It’s Called the Law of EQUAL Freedom, You Know.


Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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  1. One thing that gets me about libertarians is that their rhetoric — even if not the official libertarian line — is reducible to a Lockean view of the body as property that can be disposed of however each person wills. Thus all discussions of sexual ethics are really discussions about property rights, a view that strikes me as singularly perverse.

    If each individual’s body is his property and he can do with it what he will, why can’t I choose to sell my body into slavery? I don’t doubt that libertarians have a good answer to this, but I’d like to hear it.Report

    • @Matthew Schmitz,

      You can always sell your labor. But the right to ownership of your own body is inalienable. It can’t in other words be surrendered. So while you can lend your body to other people (as in a work contract), you can always stop lending it, too (again, as in a work contract). Slavery creates a supposedly permanent state, but this can’t be proper, thanks to your inalienable ownership of your body.

      Now, I recognize that this may seem a stilted explanation for some pretty intuitive conclusions. But as part of a more general model of rights and obligations in society, it has the virtue of not relying on intuition, but on elementary claims that even slaveholders might make about themselves. At one time in history an explanation like that was by far the more valuable one.

      As to sexual ethics, I think you may be laboring under a misconception. Libertarianism has a lot to say about what the state should or should not do regarding sex. It has very little to say about what you personally should or should not do. That’s up to you, as long as it’s consensual. But one should never infer that all consensual acts are necessarily good, merely because the state is not licensed to interfere.Report

      • Thanks for the reply, Jason. I like your answer about slavery, and it warms my cold heart to hear a libertarian acknowledge that even if something is a) consensual and b) does no harm to anyone else, it can’t be done.

        Now, Jaybird sketches an interesting argument below in answer to point b, but I’m not sure that it can do all the work Jb wants it to do. Lots of choices I freely make affect my future self and can’t be undone.

        I think your last paragraph makes sense, mostly. The problems arise when we touch on an issue like marriage where the state’s recognition becomes really hard to separate from a view about sex.Report

        • Avatar Jaybird says:

          @Matthew Schmitz, Lots of choices I freely make affect my future self and can’t be undone.

          True, absolutely. But then one has to ask the question “do I have the right to prevent you from doing X?”

          When it comes to stuff like “selling people into slavery”, I’d say that the answer is “yes”.

          When it comes to stuff like “smoking” (or, let’s get graphic! Why not? “committing suicide”), the issues get a lot blurrier.

          Do I have the right to prevent a 15-year old from killing himself (over something stupid, say, like a person of their preferred gender, or like a lost iPod, or a punishment or whathave you). I’d say yes. This kid isn’t just killing him or herself, but the 25-year old. The 35-year old. So on… and yet when a person with terminal cancer chooses to kill him or herself, well… I don’t know that that’s a decision that I can make on behalf of the X-years old plus 1 person… while I can, however, feel justified in protecting the 25-year old from the 15-year old’s murder attempt.

          If you know what I mean.Report

          • Avatar John Howard Griffin says:

            @Jaybird, why do you feel that you have the right to prevent a 15-year old from suicide, but not an x-year old with cancer?

            Are they both not the same thing (suicide)?

            Your decision for the 15-year old seems based on shortening of future life, but the x-year old would also be based on the shortening of future life.

            And, if the decision is based on shortening of future life, then there are many things that cause a shortening of future life. Should these (in your opinion) also be prevented? If not, why not?

            I get confused by libertarian arguments, because they always seems to involve this kind of hair-splitting (without including the wider ramifications of the divided hair).

            Just curious. I’m not back, just passing through. But, I’ll check back to see the libertarian explanations from you (and any others).Report

            • Avatar Jaybird says:

              @John Howard Griffin, it mostly has to do with the knowledge that suicide is a permanent solution to a temporary problem *AND* that 15 year olds are little more than walking bundles of hormones who haven’t even come close to full myelinization of their brains (which would allow them, at least, something a lot closer to mature thought processes).

              I’m not saying that suicide is not something that people ought never be allowed to do. There are circumstances where I could see someone else doing it. Heck, there are, in theory, circumstances where I could see *ME* doing it (Steely Dan reuniting, etc)… but all of the circumstances involve something so awful happening that more overall pain would be avoided by the act than *WILL* be created.

              If someone finds they have terminal cancer, or, serious example time, someone finds that s/he has early onset (disease) in the months following a spouse’s death (and they have no kids, etc).

              Most 15-year olds would regret killing themselves if they made it to 25 (or 35) and had a taste of how awesome life can be once you’re no longer in the prison analogue that is high school and in their own apartment and allowed to sit quietly in their own space that is THEIR OWN SPACE.

              Now if a 15-year old wants to kill him or herself because they find that they have some really strange disease that will eat them alive… well… that’s a choice that I am thankful I didn’t have to make.

              If they want to kill themselves because Brad is dating Kim and this will show him, this will show them all!!!!, well, that’s a decision that is so poor and has so many obviously bad fundamental assumptions that I don’t feel that guilty intervening.

              All that to say: I look at myself and apply the silver rule and if the silver rule experiences catastrophic failure wonder if it’s a sign that the golden rule might apply. If I were 15 and found that Brad is dating Kim, would I want someone to save my 25-year old self from murder at the hands of my 15-year old?


              If I were X-years old with terminal cancer and wanted to die with dignity while I could still eat a hamburger/see a sunset/make love/remember who I was… well… I don’t know that I’d have grounds to intervene. And that doubt tells me that I’d best get out of the way after giving a speech about the positive good that is Life.Report

              • Avatar John Howard Griffin says:

                @Jaybird, It seems that you are advocating a qualitative decision based on some kind of moral sense.

                The problem I see with this approach is that it is individualized – the qualitative decisions you will make about when suicide is acceptable will not be the same qualitative decisions that others will make. Sure, they might be similar, but they will not be the same in all cases.

                Further, your moral sense is also individualized. What you consider to be moral (and immoral) is not the same things that others will consider to be moral (or immoral).

                To me, your answer can be reduced to: follow your conscience and do what you think is right.

                This leads to many kinds of problems that I don’t have the time to discuss – though you are probably aware of them.

                I’ll leave you with another question though: my guess is that many (perhaps most) people view this situation in a similar fashion (follow your conscience and do what you think is right), though they have an unstated assumption that EVERYONE has the same moral sense as they do. Given that, why is suicide illegal?Report

              • Avatar Jaybird says:

                @Jaybird, oddly enough, I think that most people are okay with some form of doctor-assisted suicide… at least to the point where they are willing to admit that, maybe, the state has better things to do than prosecute doctors who help terminal patients go over with some measure of dignity. Even the most Catholic of Catholics are willing to turn a blind eye (see, for example, most of the jury trials of Dr. K).

                When it comes to teenagers killing themselves over a lost iPod, however, pretty much everybody agrees that, no, that’s a situation worth intervention.

                And the 35-year old emo who just wants to end it all because life is suffering, man, well… that begins a whole debate about the limits of state intervention, doesn’t it?Report

              • Avatar John Howard Griffin says:

                @Jaybird, regarding the “pretty much everybody agrees” part: I don’t think that it is always the case, because of cultural differences.

                For example, Sati, though much more uncommon nowadays, is not something that everyone agrees on regarding intervention (and which type of intervention – preventing or forcing?).

                My point is that different people and different cultures view suicide very differently. Even the same person can view suicide differently at various times in their life.

                So, the “follow your conscience and do what you think is right” argument from libertarians becomes meaningless (to me). There is no common ground for a “moral sense” decision to be made, because we cannot agree on what is moral. Similarly, we cannot find common ground for the qualitative decision, because we have not defined the qualities we measure (or how we would measure them, or who would do the measuring, etc. ad infinitum).

                Of course, in addition to opening the debate to the limits of state intervention, I’m also opening the debate to majoritarian rule, which seems to be a subtext to your argument: “follow your conscience and do what you think is right, as long as it is within the socially accepted morals of the culture you live within.Report

              • Avatar Jaybird says:

                @JHG, if you want me to embrace moral nihilism, I’m pretty sure that I can’t. I am pretty sure that there is an underlying moral fabric to the universe and, despite there not being an architect, I suspect that I know what my corner of the elephant looks like.

                That said, I am not a big fan of folks trying to impose their own cultural norms on other cultures.

                *THAT* said, I find it hard to distinguish between “culture” and “what a group of individuals happen to be doing”. Even when the numbers get *HUGE*, it still looks like a large group of individuals… and I’m very much not a fan of the majority of moral agents screwing a minority of moral agents in the name of “we’ve always screwed these people”.

                It comes down, fundamentally, to the individual choice and my intuition of whether I have the right to prevent you from doing X and *THAT* is based on whether you would have the right to prevent me from doing X… and if I can’t come to the conclusion that you would have the right to prevent me from doing X, I don’t see that I have the right to prevent you from doing it.

                Or forcing me to do Y.

                If I don’t have the right to prevent you from Xing or force you to Y (at the point of a gun, even), I sure as hell don’t see where “the state” gets the right to point guns at you (or me) and force me to not X and then Y on pain of imprisonment/death.Report

              • Avatar John Howard Griffin says:

                I think the idea of a “moral fabric to the universe” is laughable, in the same way I find it laughable for an adult to believe in an Architect (god).

                Do other animals (besides humans) have access to this moral fabric – are they moral? If so, then what are the morals that animals follow? If not, then why are humans the only animals capable of interacting with this moral fabric of the universe, and why don’t all humans follow this moral fabric? I’ll stop there (it should be a separate discussion, and we should reserve 100 TB to store the comments).

                In your discussion of X-ing and Y-ing, you seem to be saying: “if an individual doesn’t have a right to force you to do something or prevent you from doing something, then the state doesn’t either”.

                But, this makes no sense. I have no right to have a standing army. The state clearly does. It’s even written into our founding documents “provide for the common defense”. If I started assembling a standing army, the state would intervene and break up my army.

                As an animal, do I have a right to follow my instincts which are defined by my DNA? Does this include the overarching desire to survive at any cost (survival of the fittest)? Do I have a right to steal if I am hungry? Do I have a right to spoil The Commons (via an overly-polluting hobby, or a gas-guzzling vehicle)? Do I have a right to fight (or kill) others who threaten to do me harm (or threaten to harm my offspring)? What about if the “threat” is someone spoiling The Commons?

                The further we get into this rabbit hole, the less sense it makes. To me.Report

              • Avatar Jaybird says:

                @JHG, here is my attempt to square that circle:


                As for standing armies… I don’t know why you wouldn’t have a right to one… I imagine that it would have to be a volunteer army, however. I don’t agree with, for example, a draft. It strikes me as slavery.Report

              • Avatar John Howard Griffin says:

                Thanks for the link.

                There’s a lot of assumptions in that article, and it doesn’t address the questions I asked.

                The biggest assumption in your article is that “humans are different, only humans are moral”. I see no evidence to support this assumption.

                If we confine ourselves strictly to humans, every choice I make limits the choices of others – there is only one bagel that is THIS bagel, and I have chosen to eat it, therefore no one else may choose to eat this bagel.

                We limit the choices of animals constantly. If choices are good and the opposite vector is evil, then our actions which limit the choices of other living things is evil. And, I’d argue that everything you do every single day limits the choices of other living things to some degree.

                Like most people, you are probably much more comfortable with your anthropocentric view of the universe. Your stand-in for God is that same anthropocentric view of everything – humans are special and we own everything in the universe!Report

              • Avatar Jaybird says:

                @Jaybird, that’s not exactly what I was going for… if an entity is capable of choosing between X and Y is a moral agent. Be they human, canine, feline, equine, ursine, porcine, rusine, ovine, bovine, or serpentine. The ability to choose between X and Y is it. Not humanity (though, I intuit, humanity has a greater breadth of ability to choose if such ability exists at all).Report

    • Avatar Jaybird says:

      @Matthew Schmitz, hokay, here’s an argument. Just off the top of my head and it’s not that polished.

      You have the right to sell yourself into short-duration slavery (that is, for a year, or for two weeks with a perpetual option to renew the contract, or whathave you) but to do it in perpetuity is to sell your future self down the river.

      When I was 15, I was someone very different than when I was 25. When I was 25, I was someone very different than when I was 35. If I sold myself into slavery at age 15, I’d be actively harming my 25 year-old self and positively destroying my 35 year-old self.

      If, however, I was willing to sell myself, on a limited basis, for 3.75/hr… most libertarians would be fine with that. They might even be okay with a contract of up to a year or so… I can’t see them being okay with much longer than that.

      Your future self is someone else entirely. Treat him gently.Report

      • Avatar Freddie says:

        @Jaybird, that’s exactly what I was thinking. For the same principles that we don’t imprison someone for life for less than the most heinous crimes– our capacity to change and grow– we can’t empower ourselves to remove our right to exit in perpetuity.Report

      • Avatar Rufus says:

        I’m going to preface this by saying that I’ve not had good experiences with libertarians in the past, and so this might be a really obvious question that I’ve just never heard a good answer to. But, aren’t there some situations in which the choices are so limited as not to be choices, regardless of the law or the state? Actually, yes, okay of course there are. But what’s the libertarian answer to that situation? Like if I live in a third world slum where the state totally ignores me, but my employment options are limited to being sodomized by rich tourists or starving, doesn’t that greatly restrict my range of choices, and therefore my freedom? I mean, sure, I’d imagine libertarianism is not on the side of sex tourism, but I’ve not read enough to answer the question very well, and indeed I’ve encountered a number of… let’s call them “vulgar libertarians” who seem to think that liberty relates solely to the state, while of course it doesn’t.

        I’ve also wondered if this isn’t why liberals aren’t libertarians: if perhaps they don’t simply think that you need a baseline minimum standard of living in order to actually make free choices and they think that only the state can ensure that everyone has that minimum standard.Report

        • Avatar Jaybird says:

          @Rufus, a lot of the problem that Libertarians have is in the tension between the ideal state and what would happen and what the state tends to do in practice.

          Let’s say we’ve got a 3rd World Country… and the two options I have are subsistence farming or sex work. What is most likely to happen to help people is, tah-dah, the state will make sex work illegal.

          You no longer have a choice between subsistence farming and sex work, you now have to exclusively farm.

          Is that a step up?

          People are now being protected from being predated by American tourists looking for cheap thrills.

          We can discuss whether the 3rd World government shouldn’t instead ensure a baseline standard of living well above subsistence farming, with universal education, single-payer health care, public libraries, and something akin to NPR. Sure. Absolutely.

          If it were a matter of willpower, surely there’d be no 3rd World countries left.Report

          • Avatar Rufus says:

            @Jaybird, I guess where I disagree is with “What is most likely to happen to help people is, tah-dah, the state will make sex work illegal.” It’s not even that I don’t think that’s most likely to happen in reality; it’s that I feel like, if we’re opposed to the state trying to fix a lousy situation because they’d probably screw it up and limit our options in the process (which I agree with), I feel like we should figure out better ways to get together in civil society and improve the lousy situation without calling the state in. But, a lot of times when I talk to vulgar libertarians, I feel like their supposed “libertarianism” is just a lazy defense of the status quo. It’ll go like,
            Me: Here’s a serious problem that we should figure out a solution for.
            Libertarian: I don’t trust the state not to make things worse.
            Me: Okay, me neither. But the situation sucks, so let’s think of a solution.
            Libertarian: Maybe the market will fix it.
            Me: No it won’t.
            Libertarian: Can you just tell me what it’s like not to love freedom and to willingly embrace slavery, because I don’t know.

            Obviously, that’s a really crude caricature! But how do libertarians address lousy situations while still keeping the state at bay? Because, it seems like doing the first would make it easier to do the second.Report

            • Avatar Rufus says:

              @Rufus, And, you know, obviously that’s not intended as a caricature of you or Jason or whoever else here, but since the post was about libertarians who hadn’t thought very hard about libertarianism, I just figured I’d gripe about the kind I’ve dealt with.Report

              • @Rufus,

                Theory strides a thousand miles while reality plods along. My way forward is simple: Help those whom the state hurts the worst. Oppose most vigorously those who get the biggest privileges while already powerful in their own right. Eliminate corporate welfare first. End the war on drugs. Bring the troops home. Those are the biggest priorities for me. After that, I expect things will be easier. At the very least, they will be better for everyone, in both libertarian and modern liberal terms. It seems a plausible set of first steps, no? As Jim Henley once said (I paraphrase), it’s a really messed up libertarianism that sees all these things, and also welfare for the very poorest, and says — “we have to go after the poor people’s welfare first.”Report

              • Avatar Jaybird says:

                @Rufus, dude, I am 100% down with caricatures of libertarians. Just don’t clam up when asked a direct question and I will try to answer all questions directed towards me (or explain why I can’t answer it) and we can work it out from there.

                I find that I learn as much from looking at other people’s caricatures of my positions than I do from their polite restatements of them.Report

            • Avatar Jaybird says:

              @Rufus, I’ve got no problem with folks getting together and trying to work together to fix the lousy situation. I’m a fan of, say, World Vision or Oxfam or Heifer International (our standby for “what do we get this person who has everything?” gift is to donate bees in their name through Heifer).

              What would best be done on top of that? The problem is that, in theory, the state would be best poised to have the machinery to fix all of these problems. In practice, however… well, it seems to me that you have to deal with something like this:

              (Hey! We’re number 19!)

              I don’t know how to best address lousy situations on a mass scale. I can buy some bees or a goat on occasion. I can tell others to do the same. And I can point out that when more power is given to a corrupt government that it is more likely to abuse it than not and hope that restraint can keep things from making a lousy situation even worse.Report

              • Avatar Rufus says:

                @Jaybird, Wait, did I ignore a direct question? Well, I didn’t intend to at any rate.

                I definitely understand the limitations of state action. Actually, I remember reading a story about an anarchist group from California that headed to New Orleans to provide aid after the levees broke. The point was that they could do so in a matter of hours because they didn’t have a huge hierarchical structure requiring every last thing to be signed off on, like say the federal government.

                I guess where I’m coming from is trying to figure out why average folks both think that the state is inefficient and corrupt and still call on it to fix every other problem they have. And my sense is that they know there will be problems with the government, but the thing they want fixed is a worse problem in their opinion. One libertarian answer, I guess, is to keep pointing out the real problems with giving more power to the government. My usual answer is to say something like, “Okay, is the thing we’re all freaking out about really so bad?” which probably isn’t a great answer at all. I’m wondering if a better answer isn’t to say, “Hey, before we talk about calling for the government to do something, wouldn’t it be better for us to try to fix it ourselves?” I realize that’s probably only workable on a local level, but I have a soft spot for the porchers anyway.Report

              • Avatar Jaybird says:

                @Jaybird, no, I was venting one of my pet peeves in any of these conversations. I do not mind being compared to Hitler, being told that I am evil incarnate, or told that I am woefully underinformed as to the nature of the world so long as the conversation can keep going forward with the miniscule amount of give/take that answering questions requires.

                I wasn’t saying that you did that. I was more trying to let you know that if, on an emotional level, you really needed to caricature libertarianism (or, heck, me) for a thread or two, I was cool with that and would not take it personal.

                As for “I guess where I’m coming from is trying to figure out why average folks both think that the state is inefficient and corrupt and still call on it to fix every other problem they have”, I’d probably suggest the public school system is, in part, at fault. But that’s probably another rant entirely.Report

        • @Rufus, This is in part why I continue to believe that some form of left-libertarianism is the way forward for libertarianism.

          To me, at a minimum, a non-anarchist libertarianism requires a strong enough central government to ensure something resembling equal protection of the laws. Without that much, you will have things like local tyrannies (that may or may not carry the sanction of the State), or a lack of basic infrastructure, or such government as does exist becomes a kleptocracy such that there is little effective way for outsiders to assist or even to engage in any meaningful trade that will improve the lot of the poor.

          But even with a reasonably strong central state, I think (and have said before) that you leave a significant portion of society without meaningful choice if you don’t provide at least a baseline level of income (ideally via a negative income tax) where a significant portion of society is born into poverty, especially extreme poverty.Report

          • Avatar Rufus says:

            @Mark Thompson, Well, that’s sort of my issue. A lot of times when I listen to vulgar libertarians talk about their ideal society, it just sounds like they’re describing a spoiler’s paradise in which they’re okay because they have guns. In defense of anarchists, I’ve known a lot of them who had worked out very elaborate ways to address these issues without growing the state, but the problem there comes if you don’t want to live on a commune.Report

            • @Rufus, I’ve got quite a bit of respect for the anarchists, actually. I’ve gotten to the point where in my heart I know they’re right on most things, but I find the necessary tradeoffs far too much to bear to actually be an anarchist. And, beyond that, I don’t think anarchism in practice would long remain anarchism.

              And I hear what you’re saying about “vulgar” libertarianism.Report

              • Avatar Rufus says:

                @Mark Thompson, Really the one major area where I disagreed with the anarchists was over religious faith. Many of them take the old 19th century line that we need to do away with all theistic belief in order to be free. On the other hand, there are anarchists like Hakim Bey, who is a Moorish Sufi mystic and claims Christian beliefs as well. So it can be done, although Bey has been accused of being a “lifestyle anarchist”, whatever that means. Actually, his book T.A.Z. Temporary Autonomous Zone might be a really interesting discussion topic to delve into.Report

          • Avatar greginak says:

            This has been a great discussion. good stuff all around.

            @Rufus-“Hey, before we talk about calling for the government to do something, wouldn’t it be better for us to try to fix it ourselves?”

            I would suggest that having the government do something = us fixing it ourselves. The goverment can be like the contractor we hire to fix problem that we don’t have the tools for. As someone who has worked for a state gov and in federal grants, i have done things many people thanked me for and said should be done, but that required specialized skills, that i happened to have. (Insert all appropriate caveats about gov being imperfect , etc)Report

            • Avatar Rufus says:

              @greginak, That’s an interesting point. I wonder at what point we go from a bunch of people getting together to fix stuff to sprawling bureaucracy. Certainly there must be departments that work fine. I wonder if the answer isn’t just to find the people with the special skills and keep them local!Report

        • Avatar Louis B. says:

          @Rufus, Kevin Carson, who probably deserves credit for the term “vulgar libertarian”, has written extensively on the whole “rich tourist sodomy” thing.Report

  2. Avatar Freddie says:

    Thanks very much for this, Jason, I think this is perfectly well put and exactly right.Report

  3. Avatar North says:

    Frankly the word Utopia always gives me the creeps. But beyond that one quibble I agree with the whole article. Good job!Report

  4. Avatar Jaybird says:

    There are a lot of libertarians who are absolutely socially retarded. You can tell them by their willingness to defend how women were treated in the 1880’s.

    If I were to defend the 1880’s over the 2010’s (or the 1770’s over the 1880’s), I’d say something like this:

    Kurt Vonnegut said something that is absolutely true: “We are what we pretend to be, so we must be careful about what we pretend to be.”

    In the 1880s (or 1770s) we pretended to be something much better than what we pretend to be now. We ought go back to pretending to be what we pretended to be then… while, at the same time, maintaining our modern views of the equality of people despite gender or skin color (as well as improving our modern technology).

    It’s not that we were “better” then. We had oh-so-many blind spots… We see better now… and, sadly, we’ve stopped pretending to be the things that allowed us to become what we are today.Report

    • Avatar Michael Drew says:


      I’d like to hear what Jason has to say about this. In the 1770s “we” did indeed pretend to be something: a Republic founded on the value of Republican virtue, which is based in self-sufficiency and economic autonomy that lead to political independence. There was just one problem: we had a large segment of our population that was not economically autonomous. There was a simple solution: they’re not enfranchised citizens of the Republic, so their (enforced) lack of economic independence wouldn’t constitute a breach in virtue among Citizens landowning whites). This was not a minor factor in determining the limits on the initial conception of Liberty; it was fundamental. Denying the Liberty and humanity of the majority of the inhabitants of the country at the time of Founding was not an incidental moral failure; it was an economic and logical necessity if the the “pretense” of Republican self-sufficiency was to be the founding value of the Republic. Defining the actually-existing limitations on that vision in the society out of the problem was not moral failing; it was an ingenious and fundamental solution to an intractable problem. After all, it’s much easier to found a Republic on self-sufficiency when you define the polity of the Republic to include mainly just those with the wealth.

      As our moral vision has evolved, we have undone that arrangement, but the legacy of economic exclusion does not undo itself with the stroke of a pen. We can pretend we remain self-sufficient as citizens, but in fact we are very slowly undoing the economic reality that necessitated the political exclusion of the majority of Americans from its beginning. I don’t think it is undesirable to be realistic about where we stand with that, and to try to think about what the implications of that background should be for how we address this remaining structural reality in our society. When we get to real self-sufficiency, then we won’t have to pretend; we can just be. Until then we should deal with what we are.Report

      • Avatar Jaybird says:

        @Michael Drew, but when that leads to places like Gonzales.v.Raich or Kelo.v.New London… are we supposed to say, well, you have to understand, we’re correcting centuries of political exclusion of minorities?

        I don’t see that the problem is with the ideals held by such Amendments as the First (or Second, or Ninth) but with the people who said, well, you have to understand, they don’t literally mean *THAT*.

        It’s when we stop holding those ideals and say, well, let’s be realistic over what we can reasonably expect that we find ourselves with outcomes like Kelo or Raich… and we can call that dealing with what we are.Report

        • Avatar Michael Drew says:


          Jay, this is an observation about the problems and limitations with the ‘pretense’ as you describe it and with how it existed when we started this whole thing up. By no means am I arguing that there isn’t room for vigorous debate about what in the modern context these fundamental problems should lead us to do about them, or that it’s not possible overreach in the corrective direction has occurred. I think it clearly has. But your construction (and I realize you said this is how you’d argue ‘if’ you were to take up a defense of the 1770s or 1880s as re today, so I undersand you’re not fully arguing this) was not just to claim that there has been overreach, but rather that perhaps the very principles at those times need to be re-embraced. My point is that the problems in reality at those times were fundamental to the ‘pretend’ (ie limited, partial, exclusive, etc.) nature of those principles.

          [I look forward to Jason’s further thoughts.]Report

          • Avatar Jaybird says:

            @Michael Drew, well, let us look back at those principles that were, officially, pretense.


            Lotta stuff in there. I won’t bore you with details… but I will say that if we want to start saying, look, you have to understand, The Founding Fathers could not have foreseen such things as X and thus we need to have a more progressive viewpoint on this amendment or that one, we need to look and understand how the government is now waterboarding terrorists. We have to look and understand seizures of property of people who have not been convicted of a crime.

            This is one thing that I argued against the Republicans at Redstate (Full disclosure: banned) and they disagreed violently with me. If we start abandoning fundamental principles in the service of short-term goals then we are going to be left without principles in the medium and long term and the genie ain’t going back in the bottle.

            I do not see slavery and white/male privilege as intrinsic to free speech. I do not see slavery and white/male privilege as intrinsic to the government not censoring pamphlets. I do not see slavery and white/male privilege as intrinsic to forcing the cops to come back with a freakin’ warrant.

            Quite the contrary. The willingness to abandon these principles (well, look, you have to understand) will result in greater disparity in the long run than holding them (even hypocritically) will.Report

      • @Michael Drew, I will have a post about this in the next week or so. It’s not a topic I want to treat lightly or in just a comment thread. Your questions are good and deserve more than a cursory treatment. I’ll want to spend a bit of time and reply in detail.Report

  5. Avatar RTod says:

    To me, the people who I know that are hardcore libertarians are pretty similar to communists I used to know in college.

    There is this belief (a faith, really) that the political philosophy on paper is the way to Utopia, and any deviation from that plan is capital “E” Evil. And if you point out to them any time or place in history that was more like their ideal than it is today that shows that life was not all sunshine and unicorns, they get into religious sounding arguments about how its because those people there and then were not “pure” believers – like the people you are talking to are.

    Basically, I thinks its similar to any dogma. It’s not based on belief and not reason, and any evidence you can show to the contrary is discarded on the basis that it must be false, otherwise it would prove the theory correct.Report

  6. Avatar Sam M says:

    Agreed across the board. My only addition would be to question whether the 1880s were all the great for white dudes, either. Yes, they got to vote and, apparently, rape their wives. But they also got to get killed building transcontinental railroads (along with some Chinese guys, too), get killed in mine explosions, get killed in factories, and get killed fighting natives on the Great Plains.

    They had it better than most people, but it hardly strikes me as a life to get all misty about.

    But no income tax, and you could buy heroin at the pharmacy. I guess that was cool.Report

  7. Avatar Sean says:

    This blind spot strikes me as the exact libertarian mirror image of the commonly critiqued liberal blind spot for “unintended consequences”. If liberals assume that that unforeseen problems caused by their policies are easily fixable, (this variety of nostalgic) libertarians assume that somehow all the bad things of past (or current) eras are merely incidental and can be easily excised. One side may dismiss potential consequences, but the other seems to dismiss actual consequences, and must in fact argue that they are not consequences at all. I, for one, however, suspect that heroic agrarian libertarianism may not be possible without labor exploitation or out-group dehumanization.

    I greatly enjoy reading this site, but I’ve been merely a lurker for a while, and I ask your pardon if my tone comes off as too strident.Report

  8. Avatar angullimala says:

    Well, it should be obvious that many so-called “libertarians” are really just people with a self-centered desire to be able to do what they want, when they want to do it. These people will naturally be attracted to those societies where people like themselves are/were/would-be free regardless of how much/little liberty anyone else gets/got/would-get.

    Also, by “self-centered” I don’t mean anything pejorative. I just mean that their only really concerned for their own freedom and not the freedom of others.Report

  9. Ugh. Just….ugh. Back in the all-too-brief days of the Art of the Possible, someone (I think it was Kevin Carson, but it may have been someone else) had a kick-ass post explaining how there has never been a libertarian Golden Age in the United States. I’d link it if the site still existed.

    What’s particularly maddening about Caplan’s post is that it doesn’t even attempt to make a comparison to modern day. He makes a terribly unpersuasive attempt to suggest that coverture wasn’t so bad but then digs the whole even deeper by failing to explain how it was not only not so bad but also actively less bad than things that exist today.Report

  10. Avatar Mike Farmer says:

    Libertarianism as we know it today didn’t really begin until around 1950 — before that libertarianism was associated with leftist anarchists and libertarian socialism. I think most libertarians now, who understand history, see the early lack of government control over the economy as something that could be instituted now with our laws protecting equal rights. From my perspective libertarianism is just now coming into its maturity, and it’s not a backward looking view, but a forward-looking, truly progressive view of how things could/should be. It’s a mstake to equate libertarianism with anything in the 19th century except some narrow idea of limited government. The problems of the past have given us much information which can be applied today to create an alternative to statism.Report

  11. Avatar Mike Farmer says:

    However, I wrote a few months back that it was a matter of time before libertarianism is attacked and reduced to its kookiest fringes — it’s inevitable when the State is challenged.Report

  12. Avatar Louis B. says:

    To put it bluntly, the white men of 1880 were for the most part brutes and tyrants.

    Pretty hyperbolic and all, but you’ve got a point. I can see the 1880’s becoming the new “SOMALIA!!!”.Report

  13. Avatar Simon K says:

    Its hard fought contest, with many strong contenders, including Peter Thiels famous “womens suffrage undermined individual liberty” (what is it with libertarians and mysogyny?) and the ever-memorable case that the Confederacy was somehow more libertarian than the Union (in spite of, y’know, slavery) but I think this takes the world-wide all-time award for stupidest libertarian argument ever.

    Every time I start to think “libertarian” is the best description of my politics available, along comes a completely unconscionable, incoherent, self-serving argument like this in the guise of libertarianism and knock me back.Report

  14. Avatar Jim says:

    Jason, your argument woyuld be a lot stronger without all the sexist White Knighting bullshit about gender relations in the 1880s.Report

  15. Avatar John Howard Griffin says:


    I still don’t agree with the thesis of your article as a means of defining morality.

    A well-connected, rich, white person has many more choices before them than a disconnected, poor, non-white person. Are they (connected, rich, white) more moral because they have more choices? Or, rather, they create more choices for their offspring, so does this make them more moral than a poor, black, single-mom is for her offspring?

    The rabbit hole leads to places that make no sense. Even if they are vectors and not absolute rules carved in stone.

    I’m with Twain on this one:

    Of all the animals, man is the only one that is cruel. He is the only one that inflicts pain for the pleasure of doing it. It is a trait that is not known to the higher animals. The cat plays with the frightened mouse; but she has this excuse, that she does not know that the mouse is suffering. The cat is moderate – unhumanly moderate: she only scares the mouse, she does not hurt it; she doesn’t dig out its eyes, or tear off its skin, or drive splinters under its nails – man-fashion; when she is done playing with it she makes a sudden meal of it and puts it out of its trouble. Man is the Cruel Animal. He is alone in that distinction.

    The higher animals engage in individual fights, but never in organized masses. Man is the only animal that deals in that atrocity of atrocities, War. He is the only one that gathers his brethren about him and goes forth in cold blood and with calm pulse to exterminate his kind. He is the only animal that for sordid wages will march out, as the Hessians did in our Revolution, and as the boyish Prince Napoleon did in the Zulu war, and help to slaughter strangers of his own species who have done him no harm and with whom he has no quarrel.

    Man is the only animal that robs his helpless fellow of his country – takes possession of it and drives him out of it or destroys him. Man has done this in all the ages. There is not an acre of ground on the globe that is in possession of its rightful owner, or that has not been taken away from owner after owner, cycle after cycle, by force and bloodshed.

    Man is the only Slave. And he is the only animal who enslaves. He has always been a slave in one form or another, and has always held other slaves in bondage under him in one way or another. In our day he is always some man’s slave for wages, and does that man’s work; and this slave has other slaves under him for minor wages, and they do HIS work. The higher animals are the only ones who exclusively do their own work and provide their own living.

    Man is the only Patriot. He sets himself apart in his own country, under his own flag, and sneers at the other nations, and keeps multitudinous uniformed assassins on hand at heavey expense to grab slices of other people’s countries, and keep THEM from grabbing slices of HIS. And in the intervals between campaigns he washes the blood off his hands and works for the “universal brotherhood of man” – with his mouth.

    Man is the Religious Animal. He is the only Religious Animal. He is the only animal that has the True Religion – several of them. He is the only animal that loves his neighbor as himself, and cuts his throat if his theology isn’t straight. He has made a graveyard of the globe in trying his honest best to smooth his brother’s path to happiness and heaven. He was at it in the time of the Caesars, he was at it in Mahomet’s time, he was at it in the time of the Inquisition, he was at it in France a couple of centuries, he was at it in England in Mary’s day, he has been at it ever since he first saw the light, he is at it today in Crete – as per the telegrams quoted above – he will be at it somewhere else tomorrow. The higher animals have no religion. And we are told that they are going to be left out, in the Hereafter. I wonder why? It seems questionable taste.

    Man is the Reasoning Animal. Such is the claim. I think it is open to dispute. Indeed, my experiments have proven to me that he is the Unreasoning Animal. Note his history, sketched above. It seems plain to me that whatever he is he is NOT a reasoning animal. His record is the fantastic record of a maniac. I consider that the strongest count against his intelligence is the fact that with that record back of him he blandly sets himself up as the head animal of the lot; whereas by his own standards he is the bottom one.

    In truth, man is incurably foolish. Simple things which the other animals easily learn, he is incapable of learning. Among my experiments was this. In an hour I taught a cat and a dog to be friends. I put them in a cage. In another hour I taught them to be friends with a rabbit. In the course of two days I was able to add a fox, a goose, a squirrel and some doves. Finally a monkey. They lived together in peace; even affectionately.

    Next, in another cage I confined an Irish Catholic from Tipperary, and as soon as he seemed tame I added a Scotch Presbyterian from Aberdeen. Next a Turk from Constantinople; a Greek Christian from Crete; an Armenian; a Methodist from the wilds of Arkansaw; a Bhuddist from China; a Brahmin from Benares. Finally, a Salvation Army Colonel from Wapping. Then I stayed away two whole days. When I came back to note results, the cage of Higher Animals was all right, but in the other there was but a chaos of gory odds and ends of turbans and fezzes and plaids and bones and flesh – not a specimen left alive. These Reasoning Animals had disagreed on a theological detail and carried the matter to a Higher Court.

    One is obliged to concede that in true loftiness of character, Man cannot claim to approach even the meanest of the Higher Animals. It is plain that he is constitutionally incapable of approaching that altitude; that he is constitutionally afflicted with a Defect which must make such approach forever impossible, for it is manifest that this Defect is permanent in him, indestructible, ineradicable.

    I find this Defect to be THE MORAL SENSE. He is the only animal that has it. It is the secret of his degradation. It is the quality which enables him to do no wrong. It has no other office. It is incapable of performing any other function. It could never have been intended to perform any other. Without it, man could do no wrong. He would rise at once to the level of the Higher Animals.

    Since the Moral Sense has but the one office, the one capacity to enable man to do wrong it is plainly without value to him. It is as valueless to him as is disease. In fact, it manifestly is a disease. Rabies is bad, but it is not so bad as this disease. Rabies enables a man to do a thing, which he could not do when in a healthy state: kill his neighbor with a poisonous bite. No one is the better man for having rabies: The Moral Sense enables a man to do wrong. It enables him to do wrong in a thousand ways. Rabies is an innocent disease, compared to the Moral Sense. No one, then, can be the better man for having the Moral Sense. What now, do we find the Primal Curse to have been? Plainly what it was in the beginning: the infliction upon man of the Moral Sense; the ability to distinguish good from evil; and with it, necessarily, the ability to do evil; for there can be no evil act without the presence of consciousness of it in the doer of it.


    • Avatar Jaybird says:

      @John Howard Griffin, the ability to do good is also the ability to do evil.

      If we are a bundle of electrochemical reactions to stimuli, well… no biggie. If we are able to do good, however, then we are able to do evil… and the larger the capacity for the one is the larger the capacity to do the other.

      This is the price of becoming like god.Report

      • Avatar John Howard Griffin says:

        @Jaybird, well, that’s certainly true in the standard Religious beliefs of humans.

        Just in case you missed Twain’s point: he’s arguing that the Moral Sense only gave humans the ability to do wrong (I mis-typed the fourth sentence of the second to last paragraph; it should be: “It is the quality which enables him to do wrong” ) . As such, it is a worthless trait. And, so, humans will never be (come) like god, because this trait prevents it. In fact, it is the absence of this trait that makes the animals be (come) like god.

        You need to break this anthropocentric view of everything. Twain recognized that need very acutely, I think.

        Here’s a completely different (yet libertarian related) question: how can someone be libertarian and also religious? Isn’t Religion (mostly the dogmatic ones, but all of them apply, since they have a lot of rules) the biggest “state” that infringes on liberty? It is your “soul” that they are infringing, after all (assuming you believe that); religions prohibit the following of any other religion; and that sort of thing.

        Just curious what the libertarian rationalization is for that. I know you’re more of the athiestic bent, but maybe you’ve heard the rationalizations from other libertarians.Report

        • Avatar Jaybird says:

          @John Howard Griffin, the religious libertarians I know take something of the following tack:

          Give to Caesar what is Caesar’s but not everything that Caesar says is his is, in fact, his.
          God gave you free will.
          I am not going to gainsay God.
          Neither should The State.

          (That’s off the top of my head.)

          I’m familiar with Twain’s point (back in my SUPERATHEIST!!! period, Letters From Earth was either in my backpack or in my hand).

          I just have seen such things as “people capable of doing good things for themselves/others” that I know that he’s full of crap. It’s a good point that he’s making and one that should make any/everybody take pause before doing anything of any significance whatsoever… but, seriously, people can do good as well. I point to Maribou, who is in the process of forging me, for example.

          Indeed, I’ve experienced the possibility for me to do good as well.

          I reckon that you have too.Report

          • Avatar John Howard Griffin says:


            I just have seen such things as “people capable of doing good things for themselves/others” that I know that he’s full of crap. It’s a good point that he’s making and one that should make any/everybody take pause before doing anything of any significance whatsoever… but, seriously, people can do good as well. I point to Maribou, who is in the process of forging me, for example.

            I think it is safe to say that you’ve completely missed Twain’s point. Having the capacity to do good has nothing to do with having the capacity to do wrong, and, further, the ability to do good does not erase the wrong things that one has done. You’ve just found a way to rationalize your fairly standard Judeo-Christian beliefs.

            There are plenty of examples of people who, arguably, did some good things…and also some truly horrifying wrong things. Their good deeds don’t erase anything – certainly, their good deeds don’t erase their ability to do wrong.

            But, then, I wouldn’t call you an athiest. You’re a theist in disguise, like most self-proclaimed athiests in America. You’ve just dressed up god in other clothes.

            Which is great. Hope it helps you.

            But, it doesn’t make you an athiest. Sorry.Report

        • Avatar angullimala says:

          @John Howard Griffin,

          Isn’t Religion (mostly the dogmatic ones, but all of them apply, since they have a lot of rules) the biggest “state” that infringes on liberty?

          Yeah, but unless a persons community is willing to enforce these rules with force, the person in question still has the ability to choose whether to follow them or not. This choice might not be “free” in a psychological sense – obviously internalized rules can constrain people even in the absense of external enforcement – but that is a whole other can of worms. So far, there is as yet no remotely-close-to objective way of deciding what choices a person makes that are “truly” voluntary and which choices they make because they have been “brainwashed’ or unfairly manipulated. There is nothing libertarian about going around telling people “You’ve been brainwashed so your ‘free’ choice isn’t really free and I’m going to liberate your mind and free you for real whether you want me to or not”.Report

        • Avatar Louis B. says:

          @John Howard Griffin,

          I think this is the danger with seeing libertarianism as a cultural and social viewpoint in itself, rather than as a framework which allows a plurality of cultural and social viewpoints to coexist.Report