Defending Freedom

Ken Masugi raises some questions for me about libertarianism. I fear, though, that we may be talking a bit past one another.

Libertarianism is a vague term, and I am a somewhat unorthodox libertarian. I base my libertarianism on an indirect utilitarianism (or more precisely welfare consequentialism), and I am a very moderate libertarian, who incorporates a large strand of fusionism. Ken appears to have been assuming I was a more orthodox libertarian. Nonetheless, I thought I would write a couple of words in response.

Most importantly, Ken seems to wonder how a libertarian society might defend itself. I suppose the question is why it would not be able to do so. If one includes classical liberalism within the category of libertarianism – and I certainly do – then the government can certainly tax to fund national defense. A volunteer army would also be entirely consistent with these libertarian or classical liberal principles. People have often been willing to volunteer to defend free societies.

Ken might wonder whether a military draft would be needed to defend a classical liberal society, as it seems to have been required during WWII. This is a complicated question, but let me offer a brief response. There are a variety of institutional mechanisms that could be used to avoid the need for a draft. Higher pay for those who serve is obvious. I also believe a set of contingent contracts – where a person agrees to serve in case a war emerges – would also make sense. Finally, in a world with nuclear weapons, a war of survival seems unlikely to require a draft, and our country has recently been able to fight two wars at once without a military draft.

In the end, I guess I just don’t understand Ken’s concerns. He writes of a libertarian country, “who would defend such a country or even want it to continue?” Well, I believe that freedom is a great thing and that living a life with freedom and the wealth it produces is very desirable. When freedom has prevailed, people see that it is a good thing and they support it. So who would defend such a country? Most of the people who live there.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Recent Popular Posts

Related Posts


  1. Cristian Reyes says

    Excellent article! as a self described libertarian/classical liberal, I agree with many of your points. Ken Masugi seems to make the common conflation that most non libertarians do: that a libertarian/classical liberal is an anarchist and therefore a libertarian/classical liberal society means no government. But of course, this is not the case. Libertarians encompass a wide spectrum of beliefs, from consequentialism, to natural rights, to anarcho capitalists. Even in a more orthodox libertarian society there is still a role for government (albeit a very small one), and allowing the government to tax people to support national defense is entirely consistent with orthodox libertarian principles.

  2. John Ashman says

    “When freedom has prevailed, people see that it is a good thing and they support it. So who would defend such a country? Most of the people who live there.”

    As well as most anyone else who would naturally WANT to live there.

    Libertarian countries don’t have natural enemies and even those who might attempt to take one over would run into finding out just how quickly free people can harness their superior wealth and technology to fight back.

  3. R. Light says

    “When freedom has prevailed, people see that it is a good thing and they support it.”

    This line sums up the presupposition of Rappaport’s whole argument. It might suffice alone to say that self-interested people with slavish habits will not invariably support those “good things.” Or they may have no appreciation for the various “corollaries to liberty,” mentioned by Masugi, necessary to perpetuate those good things. But let’s unpack this further.

    What really animates Masugi’s argument is the distinction between the universal and the particular. What does it mean to be a particular people over against another people? Yes, to be an American is to believe and follow universal principles such as individual liberty. But Mexicans and other 3rd world immigrants in their particularity understand differently (or perhaps reject altogether) those principles. Hence, our particularity is opposed to their particularity.

    If we’re successfully assimilating people to have (small “r”) republican habits, only then can we talk about open borders.

    But back to Rappaport’s claim, “”When freedom has prevailed, people see that it is a good thing and they support it.”

    As Peter McNamara once wrote in a critique of Hayek, “the success of an idea is only an argument in its favor *if* there is an agreement over what constitutes success” (“The Limits of Spontaneous Order,” link below). That agreement descends from moral-political education intrinsic to the natural rights compact of the Founding. Libertarians largely reject moral-political education: for them, it seems, law is punitive, not educative. But consider: a person who refrains from murder out of fear of being caught, but for whom murder is otherwise desirable, is a depraved person. Do human beings have ends or purposes that aren’t projections of mere will or desire? Libertarians don’t see that law has a place for instilling virtue, the creation of citizens in perpetuity according to a received form or rule (politics).

    I’ll go the title of McNamara’s essay much further: there is no spontaneous order whatsoever. Rappaport’s presupposes the autonomous individual. This is the unacknowledged premise of his plea for open, or far more open, borders. Thomas Jefferson was for open borders. I seriously doubt, were he alive today, he’d hold such a position. Our immediate historical-political situation is utterly different. We’re confronted with two unprecedented phenomena: identity politics and welfare dependency, things that did not exist two hundred years ago. Further immigration of people with slavish habits — yes, slavish: the-precisely-not-racist description of how the people of Latin America have been politically educated, because human beings are fundamentally political, not economic — simply leads to something called balkanization and economic decline of the country.

    Libertarian or Hayekian “good ideas and practices” cannot be supposed to be necessary products of history or culture. Again, McNamara’s shows how libertarians’ positivistic arguments must descend into historicism. If the differences between, say, a Mexican and an American are merely cultural or historical, then this is to say that there precisely is no difference between them. On Rappaport’s utilitarian grounds, there is no rational basis to make, say, the franchise of voting exclusive only to natural born citizens who own property.

    Finally, I’ll just say: If one stops to consider that libertarians even venture forth publicly — i.e., politically — the argument for open borders, trying to convince people to vote ANY way other than they might otherwise be inclined to vote, this precisely refutes the very notion of spontaneous order, not to mention its kindred construct, the autonomous individual. Why? Because spontaneous order and autonomous individuality begin nihilistically: they falsely presume that people are necessarily one way. But human beings are oriented to, and shaped by, claims of right and wrong, good and just. They are primarily political, not economic. They are oriented, however confusedly, to the good.

    • John Ashman says

      Lots of strange arguments here ^^^^

      The analogy to brakes and accelerators is nonsensical because it is the purpose of cars to both accelerate and slow down. It is not the purpose of libertarianism to arbitrarily deny one freedom while protecting another (ACLU, I’m talking to you).

      With this – “Yes, to be an American is to believe and follow universal principles such as individual liberty.” – you repudiate your own argument against Masugi, while following with the strange idea that individual liberty somehow means something different to Mexicans, as if all Americans believe one thing, all Mexicans believe another.

      Further, your explanation of the value of law, as though libertarians don’t believe laws against harming others is valuable, makes no sense. Aside from the fact that laws by nature are punitive, not educative. If they are the latter, it is only because someone is able to infer a lesson, rather than an overt one. Especially since human law is arbitrary, versus natural law, which is not.

      A libertarian society would consist of approximately the same law with only minor details separating, no matter where it exists. A libertarian society that says that you may not smoke is not truly libertarian, and only has the appearance of libertarianism in other areas.

      I would also argue that it is perfectly utilitarian, as I understand it, to have only wealth landowners vote, if they are the only ones paying taxes and the purpose of government is to do things that do NOT pertain to the lives of most other citizens. In a well run libertarian society, the political class would have almost no power, and no ability to do much of anything, so voting would be a wasted exercise for the grand majority of people who would simply have no interest in things that don’t invade their personal biosphere.

      You also seem to conflate libertarianism with anarchism, the latter protecting the masses and educating bad actors, whereas the latter simply largely lets chaos or a voluntary court system sort it out. So libertarians will by nature speak out for those that are oppressed by others, knowing that this same oppression might be directed towards them. Libertarianism is different from egoism, which generally is manifest as the desire to control others because “I know better”. Because controllers never control for the benefit of others, but only for the benefit of their own ego and wellbeing.

    • John Ashman says

      “But consider: a person who refrains from murder out of fear of being caught, but for whom murder is otherwise desirable, is a depraved person.”

      I disagree with this statement as well.

      Consider the fact that there are many people that are incredibly evil in the world, who may not murder or commit crimes, but seek to enslave or control others. A rational person, who, balancing the good to himself and society, might consider murdering them if it were legal, because it would be of great benefit to society. I can probably 100 such people off the top of my head. But the same man, considering that he might be forced to spend the rest of his only life in jail, would rethink this, and, rather than look out for the good of society, will look out for his own good, which comes first, and simply stomach the fact that this person will exist and will perpetrate great evil over his lifetime. Soldiers, police, and common men murder men of evil every day, because it is legal to do so, and because it serves the greater good and helps extinguish the perpetration of evil.

      I submit that it might be of great benefit to society if murder were perfectly legal. Because it would certainly be a very polite society, and the risk of murdering someone would be that of retribution by an individual, not by a state. An individual would have to find that the murdered was not only murdered improperly but that his benefit to society or himself was greater than his evil, and that it merits another murder. Whereas the state does not judge the evil that the murdered may have committed, only the manner in which he was murdered. A man without friends and benefit to society would live a tenuous existence. It would not surprise me find that eliminating the laws against murder would cause a spike in homicide, followed by the most peaceful and politest of societies from that moment on.

  4. gabe says

    You wrote:

    “When freedom has prevailed, people see that it is a good thing and they support it. So who would defend such a country? Most of the people who live there.”

    Really! I find that hard to believe since most people are unwilling to defend it now and instead deride those who have served or are serving!!!

    “As well as most anyone else who would naturally WANT to live there.”

    Would this include Islamists such as Major Hassan?

    “Libertarian countries don’t have natural enemies and even those who might attempt to take one over would run into finding out just how quickly free people can harness their superior wealth and technology to fight back.”

    Why would they not have natural enemies! Your argument assumes that the rest of the world is rational (gee, sounds like “Smart diplomacy” to me) and / or that you accept the apologists stated reasons for Islamic hostility to the USA as being solely our fault. I suspect that the Islamists would hate a libertarian country even more than they currently despise the present USA.

    Mr Light is absolutely right. Some particular peoples have a “slavish” mentality that is inherently hostile to a republican form of government – libertarian or not.

  5. says

    A common tactic in political discourse is to cast political positions with which you disagree as dogmas. It then becomes possible to assert that unless these dogmas are applicable in all cases, they are applicable in none. Pedants who are fond of this form of argument are constantly looking for opportunities to accuse opponents of hypocrisy and inconsistency. They seek to constrain debate by imposing cheap and silly assumptions; for example that if one is not libertarian in all circumstances it is hypocritical for him to be so in any. They tend not to notice the deficiency in this type of logic; they would not for example accuse an automobile manufacturer of hypocrisy for equipping each car with both an accelerator and a brake.

    An entirely consistent libertarian philosophy recognizes that libertarianism is only possible because human beings have both individual and collective interests, and which of these have priority at a given time depends upon circumstances. One is entitled to call himself a staunch libertarian, even though this libertarianism is primarily a default when all other considerations are relatively equal, or simply an attitude of respect for the dignity of others in ordering their own lives.

    There is nothing non-libertarian about someone pulling a distressed stranger from swirling floodwaters, and likewise there is nothing antithetical to libertarianism in participating in collective defense. Libertarians can accept that some taxation is necessary and still maintain the label. One need not have a hostile view of the 16th amendment to prefer a libertarian approach to his own life and those with whom he shares a community. It is not necessary to qualify one’s libertarian credentials with an ever growing string of adjectives to create a doctrine that applies in every case.

    The expectation that anyone wishing to defend libertarianism do so with an unyielding fanaticism is extraneous and dumb. Libertarianism is in fact just as potent as a mood or an attitude as it is a rigid set of tenets. This is why there “are no libertarian countries,” and no communist countries and no Utopias. But there are countries that are more libertarian than others, those that are more despotic and tyrannical, corrupt, etc, and this is why libertarianism is worth defending, however and whenever possible.

  6. gabe says

    I would agree with Z9Z99 regarding the tendency of some to ascribe to those possessing differing opinions a certain level of dogmatism that they may, in fact, not possess. i also agree that rational libertarians or any other proponent of an “ism” do, in fact, look at the particular circumstances.
    I guess where I differ is in not seeing that the comment(er)s to which he refers were actually guilty of this. Rather, at least in my own case, and I suspect for the others, an attempt was being made to have the author of the post circumscribe the particulars of his assertions. As an example, to propose essentially open borders at a time such as now really does call for a stated limit on what / whom is acceptable. It is situational and it is really quite proper to ask what are the intended limits; under what conditions would you modify this position.
    To simply assert that we should have open borders simply because we should treat “others” equally, without qualification, and / or that they have a “right” to immigrate into this social compact may cause one to view the proponent in dogmatic terms.
    If I remember correctly from the earlier postings, what some were asking for was an enlightened libertarianism – could this, perhaps, be what Z9Z99 is suggesting. If so, I am definitely in agreement.

    • says


      I was not addressing any particular commenter or group of commenters. My post was addressed to the type of argument that is used to attack various positions that libertarians are “supposed” to hold. My point is that it is possible to be a libertarian and have either a permissive or restrictive view of immigration, a hostile or accepting view of collective defense in the face of emergency, and various degrees of tolerance regarding bureaucratic twaddle. Enlightened libertarians need not agree on everything, or even most things. They may arrive at libertarian philosophies by different paths, and consequently reach different conclusions on different issues. Libertarian “purists,” and anti libertarians who demand that all libertarians be so, are no different than any other type of fanatic: rigid, impractical, and insular.

      • John Ashman says

        Libertarianism is relative. If not for Republicans and Democrats, a person who sought restrictions on immigration would be considered to be anti-libertarian and quite conservative and xenophobic.

        My feeling is, given the situation we are in, I am willing to ride share with anyone who wants to go in the same direction as I do and would be glad to argue amongst ourselves later.

      • gabe says

        Absolutely agree with you!
        Life is fluid – so, too, should be doctrine based upon realities on the ground!

  7. gabe says

    Reading the comment on murder from one who denies any anarchic sympathies makes me think that perhaps we should bring back “trial by fire.”
    wouldn’t that make for a “happy people.”

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>