The return of libertarianism shouldn’t shock you.
By **Anthony Kammer**
Photograph via Flickr by philosophygeek.
There seems to be some genuine confusion about the recent libertarian resurgence. To generations of Americans, the New Deal and decades of postwar prosperity had demonstrated, seemingly beyond controversy, that a strong and politically accountable state could coexist with a free, thriving middle class. As Stephen Metcalf described, “libertarianism all but disappeared after the Second World War. What happened? The single most comprehensive, centrally planned, coordinated governmental action in history—that’s what happened.” For libertarianism’s skeptics, it seems even more remarkable that a revival would be happening in the aftermath of such a massive failure in America’s largely deregulated financial markets. Even the country’s most prominent Randian and former Chairman of the Federal Reserve, Alan Greenspan, publicly conceded that his free-market ideology was mistaken and that there was a “[f]law in the model that I perceived is a critical functioning structure that defines how the world works.” Yet libertarianism has gained steady support. Liberals have appeared more perplexed than outspoken, quietly baffled that America’s failed experiment with privatization and unconstrained market forces has somehow been used to justify further privatization and deregulation. Conservatives have grown increasingly ambivalent about the possibility of a libertarian presidential nominee. Even right-wing business leaders and members of the Republican establishment who supported the fledging Tea Party have recently voiced fears that libertarianism’s threat to the existing political order might come back to bite them.
Pro-private property, anti-regulatory libertarianism has a long and embattled history within the United States. Establishing limits on domestic federal power has remained among the most persistent and explosive questions in our nation’s fabric. Libertarianism is constantly resurfacing because our constitutional system—a liberal democracy—in many ways invites it. America’s constitution establishes a democracy and then guarantees certain liberties against infringement by the majority. These inviolable private liberties—the final check against majoritarian extremes—are framed in terms of individual rights against the state, and notably not as rights against other individuals. Under such a system, individuals and organizations have strong incentives to strategically frame their legal and legislative concerns as starkly as possible within the individual vs. the state paradigm. This is true of social issues, which are expressed as inviolable individual rights against the state. This framing also carries over to economic concerns, often characterized as private transactions between consenting parties, where social consequences tend to be downplayed and the state is nowhere to be seen. This false binary traces back to notions of private property defined as rights against the state, notwithstanding that we depend on the state to both define and protect our private property through law enforcement. These assumptions have been handed down from Adam Smith and John Locke, who both simply took for granted that markets and property existed prior to the state, leaving for us the unsolvable riddle of drawing a line between them. Almost by design, the United States is structured to confront political issues through this individual/state dichotomy. Where this line gets drawn between the private sphere and the public sphere is really the whole game in American politics and constitutional law.
Under the banner of economic liberty and limited government, [the Lochner]’s courts systematically invalidated laws that established minimum wages, guaranteed safe working conditions, and prohibited child labor.
With the opposite poles of individual rights and federal power so often framing political debate, liberty-based arguments become almost an irresistible way to formulate one’s position, both for the left and the right. With the poles so clearly defined, it’s almost to be expected that a strong anti-state formulation would emerge periodically to counter large shifts in policy, just as you could expect individuals to frame their existing way of life as a vested private freedom. Whether or not it’s actually an effective political framework for limiting arbitrary exercises of power, libertarian philosophy falls squarely within America’s liberal tradition. Indeed, therein lies its political genius and its most glaring shortcoming. The reason libertarianism resurfaces again and again is its brilliant capacity to reframe every policy debate as a binary choice between the individual and the state. Where it falls short is its inability to deal with the democratic element in American politics, which would require recognizing the political authority of a majority to define, through government, the conditions under which it lives. Taken in that light, libertarianism’s resurgence portends far deeper structural rumblings than the simple rightward shift we saw during the latest election cycle. As this summer’s debt ceiling debates helped expose, there is a real fight being waged over which aspects of the economy need to be recognized as “private” and therefore beyond the influence of both the government and the American public.
With the proper scope of state power looming in the background of every major political fight, libertarianism’s attractiveness as both a philosophy and a rhetorical strategy should be more apparent. Libertarianism appears to offer a clear solution to our system’s most intractable political problem. It offers to draw a firm line between the sphere of private activity and those public areas where the government and the majority may legitimately act. Not only is the libertarian line purportedly clear, it sides with the individual against the threat of a tyrannous state. That may sound appealing in those terms, but it largely assumes the problem away. Knowing where the state ends and private markets begin, for example, turns out to be a magnificently complicated question in its own right. Nevertheless, libertarianism’s popularity and influence continue to grow unabated. Despite its conceptual flaws, no popular political philosophy has so directly addressed the tension between public and private at the foundation of American political order. It is incomparable in its capacity to heighten political contrasts and to make the choice between public authority and private freedoms appear as a zero-sum game.
The basic function of libertarian arguments then, for liberals and conservatives alike, has been to mark off spaces as private or individual liberties and thus beyond the reach of government. This can transform a dispute about the costs and benefits of various policies into a “constitutional” question about individual rights and the proper size of the state. The notorious Citizens United decision demonstrates how advantageous it can be for a business or organization to characterize its political activities as a protected private liberty beyond the reach of public regulation. Reframing an issue of corruption and political incentives into a question about private speech rights fundamentally shifted the debate. Rather than address outright how money distorts democratic processes and produces systemic corruption, the legal and political debates are re-structured to fit into the public regulation vs. private right paradigm, and a motivated Court moved an entire category of corporate behavior to a place outside of political influence. The libertarian sleight-of-hand in Citizens United was to simply assert a private speech right that the state cannot violate, while never quite explaining how the corporation—a legal fiction and creation of state laws—came to occupy that privileged place beyond the reach of government. Under the Roberts Court, the First Amendment has become a libertarian wedge aimed at further widening the gulf between private business activity and democratic accountability.
A frighteningly similar dynamic defined the legal battles of the Progressive Era, when expending conceptions of inviolable private property were deployed by conservative judges to dismantle both state and federal regulations. The legal hooks of the Lochner era, as it came to be known, were the Fourteenth Amendment and the Commerce Clause, but the laissez faire, anti-regulatory fervor offers a near picture-perfect replica of the libertarian surge we’re seeing today. That period of pro-business jurisprudence gets its name from the now infamous Lochner v. New York decision, in which the U.S. Supreme Court held that maximum hour laws amounted to an unconstitutional state interference with the private “liberty to contract.” An employer’s liberty to contract with workers free of inconvenient government regulations was viewed as sacrosanct among that era’s laissez faire judges, so much so that it was recognized among the core protections of the Fourteenth Amendment. Under the banner of economic liberty and limited government, that era’s courts systematically invalidated laws that established minimum wages, guaranteed safe working conditions, and prohibited child labor.
As both liberals and conservatives occasionally forget, libertarianism does not always map neatly onto left-right politics.
Disputes over the limits of federal power, of course, are not fought out solely in the courts. Anti-state libertarian thought, it turns out, rushes back to center stage anytime an entrenched way of life is unsettled, even when that way of life has been exposed as broken and unsustainable. The Civil War can be viewed as a fight over the capacity of the federal government to limit the private rights of southerners to own slaves as property. The Progressive Era and the Great Depression involved a contentious faceoff between private business interests and a public crying out for state intervention. And the success of the Tea Party in the 2010 elections and the Occupy Wall Street backlash against Citizens United should leave no one mistaken about the ability of this question to rapidly embroil America’s entire political system. What the public can and cannot regulate through government action remains as divisive as ever.
As both the Great Depression and the fallout from the recent financial disaster lay bare, libertarianism is a philosophy that asserts itself more vehemently when individual expectations are unsettled and nominally private forms of power are disrupted. To borrow an insight from Corey Robin’s excellent new book, much of libertarianism’s newfound popularity is reactionary. On top of economic transformations taking place around the country, progressive calls for financial reform and a transformed healthcare system threatened concentrated wealth and to Americans dealing with a diminished ability to determine their own futures. Libertarianism has provided conservatives, at least temporarily, a potent mechanism for resisting unwanted political change. And the reason libertarianism, as opposed to some other political philosophy, has taken hold is not just private money or newly demonstrated government ineptitude. It fits the political bill because it so distinctly echoes the individual vs. the state dichotomy along which politics in America has traditionally escalated. It didn’t matter that our current crisis very likely had its origins in a deregulated private sector, because the logic of our political culture gave conservatives seeking to preserve a particular economic order with little choice but to depict the entire U.S. Government as their enemy.
The irony, of course, is that U.S. politicians, as a whole, are so bought off and uninterested in challenging private concentrations of power that the right’s vilification of government might have been unnecessary, or—as many republicans and their funders are now discovering—counterproductive. Indeed, there is a strand within libertarianism that has proven unwieldy to the corporatists and establishment Republicans that helped speed its revival. The opposition to corruption, government favoritism, and corporate bailouts, rather than symbolizing a reactionary philosophy, has proven one of the only recent instances of voters successfully piercing the Washington bubble. As both liberals and conservatives occasionally forget, libertarianism does not always map neatly onto left-right politics. Liberals actually like some things beyond state control, and Republicans often find that they like using the state just as much as democrats, albeit to different ends.
These tensions are largely inherent to our political system, and as long as we have a liberal democracy, they cannot be finally resolved. Libertarian arguments will keep coming back, because majoritarian politics will always be unsatisfying or objectionable to some subset of the population. Transforming a policy dispute into constitutional or higher order debate about individual rights provides a mechanism for resisting majoritarian abuse, but it can also undermine the potential power of a political majority and make a country ungovernable. And as we are now seeing, this ability to reframe politics as a battle between the individual and the state also contains the explosive potential to escalate simple politics into a constitutional crisis. Billionaire funders and government ineptness aside, libertarianism is in the air because the line between private power and public accountability is being redrawn.
Anthony Kammer is a lawyer at a New York-based nonprofit and policy think tank called Demos and has written for the Harvard Law Record. He blogs on financial policy and election law issues for Demos’ Policy Shop and for Harvard Law & Policy Review.