Rachel Lu:

Yeah, and it’s interesting, I’m your fellow traveler there. I think I also read Rand exactly that same period as the right is going through this very hard libertarian phase. I don’t think you should read Rand for the first time when you’re a full-fledged adult, because if you’re not 16, you read her and you think, “Wow, I guess I thought there must be something more or better or something in here. I know a lot of people are impressed by this, but this is just awful. This is it. This is really rad.” So, I don’t know. I hear you there, but let’s move on to talk about Hayek, because Hayek is in some ways the hero of this book, though heavily qualified, but still has a heroic role.

Of course, you go on to make an argument that I’m sure many of our conservative listeners will find extremely counterintuitive. You want to say that the Democrats have become the Hayekian party in truth, though not necessarily acknowledged, right? As the right has moved off in a Randian, Rothbardian direction, right? It’s actually tacking towards anarcho-capitalism, even though as you acknowledge, most people on the right don’t want to think of them themselves that way, certainly now, right? The Tea Party era has waned, at least in its public face. Most of them wouldn’t want to say that. But talk about what it is that Hayek gets right, that you think Rand and Rothbard have wrong.

Andrew M. Koppelman:

So, to understand Hayek, we’ve got to go back to when he wrote the Road to Serfdom, which was his big intervention. He didn’t mean it to be an intervention in American politics, but it was. He was really responding to the program of the British Labor Party, which wanted to nationalize the means of production and put all heavy industry under the control of central economic planning. In the late 1930s, the world’s most admired economic managers were Joseph Stalin and Adolf Hitler, because they were the ones who had turned their economies around and they were both booming. Russia had been a backwater. Now, it was building steel mills.

There’s high employment, and they’d ended the inflation in Germany while France and Britain and the United States were all experiencing high unemployment. So, there was a broad consensus among intellectuals that economic planning was the only way out. They didn’t like the dictator’s methods, but they thought something like this was necessary. Hayek, who at the time was a professor at the London School of Economics, he had grown up in Austria, but he was now in London, wanted to argue that central economic planning was necessarily going to be wasteful and tyrannical. That’s the argument of the Road to Serfdom. T

he book was an unexpected hit in the United States where conservatives who were opposed to the New Deal were looking for some good intellectual rationale for the position that they already had. Hayek just turned out to be exactly what they wanted, but it was always a poor fit, because Franklin Roosevelt never proposed central economic planning. There was something approaching it that was tried in the first years of the New Deal, but he had pretty much given up on that by 1934. After that, what Roosevelt was offering was welfare state capitalism where you have capitalist economy but with a safety net. So, that you wouldn’t have destitute old people. You wouldn’t have destitute poor people.

The program of the Democratic Party since then has been about expanding the safety net to provide for the people who lose out in a capitalist economy. The Road to Serfdom wasn’t opposed to that. The argument in the Road to Serfdom at least, was that capitalist economies are not going to give people what they deserve. They’re just going to efficiently promote production and they avoid the tyranny that you would get if there was central economic planning. So, there really isn’t anything in the basic ideas being put forth in that book that Bernie Sanders or Elizabeth Warren would reject.

We are arguing about the size of the welfare state, about what protection there ought to be, but Hayek, in 1960, again arguing against the British case, argued that you don’t need to have a national health service with doctors on the payroll of the government. It’d be much more efficient to give people vouchers and let them buy subsidized insurance on the private sector, have private insurance companies compete with one another to provide insurance. Of course, you’d have to require the insurance companies to write insurance for everybody so that they couldn’t exclude people who were sick and you would have to require everybody to have insurance.

By the time you finish reading this passage of the Constitution of Liberty, another book that Hayek writes in 1960, by the end of that passage, you can see today he has outlined Obamacare, all of the elements of Obamacare proposed by Hayek in 1960. He does, as he becomes older, become crankier about a welfare state. He is terribly afraid of democracy, because he thinks that the democratic governments are going to redistribute and destroy a capitalist economy. He ends up becoming friendly with murderous tyrants like Pinochet in Chile. But his original formulation I think had something quite valuable to offer, and the Road to Serfdom is still worth reading.

Rachel Lu:

So, it seems to me like you’re probably right that most people on the left would agree with Hayek about some fundamental principles. They certainly would agree that it is okay to engage in some level of redistribution in order to help people in desperate circumstances, but most people on the right would agree with that too, right? That’s not going to be a terribly controversial suggestion on either side of the political spectrum. So, I think maybe we need to distill a little bit more clearly what mistake it is that you think comes through Rand and Rothbard that you think is so important or invigorating on the political right.

Andrew M. Koppelman:

Well, the shift that has happened over time in libertarian thought is the view that the smaller the state is, the better the state is, the more free we are. The larger the state, the less free we are. That’s an argument that has been put forth by the writers who I take on later in the book, not just Anne Rand, but Murray Rothbard and Robert Nozick and Ludwig von Mises and Charles Koch who’s enormously influential in American politics.

While there are lots of elements of the Republican party that don’t embrace that view, if you look at the track record of the Republican Party, the last time they held the presidency and both houses of Congress, what they actually managed to accomplish was enormous tax cuts for the rich and gutting the regulatory apparatus, the administrative state. The Trump administration basically tried to cripple regulation at every opportunity that it had. There was a massive effort to abolish Obamacare and to take health insurance away from about 20 million people in order to have even more tax cuts for the rich.

This is not Hayek. This is a vision in which the smaller the state is, the lower taxes are, the better off we are. So, it actually has in practice quite a lot of power within the Republican party. You saw it just before the last election when the Republican leaders were talking about what they would do if they captured both House of Congress, which they hoped to do. They wanted to make the Trump tax cuts permanent and they wanted cuts in Medicare and social security. This is not Hayek and this is Rothbardian.

Rachel Lu:

Well, but what’s the argument for why it is necessarily Rothbardian to want a smaller state? Presumably, part of the background for this is that you’re right, most people on the right want the state to be smaller than it is. That doesn’t necessarily mean that we want it to be as small as is absolutely possible without descending into total anarchy. But if most people want it to be smaller that it is right now, if they have an idea that the state is doing too much, then for practical purposes, they’re always going to be attracted to any platform that promises to reduce the size of the state somewhat.

But I guess my question would be, do you have good reasons to think that the motivation for wanting that is really fundamentally Rothbardian or might there be some other reasons for that that are more sympathetic maybe, dare we say more Hayekian that are worth fleshing out and responding to?

Andrew M. Koppelman:

So, the useful work that Libertarians continue to do today I say in the book is they are inclined to think that anything the state is doing is likely to be incompetent or corrupt or both. This is always a hypothesis worth investigating. There are plenty of state programs that are counterproductive. If you read Milton Friedman’s books, if you read Capitalism and Freedom or Free to Choose, there’s a whole catalog of things that the state is doing wrong, interfering with the economy in ways that make us all poorer. A lot of the time, he’s right. The hypothesis is always worth investigating. Let’s imagine that you have a doctor who thinks that the body can heal itself and that surgery and drugs are never necessary.

You don’t want this person as a doctor, but he can be a fabulous medical researcher, because it sometimes turns out that there are medical interventions that are wasteful and unnecessary. It turns out, for instance, that there are lots of joint problems that have been the object of surgery. Turns out that physical therapy does the job just as well as surgery does. So, libertarians, I think, do a useful job in entertaining that hypothesis. It’s when you push the hypothesis across the board without attention to evidence that I think that it becomes destructive.

That’s another aspect of the Trump presidency. Trump wanted to get rid of any regulations that burdened industry and had high costs for industry regardless of the benefits. If given regulation is going to cost industry half a billion dollars, even if the amount of lives saved and destruction prevented is going to be 10 times that, well, the regulation is still too expensive and we don’t want to do it because we don’t want regulation burdening the industry.

Rachel Lu:

Right. So, you used that example in the book about the doctor and I thought that was pretty clever and especially good for thinking about thinkers like Friedman, because I think you’re right. He is ingenious sometimes about coming up with explanations for how certain things can happen without state action. They’re not always right. When you think through the details of them, sometimes you think, “No, I don’t actually think that would work.” But because his mind just works like that, it’s always worth engaging. Sometimes you think about aspects of a problem that you hadn’t thought about before and he can be a useful foil that way, even if you decide that he’s not right.

But here’s my concern or at least voicing a concern that I think many conservatives would have that I would share. As you move through the chapters of this book, I think many of us are going to notice there just seem to be a real lack of constraints, either theoretical or practical, on what claims people can make against the state in situations of need. So, conservatives are going to have two pretty significant objections to the growth of the state that aren’t really rooted in this tough luck libertarianism of Rand or Rothbard. They’re rooted more in concerns about subsidiary and the way that civic and community organizations can be stunted or suffocated by the state and then also in concerns about moral responsibility.

When are we stunted in our moral growth as individuals if we just live with the perpetual assumption that the state is going to backstop all of our real needs? Maybe you can’t have anything that you want, but at least anything that you plausibly need is society’s obligation to supply you. How does that affect us as individuals if we just live that way? So those two concerns I think are going to loom pretty large in the minds of a lot of conservatives who are going to agree with you that it’s okay for the state to do some redistribution for the sake of supplying a social safety net, but they’re not going to want the state to do quite so much.

So, the question that I would ask to you maybe on behalf of people who share those concerns is just under what circumstances is it okay for the state to say to an individual, “Yes, you plausibly need this, it would be possible to supply it to you at the public expense, but we’re not going to do that”? What could justify saying that if anything?

Andrew M. Koppelman:

Well, the question of what needs are urgent enough that the state needs to provide them is a question you’ve got to answer at retail need by need. But the specific context in which we were having this argument was the fact that there were large numbers of Americans who either could not afford healthcare or who were going to be bankrupted if they got sick. That seemed to me to be a fairly easy case for remedying the deficits of the market if the market is in fact undersupplying those and one of the things that had been happening as the negotiating position of working class people had become more precarious as it steadily has, is that the number of people without health insurance was steadily growing.

So, in the decades before Obamacare, the proportion of the bottom quintile of workers who had no health insurance had risen from 20% to 40% and was continuing to rise. So, whatever needs you think people ought to be on their own for, medical care if they get sick seems like an obvious candidate for government supplying it.

But I’ll also say if there’s a point that Richard Epstein makes that I embrace in the book that the bigger and more prosperous a capitalist economy you have and the more opportunities people have to provide for themselves, the smaller a welfare state you need. It was because there had been developments in the economy that had caused the enormous growth of wealth in the United States over the last few decades to pool at the top that you had people in this precarious position. An economy that is doing better without welfare provision for the people at the bottom just needs a smaller welfare state.

Rachel Lu:

So, it’s interesting because I agree that we need to do something to help chronically ill people who can’t afford their health insurance, but where to you, it seems like this is, as you just said, an obvious case where the state needs to come up with some reliable way to help people who are in need. To me, it seems like a very, very difficult case. In the book, this is several times, you draw the comparison. You quote Locke for instance, talking about how we have a clear obligation to ensure that people don’t starve. Then you suggest that, “Well, it obviously cross applies to things like medical care.” To me, that jump seems like a really big one. You say, “Well, death is death.”

Actually, you say that in the book, death is death. It doesn’t matter if it happens because we can’t get food or because we can’t get medical care. Either way, you’re just as dead. So, these things are fundamentally the same. We have to provide people with medical care the same way that we can’t let them starve. But to me, I’m going to say no, those aren’t the same at all. Those are dramatically different. Obamacare was an interesting illustration of how different they are. Why are they different? Well, one reason is because there’s not really any limit to how much healthcare people might plausibly need to consume.

Whereas the human body requires a certain number of calories, right? Two to 3,000 per adult is going to be fine. Once you get those, you’re pretty much good. We can get everybody that number of calories in the United States today and then you’ve met that need, but that’s not the case for healthcare. The reaper always wins in the end. We’re staving him off indefinitely. So, the number of medical interventions or treatments that might plausibly allow people to live a little longer, you can’t quite say unlimited, but it almost seems to be getting there, right? People can consume a lot of healthcare, but also, it’s just a lot more invasive. If my physical person is the responsibility of the state, that opens a huge range of questions.

How my responsibility to take care of myself dovetails with society’s obligations to me. At what point in time is it okay for the state to exercise some paternalistic relationship and say, “Well, Rachel, I know you want to be a rock climber, but because we’ve agreed to backstop your medical needs, then we don’t think we can let you take that risk. So, no, we’re not going to allow any more climbing in Yosemite. It’s too dangerous now that we have agreed”? So, there’s a lot of questions like that that are opened by the healthcare concern that just don’t seem to be opened by the demand for food. Do you worry about any of those?

Andrew M. Koppelman:

Well, to begin with, in fact, as a matter of American political culture, the enactment of Obamacare turned out to be no danger to Yosemite rock climbers. They’re still climbing. So, that particular slippery slope did not in fact happen. I mean, there is this problem about the unlimited character of medical care. It’s a problem that everybody faces. In fact, the insurance that is paid for or subsidized by Obamacare has treatments that it won’t pay for. That is a separate problem, but what Obamacare does in all of its forms address is the much easier cases that it requires, for example, that health insurance companies make free visits to preventive care visit to the doctor available on an annual basis with no copayment.

Now it doesn’t control. People are still free not to go to the doctor in the same way that we’ve got a food stamp program, but people are permitted to starve themselves if that’s what they want to do. We don’t force feed them. But it turns out that if you make these options available, lots of people are going to take them and those people are going to lead healthier and longer lives than they otherwise would. Healthy long lives are an element of human liberty.

Rachel Lu:

If you think though that the growth of the state has these negative impacts on us as individuals and potentially on civil society at large, then you can see how something like Obamacare is going to raise a lot of serious concerns. When you just say, “Well, these concerns are not going to come to fruition, it’s all going to be fine,” people aren’t necessarily going to be reassured by that when what you want to do upfront is dramatically change the system that’s already in place.

You want to do that basically on the argument that we absolutely have to because there are people in need. That’s when you get people who are going to come back and say, “Oh, so every time people are in need, we just have to make any necessary changes in order to ensure that they don’t have needs anymore. Can we at least spell out some conditions under which that might not be obligatory?”

It seems to me that you don’t really do that all that much in the book. So, I think that’s still going to be a lingering concern. People are going to feel like you haven’t really explained why the growth of the state can’t just be relentless, can’t just be endless. Once that becomes true, then we’re going to be really concerned about these issues of subsidiary and moral responsibility.

Andrew M. Koppelman:

So slippery slope arguments are always empirical arguments about what is in fact a danger and what dangers are likely to emerge in the world, but these same slippery slope arguments were made against social security. They were made against Medicare. There is a famous speech by Ronald Reagan in which he argued in the early 1960s that if Medicare was passed, that would be the end of freedom in the United States. It’s just not the case. Obamacare is now an element of American life, and it has now evidently become politically untouchable. It doesn’t feel like it’s not a free country anymore.

Nobody is forcing you to do anything medically. It is just the case that if you can’t afford to pay for your medical care, which is true of a very large number of Americans, that you will still get the medical care. There are easy cases, but you’re right, I don’t have a set of an elegant philosophical theory of the necessary and sufficient conditions of human need that warrant government subsidy. I think that that’s got to be negotiated politically.

Rachel Lu:

So, you mentioned social security in Medicare. You might anticipate, I don’t know, that for somebody like me… You mentioned that several times in the book. Actually, in the book, you seem to mention social security a lot more than Medicare. I was curious whether there was a reason for that. Are you more confident in the case of social security than in Medicare or it just happened like that?

Andrew M. Koppelman:

Well, social security has been around longer, and so it has been more of a libertarian target. If you read libertarian writings from the 1930s to the present at any given time, if you read Libertarians in the ’40s, the ’50s, the ’60s, the ’70s, one thing that is a constant is that they are always confident that social security is going to go bankrupt in the next 10 years. That has just been a theme that has persisted.

Rachel Lu:

So, do you really think that programs like Social Security and Medicare are sustainable over the long haul?

Andrew M. Koppelman:

Yeah, I think that the broad purposes of these programs is to make sure that old people have a decent standard of living and have adequate medical care. The country is phenomenally richer than it was in the 1930s when these programs were enacted. We can afford to pay for these because we are so much richer. The principle impediment is that all of the money is pooled at the top and it’s politically difficult to get at it, but that’s a political choice.

Rachel Lu:

I don’t know. I think the numbers on that really, really are pretty bleak, right? Because yes, of course, these programs were designed to stave off penury in old age, but right now, they’re paying out massively more than they’re bringing in from younger workers. We’re paying for these programs by adding to the deficit, but we have shrinking numbers of workforce age adults and growing numbers of elderly adults. I think it’s pretty widely agreed at this point that especially in the case of Medicare, this is becoming a real problem. We’re going to have to change the thing in some way in order to make the program sustainable. That’s pretty difficult, because once you establish an entitlement program, people expect to get that.

They build their lives around that expectation. That seems to me like exactly the problem in fact that Hayek was worried about when he said, “Well, this is going to end up redistributing wealth from the young to the old. It’s going to cause intergenerational resentments and it’s going to distort people’s incentives in such a way that it may eventually become socially sustainable.” I look at elderly entitlements and I say, “Yes, and yes, and yes, I was right about all of that. These programs are a very serious problem.” I mean do you anticipate that there’s going to be some change that’s going to make even Medicare sustainable over the long run?

Andrew M. Koppelman:

Well, I agree with you that politically, it is not possible to tell old people, “Sorry, we can’t afford to pay for your medical care anymore.” But I also think, I’m going to repeat myself now precisely because in our general running of the economy, we have been Hayekian and the country is so enormously more wealthy than it was even 30 years ago for us to say now, “Well, if you are old, we could have afforded to pay for your medical care 30 years ago, but now we’re too poor to do it and we can’t do it anymore.” It’s just wrong. There’s more wealth, much, much more wealth than there was 30 years ago. So, I wouldn’t focus on specifically the number of younger workers. I would focus on the amount of wealth that is available to the society.

Rachel Lu:

Well, what about the fact that we are right now using elderly entitlement programs to transfer wealth from younger workers to older adults who in many cases are far wealthier than these younger workers and were wealthier than them in their own youth? So, we’re actually transferring wealth away from a plausibly needier group of people to one of the best financially established groups in America. That’s just happening right now. It’s the situation that Hayek foresaw and that I think inevitably is going to happen when you establish things like these entitlement programs. Does that seem to you like an injustice?

Andrew M. Koppelman:

Most old people in fact depend on social security for most of their income. Most old people are not all that rich. So, the biggest problem with social security, I would say, is that it’s regressive, the amount of taxation is capped. You pay a percentage of your income up to a certain limit. After that, the very richest workers with the highest incomes are off the hook. There’s been some talk of changing that, because again, there’s quite a lot of revenue there. A big shift in the American economy over the last several decades is that wealth is concentrated at the top. I could pay more in social security. I could afford it.

Even if the payments were not going to increase, the richer people can afford to subsidize the poorer people. But now, we get into the weeds of policy. The broad idea of libertarianism that I’m trying to address in the book is the idea that social security is morally wrong, because it redistributes and redistribution is a violation of human rights because it takes money away from people who did nothing wrong. That’s the fundamental libertarian idea that I’m trying to challenge. I mean, we can talk about policy. It’s just got nothing to do with my book.

Rachel Lu:

Well, I understand that, but I think it does. Maybe I’m not explaining this well. What I’m trying to get at here is that I think most conservatives are going to agree with you on the point that you’re trying to carry, but they still don’t like social security and Medicare and they don’t like a lot of things that the state is doing right now for other reasons. They think that these programs are problematic for the two reasons that I’ve already said. One is that they teach us to see the state as the primary entity that backstops all of our fundamental needs.

That creates a lot of injustices like the ones I think we’re seeing right now where a lot of wealth ends up getting transferred away from people who plausibly have needs to other people who in many cases at least aren’t as needy, but it also leads to a lot of negative kinds of incentives that both train people to live less productive and less morally responsible lives and also disincentivize the formation of different kinds of civil society. It seems like you just want to say, “No, I’m not really very worried about that. I think it’ll be fine. That’s not the question that I’m interested in.”

But if that’s the question that conservatives are interested in, most people on the right, and if many of us think, “No, we really don’t think it’s fine,” then my point is it may not be correct to suggest that the right is overwhelmingly Randian or Rothbardian. It may be that people on the right just don’t agree with you that social security and Medicare are well-functioning programs. They don’t agree with you that the threat to individual moral development and community is trivial and that’s why they’re opposed to the growth of the state. They’re not Randian. They’re Hayekians but Hayekians who disagree with you about a number of maybe more practical questions. That’s my point.

Andrew M. Koppelman:

There are two different issues here, and I want to separate them out. One is the specifics of the programs. I’m not addressing those in the book. The question about whether these programs could be designed differently is separate from the question of whether it’s legitimate for the state to do anything at all about people who in old age can’t afford food, housing, and medical care. I mean, any government program generates dependency. I’m sitting here in my house and I don’t own a gun and I have no ability to defend myself if I’m attacked because I rely on the police and my reliance on the police is a dependency. You could say, “Look, Koppelman, this is destroying your character. You really ought to be more self-reliant and defend yourself.”

But I think that it’s better for my liberty to not have to think about the danger of being physically attacked because I got a reliable police force. Even people who are barely making it on their wages, who don’t have the resources to set aside a fund for their old age, provide for medical care for their old age, I don’t think that that destroys their character. I think that makes them freer. Now, there is a concern that you’ve raised that we do know that some programs have been counterproductive and have generated kinds of dependency that are counterproductive for the people who are the objects of the program, that some welfare programs meet that description and some don’t.

I go back to my claim that libertarians provide a useful function to the extent that they call attention to particular pathologies of particular programs. Sometimes they’re right. Sometimes welfare programs do create dependencies that are bad for human flourishing, but it’s just way too broad to say that this is true of government programs generally. The logic of that position does extend to the police force, and I like having a police force.

Rachel Lu:

Yeah, absolutely. I think that you actually do have some examples in the book that are pretty good for thinking through some of the forms of, you might say, nanny statism, that we plausibly want. One of the things that you point out in the book is that modern life is just extremely complicated. In many cases when you think about all of those complications, you do want to say, “Yeah, I think it’s actually fine for the state to have somebody figure out which toxins can’t be in my lake that I live by, which ones are going to poison my children and then send people out to test the water and make sure that those toxins aren’t there.” I’m not going to do that on my own. I don’t have the relevant expertise. So, sure, I’ll pay taxes for somebody to do that.

But what I’m saying I think is that a lot of us on the right think there are a lot more cases than Democrats want to consider in which it’s not good for us to have the state playing that role. I think a lot of us think that, yeah, programs like social security and Medicare have infantilized us in ways that have undercut our flourishing as human beings. They’ve really fundamentally changed our relationships to our own families and to our own communities. Even if there are some positives to that, there are also a lot of profound negatives to that that we’re really concerned about. So, to loop this back to your argument, what I’m saying here is I think your point that you want to make against Rand and Rothbard, I think you make it very effectively.

I would grant you victory on that point, but insofar as you think that you’ve won a victory against the entire political right and you’ve shown that the Democrats are the real Hayekian party and that the Republicans are off on some Randian protest against the world or something, it just doesn’t seem as convincing to me, because I don’t think that the motivations most conservatives have for protesting the growth of the state are fundamentally Randian. I think that they’re more rooted in these other concerns about moral responsibility, moral development, civil society, community and so on and so forth.

Andrew M. Koppelman:

Well, I think that the United States needs a responsible conservative party that is suspicious of the left’s proclivity, and the proclivity is certainly there to reach to the state for a solution to all problems. I think that people on the left have a tendency to be too optimistic about the state’s capacity to solve problems. This is an argument that we should be having at retail program by program. So, I think there is a valuable role for a responsible conservative party in American politics. I remember when there was such a party and I miss it.

Rachel Lu:

Well, do you think it’s possible? This is a question that I had for you. You have a brief flyby discussion of Aristotle in the book, and there are a few things that you say. I mean, there’s a couple places in the book where you basically just tossed to the side any distinction between killing and letting die for instance. Oh, not giving somebody medical care when you could is pretty much like murdering them or something. I mean, to a Catholic intellectual, that’s putting up a big sign that says, “Fight me, but I restrained myself a little bit.”

Andrew M. Koppelman:

That’s Locke. John Locke says that. I just quote him.

Rachel Lu:

Well, but even if that’s true, you’re quoting him with approval and you want us to apply that to present situations, right? I don’t think we actually want to spend the whole time talking about trolley car scenarios or things of that general nature. So, I haven’t gone that direction. But I do want to ask you, doesn’t it seem possible that many of the questions that we’ve been discussing here about the proper size of the state will only be answerable if we do have more detailed discussions of human nature and how it affects us as human beings when the state is playing a certain role in our lives? It seems to me that you don’t really want to do that very much. You mostly just want to say, “Oh, well, people should be able to pursue whatever life they want to have.”

But if you’re not prepared to enter more deeply into questions about human nature and what rural development requires and what healthy community and family life require, then it may be that a lot of the negative impacts of state programs on human life are just going to be invisible to you. You’ve already decided from the beginning that you’re not going to look at those kinds of problems or you don’t care about them or something, but then for somebody like me, that’s going to seem like a pretty see no evil approach.

All of the harms of state programs that I think are most significant and are actually seriously undercutting our thriving of human beings, you’ve just decided from the beginning of the book that you’re not going to talk about and that’s going to make a lot of it amiss with me.

Andrew M. Koppelman:

I don’t think that I’ve done that at all. I say repeatedly in the book that state programs can be counterproductive and destructive and they can have that effect, but once again, I think that you’ve got to think about that at retail. So, just the talk about the size of the state, you need to disaggregate the functions of the state. So, pollution regulation, for example, which you talked about, it’s just basic physical harm. I am making money by running a factory that dumps toxic chemicals into the river that children are going to drink. This is just basic harm prevention. But if you want to prevent that harm, you need an enormous scientific bureaucracy to figure out which chemicals are harmful in which ways.

You need a big state in order to provide this level of basic protection. Most of what the federal government does is Medicare and social security. We can talk about how to design those programs, but if old people are going to get a basic standard of living and decent medical care, you are going to need a transfer of funds on that scale. You think you can redesign the programs to make them more efficient. Hooray, I’m in favor of it, but the fundamental question is, are you going to do anything about that?

I talk about the earned income tax credit, which responds to the destructive dependency that the welfare state has produced by telling poor people, “Look, you get a job and you make any salary at all and we will supplement your income. So, that you have a decent standard of living, but you got to have a job. You got to work. You cannot be purely dependent on the state.” That’s the shape that the welfare state takes today primarily, and it does not in fact produce the kinds of dysfunctions that the older welfare programs did.

Rachel Lu:

So, suppose I say, “Well, one of my concerns about elderly entitlements is that it seems like they fundamentally undercut people’s incentives or inclinations to marry and have families.” The reason people used to do that is so that they would have people to care for them in their old age. But also, when generations are more connected by need, they’re just more aware of the relevance of family connection, of intergenerational ties, and so on and so forth. So, you say, “We have to do these calculations at retail.”

Suppose I’m looking at a young person who’s trying to decide what to do with their life, and I say, well, that person today thinks, “All right. Well, my parents are cared for by the state, and I will one day be cared for by the state. So, when I think about my personal goals, I don’t really see why new humans need to enter into that.” That person doesn’t go on to have a family. They end up pursuing some single life or possibly married childless lifestyle. Something like that is most appealing to them. Is that a retail level calculation when I start thinking about how that impacts people’s decision making or where do we fit that into the conversations we have about the appropriate role of the state?

Andrew M. Koppelman:

Well, there are today lots of people who have children because they want to have children, not because they are terrified of being destitute in their old age. I think that actually wanting to have children is a better reason to have children than financial considerations. Everything that we know about relations between old people and young people before social security, the relations of dependence weren’t sources of happiness on either side. We know that now. I mean, there are some people who live with their adult children, but in fact, the overwhelming preference of old people is to live separately and to not be in the same house as their children.

It’s not like they don’t have relationships with their children. They just want to live independently from one another. We have stories of the old people trying to manipulate and wheedle support from their younger children because they are financially terrified. I just don’t think that financial terror is a good basis for family relationships. I see members of my family who I don’t depend upon at all just because I love them and I want to spend time with them. That seems to me to be a better basis for family connection.

Rachel Lu:

So, clearly, I’m much more concerned about this than you are and I could bring forward a lot of further issues. So, things like these really sad articles you read sometimes from therapists who say, pretty much, my office is full all day long of people who either a parent or a child has just decided they don’t want to have a relationship with them anymore. It’s a one way decision. More often it’s the child who makes this decision, but it can go either way. Usually, the explanation is just, “Oh, I don’t like your political or religious or social views. I feel hurt that you’re not as supportive of my life choices as I’d like.” Whatever, something like that. It’s not some serious case of abuse, but relationships are messy sometimes.

Maybe the other person just said, “I don’t think I want to deal with this one anymore.” So, I’m a lot more concerned about those things than you. But instead of trying to solve that question, I just want to say my real question to you is, is there room in the parameters of your debate even for talking about questions like this? Because I think that is the type of concern that people like me have with the growth of the state. But when you keep coming back to the response, “Well, we just have to look at this at a retail level,” I’m going to be inclined to say, “Yeah, but what you consider to be retail level considerations don’t really seem to include a lot of the broader considerations that I have about human beings, how they develop, and how they’re most likely to thrive.”

It seems like both at the top theoretical level and then down at what you call the retail level, you have already decided that you’re only interested in looking at certain kinds of considerations that seem to screen out a lot of the concerns that I really have. I think many other traditionally inclined people would have. Where do we talk about this? Do we talk about individual dependence when we’re talking about Hayek and high level government considerations, or is this somehow supposed to be something that the policymakers deal with? Because I feel like that whole level of analysis just got squeezed out in your jump from political theory to “retail level” considerations.

Andrew M. Koppelman:

Well, one of the basic presumptions of liberalism is that if you give people adequate resources that the institutions of community and family that you care about are going to flourish, because people are going to make good choices with their freedom. That’s I think true of most people. I mean your therapist’s offices tend to be inhabited by people who are in some way dysfunctional and need therapy. They’re not a good sample of the population as a whole. I mean, this has been a problem for liberalism from the beginning.

If you allow people to make their own religious choices, some of them are going to choose false religions and should the state tolerate that. One of the basic presumptions of giving people freedom is that people are competent to decide what to do with it. I mean the fact that the state got out of the religion business in the United States has made the United States one of the most religious countries in the world. It turns out that people are attentive to these things if you just let them decide how to live.

Rachel Lu:

You know what I’m going to say here. We got to wrap this up, but it feels to me like we’ve come circled around to a place where you are being the tough luck libertarian now. You’re telling these people in the therapist’s room, “Look, this isn’t my problem. If you didn’t raise your kids right, then I can’t help you now.” Where I’m the one who wants to say, “No, we need to be making decisions at a higher level to help people have more fulfilling lives and flourish and feel real and important human needs.”

Maybe an interesting place to have gotten to. I feel like I should give you an opportunity if there’s anything in conclusion that we didn’t hit that you want to mention about the book or that you want readers to be attentive to. We have a generally classically liberal audience. So, if you want to make any pitch for why they should be interested in your book, now is the time to do that before we wrap up.

Andrew M. Koppelman:

Big takeaway of the book is that libertarianism comes in flavors. The reason why I wrote this book was because when I was writing about the healthcare case, I saw that it was being animated by a libertarianism. So, I tried to learn about what’s libertarianism, where’d it come from. That’s why I was reading Hayek and Rand. There was no good general introduction to libertarianism that was not written by an enthusiast.

So, I thought a good critical overview of what this set of ideas is, where it comes from, I thought was badly needed. So, if you are classic liberal inclined, I think the book puts some pressure on your views and tries to sort out what is alive and what is dead in that view. I think it’s better to be awake than to asleep. It’s better to reflect on your political views than not.

Rachel Lu:

Thank you so much for that. The book we’re discussing is Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed. It is… I didn’t say this before so I should say it now. … a very readable volume and you don’t need to have a lot of background in either law or political theory to read it. It really just reads very nicely. So, anyone with an interest in that, I would encourage you to go out and check out Andrew’s book. Thank you so much for being on with us today.

Andrew M. Koppelman:

This was fun. Thank you, Rachel.

Rachel Lu:

This was fun. Yes, thank you so much.

Brian A. Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. Please visit our journal at lawliberty.org.