Renew The Struggle for Colorblindness

The classical liberal strand in Western political philosophy has historically opposed special government privileges for groups and prized equality before the law. Classical liberals favored eliminating the benefit of clergy and the privileges of the nobility. They fought against slavery. And, unlike some progressives of the late nineteenth and early twentieth century, they opposed Jim Crow.

Whether classical liberalism should embrace laws that prevent private actors from treating people unequally on the basis of characteristics, like race and sex, is a more complicated question. But in my view, given the long history of Jim Crow in the United States, laws against discrimination on the basis of race or ethnicity were justified to break ingrained habits encouraged by government discrimination against African-Americans. But here again the classical liberal view molded these laws into general prohibitions against discrimination, not special privileges for certain groups.

In the 1960s and 1970s progressives began to transform these laws into mechanisms of social engineering that took account of race in their planning.  But for a brief period in Reagan administration, the classical liberal strand of universalism reasserted itself as part of the core ideology of the Republican party. The result was an effort to treat laws on discrimination as general prohibitions on discrimination on the basis of race and ethnicity, no matter which race and ethnicity was at issue.  Colorblindness was banner under which the movement marched.

Sadly, this movement has dissipated.

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Classical Liberalism, Free Trade, and Accelerating Change

The 2016 election was a victory for the Republican party but it was hardly a resounding one for classical liberalism at least as historically defined. Classical liberalism, for instance, has reflected an enthusiasm for free trade along with other free markets. But Donald Trump ran the most aggressively anti-free trade platform of any major party nominee Democratic or Republican in the last century.

But rather than simply bemoaning the fact, classical liberals need to take account of it, because the anti-trade turn is a part of the greatest challenge classical liberalism has ever faced: how to address the ever faster rate of social and economic change. The freedom to make such transformations through technology and trade creates very substantial wealth but it disrupts people’s lives, making them less liberal and more eager for state protection than before.

There can be no doubt that such disruption was at the heart of Trump’s victory. ​

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The Legitimacy of Trump’s Victory and the Limits of Democracy

NEW YORK, NY - NOVEMBER 08:   (Photo by Spencer Platt/Getty Images)

Some already seek to delegitimize Donald Trump’s decisive victory in the Electoral College, on the grounds of his failure to win the popular vote. But in the close elections where the results of the Electoral College and the popular vote diverge, the popular vote result has no electoral significance because the candidates did not try to win the popular vote. If they had tried to get the highest popular vote, they would have campaigned entirely differently. Donald Trump would have campaigned more in Texas to increase his vote and Hillary Clinton would have campaigned more in California. They would have run their television advertisements in different places. And perhaps fewer citizens would have voted, because many more would have thought their vote was unlikely to change the large national count.

Given the less than 200,000-vote margin separating the candidates, we cannot be certain who would have won the popular vote had the candidates been aiming for a popular majority. As I said in a similar discussion of Bush v. Gore, “paying attention to the popular vote this context is like suggesting we should pay attention to the total number of runs a team got in the World Series rather than the number of games won.”

A second myth to delegitimize the Electoral College and thereby Trump is to claim that the Electoral College advantages the small states.

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The Libertarian Party Grows Up

johnson

By the time Abraham Lincoln had won the election of 1860, the young Republican party had been through significant upheaval and ferocious infighting but it had a very general set of core values. It was a party opposed to the expansion of slavery along with two corollaries: granting land to independent farmers who didn’t use slavery, “free soil,” “free labor” and support for industrial development.

Just eight years later, during the administration of President Grant, many of the party’s founders had left the GOP to support Horace Greeley’s candidacy as a Democrat.  The party was nearly destroyed electorally over Reconstruction, unprecedented political corruption in the White House and several business contractions during the late 19th century.

New parties, particularly those caught up in a moment of changing political dynamics and crisis are subject to wild shifts and growing pains.  UKIP’s evolution in the UK is but one example of this trend.  It’s obvious that from election to election minor changes in the content and emphasis of platforms occur, but in potentially seismic political moments volatility can be much greater.  This is especially true within smaller political organizations that are not anchored to entrenched interests and established leadership.

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A Libertarian Ticket Hostile to Elements of Liberty

Presidential Candidate Selection

As a classical liberal, I regard libertarianism as I would a wilder, younger brother. Libertarianism is younger because it is largely a product of modernity, while classical liberalism is more rooted in the 18th and 19th centuries. It is wilder, because it posits that the public-good function of the state is more limited and the externalities less frequent than I and other classical liberals believe. Yet the philosophies are close kin: they both see that the state poses a perpetual danger to its citizens, only disagreeing at the margin on when it is necessary to relax the strictures on governmental action. And at least with the most sensible libertarians and classical liberals, these disagreements are largely empirical.

Thus, in a race where the Republican candidate for President is careering away from classical liberalism and the Democratic candidate is flirting with the socialist elements of her party, a classical liberal might find a natural home in the Libertarian Party. Sadly, however, the Libertarian ticket has taken some important positions hostile to liberty. Begin with religious freedom.

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Political Correctness Promotes Political Violence

The recent violence at Trump rallies has been the work of protesters, not of his supporters.  I am no fan of Trump, but he has as much right to speak without disruption as any citizen. Indeed, it is even more important to afford him that right than ordinary citizens, because he is the presumptive nominee of one of our two major parties. Violence distracts from the debating his ideas, such as they are, and will create greater political polarization at the expense of deliberation.

Sadly, there is a connection between this violence and the enforcement of political correctness in our educational institutions today.  The disruptive protesters at Trump rallies are almost all young—recent products of our educational system. They are thus steeped in the unreformed religion that dominates our schools—one where error has no rights.

Indeed, when Trump 2016 was chalked on the sidewalk of Emory University,  the administration began an  investigation into who wrote it. More generally, college administrators have permitted events to be cancelled because of the threat of disorder without speaking out against such cancellations.

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Is Trump or Sanders Worse for Liberty?

Is Bernie Sanders or Donald Trump a greater long term threat to the principles of classical liberalism? Trump’s program is antithetical to classical liberalism. He wants to follow protectionist trade policies. He has disclaimed any interest in reforming the burgeoning entitlements that are the principal engines for growing the state. He seems to quite content to praise authoritarian leaders abroad, like Vladimir Putin. He wants to make it easier for public figures to sue private citizens for their criticism. And he is so vulgar and gratuitously offensive that he undermines the culture of self-restraint necessary to the classical liberal order.

Of course, Sanders is worse on many of these axes. He not only wants to preserve all entitlements but add to social security and to create an entirely new entitlement to higher education. He also is a protectionist. He would destroy the private provision of health care. And he would raise tax rates sky high. As for authoritarianism, he seems to have trouble condemning any regime, such as Cuba, so long as he can entertain the false belief that the regime has been good for the social welfare of its citizens. 

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The Larger Lessons of Increased Collaboration Among Law Professors

One of the most striking changes since I have been a law professor is the rise in the number of legal articles written jointly. This increase in collaboration is of more than academic interest because the reasons for it are leading to greater collaboration in other areas, too. The result will be greater prosperity and human flourishing.

First, joint authorship has grown with interdisciplinary scholarship. Increasingly, law is the subject of inquiry in other disciplines – economics, political science and psychology prominent among them.   But those with expertise in these areas frequently lack institutional knowledge of and practical experience in law. They can strengthen their arguments by partnering with law professors more sophistication about these matters, who, in turn get the advantage of more disciplined frameworks of social science. We see the same phenomenon in public policy, where different kinds of knowledge are more regularly pooled, resulting in a fuller, less one-dimensional view of the world.

Second, many law professors also team up in their research, even if neither have interdisciplinary backgrounds. The modern legal academy is marked by increased competition for both students and faculty. Standards for productivity and quality have clearly risen even in my two decades in the businesses. One way of competing better is to combine forces. 

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Politics Anchored in the Past v. Politics Oriented Toward the Future

The transition from one year to the next prompts reflections on how our relation to the past constitutes the politics of the present.   Before the 1700s politics was wholly oriented toward the past. As Robert Tombs puts it in his brilliant new book, The English and Their History: “Legitimacy came from the past: rights, status, property, laws—all were inherited. So desirable changes were conceptualized as a return to a pristine past. The idea was of a stable ordered hierarchy in which all knew and accepted their place.” In that world the culture made political arguments naturally conservative. Public ideals had to be put in the categories created by past practices.

The hierarchy described by Tombs started to break down with the rise of capitalism. But the nature of political legitimacy persisted, as the memory of the people still preserved an idealized past.   Thus, even in the eighteenth and early nineteenth century political arguments were almost entirely founded on continuity with past political settlements, real or imagined.   The American Revolution was fought on the basis that the British government was violating what they understood as the ancient prerogatives of Englishmen, which were then codified as the Bill of Rights.

But as technology created one new revolutionary invention after another and the market broadly delivered these benefits, the culture necessarily became focused on the future.

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The State of Classical Liberalism at Year’s End

review of 2015 year typography

In a blog dedicated to formulating and promoting classical liberalism, it is useful at year’s end to evaluate the state of these ideas in the politics and culture of our nation. And sad to report, classical liberalism is now weaker than it has been for decades.

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