[Brink] Lindsey seems to have stepped back from his much-discussed 2006 argument for a “liberaltarian” coalition between libertarians and liberals.

I realize the original “Liberaltarian” essay does read as a proposal for a near-term political alliance, but I always took the real point to be more about opening a somewhat longer-term  dialogue to see what we can learn from each other given the substantial overlap in our higher-order value commitments. That, at least, I’ve found reasonably fruitful.

To the extent that this hasn’t resulted in “an equivalent level” of cooperation with the left as that with the right on economic policy, it may be because few liberals have been willing to reciprocate. It’s striking that Lindsey’s own highly publicized efforts at forging liberaltarian cooperation met with little or no positive response among liberals.

This actually seems wrong to me. Yeah, there doesn’t seem to be much interest on the left in any kind of broad self-conscious “Liberaltarian Alliance”—but practical political coalitions don’t actually spring from New Republic essays, any more than real-world friendships arise from a formal declaration of an intent to be friends.. They’re a function of actually getting out there and doing the work, issue by issue, bill by bill, election by election.  Given my own pattern of interests, I end up mostly working on issues where I agree with civil libertarians on the left. And pretty much without exception, they’re happy to work with me on those issues, and for that limited purpose indifferent to whatever disagreements we might have over optimal levels of federal taxation and spending. None of the folks I’ve written for at the Prospect or the Nation have ever expressed the least reservation about running something with a Cato byline. If anything, I think left-leaning civil libertarians are happy to be able to point to us as evidence that opposition to torture or sweeping surveillance authority isn’t some strictly partisan punch up between Democrats and Republicans.  There are, to be sure, advantages to broader alliances, but one benefit to keeping both parties (and their associated movements) at arms-length is that I think (or would like to think) that it’s hard to credibly argue  I’m going to take a position or write an op-ed on one of my core issues with the primary motive of rooting for or against one team or another. Membership has its privileges, but so does a measure of distance.

Update: In light of Ilya Somin’s response, I realize I’ve muddled together two distinct points here.  The first is that I don’t think libertarians—and certainly not the libertarian movement as a whole—need to decide to “throw in” with one side or another in some kind of general coalition, whether traditionally fusionist or “liberaltarian.”  That said, if there were going to be some kind of broader “liberaltarian” alliance or collaboration, my point is that while it would obviously entail more than the kind of ad hoc, issue-based collaboration I’m suggesting is enough, that’s how in practice it would have to start anyway. So even if you thought a “liberaltarian alliance” were ultimately the way to go, you’d still begin with more limited collaboration and go from there.

Paul’s more sophisticated critics argued not that he was racist but that he was unrealistic. Given the social environment created by centuries of government-backed slavery and oppression, they said, segregation in the South would not have been eliminated simply by withdrawing state support for it. Even if every racist law and government policy were abolished, racist business practices would have lingered as long as there was a demand for them or as long as owners were willing to pay an economic price for their own bigotry.

I think a point made by Richard Epstein bears repeating here: It was not merely “owners… willing to pay an economic price for their own bigotry” locking in segregation, even in the absence of Jim Crow laws. Rather, as Epstein observes:

“In 1964, every major public accommodation that operated a nationwide business was in favor of being forced to admit minorities.” National chains, he explained, feared desegregating in the South without the backing of the federal government because they feared boycotts, retribution and outright violence.

The CRA, in effect, gave cover to owners who reasonably feared local authorities would be unable or frankly unwilling to protect them from racist vigilantism. Also, while Jacob’s point about the long-term consequences of blurring public and private with the notion of “public accommodations” is well taken I wonder whether that might have been limited if folks making the property rights argument had been more willing to recognize justifications for specific, historically-grounded exceptions to the principle rather than framing it as demanding either a wholesale acceptance or rejection. A lot of people, quite understandably, concluded that if a libertarian view of property absolutely precluded any effort to remedy moral horror, that was pretty decisive evidence against the view generally.

Finally, while I think most of the libertarians I’ve talked to have more or less agreed with the position I staked out in the Newsweek piece—though there’s obvious sample bias there!—I’ve also had a few exchanges with dissenters. One interesting argument that occurred to me is that, compared with other mechanisms for attempting restitution for a long history of state crimes, the CRA has the morally attractive feature of putting the “burden” of the remedy on those who particularly deserve to bear it. Here’s how I put it in one such exchange:

It may help to think of it in terms of alternative remedies. The state has systematically enslaved and oppressed an entire group of people for generations; merely stopping seems to fall far short of adequate restitution. What should have been done, then? One obvious possibility is a massive system of reparations in the form of direct cash payments. But that approach has many obvious drawbacks. First, it would likely have been politically impossible. Second, to the extent that the real and pervasive injury involved the destruction of social and human capital and the ordering of institutions to exclude African Americans, it’s not clear how far this would have gone toward genuinely improving the position of the formerly disfavored class. Third, the level of redistribution involved in anything approaching an adequate compensation package would have entailed massive economic dislocation. Fourth, the burden would fall equally on those complicit in the crimes of the past and those who’d worked against them. Whereas the CRA, rather neatly, imposes a “cost” precisely on those likely to have been complicit in the previous wrongs: Property owners who supported segregation out of conviction rather than fear, and so probably bore substantial blame for the perpetuation of the Jim Crow regime. If we think it’s sometimes appropriate to attempt to correct injuries inflicted by the state itself—which even in the straightforward case of monetary compensation will involve taking the property of taxpayers—the CRA approach strikes me as a pretty decent mechanism, all things considered.

Addendum: I should note I’ve seen a few people pick up variants on Chuck Lane’s argument against the property-rights position, which I think is pretty shabby:

There is no such thing as “private” discrimination with respect to a public accommodation. Like any other claimed property right, it could not exist without government support.

Suppose an African American customer sits down at a “whites only” restaurant and asks for dinner. The owner tells him to leave. The customer refuses and stays put. What are the owner’s options at that point? He can forcibly remove the customer himself, but, as Paul concedes, that could expose the restaurateur to criminal or civil liability. So he’ll have to call the cops. When they arrive, he’ll have to explain his whites-only policy and ask them to remove the unwanted black man because he’s violating it. But they can only do that on the basis of some law, presumably trespassing. In other words, the business owner’s discriminatory edict is meaningless unless some public authority enforces it.

I’ve seen arguments along similar lines appealing to public provision of various municipal services, upon which the government may place all sorts of strings. The trouble is, this line of argument clearly proves far too much. Suppose a private home owner is holding a (more or less) open house party, but turning away members of certain racial groups at the door. The enforcement mechanism is, of course, precisely the same: There’s nothing peculiar to “public accommodations” on this score. If we take his argument seriously, there is simply no private sphere, because any choice a property owner might make is ultimately backed by state power. As is my right to be protected from assault by people who might be offended by my political or religious views, or my sexual practices, or my annoying smirk. All our rights are ultimately enforced and protected by a system of law. To say that this entitles the state to decide which particular exercises of that freedom it deigns worthy of protection is just to say you don’t think there are any real rights. It is an argument I find it impossible to believe Lane would accept in other contexts.

And frankly, I rather doubt Lane really grounds his position on that argument in this context either. Suppose that a store set up a system whereby customers had to be individually buzzed in by a guard manning a closed-circuit camera. Would Lane say that this method of maintaining segregation would have to be permitted, so long as the owner is not relying on the power of police to exclude trespassers? My suspicion is that he wouldn’t. And that’s fine! Because there’s a much more straightforward argument—the restitutionist argument—underlying the intuition that the CRA was legitimate. But going that route involves acknowledging that there are conflicting valid claims here, and that the liberty interest burdened by antidiscrimination law (here limited to businesses as opposed to private homes and associations) is genuine, even if on balance plainly outweighed by the moral imperative to seek a remedy for centuries of state-backed racial oppression.

So why the more convoluted argument, when a more straightforward (and, to my mind, more compelling) one is readily available? Maybe it’s just a desire not to cede any ground to bigots, but I think what’s at work here is another kind of moral utopianism. It’s not enough to say that the CRA was a moral triumph on balance—Lane wants to be able to think of it as an unalloyed good involving no genuine trade-offs. So we get this strained effort to show that any apparent right or liberty burdened by the law is merely illusory. There is, perhaps ironically, a related psychological phenomenon called the Just World Hypothesis, which has itself played a role in many cases of group oppression. Briefly, the idea is that we like to believe we live in a basically fair universe, and in particular that our own society is just. So when we see that some particular group is badly treated, we (perversely) cast about for reasons that they must deserve it in order to preserve our picture of a just world. Lane’s yearning to see moral perfection in an ultimately just law is not so obviously repugnant, but in a world where we routinely have only a choice between greater and lesser evils, it’s almost always a moral mistake to try to define the lesser ones away.

Especially important, I think, is Glen’s argument about framing effects: Soft paternalism may currently seem like a middle-ground between a relatively more laissez-faire approach and “hard” paternalism that forecloses options rather than merely establishing defaults.  Yet, as Glen points out, once “soft paternalist” policies are implemented, the debate may shift to position some more aggressive intervention as the new reasonable middle ground.

Yet it’s this very sort of logic that has made me at least somewhat interested in the potential of libertarian paternalist arguments. My (perhaps vain) hope is that this reframing effect can be exploited in the other direction, to make reform in the direction of greater freedom more appealing, provided libertarian paternalists are primarily deployed in spheres that are already heavily regulated.  So, for instance, it seems that most Americans consider straightforward legalization of gambling or prostitution or drugs too extreme a position—though at least with regard to marijuana, the public opinion trend seems to be moving steadily in a more libertarian direction. But a proposal to combine legalization with some mechanism for permitting “problem users” to limit their own access—supposing the obvious privacy problems presented by such mechanisms could be worked out—might conceivably be presented as a reasonable compromise, recasting the status quo prohibitionist policies as the new “extreme.”  At the very least, I’d be interested to see some polling that examines how people’s responses change when a “soft paternalist” alternative is added alongside prohibition and legalization.

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

So here’s the point-in-a-nutshell question. What practical difference would it make, in light of the last century of Commerce Clause jurisprudence, if the clause instead had said:

To regulate commerce.

…or even:

To regulate economic affairs.

It’s hard to think of any. Even the odd outlier decision like Lopez, cast as some kind of reactionary rollback of congressional prerogatives, would likely come out the same under this broader wording.  I realize this is a horse that long ago left the barn, but I figure it’s worth pointing out now and again anyway.

Without the bailouts we would have had many more failed banks, very strong deflationary pressures, a stronger seize-up in credit markets than what we had, and a climate of sheer political and economic panic, leading to greater pressures for bad state interventions than what we now see.  Milton Friedman understood all this quite well, which is why argued bailouts would have been a good idea in the 1929-1931 period. [...]

If you are a libertarian, is not our current course more favorable for liberty than would have been a repeat of 1929-1931?  If not, I would be curious to hear your counterfactual version of how matters would have proceeded, without the financial bailouts.  Is it that you think the regional banks would have raised the financing to pick up the entire bag and keep the banking system afloat?  Or is it that natural market forces would have somehow avoided a wrenching surprise deflation?  Or do you think the authorities for some reason would have not nationalized the major banks?  Please let us know.

I’m not inclined to debate economic policy with Tyler and Megan, so I won’t presume to take a position on the ultimate wisdom of the approach that was taken, but this sounds an awful lot like the old debate trick I’ve previously referred to as the fiat shuffle. Just to refresh: The way the trick works is that, for the purposes of arguing the merits of a given policy, you assume away various real-world political barriers to the policy’s being enacted—in debate lingo, you get to “fiat” the policy and restrict the argument to whether this would be a good thing without fussing over whether you could get the votes in the House (or whatever) to do it. The shuffle comes when you assume the same political constraints back in again as part of an argument that the proposed policy would create pressure for other salutary reforms, or to dismiss alternatives as infeasible.

Now, this isn’t a clear case of fiat shuffle, because it’s easy to imagine that we might have had the political will to resist the bailouts, but that this would not have been sufficient to forestall still more aggressive intervention later assuming things would have gotten far worse. Still, despite a an initial defeat in the house, the bailout ultimately passed by a 3-to-2 margin there, and by an even more lopsided 3-to-1 vote in the Senate. Which is to say, the world in which we didn’t do the bailout is clearly a world with a pretty radically different political culture, presumably populated by legislators with a very different average worldview. When would the inhabitants of that world have given up their resistance to intervention, and how much more dramatic would the intervention have been when they did? Damned if I know, but projections based on the current composition and views of Congress probably don’t apply.

Update: I didn’t think this post made the claim that “if legislators had had the guts to stop the first bailout, they would also have had the backbone to stop a second one,” but I suppose I should train myself to start talking that way in case I ever need to do cable news.

Now, someone might object that if health care reform will have winners and losers, you could believe that the people who think it will be better for them and the ones who think it will be worse are both likely to be correct. And maybe many of them are. But I suspect that for a lot of people, their view of whether reform will be good or bad for them is pretty tightly bound up with what they think the system will look like on the whole.  If you’re totally without coverage now, you can guess that almost any reform has a good chance of being an improvement, and if you’re extremely happy with your current coverage and cost, you might reasonably expect that tinkering is more likely to muck things up than to result in still further improvement.  If you’re somewhere in the middle, though, your opinion probably turns on which of a range of general scenarios you find most plausible. That is, it’s not so much anything specific to do with you, but rather how you answer broad questions about the systemic effects of the policy: Will costs be controlled? Will rationing be severe? Will patients have more or less control over the course of their care? Will innovation be encouraged?

To the extent people’s predictions turn on those sorts of questions, “knowing what’s good for you” just  amounts to “knowing whether the policy is good.” And while we should expect people to routinely be in the best position to know what’s good for them—to know what their own values and priorities are, what their specific options and constraints are, and how to trade off between them—there’s not much reason to expect that expertise to translate to national-level policies, even when those policies will naturally have some effect on the welfare of each individual. Insofar as there’s sharp disagreement, it’s practically a tautology that large numbers of people will turn out to be wrong about “what’s good for them” in this sense.

I mention all this, by the way, not because I have any interest in defending Obama’s health proposals, but because I’m loath to see anti-paternalist rhetoric conscripted in service of crude majoritarianism.

Where does the right to health care come from? Did it exist in, say, 250 B.C., or in A.D. 1750? If it did, how was it that our ancestors, who were no less intelligent than we, failed completely to notice it?

If, on the other hand, the right to health care did not exist in those benighted days, how did it come into existence, and how did we come to recognize it once it did?

Now, I assume—or at least hope—Dalrymple is perfectly capable of thinking of any number of genuine rights that ancient societies failed to recognize. Indeed, our ancestors “failed to notice” a great many of the rights we now consider fundamental at very many times in the past, so he can’t just mean that historically neglected rights are necessarily invalid. What I think he means is that rights are usually thought of as being universal, what people are in principle entitled to in any time or place just by dint of their humanity. We can say of Medieval serfs that they should have been treated very differently than they were by their societies, but since “ought” implies “can,” it seems absurd or incoherent to suggest that they should have had access to antibiotics or chemotherapy or any of the myriad other relatively recent innovations that constitute modern health care, let alone that they had a right to these things. What sort of right is it, after all, that cannot even in principle be satisfied? But supposing rights are universal, the thinking goes, they must have enjoyed (in principle) the same rights that we do, so a right that would have been impossible for them to claim must not be a genuine right today, even if such a purported right is now technologically satisfiable. Which I think is what Bandow is getting at when, in his own post, he asks precisely what level and kind of health care we’re all entitled to—the idea being that any concrete answer will either seem to wish away scarcity or appear contingent or arbitrary in a way we don’t expect abstract rights to be.

If the “right to health care” were really a claim on specific set of goods or services, the argument would go through well enough.  But we can conceive of this right—and of positive rights generally—in another, more plausible way. What we can instead say, speaking very roughly,  is that people have a right to the aid of others in avoiding severe harms when the cost of providing that aid is relatively low—a right that others help me when the burden of helping on them is relatively slight compared with the benefit to me. Alternatively, we might frame this as a sort of share right, either to some minimal proportion of social resources, or to a quality of life not too radically short of the prevailing level when this is possible. I’m not arguing that there is such a right, I’m just arguing that there isn’t a formal problem with asserting such a right timelessly and universally.

If this sounds doubtful, consider some less controversial negative rights that just about everyone thinks we have—rights against the imposition of certain kinds of harms. In a small and technologically primitive community, we can probably think of all sorts of harms that individuals simply cannot realistically help but impose upon each other: the spread of various lethal contagious diseases, air and water pollution from human waste or cooking fires. It is not literally impossible to avoid imposing these externalities—everyone could go off into the mountains and commit suicide or, less dramatically, refrain from cooking their meat—but insofar as that would leave everyone very much worse off, the burden of avoiding these harms is too high to generate a binding duty or a corollary right. At a different level of development, the interest in avoiding these harms might be much greater relative to the cost of refraining from the behaviors that impose them, and we might say that there is such a duty and right. Now, in one sense, my neighbor and I both have some “new” rights not enjoyed by our ancestors: to wit, the right that the other not leave bonfires or big mounds of human feces in the front yard. But jumping up a level of abstraction, we’ve got the same conditional right not to be involuntarily subjected to relative diminutions of quality of life above a certain level, when the relative cost to each of us of not subjecting the other is below a certain level. Whether I’ve picked especially good examples here is less important than whether we think it’s plausible to conceive of our particular rights and duties varying across technological contexts, while the rights functions that determine our concrete obligations and entitlements  remain fixed and universal.

We can say something similar about this argument from Wesley J. Smith:

I think the biology of the matter is important because it raises the question of how can meat-eating be immoral when an omnivorous diet is not only natural but offers us the best balance of nutrients. Vegans, for example, must take a supplement to obtain Vitamin D. Hence, I don’t see how eating a naturally human diet can ever be considered immoral.

Now, I’m not entirely sure how Smith thinks this argument is supposed to work, why he imagines “naturalness” is relevant, why he imagines modern factory farming is plausibly described as “natural,” or how the balance of nutrients fits into it. (I presume he would consider it beside the point if we discovered tomorrow that toddler is the most nutritious sort of meal.) But one way it might work is along these lines: Our ancestors would probably not have survived had they not killed and eaten animals; it cannot have been wrong for them to do what was required to survive; therefore killing and eating animals must be morally permissible. I don’t think I’d actually accept the second premise without qualification, but I think it’s probably fine in this context. Now, this is a little different from the previous case, because we might think that what we owe our fellow humans depends on the reciprocal obligations we’d impose on each other in a social contract formed under certain idealized bargaining conditions, and not so much when it comes to cows. Partly for that reason, I’m extraordinarily reluctant to use the language of “rights” when talking about how we ought to treat animals. But I don’t find it inconceivable, as Smith seems to, that it could have been perfectly moral for our ancestors to kill and eat animals to avoid death or serious illness, while it is not so moral for us to do the same—or, more accurately, to do rather worse in terms of how livestock are typically treated—in order to avoid the need to take Vitamin D supplements.

Update: I should probably be clear that I do still agree with the original sentiment this far: A “right to health care” isn’t going to make sense as a fundamentally distinct category of entitlement, but only as the upshot under certain conditions of a general duty to aid. So it’s not that there’s something metaphysically special about health care, but rather that if you think there’s such a duty to aid, provision of health care might turn out to be the most efficient way to satisfy it, to the extent that it’s both important to people’s welfare and hard for them to obtain on their own. An obvious upshot of this is that a practical “right to health care” as an entitlement in a particular context can’t be an unbounded one—it can’t mean that you have a right to whatever treatment might help ameliorate your condition or extend your life,  regardless of cost.

1. Cato-influenced (for lack of a better word).  There is an orthodox reading of what “being libertarian” means, defined by the troika of free markets, non-interventionism, and civil liberties.  It is based on individual rights but does not insist on anarchism.  A ruling principle is that libertarians should not endorse state interventions.  I read Palmer’s book as belonging to this tradition, broadly speaking.

2. Rothbardian anarchism.  Free-market protection agencies will replace government-as-we-know-it.  War is evil and the problems of anarchy pale in comparison.  David Friedman offered a more utilitarian-sounding version of this approach, shorn of Misesian influence.

3. Mises Institute nationalism.  Gold standard, a priori reasoning, monetary apocalypse, and suspicious of immigration because maybe private landowners would not have let those people into their living rooms.

4. Jeff Friedman and Critical Review: Everything is up for grabs, let’s be consequentialists and focus on the welfare state because that’s where the action is.  Marx is dead.  The case for some version of libertarianism ultimately rests upon voter ignorance and, dare I say it, voter irrationality.

5. “Hayek libertarianism.”  All or most of the great libertarian thinkers are ultimately compatible with each other and we have a big tent of all sorts of classical liberal ideas.  Hayek and Friedman are the chosen “public faces” of this approach.  “There’s a classical liberal tradition and classical liberal values and we can be fuzzy on a lot of other things.”

This seems off to me—and uncharacteristically messy, actually. For one, it blurs together a bunch of different levels of taxonomy. Mises and Cato both have institutional cultures that are distinct from whatever ideological strains somone might associate with them—and in the case of Cato, at least, I think there’s substantial enough internal diversity that I’d be hesitant to use it as a tagline for any particular form of the philosophy. Which is as it should be at a policy shop.  I’m not disposed to sit around making elaborate lists all day, but if you wanted to do this, I think you’d want a set of cultural categories and a set of philosophical ones, though of course certain pairings are a lot more common than others. Tyler’s list is more of a philosophical breakdown, but it reads oddly. Jeff Friedman runs an interesting journal and some great seminars, but his name looks odd juxtaposed with “Rothbardian Anarchism” as a category. A more intuitive grouping would put him in with a much broader bunch of public choice–minded consequentialists, alongside those Rothbardian Anarchists, a generic group for “non-aggression principle” deontologists, Chicago Schoolers, paleolibertarians, Objectivists (who are libertarians in every ordinary-use sense of the term, even if they don’t like it), and ecumenical Hayekians. I leave the cultural subdivisions as an exercise for the reader. My comments regarding Jeffrey Friedman notwithstanding, Starchild is actually his own category here.