TGIF: A New Washington Post?

If Jeff Bezos is as good as his word, the advocates of full liberty will owe him a standing ovation. As everyone knows by now, Amazon.com founder Bezos, one of the greatest entrepreneurs of all time—a man whose profit-making activities have benefitted mankind worldwide—has announced that the editorial page of his newspaper, the Washington Post, will be devoted to promoting the free market and personal liberty. Before Bezos bought the Post in 2013, it was a leading champion of government intervention throughout the economy, which means throughout our lives. If he consistently follows through, this will be quite a change.

As he put it in a memo to the staff, which was posted on X:

We are going to be writing every day in support and defense of two pillars: personal liberties and free markets. We’ll cover other topics too of course, but viewpoints opposing those pillars will be left to be published by others.

I'll get one of my pet peeves out of the way. Bezos's two pillars are one: individual liberty. Nothing is more personal than how we make and spend our money. My decision to earn my living as a plumber is a personal decision. When the government forbids me to do that without a license, that violates my personal liberty. An individual is an integrated whole.

Bezos continued:

There was a time when a newspaper, especially one that was a local monopoly, might have seen it as a service to bring to the reader’s doorstep every morning a broad-based opinion section that sought to cover all views. Today, the internet does that job.

He's got a point. Some people will be bothered that Bezos says "viewpoints opposing those pillars will be left to be published by others." That sounds like he won't let his op-ed editor publish regular or guest columnists who oppose freedom and free markets. (No columnist has resigned to my knowledge.) It's not just the unsigned editorials that will take up the cause. Isn't that narrow and intolerant? Bezos reasonably points out that through the internet, the full range of views is at everyone's fingertips. So why is every newspaper obliged to present a smorgasbord of opinion?

His next paragraph is excellent:

I am of America and for America, and proud to be so. Our country did not get here by being typical. And a big part of America’s success has been freedom in the economic realm and everywhere else. Freedom is ethical—it minimizes coercion—and practical—it drives creativity, invention, and prosperity.

How often do you hear it said that ethical ideals, particularly freedom, are practical? Not very. Libertarians have been saying that for a long time, but it hasn't sunk in. Many people believe that freedom is impractical and that the government must routinely override it to maintain order or other values. That's balderdash, but many people have been taken in by the self-serving line.

Bezos wrapped up:

I’m confident that free markets and personal liberties are right for America. I also believe these viewpoints are underserved in the current market of ideas and news opinion. I’m excited for us together to fill that void.

A couple of points: Bezos is accused of sucking up to Trump. But freedom and free enterprise—which means, among other things, unobstructed global trade and the free movement of people—are not pillars of Trumpism. Trumpism is the rule of Trump's autonomous whims, which may face few checks from other power centers. The ability of producers and consumers to plan long-term is at the mercy of his mood. (He might give company X an exemption from a tariff, but he might not.) It's what historian Robert Higgs calls "regime uncertainty," a highly destructive thing. It's not the free market. It's the opposite! We'll have to watch the Post's editorial page closely, but this announcement would be a funny way to win over the MAGA crowd.

I'm left wondering what the page will say about foreign policy. Contrary to popular impression, an interventionist foreign policy must violate freedom and free enterprise. How could it not? If Bezos's Post opposes Trumpian interventions in Ukraine and the Middle East, that will be significant. Full disengagement from those conflicts is imperative in the name of liberty. Trump's plan to build up the military is wrongheaded. As classical liberals (libertarians) have long understood, the warfare state is inimical to liberty.

Some Things Never Change

"The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt.”

--John Philpot Curran, Irish statesman, 1790

TGIF: The Economic Is Personal

Contrary to accepted doctrine, we have no grounds for regarding so-called economic liberties as less important or less worthy of protection than so-called personal, or civil, liberties. That's because we have no essential grounds for distinguishing so-called economic ends from so-called personal ends. (Let's dispense with the "so-called" qualifier for the sake of fluency.)

Each of us pursues ends, full stop. Our ends vary widely in content and time required for accomplishment. Some are achieved quickly; others require prolonged effort and can be called projects. Some directly involve money-making; others don't. What could be more personal than deciding how to earn a living? Why should the sort of end sought matter to the discussion of liberty?

Ends imply action, purposeful behavior. The laws and logic of human action -- praxeology, Ludwig von Mises called it -- thus apply to all action (the word purposeful is redundant) no matter what is sought and by whom, whether it's Jeff Bezos or whoever succeeded Mother Teresa. The involvement of money is irrelevant. Ends, means, costs (opportunities forgone), profit, loss, and time (explicit or implicit interest) are all relevant concepts regardless of the ends we seek. As the British economist Philip Wicksteed put it, "The general principles which regulate our conduct in business are identical with those which regulate our deliberations, our selections between alternatives, and our decisions, in all other branches of life."

Economics as an important discipline, Thomas Sowell emphasizes, is a way to analyze action, no matter its objective. It is how we understand the unplanned social consequences and institutions -- property, markets, money, prices, and so on -- that unfold when diverse people with divergent personal preferences aim at objectives using scarce resources that could be used in multiple ways. It's the study of the social cooperation that emerges among widely dispersed strangers as an unintended byproduct of individuals' pursuit of happiness. It's not the particular objective that makes an activity "economic." It's an aspect of human action in itself.

Nevertheless, it is common in government offices and many people's minds to rank economic liberty below personal liberty. Samuel Johnson said, "There are few ways in which a man can be more innocently employed than in getting money," but many disagree.

An infamous footnote in a New Deal-era Supreme Court decision, which upheld a federal ban on interstate trade in filled milk, formalized and reinforced the ominous distinction between economic and personal liberty, which had replaced an earlier more fully pro-liberty view. The footnote seemed to say that while the government probably can't interfere with, for example, the exercise of religion or expression, it probably can interfere with the exercise of commerce and manufacturing. In the latter activities only, the government should be allowed great leeway to interfere.

Opponents of the free market (translation: opponents of the market) say that what distinguishes the two categories is that economic activity affects other people in important ways. That cannot be sustained because virtually all actions and abstentions affect other people in myriad important ways, some positive and some negative. Someone's choice of religion, artistic expression, or political speech might bother (metaphorically harm) others. Personal liberty might offend and hurt someone's feelings. But we wouldn't want the government to regulate that, would we?

Lately, some people have realized that the exercise of traditionally protected civil liberties can negatively affect others as much as, if not more than, commercial activities can. Unfortunately, they advocate extending government power to the former rather than withdrawing it from the latter.

The matter of speech and expression demonstrates the artificiality of the division between economic and personal activities. People often engage in artistic activities and political speech in part to make money. It's both commerce and expression. Which liberty category should it go into?

We can take this further. Commerce is expression. Sellers ask prices and buyers bid them. That's communication. Adam Smith said, “The offering of a shilling, which to us appears to have so plain and simple a meaning, is in reality offering an argument to persuade one to do so and so as it is for his interest.” Sellers and buyers can't compel, so they must try to persuade; each can say no. Since competitors are also free to ask and bid -- that is, make counterarguments -- dissatisfied sellers and buyers have alternatives. Where freedom reigns, the potential for competition keeps market participants on their toes. (If the government restricts entry to assist its cronies, that is the activity that must be stopped.)

Further, as arguments, prices function as signals -- messages -- indicating to everyone the state of supply and demand. This facilitates the coordination -- cooperation--  of countless people as they pursue their disparate projects. It is a mass communications network, spontaneous and undesigned. Government interference with the price system should be struck down as a First Amendment violation.

Why, then, is potentially violent political intervention defended according to inessential distinctions? No good grounds are offered. All interventions should be opposed. If A and B agree on terms for the sale of goods or services, including wages, it's no one else's business. Minimum-wage laws, price controls, rent caps, land-use restrictions, occupational licensing, patents and copyrights, government-enforced union rules, etc. all have to go.

TGIF: Why Liberty Matters

Why does liberty matter? It’s a fair question because, after all, not everyone thinks it matters very much, perhaps beyond some very basic point. If that’s an overstatement, we can safely say that for many people on the left and right, liberty is a lower priority than it is for libertarians and classical liberals. Most pundits and politicians, even most anti-war types, have plans for how to spend your money.

What can we libertarians say? We have lots to say. It's a multifront operation. Some libertarians press the case in terms of moral consequentialism, either utilitarian or egoist. Others take a duty-oriented, or deontological, route, stressing a rule-boundedness that may look like a rights theory. (Rule-consequentialism, as opposed to act-consequentialism, ends up looking like this.)

A third approach is eudaimonia, or virtue ethics, which has been inherited from the ancient Greeks, for example in Aristotle's Nichomachean Ethics. In this approach, consequences are not irrelevant -- in fact, they are baked into the conception of features (virtues) that tend toward the perfection of the individual person as a rational social being. In brief, respecting other people as ends in themselves is integral to respecting oneself. I like this approach.

The problem with persuading others about all this is that proof is difficult. It's not like mathematics or physics. Aristotle wrote that the quality of proof in one area of knowledge, say, mathematics, is not to be expected in other areas, say, ethics. You have to play the hand that reality has dealt.

Modern libertarians have been debating among themselves the proper foundation of the freedom philosophy for decades. I can recall a libertarian scholars conference nearly 50 years ago when Murray Rothbard and historian friends expressed frustration over yet another panel of philosophers arguing the fine details of their respective approaches. The philosophical debate is important, but it's easy to get lost in the weeds. Does it matter to the public? Most nonlibertarians are not philosophers or interested in philosophy.

Leaving all that aside (and to people more qualified than I am), what can libertarians say to regular people? The general public often takes positions and attitudes based on cultural and media signals, but that doesn't mean we should not try to win regular people over directly, say, through the internet. Lots of opinion-makers have an incentive to ignore us.

To make our case, I want to start by saying that we know one thing clearly: each individual's life is important to him or her. People care about themselves. Each cares about other people too, but those others are important to the one doing the caring. Far from ruling out regard for others, properly conceived self-interest requires regard for others. It's self-evident. We're social beings. We flourish partly through all sorts of instrumental and constitutive relationships with others.

Each person generally wants life to be long and satisfying. We can call that flourishing. Life is a project, and it consists of many sub-projects. We are not ghosts. Projects require material things: a place to live and work, nourishment, tools, products, and so on. In a word, possessions. If people are to flourish they need to know that their possessions are secure. They need rights, including property rights, to define zones in which they can act free of compulsion. Our nature requires it, so they are natural rights.

We can sum all this up with the term self-ownership, to which no coherent alternative exists. The American abolitionists called slave masters "manstealers." How apt. In 1864 Lincoln wrote in a letter that "if slavery is not wrong, nothing is wrong." (I know about Lincoln's faults.) Here's the logical corollary to that truth: if self-ownership is not right, nothing is right. That's the libertarian philosophy in concentrated form.

Does knowing this solve all social problems? Of course not. Exactly when conduct begins to become aggression can't always be decided in an armchair. Boundaries can be fuzzy; social conventions will emerge. Life is about grappling with problems. (Sowell says there are no solutions, only trade-offs.) Context matters. So peaceful dispute-resolution will always be necessary, preferably not provided by a coercive government. That doesn't keep self-ownership from being a strong and reasonable guide to grappling with interpersonal problems. On the contrary, it justifies a presumption of liberty.

Critics will ask about the blameless who have little, who wonder where their next meal will come from, and how they will get education or medical attention. Fair question, and we have answers. The primary one is that free people in a free market produce great abundance and variety, which they are eager to sell or rent to others. (Even the hampered market has done this to a great extent for a couple of hundred years.) The West's move toward markets brought the first mass production, which did not always please the aristocracy.

Moreover, the governmental causes of the worst times in history -- from war to domestic mass murder to depression -- can be readily demonstrated. They were not the product of freedom, which common sense tells you is the right way for rational social beings to live.

While these times seem unfriendly to the freedom philosophy, it's possible that this philosophy will eventually delight the people fed up with the woke progressives, national conservatives, and neoconservatives. Maybe time is on freedom's side.

TGIF: On Liberty and Security

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." Benjamin Franklin's famous words are often quoted because, alas, they are always relevant.

Whether Franklin meant what libertarians take him to have meant has been challenged in recent years. See this disagreement between Benjamin Wittes and Leya Delray. In defense of her interpretation, Delray argues that Franklin shed light on his meaning when he quoted himself 20 years later.

Whoever is right, for Franklin the word liberty on these occasions meant not individual freedom but colonial "self-government" independent of the king of England and those to whom he had granted land in the New World. And for Franklin, the powers of such a government include the power to tax. Franklin thus was defending the collective "freedom" of Americans through their colonial legislatures (that is, majority rule) against undemocratic rule from afar. (Pennsylvania was a proprietary colony granted to the Penn family by the king of England. The family-appointed governor had repeatedly vetoed bills from the legislature that included provisions to tax the family's proprietary estate to pay for the defense of frontier settlements during the French and Indian War. The family objected but offered instead to pay a lump sum for that defense in return for a legislative renunciation of its power to tax the family land.)

In my view, Delray makes a better case than Wittes, but whatever Franklin had in mind, we as libertarians are free to apply Franklin's words to the individual rather than the collective. After all, we're methodological individualists, who realize that no group can possess rights not possessed by its members. So let's do so. (Another Benjamin -- the French-Swiss classical liberal Benjamin Constant -- had important insights about the critical difference between individual freedom and so-called collective freedom in his must-read 1819 essay "The Liberty of Ancients Compared with that of Moderns." Spoiler: Three cheers for modernity!)

Many points could be made about the trade-off allegedly required between liberty and safety, or security. For starters, can they really be traded off? The libertarian philosopher Roderick Long thinks not:

What we want is not to be attacked or coercively interfered with – by anyone, be they our own government, other nations’ governments, or private actors. Would you call that freedom? or would you call it security?

You can’t trade off freedom against security because they’re exactly the same thing.

Consider what's happening in China. In the name of delivering the impossible -- zero COVID-19 -- the people have been deprived of all liberty. Are they more secure for this deprivation? The virus is spreading apace anyway, and people are dying and suffering because whatever freedom they had previously has been curtailed. It is inspiring to see so many Chinese protesting their oppression in cities throughout the country. How sad that many other Chinese are willing brutally to police the people who are demanding freedom and justice.

Another way to look at the alleged trade-off between freedom and security is to realize that one doesn't gain actual security through state limits on freedom but rather a false sense of security. A false sense of security is worse than no sense of security at all.

When the state, even a democratic one, assumes the role as security provider, how do we know it will actually provide security rather than make us less safe? Because politicians and bureaucrats (think Anthony Fauci) say so? Because elected officials will accurately identify and appoint well-meaning and expert bureaucrats? A good deal of faith is expected on the part of the people who will be compelled to obey the resulting decrees. This model of governance also ignores the fact discovering what ought to be done in a given situation requires a decentralized competitive process in which competing hypotheses and theories are freely aired. Centralization in this realm suffers from the same fatal calculation and knowledge problems of central economic planning.

At any rate, what assurance does anyone have that the experts, who are human beings, will not err or act corruptly? We have no assurance at all. Even if a state official gets caught in a blunder or corrupt act, the likelihood that he will be held accountable is minuscule. Good luck suing that person. As for mounting an effort to defeat a politician at the polls, good luck with that too.

The doctrine that a democratic state (as opposed to a society of individual liberty and consensual social cooperation) can deliver security is actually rather peculiar. It's based on the curious principle that while we are too incompetent to manage our own lives through individual action and voluntary cooperation, we are perfectly competent to pick other people to manage our lives coercively. No one better exposed this contradiction than Frédéric Bastiat, the great 19th-century French classical liberal economist and legal philosopher. In The Law he wrote:

What is the attitude of the democrat when political rights are under discussion? How does he regard the people when a legislator is to be chosen? Ah, then it is claimed that the people have an instinctive wisdom; they are gifted with the finest perception; their will is always right; the general will cannot err; voting cannot be too universal.

When it is time to vote, apparently the voter is not to be asked for any guarantee of his wisdom. His will and capacity to choose wisely are taken for granted. Can the people be mistaken? Are we not living in an age of enlightenment? What! are the people always to be kept on leashes? Have they not won their rights by great effort and sacrifice? Have they not given ample proof of their intelligence and wisdom? Are they not adults? Are they not capable of judging for themselves? Do they not know what is best for themselves? Is there a class or a man who would be so bold as to set himself above the people, and judge and act for them? No, no, the people are and should be free. They desire to manage their own affairs, and they shall do so.

But when the legislator is finally elected — ah! then indeed does the tone of his speech undergo a radical change. The people are returned to passiveness, inertness, and unconsciousness; the legislator enters into omnipotence. Now it is for him to initiate, to direct, to propel, and to organize. Mankind has only to submit; the hour of despotism has struck. We now observe this fatal idea: The people who, during the election, were so wise, so moral, and so perfect, now have no tendencies whatever; or if they have any, they are tendencies that lead downward into degradation.

Any reasonably intelligent person ought to see that it is far easier for us to manage our own lives than to select "the right" social engineers, with their compulsory one-size-fits-all plans, to do it for us.

It is said that neither freedom nor security is free. I agree. But must we pay coercive monopoly prices for inferior services?

TGIF: Jefferson on Not Trusting the State

Regardless of written constitutions and the laws on the books, individual liberty is always at risk. And as liberty goes, so goes our capacity to live well, to achieve the good life as rational, virtuous social beings.

The danger comes from left and right, both of which aspire to have a body of elders impose narrow cultural and moral norms on everyone, overriding our right to think for ourselves. (Progressives and National Conservatives have a lot in common in that regard, even if they differ on what is to be imposed.)

This point about the fragility of liberty was well understood by the Irish politician, judge, and orator John Philpot Curran (1750-1817), who said: "The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

As often happens, variations of this insight have been attributed to other people, most famously Thomas Jefferson, who is widely and apparently erroneously thought to have said more pithily: "The price of liberty is eternal vigilance." Curran has missed out on the credit he deserves.

At any rate, we have a problem. Although liberty is never safe from political ambition or even good intentions, most people are understandably absorbed in raising their families, earning their livelihoods, and just plain living. Thinking about liberty, much less exercising vigilance, has a low priority -- if it is on their agendas at all. I'm not finding fault; it's just a fact.

Hence the need for a degree of specialization. Libertarians to one extent or another specialize in keeping watch over liberty and drawing the public's attention to dangers from governments and nongovernment sources. These aren't entirely two separate categories because if an influential segment of the public comes to believe that liberty must be curtailed, such sentiment could find its way into the halls of power. For example, if enough people decide that offensive words or obscene images are equivalent to violent acts, politicians may take up that cause and prohibit so-called hate speech and the like. This has happened in Great Britain, where citizens can be visited by the police, fined, and compelled to take a sensitivity course for posting something on social media that allegedly made someone feel anxious. So far, thanks to the tradition of free speech and press recognized in the First Amendment, that does not happen in the United States. But we mustn't rest on our laurels. A violation could be just around any corner, and we can't be sure from which direction it will come.

Although Jefferson did not say, "The price of liberty is eternal vigilance." we know he believed it. We know this because of his 1798 Kentucky Resolutions, which he wrote anonymously for the state legislature in opposition to the Alien and Sedition Acts of that year. The Acts were passed by the Federalist party-controlled Congress under Federalist President John Adams. (Jefferson, who was not a Federalist, was the vice president at the time.) As one description of the Acts puts it:

The Resolutions by Jefferson and Madison were provoked by the Alien and Sedition Acts adopted by a Federalist-dominated Congress during the Quasi-War with France; those Acts gave the president the authority to deport any alien whom he thought a threat and made it illegal to criticize the president or the Congress. Dozens of people were prosecuted under the Sedition Act, with prosecutions targeted at newspaper editors who favored the new Democratic-Republican party – Jefferson’s party. Seeing such political prosecutions of free speech as a fundamental threat to the republic, Jefferson referred to this period as a “reign of witches."

Federalist support for the Acts was also fueled by Jeffersonian sympathy for the French Revolution. The government's fears about French influence in the United States had reached a fevered pitch.

In his Kentucky Resolutions -- a second, shorter resolution written by an unknown person passed in 1799 -- Jefferson invoked the principle that the Constitution delegated only certain limited powers to the national government and therefore the states individually could check that government whenever it broke through the limits. Hence, the document declared the Alien and Sedition Acts  "void and of no force" and requested their repeal. (Jefferson's draft called for nullification, but that language did not make the final document. It did make the second version, however.)

In making his case, Jefferson wrote something that more people need to understand, especially politicians and pundits who are sanguine about democracy. His document declared it is resolved:

that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is every where the parent of despotism: free government is founded in jealousy and not in confidence; it is jealousy & not confidence which prescribes limited Constitutions to bind down those whom we are obliged to trust with power. [Emphasis added.]

Hammering the point home, Jefferson concluded: "In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." How interesting that he used the word jealousy!! The dictionaries tell us that one meaning of that word is intense vigilance. Had he read Curran's words?

By the way, those words might have gotten Jefferson kicked off Twitter and Facebook.

For Jefferson, the idea that we can elect rulers and then leave them to the business of governing us was a recipe for tyranny, even if only the "soft tyranny" foreseen by Alexis de Tocqueville. (See my "'What Sort of Despotism Democratic Nations Have to Fear'" for some of Tocqueville's sobering predictions of the harm that democratic governments could do to the people.)

I'll close by noting that, unfortunately, Jefferson was too trusting in the Constitution's capacity to bind those given power. (Remember that the Constitution did not prevent the passage of the Alien and Sedition Acts less than a decade after its ratification. Think of all that's happened since.)

Indeed, no less an authority on the Constitution, James Madison acknowledged that any constitution must delegate implied powers; that is, powers not expressly allowed to the state: "[I]t was impossible to confine a government to the exercise of express powers;" he said, "there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae." He said this during a House debate over what would become the beloved Tenth Amendment in the Bill of Rights, which reserves to the states or the people "the powers not delegated" to the national government. Madison, who is famous for saying the national powers were "few and defined," refused to allow the word expressly to be inserted before delegated. Progressivism isn't the root of the problem. (See my article "James Madison: Father of the Implied-Powers Doctrine." For a wider perspective, also see my America's Counter-Revolution: The Constitution Revisited.)

Hence, a constitution, no matter how good it looks, can't help but create a false sense of security about liberty, which is exactly what Jefferson was worried about in his call for jealousy and not confidence toward the state. Particular people will be empowered to interpret any constitution, and they, even if well-intentioned, are likely to see things differently from freedom-loving individuals.

As Lysander Spooner pointed out in an 1870 essay: "But whether the Constitution really be one thing, or another, this much is certain -- that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

TGIF: Social Order through Liberty

Human beings are self-actualizing social animals. We need to cooperate with others to flourish fully and (but?) we also need the freedom to make of ourselves the persons we wish to be; we need autonomy.

Can we do both liberty and social order? The answer is yes, and that is where rights come into play. I'll go with Ayn Rand's definition: "A 'right' is a moral principle defining and sanctioning a man’s freedom of action in a social context." Also, "Rights are conditions of existence required by man’s nature for his proper survival." Although rights theory is fraught with the potential for abuse -- many many counterfeit "rights" have been conjured -- it's difficult to abandon the concept.

Liberty and social order are often seen as in conflict with each other. The conservatives' fondness for the phrase ordered liberty. It is meant to suggest that liberty too easily becomes license and chaos. So we often hear that rights must be balanced against one another or against other considerations (such as state interest), indicating that all people could not possibly exercise their rights at the same time because that would produce intolerable social conflict. Hence the need for external limits.

But thanks to the work of genuine liberals -- that is, libertarians, we have good reason to reject this concern.

One of the great synthesizers of individual and social welfare was one of the most unjustly reviled political thinkers in history: Herbert Spencer. In discussing the human "tendency toward individuation in his 1851 (and first) book, Social Statics, Spencer wrote:

[The person] is self-conscious; that is, he recognizes his own individuality. . . . [W]hat we call the moral law—the law of equal freedom—is the law under which individuation becomes perfect, and that ability to act up to this law is the final endowment of humanity.... The increasing assertion of personal rights is an increasing demand that the external conditions needful to a complete unfolding of the individuality shall be respected. Not only is there now a consciousness of individuality and an intelligence whereby individuality may be preserved, but there is a perception that the sphere of action requisite for due development of the individuality may be claimed, and a correlative desire to claim it. And when the change at present going on is complete—when each possesses an active instinct of freedom, together with an active sympathy—then will all the still existing limitations to individuality, be they governmental restraints or be they the aggressions of men on one another, cease. Then none will be hindered from duly unfolding their natures.

"None will be hindered"? Even with "activity sympathy," how then can "an active instinct of freedom be reconciled with required social harmony? Spencer addresses the paradox:

Yet must this higher individuation be joined with the greatest mutual dependence. Paradoxical though the assertion looks, the progress is at once toward complete separateness and complete union. But the separateness is of a kind consistent with the most complex combinations for fulfilling social wants; and the union is of a kind that does not hinder entire development of each personality. Civilization is evolving a state of things and a kind of character in which two apparently conflicting requirements are reconciled.

It may sound odd, but Spencer anticipated “at once perfect individuation and perfect mutual dependence.” He wrote:

Just that kind of individuality will be acquired which finds in the most highly organized community the fittest sphere for its manifestation, which finds in each social arrangement a condition answering to some faculty in itself, which could not, in fact, expand at all if otherwise circumstanced. The ultimate man will be one whose private requirements coincide with public ones. He will be that manner of man who, in spontaneously fulfilling his own nature, incidentally performs the functions of a social unit, and yet is only enabled so to fulfill his own nature by all others doing the like.

This reminds me of Spinoza's belief that to be fully rational an individual must be surrounded by other rational free, individuals with whom he interacts respectfully through reason, persuasion, contract, and trade, not force.

Spencer, of course, is well known for what in Social Statics he called the law of equal freedom: "Every man has freedom to do all he wills, provided he infringes not the equal freedom of any other man.” This sounds good, and it is. But Murray Rothbard, in his discussion of the impossibility and hence senselessness of egalitarianism (in Power and Market: Government and the Economy), made an important observation about Spencer's law. Rothbard wrote:

This goal [equality of liberty] does not attempt to make every individual’s total condition equal—an absolutely impossible task; instead, it advocates liberty—a condition of absence of coercion over person and property for every man.

Rothbard pointed out that the terms equality before the law and equality of rights "are ambiguous and misleading. The former could be taken to mean equality of slavery as well as liberty and has, in fact, been so narrowed down in recent years as to be." He also wrote that the term equal is problematic in the study of human affairs because it suggests a unit of measure that does not exist. (For libertarianism conceived at equality of authority, see Roderick Long's "Liberty: The Other Equality" and "Equality: The Unknown Ideal.")

Finally, Rothbard wrote:

Spencer’s Law of Equal Freedom is redundant. For if every man has freedom to do all that he wills, it follows from this very premise that no man’s freedom has been infringed or invaded. The whole second clause of the law after “wills” is redundant and unnecessary. Since the formulation of Spencer’s Law, opponents of Spencer have used the qualifying clause to drive holes into the libertarian philosophy. Yet all this time they were hitting at an encumbrance, not at the essence of the law. The concept of “equality” has no rightful place in the “Law of Equal Freedom,” being replaceable by the logical quantifier “every.” The “Law of Equal Freedom” could well be renamed “The Law of Total Freedom.”

Rothbard credits the point to Clara Dixon Davidson, who in 1892 wrote in Benjamin Tucker's magazine, Liberty:

The law of equal freedom, “Every one is free to do whatsoever he wills,” appears to me to be the primary condition to happiness. If I fail to add the remainder of Herbert Spencer’s celebrated law of equal freedom, I shall only risk being misinterpreted by persons who cannot understand that the opening affirmation includes what follows, since, if any one did infringe upon the freedom of another, all would not be equally free. [Emphsis added.]

This leads to the conclusion that all people may be free to exercise their rights simultaneously without jeopardy to life-serving social order. No need for balancing rights exists. If all "ordered liberty" means is liberty that is consistent with social order, then we can rest easy so long as people think soundly about liberty. How surprising is this? After all, the very notion of rights stems from each individual's need to act in the world without conflicting with others. (This insight about rights theory has been called "compossibility" by the Georgist libertarian Hillel Steiner. For an opposing view to the Davidson-Rothbard argument, see this from Matt Zwolinski.)

This does not mean the boundaries between people's zones of freedom are always immediately clear -- far from it. Disagreements (both good faith and malicious) are inevitable. That's why, in addition to liberal customs, free societies will have contracts, formal associations, policing agencies, insurance, mediators, arbiters, and judges. Governance does not require government.

It seems that Benjamin Tucker's magazine motto (borrowed from Pierre-Joseph Proudhon) had it right: "Liberty: Not the Daughter but the Mother of Order."

TGIF: Alito's Challenge to Libertarians

In his recently leaked first draft of an opinion that would reverse the abortion-rights cases Roe v. Wade and Casey v. Planned Parenthood, Supreme Court Justice Samuel Alito gives Americans a choice between judges who read their personal preferences into the Constitution and judges who recognize only rights that they find "rooted in [our] history and tradition" and deem "essential to our Nation's 'scheme of ordered Liberty.'"

Is that it? Neither choice seems an adequate safeguard for individual freedom.

Whether one likes the result or not, Alito's draft in Dobbs v. Jackson Women's Health Organization raises important issues apart from abortion. Indeed, he unintendedly draws attention to whether the Constitution can be relied on to protect liberty. Unsurprisingly, Alito is not concerned with rights as a philosophical matter. That's not his job. Rather, he's concerned only with constitutional rights -- liberties that satisfy criteria making them worthy of protection by the government. By that standard, an otherwise perfectly defensible right might not qualify. That would be left to the legislative process. That's the constitutional game. The framers understood this, though some libertarians do not.

The Constitution may seem to clearly endorse a general notion of liberty in the 14th Amendment's due process clause, but does it really? Alito, like other conservatives, thinks not:

Historical inquiries ... are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the same thing” In a well-known essay, Isaiah Berlin reported that “[h]istorians of ideas” had catalogued more than 200 different senses in which the terms had been used.

In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution.

So, Alito writes elsewhere in his opinion, "[G]uided by the history and tradition that map the essential components of our Nation's concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term 'liberty' when the issue involves putative rights not named in the Constitution" -- such as a woman's putative right terminate a pregnancy.

Note that Alito uses the term ordered liberty. That's a concept in the case law, apparently first enunciated in 1937, that "sets limits and defines the boundary between competing interests.” Why must the term liberty be so qualified? Because, he writes, “attempts to justify abortion [and other things --SR] through appeals to a broader right to autonomy and to define one's 'concept of existence' prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history."

If that counts as "proving too much," libertarians would say let's do it.

Alito hastens to add that other court-protected rights that are not deeply rooted in history -- such as the rights to contraception, interracial marriage, and same-sex marriage -- are not jeopardized by his opinion because abortion is unique. How confident can others be about that?

Putting on his historian's hat, Alito accuses the majority in Roe of misstating history and writes that abortion even at an early stage was never regarded as a right in Anglo-American common or statutory law and was generally illegal throughout the United States. Not everyone agrees with Alito's historical account.

Alito asserts that when justices ignored history, they engaged in "the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York." That was the highly influential 1905 case in which the Court struck down a state law limiting the hours that bakers could work per day and per week because the law violated freedom of contract under the 14th Amendment. Progressives hated the ruling from the start, but some conservatives later came to hate it too because it relied on the concept of substantive due process, by which judges could invent rights that conservatives abhorred. Libertarians also ought to have apprehensions about substantive due process. Such seemingly benign legal notions, including "unenumerated rights," are double-edged swords.

The juridical problem in distinguishing putative rights that are constitutionally protected from those that are not is that no constitution could name more than a few rights. Where does that leave all the rights left out? (We could say there is only one right, namely, the right not to be subjected to aggression, and that anything more specific rights are examples of the principle. But that would incite a never-ending controversy over what constitutes aggression.)

The Ninth Amendment, which says that rights not mentioned were still retained by the people, seemed to be the solution to the problem. That amendment has not played an important role in constitutional law to the frustration of libertarians, but danger lies in that amendment if it were to be taken seriously. The danger is that pseudo-rights could be embraced by Supreme Court justices. Rights theory is like a butterfly. You may lovingly nurture the egg, larva, and pupa, but once the butterfly emerges from the cocoon, it will fly where it likes or be blown about by the wind, logic or no logic. (It's been pointed out that the Bill of Rights has turned out to be a tragic distraction. Instead of the government having the burden of justifying any power it wishes to exercise, the people have had to justify any claimed right by finding supporting text in the Bill of Rights. Maybe we'd have been better off without it.)

It's tempting for each of us to think that our own theory of rights or liberty just happens to be the one that perfectly aligns with the intent of the framers or with the common understanding of the constitutional text in 1789. But how likely is that? The framers didn't agree philosophically on everything and people often understand words and sentences differently among themselves. In other words, originalism isn't a neat solution.

As noted, Alito's alternative to judges who impose their personal views about liberty is judges who stick exclusively to rights deeply rooted in the country's history and tradition. But this is also unsatisfying because it imprisons us in the thinking of long-dead individuals whose understanding of liberty might have been incomplete. Why assume that the framers understood every implication of the nature of freedom? As Thomas Paine wrote in The Rights of Man:

There never did, there never will, and there never can, exist a Parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the "end of time," or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void.... It is the living, and not the dead, that are to be accommodated.

It's true that constitutions can be amended and the framers' shortcomings addressed, but that process is always costly and difficult. In the meantime, people suffer from the deprivation of their liberty.

Alito's choice between the alternatives is clear, but the Constitution contains no guide to interpretation. Even if it did, how would that help? Any guide to interpretation would itself be open to interpretation. We'd end up with an infinite series of guides.

So where does that leave us? Apparently with two choices: an un-elected national super-legislature free to invent rights or a federal court guided by an emaciated, tradition-bound notion of liberty and unchained state legislatures free to grant (revocable) "rights" by majority vote. Neither seems ideal, but the ideal seems not to be on the menu today. I recorded my thoughts on perhaps the short-term second-best solution in "Disagreement without Conflict."

(See my book America's Counter-Revolution: The Constitution Revisited.)

TGIF: Safety in Freedom

With the emergence of the Omicron COVID-19 variant, renewed restrictions on liberty or calls for their reinstatement have broken out around the world. The new wave is probably only beginning, and with it will surely come sermons on how we must face trade-offs between liberty and safety. This seems to be the new normal.

The usual justifications for this purported necessity always feel inadequate, with gaping holes in the case for expanding government power to extraordinary lengths. Since we all now have a good deal of experience with COVID under our belts, let's hope that the public's doubts about any new power grab will be strong and loudly expressed.

What brought this subject to mind was a recent Oxford Union debate, which I ran across on YouTube. While I've watched only a little, it quickly occurred to me that the case for a necessary trade-off between liberty and safety runs aground with the realization that liberty is a necessary condition for safety. After all, it's not always clear how one can best stay safe in a situation: that requires thought, discourse, action, and therefore liberty.

Moreover, that matter is separate from the question of how safe any particular person may wish to be. Indeed, people have different preferences with respect to risk and safety in part because life is complicated and trade-offs are ubiquitous. Increasing one's safety in some measure by abstaining from some desirable activity will likely require too big a sacrifice for some people, although for others the benefit will be well worth the cost. (A person cannot violate his own freedom.) So who's to decide? Why should a faceless bureaucrat or a charismatic politician make the call?

Few people understand that there's safety in liberty, specifically, the freedom to think, improvise, and innovate. This is true for individuals, but when the potential danger is social or global, the case for liberty is equally clear. That's precisely when we all need many minds searching for solutions without central direction. Knowledge is dispersed, and no one can say who will have a key insight. Competition is the universal solvent. And to be effective, thinking requires freedom of action.

Matt Ridley and Julian Simon before him elaborated how we all benefit from the often unintentional combination of ideas generated in different and unlikely places. By now, the serendipity that freedom produces ought to be expected. The results often are imaginative approaches to vexing problems that few would have dreamed possible.

The case for giving up freedom to acquire a measure of safety is actually an appeal to trust in an anointed central authority. And that means a threat of force is at least implied.

But where is the actual safety in that arrangement? Why should anyone believe that the anointed know what they are doing? They operate in a centralized, bureaucratic environment. The rulers expect the ruled to behave like children who have been told that all will be fine if they obey. Unfortunately, the ruled often think of themselves as children when it comes to the latest risk proclaimed by their rulers.

So are people really safer than they would have been in a free, decentralized, and competitive environment? We find no evidence for this in places that imposed harsh restrictions on liberty in response to COVID-19. Lockdowns, vaccine and mask mandates, and travel bans show no signs of delivering on the politicians' promises. There just is no good substitute for freedom at every level because no central authority is knowledgeable enough.

Finally, what about the risks that individuals might present to others and not just to themselves? There are big differences between 1) the potential risks to others that anyone may pose in simply going about the normal business of life and 2) the dangers produced by aggression, gross negligence, and inadvertent toxic pollution, where identifiable individuals entitled to due process can be shown to present demonstrable peril to others. For one thing, in the first case, people are not passive victims-in-waiting but generally informed agents capable of taking precautions against infection. Imagine the nightmare that would come from the principle that everyone in society may be viewed as a threat to everyone else merely by breathing. We don't have to imagine it, do we? That's how most governments throughout the world -- blunt instruments that they are -- responded to the pandemic. As a result, our livelihoods -- our lives-- are now subject to cancellation without notice.

(Photo credit: Dev Asangbam, Unsplash License)

TGIF: What Now, Libertarians?

The prospects for individual liberty and the required rollback of the government seem as bleak as ever, but we can't let appearances, no matter how pervasive, be decisive. The spark within most people--the longing to chart one's course in life--never really dies. We've got to remember this as we search for new and innovative ways to make our case to an apparently uninterested public.

But I admit that things don't look good. We might have expected the four-year circus presided over by Donald Trump to sour people on the very idea of government. I always thought that was an unrealistic expectation. A yearning for a return to "normal" seemed more likely--and in this context "normal" means a conventional politician. Politically speaking, pre-Trump normal is bad, which is why we got the contemptible Trump in the first place. Yet normal is what we have now in the creature of Washington who is now the government's chief executive. (By the way and strictly speaking, if you're not in the military you have no commander-in-chief, and since the president presides as chief executive officer of the government, not the country, private citizens have no president either. A pet peeve of mine is people who call any president "my president" or "my commander-in-chief.")

For the record, Trump certainly could have done far worse than he did as president (that should have been his campaign slogan), but that is faint praise indeed. He was hardly dedicated to pushing back the limits of the bloated central state--far from it. For each of the very few positive things he did (some deregulation happened), he did a dozen rotten things, not to mention the toxic atmosphere he helped generate. (As someone said, he also brings out the worst in his enemies, but that's another story.)

We live in a time when most people believe that government spending and borrowing need have no limits. Of course they believe this: they are told this day after day by the pundits, politicians, and bureaucrats. Almost any excuse will do to increase borrowing and spending and to impose extraordinary restrictions and prohibitions on peaceful activities, but the COVID-19 pandemic was ready-made for this. If government officials, backed by some scientists, can scare enough people into believing they will die if they so much as step outside their homes, never mind go about their normal business, they'll win support for a wholesale shutdown of society. Then the government will have an excuse to intervene on an enormous scale in order to provide "relief" for the very ills it caused. We are encouraged to pretend that sky's-the-limit fiscal and monetary policies will have no consequences for our children and grandchildren.

Yes, a few people have objected to all this, but where are the mass (and peaceful) street demonstrations against what amounts to a society-wide quarantine? They don't happen because government-anointed experts have spoken. It almost doesn't matter that comparably credentialed experts dissent from the official line because they will be defamed and stigmatized as ideologues or industry lackeys who put almost anything ahead of the facts. Nevertheless, "believe the science" is worthless advice when competent scientists are on different sides of a question.

A pandemic of course is not the only way to have the population to capitulate to extraordinary interventions. A terrorist action or failure of financial institutions may also do the trick. Politicians are inventive that way.

So it's easy to scare people into surrendering their liberty, and politicians, bureaucrats, and special interests will never tire of looking for things to scare us about. Remember Rahm Emanuel's admonition to never let a good crisis go to waste. (This is a good time to tout Robert Higgs's classic, Crisis and Leviathan.)

And yet ... after all this, most people won't be thrilled with the idea of spending their lives scared and being bossed around by a cold bureaucracy. People in the United States like the words of the Declaration of Independence that refer to the inalienable rights of life, liberty and the pursuit of happiness. (I presume many people outside of the United States get a warm feeling about this philosophy too.) And that's what we libertarians have going for us. Most people never really reject liberty deep down. They may not understand how liberty works in the social sense, which keeps them from embracing it completely. But that's where we libertarians come in. Our job is to show them that liberty is not just the right thing but the practical thing. The moral is the practical. (See my book What Social Animals Owe to Each Other.)

We have something else going for us, which we shouldn't forget: most people observe libertarian principles in their private spheres. They don't kill, coerce, or steal. The problem is that they have a different standard when it comes to politicians and bureaucrats. So our task is to point out that government officials are just people, so no double standard is permissible. If we can't do it, they can't do it.

Think of it this way: libertarians must teach people that one moral code exists for all. Politicians and bureaucrats are not really a class apart from the rest of us with special rules governing their conduct. That's not too tough a lesson to teach. It's an appealing idea actually.

The double standard is sometimes justified by the democratic representation principle. It will be argued that government officials can do things we can't because according to the principles of democracy, the people anointed their lawfully selected representatives with those powers.

Sorry, no cigar. No representatives can be democratically delegated powers or rights not possessed by the constituency that selected them by majority vote. You cannot delegate authority or rights you don't have. Even if a people band together to pick a representative, that person can only do what the group had the right to do as individuals. Democratic theory is political alchemy.

The idea of representation is coherent in nonpolitical circumstances, of course. But it falls apart when it comes to government. A member of the House of Representatives theoretically speaks for nearly 800,000 diverse individuals who may agree over very little. How can that be accomplished? The theory of representation was just a device to stifle dissent against the government after the divine right of kings fell out of favor. After all, how can you criticize the government if in fact it is you and your fellow citizens are really the government? This is obvious nonsense, but it works to keep dissatisfaction in check. Libertarians need to teach this lesson over and over.

I have no glib answers for how to reach people. It's a trial-and-error process all the way. Find ways to talk and write to people that will be fresh and attention-grabbing. Point to the real-world benefits of market activity in action. Remind people that trade occurs only when mutual benefit is anticipated by both parties to a transaction. Demonstrate how market incentives work to direct scarce resources toward making thing that consumers most want. Explain that privilege and shelter from creative competition are creatures of government policy, not of private consensual activity. Introduce people to the non-intuitive idea of spontaneous order--Adam Smith's invisible hand--which is essential to understanding how societies work. And emphasize that libertarianism isn't just about markets but covers all of free and peaceful cooperation.

Of course, always respect your audience. You'll never succeed otherwise.

One final note: it's not enough to sow distrust of government. If anything because that won't necessarily lead to individual freedom and voluntary social cooperation through the market and other forums. We must first directly nurture a love of liberty, respect for others, and reason. The love of liberty flows from those things.

It's easy to get discouraged, but remember what someone (apparently not Pericles) once said: “Just because you do not take an interest in politics doesn't mean politics won't take an interest in you.”

TGIF--The Goal Is Freedom--appears occasionally on Fridays.

Latest Interview

Scott Horton and I talk about Benedict Spinoza here.

TGIF: The Choice Is between Government and Liberty

An article by George H. Smith from a few years ago makes a distinction about freedom that seems worth pursuing. In “Jack and Jill and Two Kinds of Freedom” (also a podcast), Smith distinguishes between (as the title indicates) two kinds of freedom, or between freedom and liberty. He tells the story of Jack, who wants to climb a hill to fetch a pail of water and needs Jill’s help to bring the heavy pail back down. Being a “moral nihilist,” Jack is just as willing to force Jill to help him as he is to persuade her. It all depends on his cost-benefit calculation at the time. In Smith’s story, Jack chooses persuasion and succeeds, so he does not need to resort to Plan B, compulsion. Jill, by the way, does not know that Jack would have forced her.

Jill, on the other hand, is a libertarian who believes in rights and justice. Had the tables been turned and she needed Jack’s help, her only acceptable course would have been persuasion.

TGIF: The Consequences of Liberty

What if we suspended disbelief and supposed that free markets could reasonably be expected to impoverish most people while benefiting only the few?

Read it here.

TGIF: What Next?

Liberty always walks uphill.

Read the rest here.