My old friend Mario Rizzo has a great post up on classical liberalism and libertarianism. The post discusses how to distinguish the two different political theories. Interestingly, Mario does not follow the more common distinction – for example adopted by Richard Epstein – that classical liberalism is more moderate than libertarianism, because the former accepts the need for government to promote public goods. Mario notes that the “philosophy of liberty has always admitted of gradations or degrees” and that classical liberals such as Lysander Spooner, Auberon Herbert, and Benjamin Tucker were radicals. Instead, Mario argues that “Classical liberalism is the philosophy of…
Today the Wall Street Journal published my review of Richard Epstein’s The Classical Liberal Constitution. I found much to like in the book, but believed that it did not succeed at its central claim—showing that Constitution is in essence applied classical liberalism. That claim is crucial to the ultimate persuasiveness of his book, because Epstein believes that classical liberalism should guide the interpretation of provisions that he finds ambiguous and tells us which precedents should be keep and which should be discarded. Thus, for Epstein even if a precedent did not capture the text of the Constitution, it should generally be honored if it advances classical liberalism.
I compared the book to the best book on constitutional theory of the twentieth century, Democracy and Distrust by John Hart Ely, for its ambition and relentlessness of argument. But it shares a similar flaw with that magisterial work. Ely argues that the constitutional interpretation should be focused on promoting and reinforcing democracy. But he never shows that democracy was the single sun around which the Constitution orbited. Similarly, Epstein fails to show that classical liberalism is the skeleton key that unlocks the meaning of the Constitution.
As I say in the review:
To be sure, the Framers were very much aware of Locke, and liberalism is central to the Constitution’s meaning. But Mr. Epstein never shows that Locke’s liberalism tracks his own or that it was the dominant influence on the Framers. Other influences included Montesquieu, who stressed a balance of powers, and some of the Framers adhered to the civic-republican tradition, whereby government was to cultivate virtue. What is more, the Constitution reflects the lived experience of Americans and their forebears. The Bill of Rights derives in part from quarrels among English religious sects and the abuses of the Star Chamber. The very wording of the Bill of Rights often expresses this long history.
Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that “American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles.
I have long been a libertarian, although the type of libertarianism that I follow has changed over time. Initially, I was a natural rights libertarian of the Nozickian type, but over time I became a consequentialist influenced by Friedrick Hayek and Richard Epstein. Over time, I also became more moderate moving from night watchmen state conception to a classical liberal position.
All of these positions more or less fall within the libertarian tradition broadly understood. But there is one issue where I believe that the tradition has not adequately taken matters into account. What does one do when others do not agree with libertarianism? Suppose that one is within a country with nonlibertarians. How should one live together?
The initial answer given by libertarians is that the people of differing views should live together and respect one another’s rights. In such a world, individual liberty allows everyone to pursue their values, and it is not necessary for one person to impose their values on others. While I find that convincing, let’s suppose that someone else does not accept the argument. They have a different understanding about the facts and/or values. They believe that free markets harm the poor and therefore should be restricted. Or they believe that people should be required to help the worse off, even if they do not want to.
The traditional libertarian response is to say to such people, “You are wrong to coerce others, and I will not let you do so, if I can stop you.” While this is a correct response from a narrow libertarian perspective, it is not clear that it is right from the broader perspective of social morality.
I look at the issue from the perspective of a welfare consequentialist (that is, a kind of utilitarian). Under that approach, people with nonlibertarian factual beliefs or values affect what the optimal institutions should be. Imagine, as I believe, that classical liberal institutions are the optimal ones from a welfare consequentialist perspective. They produce the greatest liberty and wealth for people in the society (and other goodies as well, but I shall ignore those in this post). So, for a society of classical liberals, those institutions would clearly be the best ones.
But now introduce a significant number of modern liberals (sometimes called welfare liberals), who believe in larger government and more redistribution than classical liberals do. How does that change the analysis of the optimal institutions?
From a welfare consequentialist perspective, there are at least two important consequences of the existence of welfare liberals. First, if welfare liberals strongly dislike the classical liberal institutions, then they are far less likely to support the system. In particular, if we assume that the constitution embodies these classical liberal principles, then the welfare liberals may become alienated from the polity. A polity needs its citizens to support its institutions and if the citizens strongly oppose the policy, they may not exhibit the necessary degree of support. Thus, additional support for the laws and constitution may be derived if there is a compromise between classical liberal and modern liberal institutions.
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…
Over at the Independent Institute’s blog, Robert Higgs criticizes classical liberalism from an anarchist perspective. He writes that he can understand why one would become a classical liberal – someone who favors liberty and believes that government can be limited and help protect that liberty. In fact, he became a classical liberal more than 40 years ago. But what he does not understand is why classical liberals remain so rather than rejecting government entirely:
My difficulty arises not so much from a dissatisfaction with government’s being charged with protecting the citizens from force and fraud, but from a growing conviction that government (as we know it) does not, on balance, actually carry out these tasks and, worse, that it does not even try to carry them out except in a desultory and insincere way—indeed, as a ruse.
Truth be told, government as we know it never did and never will confine itself to protecting citizens from force and fraud. In fact, such government is itself the worst violator of people’s just rights to life, liberty, and property. For every murder or assault the government prevents, it commits a hundred. For every private property right it protects, it violates a thousand. Although it purports to suppress and punish fraud, the government itself is a fraud writ large—an enormous engine of plunder, abuse, and mayhem, all sanctified by its own “laws” that redefine its crimes as mere government activities—a racket protected from true justice by its own judges and its legions of hired killers and thugs.
Let’s assume that Higgs is correct – that government is the worst violator of rights. What is strange is that Higgs seems to be missing an essential step in his argument. He does not discuss what the world would look like in the absence of government. My guess is that most classical liberals believe that, however bad government may behave in the real world, an anarchist world would be even worse.
Last month, the Center for the Study of Constitutionalism Originalism at the University of San Diego hosted a talk by leading Libertarian scholar Richard Epstein based on his new book The Classical Liberal Constitution. Commentary was provided by Larry Alexander, David McGowan and myself. You can watch the talk here. (You have to scroll down a little.)
Richard’s brand of originalism works as follows. He believes that the constitutional language should be given its original meaning, but that the language is often incomplete or vague. Therefore, he argues that the language must be interpreted in accordance with some background principles, and those are classical liberal principles, because the leading political theory at the time of the Constitution was classical liberalism. As a result, Richard is able to argue that the Constitution’s originalism meaning leads largely to classical liberalism.
Tom Palmer has responded to several criticisms I made of his contributions to a recent anthology that he has edited on the welfare state. Despite what Palmer has written in defence of what I criticised, I stand by my original criticisms and want in this rejoinder to explain why.
My criticisms of Palmer occur in an otherwise favorable review of his anthology.
Below I consider each criticism I levelled in turn, summarizing Palmer’s response to it, and then explaining why I remain unmoved by his response.
It’s always nice to read a review of one’s work and it’s usually a good idea to steel oneself for the criticisms that any work ought to invite. Everything I’ve ever written or edited could have been better. Criticism is a good thing. And so are responses. So here goes.
I was a bit puzzled by David Conway’s review of my modest book After the Welfare State, because he seems to have read different essays from those I wrote. He claims that I have discredited classical liberalism by making several statements that I am rather confident he has misunderstood and thus mischaracterized.
First, one man’s “hyperbole” is another man’s urgency. The crisis of unfunded liabilities is a rather serious matter. The Greek situation, which brought to parliament both communist and fascist parties, not to mention rioters to the streets, should wake us all up. At least, so I would think. But even if we set aside the situation in Greece and focus on the US or Northern Europe, the fiscal imbalances (i.e., the present value of the unfunded liabilities of the state, which represents the difference between anticipated taxes and anticipated expenditures under current law), amount to a whopping 500% or more of GDP in a number of wealthy countries, such as the Netherlands and the US, and up to 1,550% in Poland.
The next edition of Liberty Law Talk is a conversation with Charles Kesler on his new book, I am the Change: Barack Obama and the Crisis of Liberalism. Professor Kesler's book argues that the intellectual world of modern liberalism is built on philosophical contradictions about the nature of liberty and the requirements of law and government to protect it. A more basic flaw is its continuing inability to limit itself when it comes to state power and welfare entitlements. This "never enough" mentality translates into the overwhelming and barely governable size of the modern democratic state. Our current President, Barack…