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Libertarian History/Philosophy

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Published: Tue, 25 Jul 2017 00:00:00 -0400

Last Build Date: Tue, 25 Jul 2017 19:01:48 -0400


What Nancy MacLean Gets Wrong About James Buchanan

Thu, 20 Jul 2017 21:00:00 -0400

The board of education in Brown v. Board of Education—the 1954 Supreme Court decision that desegregated American public schools—was located in Topeka, Kansas, a city that was overwhelmingly white. Brown overturned a policy set by a majority, and it was right to do so: School segregation is just as wrong when it is imposed democratically as it is when it is imposed by suppressing the black vote. So the strangest thing about Democracy in Chains—a book that contains many, many strange claims—may be how its author, the Duke historian Nancy MacLean, treats Brown. On one hand, she believes that those who want to bind majorities with preset constitutional rules are up to something sinister. Her chief villain on this score is James Buchanan, an economist and political philosopher who argued that government actors ought to be subject to built-in structural constraints. On the other hand, MacLean clearly thinks Brown was correctly decided. Indeed, she accuses Buchanan of working to undermine the ruling. MacLean seems not to notice Brown is itself an example of the phenomenon MacLean is denouncing: a Constitution being used to overrule a democratic outcome in the name of protecting a minority. It's an awkward start for a baroque conspiracy story, and it signals what a mess the book will be. The historian has little to no evidence for her history. She invents some when necessary, and will at times just make assertions to suit her narrative, mustering neither real nor phony evidence to back them up. Many of her factual and interpretive errors have already been covered elsewhere, in venues ranging from Vox to The Washington Post. Rather than get lost in the weeds of covering every false statement or misleadingly gerrymandered quotation in this book, I want to focus here on the core claims that it gets wrong: MacLean fundamentally misunderstands Buchanan's intellectual project, treating his theories about politics as an apologia for the wealthy and powerful. This gives short shrift to a serious body of thought, and it fails to see that his arguments can indict the wealthy as much as anyone else. She tries to tie Buchanan's work to the segregationist order in the South, even implying that his ideas arose from a desire to preserve it. She essentially invents links along the way. She paints Buchanan as an important influence on Augusto Pinochet's repressive dictatorship in Chile. Not only does her evidence fail to support this, but she misses an important piece of counterevidence: a 1981 speech, delivered in Chile, in which Buchanan condemned dictatorial rule. And finally, though Buchanan was neither an orthodox libertarian nor a central influence on the libertarian movement, she puts him at the heart of a Charles Koch–driven conspiracy to impose a radical libertarian agenda on the United States. In the process, she manages to misread both Buchanan and Koch in telling ways. Public Choice, Private Greed? Buchanan won the Nobel Prize in 1986 for his role in founding the "public choice" school of economics. This school's key idea, to quote the Nobel committee, was to seek "explanations for political behavior that resemble those used to analyze behavior on markets." The result was a body of work in which politicians and bureaucrats, no less than entrepreneurs and investors, often "act out of self-interest," driven not just by a vision of the common good but by a desire for votes or bigger budgets. MacLean, by contrast, treats public choice as little more than an effort to question the good-heartedness of public servants. Its conclusions, she insists, have "no true research—no facts—to support them" and are rooted in "projecting unseemly motives onto strangers about whom they knew nothing." She takes it for granted that when public choice economists complain that special-interest groups profit from government, they're aiming to protect the rich from the poor; it never seems to occur to her that the interests who play this game successfully are much more likely to look like Boeing, General Electric, or Archer Daniels Midland than,[...]

'Humans of Freedom Fest': Portraits from the Largest Annual Gathering of Libertarians

Wed, 19 Jul 2017 19:56:00 -0400

Editor's note: FreedomFest, held every July in Las Vegas, is the largest annual gathering of libertarians in the country. Today is the first day of the four-day long conference, which is being headlined in its 10th year by William Shatner, John Stossel, Greg Gutfeld, and others. Taking inspiration from the site Humans of New York, Reason is happy to offer Humans of FreedomFest, a series of portraits and brief interviews with various attendees. This is the first installment.

Victor the SnakeMannn


"This hand and this tattoo is in more pictures with celebrities than anybody else's hand or tattoo. I've got the most famous GOP tattoo."

Are you the black sheep of the family?

"Oh yeah. My dad was a Marine and a Democrat. And he was one of those guys who voted because of my mom, so his vote wouldn't be canceled out. I've been a conservative and a hippie for most of my life."

Jaden Stubbs and Roy Lee Stubbs


"My dad couldn't make it to this year's [FreedomFest], so I came with [my cousin's Jaden's] family. I earned my money so I could come."—Roy Lee (above, right)

You earned your money so you could come?

"I work. I do a little bit of flooring. Construction. I'm helping pay for gas. Paying for food."

"Our parents teach us to be individuals."—Jaden

Nick Cooper


What is your most controversial opinion?

"Among the general public? Eliminating the Federal Reserve. Among libertarians? I'm not a huge open-borders guy. There's a joke that if you get five libertarians in a room, you'll get 10 opinions."

If You're Going to FreedomFest, Make Sure To Catch All the Reason Panels

Tue, 18 Jul 2017 17:54:00 -0400

(image) FreedomFest, the world's largest annual gathering of libertarians, gets started tomorrow in Las Vegas. (It's not too late to attend!)

The keynote speakers include William Shatner, Greg Gutfeld, and John Stossel (who will also be debuting his first "Stossel on Reason" documentary during the four-day event). There are panels and presentations galore on virtually every aspect of libertarian thought, policy, and philosophy—go here to leaf through the event's agenda.

On Saturday, July 22, there will be a special "Reason Day" slate of events, starting with a panel featuring Matt Welch, Katherine Mangu-Ward, and me called "To Boldly Go...Reason and the Glorious Libertarian Future." We'll suss out the direction we want to see the future head in and will underscore the policies and mindsets that can make that possible. Other Reason Day panels include "Liberty on Mars (and Other Planets)," featuring Mangu-Ward, Justin Monticello, and Berin Szoka; "Liberating the Human Body," with Welch, Ron Bailey, Zoltan Istvan, and Mike Riggs; and "Is Spock Libertarian?: The Politics of Science Fiction," featuring me, Mangu-Ward, Peter Suderman, and David Brin.

Beyond that, Matt Welch will join John Stossel to talk about being a libertarian journalist, Katherine Mangu-Ward will participate in the vaunted "final panel" of the conference, and I'll interview Greg Gutfeld and participate in a debate on Donald Trump's presidency so far. Nearly a dozen Reason staff will be roaming the halls, reporting on goings-on, taping interviews, documenting "The Humans of FreedomFest," and more.

To celebrate the 10th anniversary of FreedomFest, the organizers also put together an online poll of over 10,000 people to name the "100 Most Influential Libertarians." Among the honorees were many Reason folks: John Stossel (4), whose online video series "Stossel on Reason" debuts this Thursday; David Koch (6), longtime trustee of Reason Foundation, the nonprofit that publishes this website; Drew Carey (17), the Price Is Right host, Reason Foundation trustee, and force behind the award-winning documentary Reason Saves Cleveland; Robert W. Poole, Jr. (19), one of the founding editors of Reason magazine and founder of Reason Foundation; myself (22); and Matt Welch (24), Reason editor-at-large, author of McCain: Myth of the Maverick and co-author of The Declaration of Independents. Add to that another half-dozen or so Reason columnists, former staffers, contributing editors, and it's practically like reading our masthead. Many of the people on the list will be on site for a special celebration on Friday, July 21.

FreedomFest is a great institution, a libertarian Woodstock that happens every year! If you're attending, make sure to check out all the Reason Day panels while you're there. And the Reason booth in the exhibition hall. And everything else this amazing conference has to offer.

Last year at FreedomFest, we sat with Gary Johnson and William Weld to talk about the 2016 election. Check it out:

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We Are The Economy They Want to Regulate

Sun, 16 Jul 2017 00:30:00 -0400

Critics of the libertarian philosophy think they can score points by calling libertarians "market fundamentalists." It's supposed to conjure images of dogmatic religious fundamentalists, just like the term global warming denier is supposed to conjure images of Holocaust deniers. It's a smear, of course, and if you think the tactic discredits those who employ it, I agree. The fact is that libertarians cannot be market fundamentalists. Why not? Because in the libertarian worldview, the market is not fundamental. What's fundamental is every person's right to be free from aggressive force. So fine, I'm a freedom fundamentalist. Guilty. Strictly speaking, it's not markets that can and should be free—it's people. The term free market merely describes one political-legal context in which people conduct themselves. It's shorthand for a subset of human action—the exchange of goods and services, usually for money. (The logic of human action, the study of which Ludwig von Mises called praxeology, applies to all purposeful conduct, not just market exchange.) It follows, then, that when politicians and activists call on the government to regulate the economy, they mean to regulate us. There's no economy to regulate. It's not a machine or a vehicle. It's an unending series of purposeful activities the logic of which gives rise to a process characterized by regularities. Hence, for example, the law of supply and demand. We can talk about this orderly process—the market—as though it were a thing, but we have to keep its metaphorical nature in mind. It's still only people cooperating with each other. When market critics demand government regulation, they imply that markets are by nature unregulated. But we've just seen that this is nonsense. An unregulated market is a logical contradiction. That we call it a market indicates the regularities, or laws, just mentioned. No regularity—no market. There could no more be an unregulated market than there could be a grammarless language or a perpetually disorderly society. We would not call a population a society if it did not display a general order expressed by rules (written and unwritten), customs, and mores. Without such things, a population would be not a society but a Hobbesian state of nature. So the question is not whether the market should be regulated, but who should regulate it. And the only two choices are: 1) market participants through the exercise of their free and peaceful choices or 2) politicians and bureaucrats relying on the threat of violence to impose their will. Easy choice, I'd say. Those who doubt the market is intrinsically regulated when people are completely free need only ask themselves what would happen if someone charged $100 for an apple or offered to pay workers $1 an hour (assuming no legislation forbidding this). The answer is simple: others would offer lower prices for apples and higher wages to workers. No need for government regulation. In other words, competition would discipline the would-be gouger and miser. Competition simply means the freedom to offer better terms to consumers and workers. As I say, free markets are nothing but free persons. Those who think cooperation is preferable to competition should realize they are two sides of the same coin. Competition is what happens when we're free to choose with whom we wish to cooperate. Two shoe stores compete, each hoping to be the one that cooperates with me in my quest for new shoes. Critics really must stop reifying the market because markets don't do things or have purposes. Only people do things and have purposes. You often hear it said (unfortunately, by some economists) that markets ration goods and services. This is often the retort when critics of national health insurance warn that rationing would eventually be necessary to sustain the system. When a government bureaucracy allocates medical services, that is indeed rationing. Think of food rationing during World War II, when you could buy no more eggs than[...]

Is Libertarianism a 'Stealth Plan' To Destroy America?

Mon, 03 Jul 2017 08:30:00 -0400

As its title suggests, Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America, by Duke historian Nancy MacLean, is filled with all sorts of melodramatic flourishes and revelations of supposed conspiracies. Chains, deep history, radicals, stealth—is this nonfiction or an Oliver Stone film? Even the cover depicts a smoke-filled room filled with ample-chinned, shadowy figures! This book, virtually every page announces, isn't simply about the Nobel laureate economist James Buchanan and his "public choice" theory, which holds in part that public-sector actors are bound by the same self-interest and desire to grow their "market share" as private-sector actors are. No, MacLean is after much-bigger, more-sinister game, documenting what she believes is the utterly chilling story of the ideological origins of the single most powerful and least understood threat to democracy today: the attempt by the billionaire-backed radical right to undo democratic governance...[and] a stealth bid to reverse-engineer all of America, at both the state and the national levels, back to the political economy and oligarchic governance of midcentury Virginia, minus the segregation. The billionaires in question, of course, are Koch brothers Charles and David, who have reached a level of villainy in public discourse last rivaled by Sacco and Vanzetti. (David Koch is a trustee of Reason Foundation, the nonprofit that publishes this website; Reason also receives funding from the Charles Koch Foundation.) Along the way, MacLean advances many sub-arguments, such as the notion that the odious, hypocritical, and archly anti-capitalistic 19th-century slavery apologist John C. Calhoun is the spirit animal of contemporary libertarianism. In fact, Buchanan and the rest of us all are nothing less than "Calhoun's modern understudies." Such unconvincing claims ("the Marx of the Master Class," as Calhoun was dubbed by Richard Hofstadter, was openly hostile to the industrialism, wage labor, and urbanization that James Buchanan took for granted) are hard to keep track of, partly because of all the rhetorical smoke bombs MacLean is constantly lobbing. In a characteristic example, MacLean early on suggests that libertarianism isn't "merely a social movement" but "the story of something quite different, something never before seen in American history": Could it be—and I use these words quite hesitantly and carefully—a fifth-column assault on American democratic governance? Calling attention to the term's origins to describe Franco's covert, anti-modern allies in the Spanish Civil War, MacLean writes the term "fifth column" has been applied to stealth supporters of an enemy who assist by engaging in propaganda and even sabotage to prepare the way for its conquest. It is a fraught term among scholars, not least because the specter of a secretive, infiltrative fifth column has been used in instrumental ways by the powerful— such as in the Red Scare of the Cold War era— to conjure fear and lead citizens and government to close ranks against dissent, with grave costs for civil liberties. That, obviously, is not my intent in using the term.... And yet it's the only term up for MacLean's job, since "the concept of a fifth column does seem to be the best one available for capturing what is distinctive in a few key dimensions about this quest to ensure the supremacy of capital." Sure, "fifth column" is a dirty, lowdown, suspect term among historians because using it trades in hysteria at the service of the ruling class rather than rational analysis intended to help the downtrodden. But come on, people, we're in a twilight struggle here, with a movement whose goals have included, among other things, ending censorship; opening the borders to goods and people from around the world; abolishing the draft and reducing militarism; legalizing abortion, drugs, and alternative lifestyles; reforming criminal justice and sentencing; focus[...]

What Do 'Women in Liberty' Want?

Thu, 29 Jun 2017 19:15:00 -0400

Why aren't there more female libertarians? Is it because biology dictates that ladies love the state?

These are the sorts of tedious questions women in the "liberty movement" field at far too many events. So when some of us gathered last week at "Porcfest"—formally the Porcupine Freedom Festival, an annual campground conference and party put on by the Free State Project—we used a "Women in Liberty" panel to deconstruct myths about male dominance in liberty circles, the incompatibility of libertarianism and feminism, and libertarians' ability to make "emotional arguments."

Reason's Melissa Mann, along with libertarian activist and writer Avens O'Brien, Kat Murti of the Cato Institute and Feminists for Liberty, and Free the People CEO Terry Kibbe joined in a panel I moderated. Friends in the audience took video of the hour-long panel, which I have cobbled together. My editing skills might be sub-par, but my wise and off-the-cuff co-panelists make it worth your while anyway.

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The Base Rhetoric of Mainstream Taxation Talk

Sun, 14 May 2017 10:15:00 -0400

Lenin reportedly said, "The best way to destroy the capitalist system [is] to debauch the currency." If by "capitalist system"* we mean only what Adam Smith called "the obvious and simple system of natural liberty," we could improve on the quote: the best way to destroy it is to debauch the currency of rational communication, the language. George Orwell of course understood this well and made it the centerpiece of Nineteen Eighty-Four. In a book on the German liberal social-critic Karl Kraus (Anti-Freud: Karl Kraus's Criticism of Psychoanalysis and Psychiatry), Thomas Szasz distinguished between noble and base rhetoric and rhetoricians—that is, those who use language to reveal (e.g., Kraus) and those who use it conceal their value judgments (e.g., Freud). Szasz pointed out that the conservative "radical" intellectual Richard Weaver, lamenting the neglect of rhetoric as an academic subject, described what Szasz called "the movement away from the value-laden language of theology, poetry and prose, in short of the 'humanities,' and toward the ostensibly value-neutral languages of the 'sciences.' This attempt to escape from, or to deny, valuation is, for obvious reasons, especially important and dangerous in … the so-called social sciences. Indeed, one could go so far as to say that the specialized languages of these disciplines serve virtually no other purpose than to conceal valuation behind an ostensibly scientific and nonvaluational semantic screen." Szasz here was referring to scientism, which Kraus despised and attempted to expose in his work. Base rhetoric is what social engineers must engage in or else they would be, in Oscar Wilde's words, "found out." We can see the base rhetoricians in action whenever they talk about taxation. From the terms of their discussion, you would never know that the money in question actually belongs to particular individuals, who obtained it through voluntary exchange or gift. Rather, the terms suggest that it belongs collectively to society, with the government being its agent of distribution. The only question, then, is: what's the fairest distribution? How else are we to explain the routine designation of tax cuts and repeals as "tax breaks?" We don't usually call letting someone keep his justly acquired possession a break. And how are we to explain why people are chided about paying their "fair share" without a standard of fairness ever being proffered? And, finally, how else are we to explain the term "tax expenditure," which is attached to any policy that enables people to reduce their tax "liability" by jumping through one legal hoop or another? These hoops are often called "loopholes," though that term can mean both deliberate and inadvertent features of legislation that provide opportunities for people to keep some money out of the government's hands. The concept tax expenditure implies that the government's budget is the entire GDP. When anyone calls for a new tax or a tax increase, that person wants government personnel to threaten force against others who fails to surrender their money to the state. But almost no one speaks in those terms. If tax advocates did that, their rhetoric at least would be value-laden and honest (and only in that sense noble). Instead, such people engage in base rhetoric. They speak in ostensibly value-neutral language when in fact their meaning is value-laden: they implicitly claim that their plans for the money are superior to the plans of those who now possess it. Weaver wrote that "language … is … sermonic. We are all of us preachers in private or public capacities. We have no sooner uttered words that we have given impulse to other people to look at the world, or some small part of it, in our way…. Language is intended to be sermonic. Because of its nature and its intimacy with our feelings, it is always preaching." (Szasz got these quotes from R. L. Johannesen, R. Stricklan[...]

Libertarianism Does Not Yet Rule America. Libertarians Know That. That's Not a Reason for Them to Abandon Libertarianism.

Wed, 26 Apr 2017 08:30:00 -0400

From its beginnings as a distinct ideological movement in the postwar years, libertarianism has been a set of outsider ideas vastly disrespected by most American politicians and intellectuals. It was kept alive by small institutions, publications, and scattered academics (mostly in economics at first) who for decades were largely concerned with just keeping any expression of these ideas a going concern, barely expecting it could soon seriously influence mainstream political culture. (That story is told up to the turn of the 21st century in my book Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement.) Libertarians understand they are still to a large degree strangers in a strange land when it comes to the American political scene, struggling for impact in a world they never made, and any number of other cliches indicating that obvious truth: libertarianism is still a minority idea and libertarians are still embroiled in a difficult and long-term fight to influence political ideology and practice in America. Libertarians are generally not delusional on that point. When it comes to awareness and acceptance of the overarching principles of libertarianism, even if not to their actuation across the board in governing, the situation for libertarianism is America has gotten much better in the 21st century along many dimensions. As Reason's Matt Welch and Nick Gillespie have argued, an often pre-political embrace of the options, variety, and choice inherent in the libertarian vision of free minds and free markets has spread massively in American culture, even if government qua government isn't shrinking. One of the ironic demonstrations of libertarianism's inroads in American culture is that mainstream outlets find it necessary frequently to declare it dead, irrelevant, or fatally wounded. Lately we've had Tim Alberta in Politico assuring us that the libertarian dream is dead; and Adam Ozimek in Forbes saying libertarianism could be more successful if only it would narrow its vision a little. Politico makes a good point as far as it goes: Until Donald Trump's bold political entrepreneurship proved surprisingly successful, there was reason to believe the GOP might be more inclined to go for a libertarian-leaning candidate such as Sen. Rand Paul (R-Ky.) rather than someone like Trump, policy-wise a Buchananite populist in the Rick Santorum style (to point to the nearest even slightly successful precursor in the GOP), but with less sanctimony, less even half-convincing Christianity, and more aggressive crudity and lack of intellectual polish. Examining the respective political fates of Paul and Trump in the 2016 presidential race, now we know better. But by the very fact that it is an outsider political movement not fully at home in either major party, nothing about libertarianism's correctness or its hopes for the future depend on some short term victory; certainly nothing about the American people's choice of aggressive protectionist nationalism (to the extent we can be sure what people thought they were getting when they choose Trump) proves that libertarianism is either mistaken or dead. It just proves libertarianism remains what it has been since it arose as a distinct movement in America after World War II: a small fighting rump, but one whose spread and reach is as high as it's ever been, even if it has failed in 2016, as it has always failed, to win the White House. Otherwise, Politico's long article is merely a portrait of a moment in time, not the final fate of an ideology. Its observational power is mostly rooted in noting that, while he occasionally talks a libertarian-sounding game when it comes to, say, regulation, Trump is overall very opposed to the larger libertarian vision of truly free markets, respect for property rights, and restrained government power. True, and understood; especial[...]

Free Trade Under Fire in the Age of Trump

Thu, 20 Apr 2017 15:05:00 -0400

The Trump administration's incomprehension of the benefits, and hostility to the practice, of free trade represents one of the most important current threats to the ideas of liberty, I argue in a new essay up at the Cato Institute's website, "Free Trade is Under Attack, and It Must be Defended."


The core of the argument:

The economic and moral case for free trade of goods, capital, and labor across borders is so strong, and so core to the libertarian vision, that any politician, party, or group that professes to further the cause of liberty and does not understand and advocate it cannot be relied on as an intelligent ally.

In year one of the Trump administration, then, the greatest challenge facing political liberty is rewinning support, either popular, or elite, or preferably both, for this core free market principle. Free trade very recently was central to the free-market image of Trump's party, the Republicans, but they mostly seem to have shed it in service of propping up their president's agenda, or in search of tax solutions, like a border adjustment tax, that they can sell as harming only "them" and not us.

From the moment he declared his candidacy, Trump's highest priority seemed to be forceful interference with the free movement of goods, services, and people across the American border. His reasons were based in either unreasonable fearmongering over a very small risk (when it comes to immigrants), or a misunderstanding, or a pure rejection, of the principle that people should be able to trade their property and labor as they wish with minimal interference from the state.

Trump didn't even wait until he was sworn in to begin threatening businesses who dare use their capital outside the American border. Chiefly he sought punitive taxes and sought to use the government's power of special favors to cajole companies into not doing so. In his inaugural address he cut to the point with a clarity that was brutal and frightening to those who understand free trade as the cornerstone of liberty and worldwide wealth: "We must protect our borders from the ravages of other countries making our products, stealing our companies, and destroying our jobs," Trump said. "Protection will lead to great prosperity and strength."

The Cato Institute (a libertarian public policy analysis think tank) is celebrating its 40th anniversary this year, and that essay is part of a series they commissioned and are publishing on the "Future of the Free Society."

Is Comedy a Form of Political Resistance? Nick Gillespie at Cato Unbound

Mon, 17 Apr 2017 17:45:00 -0400

(image) My contribution to Cato Unbound's "The Very Serious Comedy Issue" will be posted at the site tomorrow. In the meantime, catch up with standup Jeremy McLellan's opening essay, "Bombing on Stage: Comedy as Political Resistance," in which the talented performer (he emceed the recent International Students for Liberty Conference) argues

Comedy is inherently anti-authoritarian. As Stanley Hauerwas once said, "If you desire to rule the world, the incomprehensibility of the world must be denied or tamed. What cannot be tolerated are forms of humor that might make the attempt to control a dangerous world absurd." In short: You are not God, and it's the job of the comic to remind you of that.

Another standup, Lou Perez (who runs We The Internet and has performed at offers up this:

When an online magazine like Paste poses the question, "What is comedy's role under Trump?" I have to respond, "Well, what the fuck was comedy's role under Obama?"

(image) Is Paste implying that comedians should no longer be cheerleaders for the executive branch and its party—but just for the next four years? Or is Paste saying that we should get back to that whole speaking-truth-to-power thing from now on—no matter who's in power?

And Duke University political scientist and 2008 Libertarian candidate for governor of North Carolina Michael Munger writes

[Political] humor then arises out of a logically consistent but unexpected and possibly unsettling reframing. There is twist that forces us into a change in point of view, but the twist is hidden in the setup of the joke and we could have seen it coming if we had been aware of the trick.

For political humor, the "misdirection" is the unquestioned and perhaps even unrecognized assumptions the listener or reader makes about the political world. The "incongruity theory" of humor argues that the human mind, for whatever reason, is attracted to situations where we expect one thing to happen, but what actually happens is something else. That seems a pretty apt description of the political process recently.

My rejoinder to McLellan, Perez, and Munger is infused with the spirit of the recently departed insult comic Don Rickles. Which is to say that I take a bunch of swings at each of them. Along the way, I work hard to alienate as many people as humanly possible in 1,200 or so words.

Tune in tomorrow to see how I did.

Glenn Reynolds: Majoritarianism in the Courts Is a Bad, Bad Thing

Mon, 03 Apr 2017 17:16:00 -0400

With Senate Democrats going for a filibuster against the nomination of Supreme Court nominee Neil Gorsuch, things are about to get hairy in the Capitol. It seems without question that Gorsuch is a competent, qualified jurist and the Dems almost surely are shooting themselves in the foot by trying to block his appointment. Most Americans don't care overly much about judicial philosophy, but nothing Gorsuch has written and discussed disqualifies him or marks him as incompetent. Making his nomination a pure political play will alienate everyone except strict liberal ideologues. Writing in USA Today, Glenn Reynolds of University of Tennessee Law School and has a sharp, concise column up about the role of the Supreme Court in deciding whether laws are constitutional or not. Citing libertarian legal school and Georgetown professor Randy Barnett's recent book, Our Republican Constitution, Reynolds explains that the Constitution's animating principle was decentralizing power, especially of a simple majority. The powers of government were limited, and separated among various branches, and divided between the federal government and the states, while some things were placed beyond the power of the government entirely. This was intended to ensure that minority groups could go about their business unmolested by the majority. During the Progressive Era of the 19th century, these limitations on majority power chafed Progressives who were in the legislative majority. They wanted to make big changes, and the Constitution's limitations made that hard. Progressive legislation kept losing in the courts, who kept pointing out that it was inconsistent with Constitutional limits on government power, and Constitutional protection of things like private property rights. This led to a rule of judicial restraint that was the beginning of the democratic constitution, where majority power reigned supreme. Its first major appearance was in an article by Harvard law professor James Bradley Thayer, arguing that courts should not strike down laws as unconstitutional, so long as they could imagine a reasonable person thinking them valid. Only in cases of clear mistake should judicial review lead to laws being held unconstitutional. This thinking found its first Supreme Court application just a few years later in the 1896 case of Plessy v. Ferguson, upholding segregation under the famous "separate but equal" formulation (though this phrase was not part of the opinion). Echoing Thayer, Justice Brown wrote "We cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable." Also at that time, as Barnett notes, writers stopped talking about courts' duty to strike down unconstitutional laws and started talking about their power to do so. Not exercising a duty is a dereliction; not employing a power could be characterized as self-restraint. Nonetheless, in other cases, the Court applied the republican constitution, striking down (in Buchanan v. Warley) a Kentucky racial zoning law backed by a majority, and (in Bailey v. Alabama) barring enforcement of labor contracts for black people that, in reality, amounted to involuntary servitude. In both cases, the importance of individual rights trumped the majority's desire. Read the whole piece. Barnett and Reason's Damon Root have written a lot about the problems that come from the courts showing too much deference to elected officials. Ironically, conservatives are quick to bitch and moan about "judicial activism" but often the bigger problem is when courts look the other way as legislators arrogate more and more power to themselves. However the Gorsuch confirmation plays out, this larger argument about activism and deference is a key battleground, especially in a cou[...]

Steve Bannon Hates Libertarians Because *We're* Not Living in the Real World?

Mon, 27 Mar 2017 17:25:00 -0400

The first of the two times I've met Donald Trump was at a 2015 rally protesting the nuclear deal President Obama had announced with Iran. As he rumbled off the stage past the press area, I asked him, "Hey Donald, what do you think about libertarianism?" "I like it, alotta good things," he said, shortly before brushing me and saying, "I don't want to talk you right now." src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0"> Assuming he still likes libertarianism and thinks it comprises "a lot of good things, a lot of good points," he's very much at odds with his senior adviser Steve Bannon. From Robert Draper's masterful New York Times Magazine account of the relationship among Trump, Bannon, and House Speaker Paul Ryan: "What's that Dostoyevsky line: Happy families are all the same, but unhappy families are unhappy in their own unique ways?" ([Bannon] meant Tolstoy.) "I think the Democrats are fundamentally afflicted with the inability to discuss and have an adult conversation about economics and jobs, because they're too consumed by identity politics. And then the Republicans, it's all this theoretical Cato Institute, Austrian economics, limited government — which just doesn't have any depth to it. They're not living in the real world." It's always nice to be attacked as delusional and out of touch, especially by a Hollywood-cum-Wall Street millionaire whose boss falsely insists that cities have never been less safe, that American manufacturing has never created so little, and that we're just one or two border walls and torn-up free trade deals away from once again being a nation of factory workers. (Side note: I'm younger than Bannon but old enough to remember when the factory jobs I worked as a teenager and young adult weren't romanticized.) President Trump is so famously post-factual that he cites riots that never happened as pretexts for executive orders, invents crime statistics out of thin air, and insisted for years that Barack Obama was born in Kenya. But it's libertarians who are nuttier than a squirrel's turd? Sure, why not. Earlier today, Matt Welch mapped out some of the political problems that the Trump administration is creating and compounding for itself by reviling libertarian-leaning Republicans and congressional budget hawks. On a broader cultural stage, it's worth underscoring that Bannon is simply wrong that libertarians are living in a "theoretical" world of, what, exactly? Across-the-board calls for lower levels of regulation in all aspects of life (also known as believing government is trying to do too many things that should be left to businesses and voluntary groups such as churches and nonprofits)? That increasing majorities of Americans are comfortable with pot legalization and gay marriage even as they are losing trust in law enforcement, the education system, and the federal government (now headed by, er, Donald Trump and his own GOP party that can't even pass a healthcare reform bill they've been promising for nigh-on seven years)? That most people in America—including self-identified Trump supporters!—actually like immigrants and want to see even illegal immigrants given a chance to live legally in the United States? These are not small things, and neither is the fact that libertarians as an ideological group (as discerned by Gallup) are the single-biggest bloc of Americans. The tell in Bannon's way of thinking is how he confuses Tolstoy with Dostoevsky. Neither Russian novelist—OMG, is he channeling Putin or what!—is particularly sunny but the Christian apologetic Tolstoy allowed for some sort of transcendence while about the best-case scenario you find in Dostoevsky is getting marched off to pre-communist Sibe[...]

Frederick Douglass Hated Socialism

Sun, 12 Mar 2017 06:30:00 -0400

In November 1848, a socialist activist gave a speech at the 13th annual meeting of the Rhode Island Anti-Slavery Society. "Mr. Inglis" began his remarks well enough, reported the abolitionist leader Frederick Douglass, who was also there to give a speech that day, "but strangely enough went on in an effort to show that wages slavery is as bad as chattel slavery." Douglass soon became infuriated with the socialist speaker. "The attempts to place holding property in the soil—on the same footing as holding property in man, was most lame and impotent," Douglass declared. "And the wonder is that anyone could listen with patience to such arrant nonsense." Douglass heard a lot of arrant nonsense from American socialists. That's because, as the historian Carl Guarneri has explained, most antebellum socialists "were hostile or at least indifferent to the abolitionist appeal because they believed that it diverted attention from the serious problems facing northern workers with the onset of industrial capitalism." The true path forward, the socialists said, was the path of anti-capitalism. But Douglass would have none of that. "To own the soil is no harm in itself," he maintained. "It is right that [man] should own it. It is his duty to possess it—and to possess it in that way in which its energies and properties can be made most useful to the human family—now and always." Douglass favored the set of ideas that came to be known as classical liberalism. He stood for natural rights, racial equality, and economic liberty in a free labor system. At the very heart of his worldview was the principle of self-ownership. "You are a man, and so am I," Douglass told his former master. "In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living." Referring to his first paying job after his escape from bondage, Douglass wrote: "I was now my own master—a tremendous fact." This individualistic, market-oriented definition of liberty put Douglass squarely at odds with the socialist creed. The abolitionist-turned-socialist John A. Collins offers a telling contrast. In the 1840s, Collins went on a fundraising trip to England on behalf of the Massachusetts Anti-Slavery Society. He returned home a devotee of the English socialist George Henry Evans. The "right of individual ownership in the soil and its products," Collins declared, are "the great cause of causes, which makes man practically an enemy to his species." Collins now thought private property was the root of all evil. He didn't remain much of an abolitionist after that. "At antislavery conventions," the historian John L. Thomas has noted, "Collins took a perfunctory part, scarcely concealing his impatience until the end of the meeting when he could announce that a socialist meeting followed at which the real and vital questions of the day would be discussed." Perhaps the most significant left-wing attacks on the abolitionists were found in the pages of the socialist journal The Phalanx. "The Abolition Party," complained an unsigned 1843 editorial, "seems to think that nothing else is false in our social organization, and that slavery is the only social evil to be extirpated." In fact, The Phalanx asserted, the "tyranny of capital" is the real problem, because capitalism "reduces [the working class] in time to a condition even worse than that of slaves. Under this system the Hired Laborer is worked to excess, beggared and degraded.…The slave at least does not endure these evils, which 'Civilized' society inflicts on its hirelings." When it came to attacking free labor, the socialists and the slaveholders adopted certain identical positions. For example, the South's leading pro-slavery intellectual, th[...]

P.J. O'Rourke on Trump, Populism, and "How the Hell Did This Happen?" [Reason Podcast]

Thu, 09 Mar 2017 17:49:00 -0500

"I consider myself primarily to be a libertarian," says P.J. O'Rourke, the author of the new book How the Hell Did This Happen?: The Election of 2016. "I am personally conservative [but] I always think of libertarianism as basically being an analytical tool, not an ideology per se.... When you look at something that happens, especially in politics, you look at something that happens, you say, 'Does this increase the dignity of the individual? Does this increase the liberty of the individual? Does this increase the responsibility of the individual?' If it meets those three criteria, then it's probably an acceptable libertarian political policy, or lack thereof, because we like to subtract some things from politics too." In the latest Reason Podcast, O'Rourke tells Nick Gillespie what he learned about Donald Trump's appeal from his time spent covering the 2016 election, why populism is a "tragedy" for libertarians, and why he wants his kids to study English and the liberal arts at college. "Be immersed in the history of civilization, you know, in literature, in the arts," he says. "You're going to be force-marched through these things. Some of it's going to be boring. Some of it you won't appreciate for another 40 years, but it's that college liberal arts education, is the last chance you really get to [immerse yourself in art, music, and culture]." Produced by Mark McDaniel. Subscribe to the Reason podcast at iTunes and never miss an episode. Or click below to listen to the audio right now. src="" allowfullscreen="allowfullscreen" width="560" height="315" frameborder="0"> Don't miss a single Reason podcast! Subscribe, rate, and review! Follow us at Soundcloud. Subscribe to our video channel at iTunes. Subscribe to our YouTube channel. Like us on Facebook. Follow us on Twitter. Subscribe to the print edition for just $15 a year! This is a rush transcript—check all quotes against the audio for accuracy. Nick Gillespie: Hi. I'm Nick Gillespie, and this is The Reason Podcast. Please subscribe to us at iTunes and rate and review us while you're there. Today I'm pleased to introduce one of the two greatest libertarians in this conversation, the bestselling author O'Rourke, whose latest book, How the Hell Did This Happen?, Chronicles the most insane year ever in American politics. P.J., thanks for talking to us. P.J. O'Rourke: Oh, you're very welcome. Gillespie: I rush to add that I'm actually calling you from a place that you used to call home back in the day, Oxford, Ohio, home to Miami University, your alma mater. O'Rourke: Yes. All right. Gillespie: What do you remember most about Miami University? O'Rourke: It's all the stuff that I can't remember that really… Gillespie: That makes you think of it fondly, right? O'Rourke: Yes. Yeah. There are some very pleasant, blurry patches back there, but it is ... Gillespie: What did you major in at ...? O'Rourke: English. English. I was looking through the course syllabus when we didn't ... In those days, you didn't have to decide till like the end of your sophomore year or something, what your major was. I'm looking through the course syllabus and I came across English, and I went, "I speak that. How hard can it be?" Gillespie: Do you have kids? College-age kids? Post-college-age kids? O'Rourke: I've got a college-age kid. Two that are younger. Gillespie: Will you insist that they go to college and learn how to become an engineer or something useful, or do you actually find something meaningful in looking at the humanities or the social sciences or something like that? O'Rourke: No. That's what I insist on them ... I mean, even my eldest daughter is somewhat business-minded. Now I'm trying[...]

Is Being For More Immigration Inherently Unlibertarian?

Fri, 03 Mar 2017 08:25:00 -0500

After writing a long essay about how and why modern American libertarianism in the tradition of Ludwig Von Mises has free trade and free migration as a core component, many people told me that no matter what I or Mises thought, the free migration part especially was a terribly naive position for a libertarian. Why? Because immigrants tend to vote more Democratic. This, say many trying to convince libertarians to turn on more open immigration, means they will vote for larger and more expensive government in a manner that's supposedly dangerously distinct from the larger group of American voters. Thus, being for more immigration, no matter what that means in literal freedom of movement and association for both citizen and non-citizen, is inherently unlibertarian because it will surely result in a less libertarian country, because, democracy. There's a lot wrong with this argument. Let's start by thinking through its underlying presumption: that libertarians' dominant priority should not be actually advocating that government behave in a manner that directly leaves people more free of active physical government interference in their motions, actions, choices, and relations. (Enforcing immigration restrictions inherently involves such interference not just for the would-be immigrant, but for the citizen who wants to buy, sell, trade, or have any kind of human relationship with that immigrant.) The "libertarians have to be against immigration because democracy" argument presumes a libertarian's prime goal must rather be crafting a democratic electorate reasonably more likely to vote for smaller government. Whatever furthers that goal, then, should be what libertarians support. While I consider this argument ultimately absurd, I'll grant that anyone desperate to come up with a reason to oppose immigration while still thinking of themselves as a libertarian, or to make you feel that you as a libertarian can or must oppose immigration, can almost think it makes sense, if you don't look too closely. After all, don't many libertarians use persuasion, education, and activism, to try to convince politicians to behave in a more libertarian manner or voters to vote for politicians who will? Isn't libertarianism as an intellectual and activist movement in practice about forging a people who think like libertarians? In a democracy more American libertarians will eventually lead to a government that behaves in a more libertarian matter, goes that line of thinking. This might happen through the direct action of voters, or the indirect creation of a libertarian climate of opinion that politicians will come to embody naturally or at least feel pressured to obey in order to keep their phony-baloney jobs. Some slight air of a convincing argument can be detected here. Persuasion is indeed what most libertarian movement advocacy and education is about, persuasion toward creating a more libertarian American electorate. And an electorate with more immigrants, goes the argument, will never be that. The above mass persuasion is not necessarily all that the libertarian movement is about, and it could be argued it's not really what the libertarian movement in practice is even mostly about. A fair amount of libertarian advocacy is aimed at elite opinion among policymakers and professors, the people who have a more direct grip on what government does and what the educated classes think about what it should do; in the classic Hayekian mode, shaping the thoughts of the elites who shape the thoughts of the electorate writ large might be the best strategy. To the extent that is true, to that extent the "libertarians must be against immigration because democracy" argument fails ev[...]