Rand Paul, Civil Rights, Sherpa Conservatism, ‘special history’ and ‘badges and incidents’

Alright, if you’re white…I want you to know. You don’t need to feel sorry for black people. It’s over and done. As they say, people are over it. After the last 1 year I’m finding myself completely baffled by this over zealous liberal white thing for racism and helping black people. If you want to help, get off the computer and join habit for humanity or volunteer at churches. It’s one thing to get on a computer to bash someone, another to actually get out and get some real world experience. We need all the help we can get, times are tough.

Racial discrimination is not good for businesses. Any business that does not discriminate exhibit better profits than racist businesses. The removal of Jim Crow laws and the privatization of institutions would result in the end of racial discrimination through the free market. Read Chapter 7 in ‘Capitalism and Freedom’ by Milton Friedman. Change can and should happen on state and local levels without unconstitutional expansion of government power, as what happened with the Civil Rights Act of 1964.

“(If the Constitution can mandate eliminating badges and incidents of social injustice X, then the rest of the Constitution can hardly forbid eliminating “badges and incidents” of social injustices Y and Z, by legislative means. That’s some serious penumbra, shaping up. Or am I missing something?)”

You’re missing quite a bit. Eliminating the badges and incidents of SLAVERY does not authorize eliminating the badges and incidents of [INSERT ANYTHING YOU DONT HAPPEN TO LIKE HERE].

Slavery does not equal “every possible social injustice”.

If you want a constitution which empowers Congress to eliminate the badges and incidents of some other social injustice you don’t like, you can make an amendment.

And I’m not sure exactly what you are trying to say with the penumbra quip, but it appears that you may be confusing which side is pro-penumbra with which side isn’t.

“I would be very curious to hear from libertarian conservatives – from David Bernstein – how one can deduce, from within his ethical/political philosophy, that race (and only race!) is ‘special’, such that we should take special ethical-political account of it.”

It is hard to keep your sarcasm and your serious argument straight. Surely you’re aware of the racial component to slavery in the US. Right?

You seem to be freely mixing constitutional interpretation questions with your general assault on libertarianism. They are two rather different questions and you didn’t link them together very well here.

As far as the general assault on libertarianism goes, I’ve never seen a generally useful philosophy that doesn’t break down under certain extremes. If dealing with the aftermath of slavery is where libertarianism breaks down, I don’t see that as much of a damning critique about its usefulness in most modern day situations. Slavery and “social injustice” are not freely interchangeable terms just like “theft” and “taxes” aren’t freely interchangeable terms.

“But then it is going to follow that so many criticisms of liberalism are misformulated, because they often take the form ‘the trouble with liberalism is that it substitutes a vision of social justice for respect for freedom and rights.’”

But all the political philosophies break down at ugly margins. Pure utilitarianism breaks down in extreme non-hypotheticals because vicious punishment of a non-guilty party can have a great deterrent effect if the government can credibly claim he (or it) was guilty. So they can get away with it as long as they do it infrequently or in a way that is difficult to detect.

Or the government can choose to not worry overmuch about the credibility issue and use it for a social control/fear effect. See for example show trials. Does the fact that most utilitarians will claim that we should only punish guilty parties mean that they are secretly agreeing with retributive theorists on punishment? Kind of. Is that a serious attack on utilitarianism in most normal situations? No.

Maybe I just disagree about what political philosophies are for. Complete formal systems can’t even exist in mathematics. Just ask Godel on the Principia Mathematica. So to expect political philosophies to be complete seems foolish and to expect that your (and I mean that in the sense of any reader, not you in particular) presently held political philosophy has a hammerlock on useful insights is just hubris. At best they provide good rules of thumb. Good political philosophies have useful insights into most situations that they are likely to come across. Yes, extreme libertarianism has problems when a government solidified institution of extreme anti-libertarianism (slavery) is overthrown but the social institutions surrounding it have already solidified in the minds of the population, and get perpetuated after the overthrow of the institution itself by both formal governmental means, former governmental means, and informal social means.

Great.

Does that have much to do with the utility of libertarianism’s rules of thumb for normal situations? Probably not.

There is nothing surprising about so-called “libertarians” ending up supporting restrictions of freedom — this is because their ideology is not interested in freedom, but property. As I’ve suggested before, they should be consistently called propertarians (particularly as libertarian was invented and used by anarchists, anti-state socialists, 100 years before the propertarians decided to appropriate “libertarian”).

Genuine libertarians, i.e., libertarian socialists, are well aware that property restricts freedom for the non-owner. For example, On Property”>Proudhon was well aware that property “violates equality by the rights of exclusion and increase, and freedom by despotism.” It has “perfect identity with robbery” and the worker “has sold and surrendered his liberty” to the proprietor. Anarchy was “the absence of a master, of a sovereign” while “proprietor” was “synonymous” with “sovereign” for he “imposes his will as law, and suffers neither contradiction nor control.” Thus “property is despotism” as “each proprietor is sovereign lord within the sphere of his property.” This is can be traced back to Rousseau:

“That a rich and powerful man, having acquired immense possessions in land, should impose laws on those who want to establish themselves there, and that he should only allow them to do so on condition that they accept his supreme authority and obey all his wishes; that, I can still conceive . . . Would not this tyrannical act contain a double usurpation: that on the ownership of the land and that on the liberty of the inhabitants?”

The question is not whether, as Rand Paul suggested (before flipping on it), the government owns property or the property-owner. The question is whether liberty stops at the boundary of private property and whether the owner should be a dictator within it or not. Genuine libertarians concluded that property should be abolished in order to secure an increase in freedom. Propertarians (American right-wing “libertarians”) equate property with liberty and so end up defending private tyranny.

What annoys anarchists is they appropriate the good word “libertarian” in order to defend private power…

The legacy of slavery in the USA is not at the margin, pace Sebastian: it’s the central problem and flaw in American society (compared to others). His argument is a bit like saying that utilitarianism doesn’t handle class in Britain but that’s all right because class is only a marginal, thought-experiment little thingy.

I can’t keep up with the recent blizzard of stances and walk-backs of Mr Rand Paul — though no great surprise consistency is suddenly an absurd thing to be demanding of a political philosophy. But no surprise either if a philosophy’s adherents largely choose to adhere to a philosophy based on the problems it stirs itself to tackle, as somewhat defined by those it considers marginal; too exotic to need to worry one’s head about. RP is seemingly largely bothered — to the extent of considering it anti-American — by any interference whatever, including verbal criticism, of how any business, tiny and local or vast and multi-national, decides to run itself. The problem with colour bars in diners is any law against same; the problem with a world-historical* oilspill** is any move to hold the oil company responsible. And so on. If your priority is taking the side of the comfortable and the powerful — protesting only on behalf of those the system already largely sides with — then don’t be surprised if your philosophy is judged to be chosen with this siding in mind.

*No, I don’t know if it’s multinational capitalism’s Chernobyl yet either.
**Or, you know, a world-historical market catastrophe. Anyway this big stuff that keeps, oops, happening — and who could possibly have predicted….

“It’s the social norms and restrictions on private actors that create the issue. ”

Bingo – and libertarians/propertarians are concerned about governmental efforts to change social thought, norms and behaviors. There are a number of philosophical and practical/political reasons for this.

For modern liberals, race, gender, multi-culti, sexual behaviors, etc. has become one of the highest tests of a just and equitable society, and many trees are slaughtered to find the best way to support that, whether through legislative efforts or other.

To turn it around, many states have passed very explicit bans on “gay marriage” – which as an aside is a great libertarian example for a solution – why should the government be in the marriage business at all – isn’t marriage just an implied contract? Make it explicit and the gov’t is out of the equation.

Liberals end up sounding like Rand when they talk about overturning rules passed by a clear majority of citizens in the gay-marriage case, but still give lip service to the “will of the people” democracy standard. It is like the US supporting elections in Palestine as long as one side wins. Liberals hope, hope, hope the people decide the “right” thing, but sometimes they don’t. Insert your slippery slope for what libertarians fear liberals do in response to this.

As an aside, I live in community that is about 80% “european-american”, and whether you look at residential living patterns, restaurants, churches, etc. most people seem to prefer living, worshipping, shopping, with people of their own “race”. How much of this is a legacy of slavery? How much of this is the outcome of free people making a free decision? Is it a problem either way that warrants another government law?

No, it’s “I’ve got mine, and a gun, now fuck off!”

Have to be clear about these little distinctions.

“It’s the social norms and restrictions on private actors that create the issue. ”

Hmm, I’m unconvinced. Not about Jim Crow so much (I was in nappies when it was all going on so I’ve no personal experience to draw upon) but I’m a fairly keen observer of what’s going on at present over gay marriage (and the wider gay rights thing). No particular axe to grind here…..it’s just that my impression (and please, I know, data, anecdote etc etc) is that it’s not the changes in law which are driving any changes in public actions (umm, actions by the public, not govt), rather it’s changes in public opinion and actions which are driving the changes in law.

Not something I can prove, obviously, but that is just the general impression I get. I’m really not sure that gay marriage (or the half way house of civil partnerships) would have gained general acceptance in the UK 30 years ago. By the time it actually was passed into law barring a few Christianists just about everyone said “and about time too”. 30 years ago Portugal was just 5 (or 6?) years out of a Catholic Fascist dictatorship: gay marriage becomes legal in a few months (or so it has just been announced).

Another way of putting this perhaps is that on such social mores I tend to think that changes in law follow changes in mores rather than the law being the decisive factor (yes, of course, there’s some iteration and cross influence, of course) that changes the social behaviour.

As an example, a recent kerfluffle over a Christian B&B owning couple in the UK who turned away a gay couple. The law only changed recently (a couple of years maybe?) to make such discrimination illegal. But looking at the coverage of the case (blogs etc) the vast majority have for years been thinking that such discrimination should not be allowed.

Hmm, let’s say Germany decides to compensate living slave labor victims of the Nazis in 1990. According to libertarian theory, this is unjust, because the vast majority of German taxpayers who will be paying this compensation were not in any way responsible for Nazi crimes, and indeed, were not even adults at the time. On the other hand, libertarian theory also says that the slave laborers are entitled to compensation, and leaving them uncompensated will also be unjust. So libertarianism doesn’t give you an answer to this problem, and you are forced to rely on some non-libertarian values to reach your answer. The same reasoning would apply to Jim Crow in the South circa 1964. Leaving the structure of state-mandated Jim Crow in place would be unjust from a libertarian perspective, as would coercing private parties to integrate. So, yes, you then rely on liberal values, and say better to undo Jim Crow than to avoid coercing southern whites. This isn’t any great mystery, and the fact that libertarianism, a political philosophy, doesn’t provide a neat answer to every possible social question doesn’t prove anything at all beyond that libertarianism doesn’t provide a neat answer to every social question.

avoid using race as the fulcrum of discussions of the libertarian position on antidiscrimination laws

Similarly, I would recommend avoiding using killing as the fulcrum of discussions of the libertarian position on murder laws.

Libertarianism is a simple concept, but it doesn’t work. Liberalism (libertarianism v2.0) is more flexible, but it involves social engineering, which is a tricky business.

libertarianism doesn’t provide a neat answer to every social question

Unexpurgated version: libertarianism mandates a nasty and categorical answer to rather a lot of social questions.

Gödel Schmödel; the libertarian calculus does purport to provide a neat and exhaustive method of determining all matters of right. That’s how grim consequences can be shrugged off as perhaps regrettable, but nevertheless inexorable, byproducts of a rigid and all-encompassing proprietarian scheme.

It’s just that many proponents tend to make ad hoc exceptions when the answers are just too nasty or inconvenient. Nozick, for example, started with conceding cases of ‘catastrophic moral horror’, then once he’d calmed down a bit realised that actually even uncatastrophic moral horror was a bit too horrific, morally speaking.

@REA

I’m not especially familiar with other country’s civil rights laws, but most discrimination law and lawsuits in the U.S. are not about race discrimination. IIRC, the most popular federal lawsuit these days is, by far, age discrimination.

But the problem is: that won’t end Jim Crow. Lunch-counters.

Libertarianism often involves a departure from reality, and I think you’ve identified the departure point here. In the real world, widespread racist sentiment led to Jim Crow laws. In the libertarian worldview, it’s the reverse. Abolish the laws, add a little moral suasion, et Voila, your work is done.

Was Jake being ironic in 3? No matter. The viewpoint expressed is still representative of libertarian thought:

Racial discrimination is not good for businesses.

In fact, racial discrimination – and many other bad things – can often be quite good for business. Does anyone doubt that? Really?

@PHB Not acceptable, legal. And it is in fact legal to my knowledge in the U.S. for ” white inhabitants of a township meet in a private house and decide to boycott any business that serves black people,” just as it’s legal for black power advocates to meet and decide they are only going to patronize black-owned businesses.

I don’t know – you can argue back and forth about this precedent or that precedent or go into logical or philosophical arguments, but in the end this is all “but a walking shadow, a poor player that struts and frets his hour upon the stage and then is heard no more: it is a tale told by an idiot, full of sound and fury, signifying nothing”.

Why? Because this isn’t about precedents, logic, philosophy, or even ultimately idealism. This is about religion. People like Paul, and frankly all of us to varying degrees, decide what they believe and no amount of argument will dissuade them. So you can pull out all sorts of details and facts and analogies and it won’t mean diddly – they will believe what they believe regardless of the truth and trying to convince them is like trying to nail Jello to a wall.

Frankly, much as it might pain Libertarians to be so compared, they really are very akin to Bolshevik Communists in their insistence on ideological purity and “one size fits all” vision of government. It’s sort of if “property rights” are good, then unbounded “property rights” must be really good. Or to put it another way, if a man is thirsty and a glass of water solves, then holding him under water must really solve.

Of course this sort of idealism is admirable in 20 year olds, but when you get to Rand Paul’s age, it shows a bit of infantile immaturity – the inability to absorb the necessary requirement for compromise. To understand that life is far more complicated than the rigidity of simple dogmatic paradigms.

That said, the only thing the Libertarians have going for them is their “idealism” and/or “principles” – that at least one can respect even if god awful foolish. If, however, like Rand, you compromise as indicated above, then you are “compromised” and have shown yourself to be nothing more than all the other political hacks (per the joke about the prostitute, “We’ve determined what you are – now we’re just haggling for price.”).

Ultimately anyone who isn’t mature enough to see that while there are “ideals”, that those ideals need compromise to function in a human world, is lacking something and that something, when put into unchecked effect, is oft dangerous. We’ve watched the scourges of such puritanical idealism trample Europe, Asia, and lead to numerous witch hunts both literal and figurative.

Moreover in the end we see such puritanical idealism is oft a shill for something far more dangerous – the affectation of power. And, like Rand, when one tastes such power and it becomes threatened, one find ways to compromise while still seeming to maintain idealism. Unfortunately this hypocrisy and it’s need to be obfuscated in ideology (lest the emperor be seen to wear no clothes), is usually executed in ways far more ugly than basic political compromise – it oft expresses itself in totalitarianism.

Oh, yeah, the above is context for this:

I don’t feel at all apologetic in saying things like “your equivalence isn’t valid, because the groups are in different parts of society”. I don’t think that’s any more weird or immoral or anti-principle than, say, noticing that cooling a bunch of water 10 degrees C produces very different results when it’s starting a 5 C than when it’s starting at 105 C, or noticing that while a pound of lead and a pound of feathers would fall at the same speed in vacuum, we’re in an atmosphere and you have to take that into account if you’re preparing to catch either one.

An African-American group committing to supporting African-American merchants has a different effect on practical, tangible liberty than a white group committing to supporting white merchants because the history of racial discrimination (both public and private) is real. And so forth and so on. It’s not anti-principled to notice that, any more than noticing that aerodynamics exists is anti-gravity.

One last one:

The classic rap against idealistic Marxism is that it only works if everyone behaves nicely. But at that it’s one up on idealistic libertarianism, because Marxism proposes to teach and support the values of collective responsibility and collective action. The sort of idealistic propertarian libertarianism we run into in this country requires for its working people adopting values that the philosophy itself doesn’t promote, doesn’t encourage, proposes to protect people from being pressured into adopting, and in fact runs directly contrary to the values required for the economic flourishing that’s at the heart of the system. Marxism at least doesn’t need a whole second ethics brought in to make the hypothetical civilization tolerable to the vast majority of its inhabitants.

Alex: The thing is that I know non-shit libertarians, and know of others – I think that their goodness ends up clashing with their libertarianism, but still. I would, for instance, gladly put everything I have into the care of any poster at highclearing.com if I were in need and feel entirely sure that they’d take good care of it, and if I was myself in the kind of trouble that Radley Balko focuses on (or knew someone who was), I’d seek out that help and look for good things. And I think that goodness demonstrated in action is precious enough to worth some attention in drawing distinctions; good will is fragile and can get exhausted, and I need the world’s good people not to get discouraged for avoidable reasons.

This really isn’t all that hard. 30 years ago, Ronald Reagan said that the government was the problem. The last vestiges of the credibility of that statement are boiling away on the floor of the Gulf of Mexico. But since it’s been amply clear for a while that the Republican party liked being in power and using power to achieve its goals of representing the rich and powerful, a smallish group of mostly white highly-educated upper-middle-class men seized on Ayn Rand’s fantasy book as provided an objective (heh) lesson in anti-statism being the essence of freedom.

Now, as the members of this group are grossly overrepresented on the internet (and, apparently, at state-run universities [immunity to irony is a key characteristic of libertarians*]), they pop up a lot.

But at the end of the day it’s really just another fantasy society for middle-aged adolescents. True libertarians live in Montana and Idaho and don’t spend time on the internet (which is, after all, a state-sponsored invention).

* for example, our resident gay libertarian, Sebastian, is also strongly anti-abortion.

John: leaving aside both the latest bloviations of that feckless hypocrite Rand Paul and the boilerplate denunciations of libertarianism that the usual suspects have once again regurgitated here, it seems to me there are at least three libertarian responses to your challenge you haven’t considered here.

First, the perhaps most principle-absolutist response is to acknowledge that racial exclusion even done through private means constitutes great injustice, but nevertheless insist that mass coercion is not a legitimate remedy. Considering something unjust does not imply favoring the use of any possible, or necessary, means to fight it. The distinctions this relies on– between means and ends, and between mass coercion and private agreement– are pretty standard and important to libertarians; and I would indeed hope that any political philosophy in the liberal family tree would make at least some space for saying “X is abhorrent, but using means Y to end it is nevertheless not right.”

Second, not all libertarians, indeed not even most libertarians, are principle-absolutists. And a non-absolutist libertarian can say: look, I am a libertarian because I believe in a very strong presumption of individual liberty. It is a rebuttable presumption; there are some extreme cases where injustices are so great as to legitimate infringements upon it. But the bar for rebuttal is very high, because (insert the standard arguments here for the moral importance of individual liberty even to do things that others find abhorrent); so we should refuse to infringe individual liberty for the sake of addressing even quite strong injustices, but not necessarily refuse for all possible injustices.

Now, what does it take to rebut such a strong presumption of liberty? Well, 400 years of state-sponsored oppression including chattel slavery, and the clear prospect of the continuation of that entrenched oppression in the absence of antidiscrimination laws, suffices; and you can construct all sorts of thought experiments where other things might; and there are other actual events in other countries that might do it too (thus justifying, say, German anti-Nazi-speech laws). But in the particular lived history of the United States, race really is special. It’s not that nothing else *could ever* defeat the very strong presumption of liberty; it’s that for specific historical reasons, nothing else *does*. Julian Sanchez has a piece in Newsweek which I understand to be arguing a variant of this. And again I would expect liberals to be comfortable with the idea that you can hold your principles as very strong but rebuttable presumptions, and that the existence of extraordinary circumstances rebutting a presumption does not destroy either the usefulness or the soundness of the presumption.

Third, you can again refer to that lived history and say: what would the actual effect have been of removing Jim Crow and not substituting antidiscrimination law? Would it have been that blacks were subject to private peaceful discrimination but not to threats of violence? No. Social institutions can act like governments– that is, they can use mass violent coercion or threat thereof– without actually being so; and the white supremacist consensus in the South was such an institution. Producing the maximum possible degree of individual liberty even in the classic/”negative” libertarian sense requires the maximum total restraint of all such institutions. This is what I think of as a “thick” or Charles Johnson/Roderick Long type argument, and it can be fruitfully applied to other sorts of violent but not nominally governmental social institutions too, particularly in the area of gender.

Bruce at 45, yes, but… sure, I’d trust Henley and/or Thoreau to be personally good people. But libertarianism was racist back when Henley was supporting it, and of course still is now. When he was a libertarian, Henley was a racist, in every sense of the word that really matters.

Are there racists who are personally good people, for whatever value of “good”? Sure. The whole South was solidly committed to white supremacy at one time, and it’s certainly not true that every white person living there was a monster.

But that doesn’t really matter. When someone shows up on the Internet or elsewhere to defend libertarianism, they’re defending racism. (The U.S. version of libertarianism, again. Note that the propertarian version of libertarianism really only exists in the U.S. That’s because of the particular way that racism works in the U.S.) I’m not saying that they should be insulted whenever possible: some people may think that insults are counterproductive, and some people just find it difficult to insult people and certainly shouldn’t do things that make them uncomfortable. But insults, if offered, are justified.

Nicholas — but then everyone’s a libertarian, just with different perceptions of what constitutes a high threshold. (And which federal laws fail to clear your threshold and why?)

isn’t marriage just an implied contract? Make it explicit and the gov’t is out of the equation.

What concept of contracts do you have, in which the government is out of the equation? The possibility of government enforcement of contracts in the event it becomes necessary is central to the concept of contract as it exists in the real world. That’s why they’re drafted by lawyers — to make sure that governmental enforcement when and if it happens will happen in a way favorable to the drafter.

Even setting aside the large problems with treating marriage as just another contract, the idea that government is not involved with contracts is ludicrous.

JD: “most discrimination law and lawsuits in the U.S. are not about race discrimination. IIRC, the most popular federal lawsuit these days is, by far, age discrimination.”

Just to go back to this one, I don’t doubt that libertarians would rather that old people just went to Hell too. Libertarianism is a philosophy for middle-class white males, those well-off enough so that they aren’t seriously worried about being poor when they’re old. There’s a whole set of governmental interventions that have greatly lessened old-age poverty — Social Security, Medicare etc. — and libertarians would dismantle all of those, just as they’d dismantle civil rights laws.

I would indeed hope that any political philosophy in the liberal family tree would make at least some space for saying “X is abhorrent, but using means Y to end it is nevertheless not right.”

Sure, but if you’re going to argue that this is the case for X=unfair treatment of minorities, Y=federal antidiscrimination law, but *not* the case for, say, X=murder, Y=stealing the potential murder weapon, then it’s clearly not an absolute principle itself. So the devil is in the details and your supposed principle-absolutism breaks down before it clears the starting gate. (Unless you want to take the other side of the stealing-the-weapon example, I guess.)

Libertarians generally don’t want to engage on the details of *why* the right to refuse service to blacks is so much more important than the right to buy lunch from any public business that sells lunch to the public in general, probably because they don’t think they will win that argument on the merits in the judgment of the general population. (I agree that they wouldn’t. A generation ago they might have won in the judgment of whites, but now even that is in doubt.)

A “strong presumption” doesn’t help much when nearly all public controversies are about the edge cases where people are arguing whether or not the presumption is rebutted in that particular case. Balancing tests all the way down are precisely what libertarians seem to be trying to avoid (hence the emotional appeal of the philosophy to people who haven’t thought through all the possible ramifications in real-world situations).

Second, not all libertarians, indeed not even most libertarians, are principle-absolutists. And a non-absolutist libertarian can say: look, I am a libertarian because I believe in a very strong presumption of individual liberty. It is a rebuttable presumption; there are some extreme cases where injustices are so great as to legitimate infringements upon it. But the bar for rebuttal is very high, because (insert the standard arguments here for the moral importance of individual liberty even to do things that others find abhorrent); so we should refuse to infringe individual liberty for the sake of addressing even quite strong injustices, but not necessarily refuse for all possible injustices.

This is exactly the point I wanted to make when I read this post. In truth, no libertarians are principle-absolutists for reasons Holbo has effectively identified in the past, even if they value property rights claims quite highly (and even if they don’t realize it). I think there is a worthwhile project in demonstrating this repeatedly, however, so I support these ongoing efforts. The problem for the libertarian is that since they are not actually absolutists, their actual politics are much more vulnerable to pragmatic and social justice arguments than they realize. Once you give up the principle-absolutism you give up complaints of “taxation=theft” and such.

James, you write “The legacy of slavery in the USA is not at the margin, pace Sebastian: it’s the central problem and flaw in American society (compared to others). His argument is a bit like saying that utilitarianism doesn’t handle class in Britain but that’s all right because class is only a marginal, thought-experiment little thingy.”

You’re misunderstanding. Every political philosophy breaks at EXTREMES. Different extremes for different ones. I most certainly am not arguing that the legacy of slavery in the US is marginal in the sense of ‘trivial’. Slavery is quite anti-libertarian. Its practice in the US was very nasty, and has continued to have nasty after-effects. On the point of race, in the US, because of the extreme problems caused by slavery and attempts to keep blacks subjugated in the South after the civil war, it definitely counts as an extreme case.

But not all cases are extreme cases. The fact that you can get libertarians to admit that in the slavery case, government action was needed, doesn’t mean that in more normal situations their objections don’t hold more force. The problem is that liberals here seem to think it is a “gotcha, see I win everything” moment. But no political philosophy is complete. They all have to borrow from each other because at the extremes they each have particular weaknesses.

Utilitarianism has to smuggle in the old retributive just desert idea or it has problems justifying why you can’t publicly punish people who are factually innocent for deterrent effect or as a social control tool. Does that mean that utilitarian insights are generally useless? No. In fact, they are generally very useful. They just break down at certain extremes. Libertarianism doesn’t break down at that extreme, it breaks down at a different place. Both have perfectly useful insights to help shape policy and help understand fairness in the normal zones of political discussion in the west.

Similarly, Francis writes:

“Nicholas—but then everyone’s a libertarian, just with different perceptions of what constitutes a high threshold. ”

Yes, but this isn’t a criticism except against the whole problem of political philosophies. A good political philosophy is largely about making arguments that people already have a sense of. In the end, they are all about appealing to “That just isn’t right”. The problem is that there are so many potential injustices in the world that you can’t possibly go about righting some of them without causing others. Political philosophies end up being about balancing which rights get vindicated which times and with which unjust fallouts.

A libertarian will tend to believe that the government should be more concerned about vindicating personal rights to avoid causing personal injustices while seeking social justice.

A socialist might tend to believe that the government should be more concerned about vindicating social justice to avoid causing injustice unevenly to groups while seeking individual justice. (And I’ll freely admit that I’m less socialist than libertarian, so if I’ve mischaracterized the nuance it is not intentional).

But except for the very most extreme libertarian, or the very most extreme socialist, there still comes a point where the threshold for the injustice caused by their normal preferred order of social/individual justice is exceeded.

It is no virtue to say that “my general concept of vindicating individual rights means that we should let black people in the US continue to suffer the legacy of slavery” or that “my general concept of vindicating group rights means that we should send off political dissidents to the gulag because they are impeding the proletariat success”.

A libertarian should always have a socialist nearby to say: “look, the injustice caused by your focus on individual liberty is getting really big over here.” And a socialist should have a libertarian near by to say: “look, the injustice caused by your focus on group rights is getting really big over there.”

The fact that slavery and its after effects are the ‘here’ does not mean that libertarians can’t have a point over ‘there’.

A normal person understands both the idea of individual rights AND the idea of social injustice.

Sebastian, the problem with your argument is that for libertarians to acknowledge that government action was necessary in the case of Jim Crow they have to acknowledge the value of competing political values. But once that door is open, you can’t close it just by calling it an extreme case. That’s the argument of a child. Libertarians depend on the pre-eminence of property rights to advocate for all sorts of policies with undesirable political consequences. That has always been at the heart of the movement. Once you acknowledge that there is some limit to that pre-eminence you are stuck arguing where that limit is and what defines it. And now you’re not really a libertarian anymore. You are a liberal with a strange view of egalitarianism and an overdeveloped fondness for markets.

Mpowell, I guess I don’t see “preeminent value” as “only value”. I’ll certainly agree that libertarians think of a particular view of personal liberty as “preeminent”. I can’t agree that they typically think of it as the “only” value.

I think we may be disagreeing with what you mean by “the movement”. If by it you mean the leaders of the splinter group “Libertarian Party” I suppose you might be right. But that would be sort of like equating an ecologically grounded sensibility with only the most narrow “Green Party” in the UK. The green movement extends well beyond the “Green Party”.

I don’t think that utilitarianism does actually break down as claimed in the corner case of punishing innocents. It might in theory if we assume that draconian punishments are tremendously effective. But most evidence suggests that they are not, the deterrent effect of a five year sentence is little different to the deterrent effect of a thirty year sentence in most cases.

While we can certainly imagine sets of facts in which utilitarianism breaks down, it is pretty hard to think of an actual historical circumstance in which those circumstances were manifest. Utilitarianism may have problems in theory, but in practice there are enough people in the population with a Kantian take on morality and ethics that the alleged corner case does not arise.

Arguably Texas has already adopted the utilitarian corner case policy of executing people at random without concern for their guilt or innocence pour encourager les autres. I have never once seen anyone argue that executing large numbers of innocent people for the deterrent effect is a good thing. Justifications of the Texas approach have to be based on the claim that there are no or very few innocent people executed. All we need to do to save utilitarianism in practice is to add the requirement that there are no covert justifications for policy (which is itself rather easy to establish on utilitarian grounds). A secret policy of indifference to matters of guilt in penal policy might be sustainable on pure utilitarian grounds, but the entire purpose is lost if the policy is widely known.

Utilitarianism may fail in odd theoretical cornier cases but it is remarkably robust in practice. Libertarianism is the opposite, it only ever succeeds in artificial theoretical circumstances and fails miserably whenever it is applied in practice.

Once you start getting away from pure, unadulterated Libertarianism by introducing some common sense you are back at the liberal position of favoring liberty in most situations but recognizing that there are cases where one person’s liberty will infringe another and that there are hard choices to be made.

What the events of the past week have showed above all else is that Rand Paul is an ideologue who has never ever been forced to confront the fact that his precious little ideology might not be absolute and infallible. Like Sarah Palin the essential foundation for his political views is profound ignorance.

Sorry I didn’t tie it back to the conversation except in my head.

So Slavery and its aftereffects are a really massive injustice. Like, HUGE. So huge in fact that the injustices caused by policies trying to correct it have to be pretty big for any normal weighting of competing values to find that the policy is out of bounds. The ‘x’ is so large of an injustice that it doesn’t matter if your weighting is at x, 2x, 5x, or 10x.

Now even it isn’t infinitely large. It doesn’t for example justify killing off half the population or something. But it does blow by most of the normal differences in weight that normal political philosophies are likely to have.

Chris –
“What concept of contracts do you have, in which the government is out of the equation? ”

None – I’m not an anarchist. I do however have a concept of contracts that allows consenting adults over the age of majority to make decisions for themselves regarding the disposition of their property and minor children without the involvement of the government passing judgement or approval on their decisions.

Sebastian: saying ‘leftwingers don’t care about individual people, only about collectives’ is just a rightwing canard. Please try harder.

ISTM that for Sebastian’s social justice-individual justice balancing calculus to be in any way relevant to the civil rights example, we would first have to accept the implicit premise that it *is* an individual injustice to legally bar an individual from inflicting a social injustice.

Isn’t this the crux of the debate? Whether an individual has the right to do something with his property that works an injustice on others, or whether that constitutes swinging his fist where people’s noses actually are (to paraphrase the adage)?

The Thirteenth Amendment is pretty much the only thing in the Constitution that puts a limit in the rights of citizens, ending the right of citizens to own slaves. (Another was the amendment on prohibition, since repealed.) If the Thirteenth Amendment confers the power to prohibit the “badges and incidents” of slavery, then by implication that power may be extended over citizens, who are the very object of the amendment. And of course, we now know that business enterprises are citizens under the Constitution (and I don’t think that anyone would argue that the Thirteenth Amendment permits corporations to hold slaves). So the Civil Rights Acts’ effects on businesses would be a logical extention of the Thirteenth Amendment, without creating a “badges and incidents penumbra under any other part of the Constitution.

Someone should ask Rand whether they’ll be black helicopters.

Someone should ask Rand whether they’ll be black helicopters.

What other color would you paint an underground helicopter?

And . . .

Q. How did you get across the border?

A. Walked.

Q. Didn’t Sen. Paul’s electric fence stop you?

A. No–we were on the surface, not underground.

Most of the amendments to the Constitution put limits on government power: No establishment of religion, no limitations on the press, no coerced confessions, no billetting, etc. All of those things require what is known in Con Law circles as “State Action.” But the 13th and 19th Amendments put limitations on the rights of individuals: The right to own slaves, and the right to traffic in alcohol. (It makes anyone who has had a civics class want to scream when Sarah Palin worries that her First Amendment rights are being infringed by people who criticize her. The First Amendment only relates to government infringements of free speech. She’s an idot.)

I haven’t read most of this comment thread, but in case it hasn’t been mentioned yet R.Douthat’s NYT op-ed column today is about this. His basic line is (my paraphrase): “Rand Paul is a fool for not realizing that common sense (and political expediency) should trump ideological ‘purity’ and inflexibility. And paleoconservatives have an ideology that doesn’t appeal to that many people in the first place.” FWIW.

But the 13th and 19th Amendments put limitations on the rights of individuals: The right to own slaves

…I was probably trolling with that comment, insofar as what I was really doing was questioning the intellectual coherence of any notion of a “right to own slaves” that could be abridged in the first place. Apologies.

As I recall, it took considerable effort to convince the proponents of the right to own slaves that it was intellectually incoherent.

So if I’m understanding this correctly, libertarians believe that we should only restrict individual freedom when the benefits of doing so clearly outweigh the cost of the restriction. It’s okay for libertarians to favor government intervention in extreme cases, such as that which was addressed by the Civil Rights Act.

And sooooo, given the obvious market failures involved in healthcare and climate change, it’s perfectly consistent with enlightened libertarianism to favor single-payer healthcare and a carbon tax.

I came upon a NYT interview with Rand Paul. Boring stuff but the last question quite interesting:

As a libertarian, did your father grant you great liberty to do what you wanted in your childhood?
The kind of funny thing is that there’s a difference between the government and a family. A family can be a complete dictatorship.
There you go, libertarianism in a nutshell…

But the 13th and 19th Amendments put limitations on the rights of individuals: The right to own slaves

…I was probably trolling with that comment, insofar as what I was really doing was questioning the intellectual coherence of any notion of a “right to own slaves” that could be abridged in the first place. Apologies.

But it’s perfectly coherent. Up until the 13th Ammendment the government enforced at gunpoint a particular negative liberty: property rights to persons, just as it enforces at gunpoint property rights over chewing gum. This, as is well known, increased the rights of certain other persons. Rights are a zero-sum game.

Someone should ask Rand whether they’ll be black helicopters.

If the contracting companies want to employ only white helicopters, Rand Paul supports their right to do so.

Also interesting is the fact that David Bernstein has refused to say whether or not he believes it should be legal for a private restaurant owner to exclude a potential customer because the customer is black.

Not just refused to answer – he has been actively deleting that question.

It’s even more puzzling when you consider that Bernstein posted a link a few days ago in which he claimed that he would have supported passage of the Civil Rights Act and then he has followed that with scores of posts and comments explaining why anti-discrimination laws are evil.

If Bernstein is the spokesman for libertarians, all an outside observer can deduce is that libertarianism is synonymous with inarticulate self-contradicting cowardice.

“@Sebastian
Insisting on doing X before considering Y is a classic gambit for agenda denial. It allows the party making the claim to achieve their preferred end goal of not addressing Y without actually admitting that this is their goal.”

I’m confused. You’re arguing with me, but I’m the one who specifically is NOT insisting on doing X before considering Y. I’m the one who is arguing for a political philosophy with weighted rights, not a rigid hierarchy of rights.

Or were you agreeing with me? (I could be hyper-sensitively seeing disagreement)

Tim Worstall at 23:

Racial covenants. Massive, systemic racial discrimination that carved segregation into the geography of American life. 99.9% private. Engineered by the National Association of Realtors, and backed up by banks and other lending agencies. You break the covenant, you get evicted and/or your neighbors burn a cross on your lawn.

(BTW – that’s one of the things that’s always bugged me about discourse on private discrimination – why do people assume that these are individual decisions?)

Contrary to Jake at 3, these were not money-losers. Whites paid a premium to live in racially-exclusive (and not just racially-exclusive, considering the widespread inclusion of Jews and other non-approved-of groups) groups, and blacks, being excluded from the wider market, could be charged extortionate prices for substandard product.

And I think Chris at 77 (and others) hit on something that could be teased out more here – given that segregation involves the restriction of the property rights of non-whites to buy and sell in the market freely, etc., why is the restriction of the right to discriminate a greater infringement than that? Why is it that libertarians seem to be weighting one set of property rights over another?

(Answer – http://realignmentproject.wordpress.com/2010/04/11/industrial-democracy-vs-economic-liberty/)

one of the things that’s always bugged me about discourse on private discrimination – why do people assume that these are individual decisions?

This is an important point. I think some people (not in this thread, but in general) disingenuously captialize on an assumed conflation of the two. We often talk about “private business” when we mean “in my family” and “private life” when we mean “in my home.” In those senses, “private” can often mean individual.

But of course that is not true on this topic. And acting as if “private discrimination” is an individual act carried out in a social vacuum is willful ignorance.

From a TPM article about whether or not Rand Paul’s opposition to the Civil Rights Act is a mainstream libertarian position:

Walter Block, a libertarian professor of economics at Loyola University, and a senior fellow with the libertarian Ludwig Von Mises Institute, went further. “I think anyone who doesn’t believe that isn’t a libertarian,” he said, calling Paul’s comment “a very mainstream libertarianism.”

“I’m delighted that Rand Paul said that,” an enthusiastic Block added. “I think it’s magnificent. I didn’t realize that he was that good.”

“The spirit of non-discrimination,” said Block “ends you right up in compulsory bisexuality.”

Actually I think that the providing health care for people with no insurance portion is pretty huge, and all the other messing with it isn’t very huge at all.

I think you have let libertarians pretend that they are constituional scholars. They make all sorts of claims about what is fair and right which are not interpretations of the US constitution.

That said, I think you are missing something “If the Constitution can mandate eliminating badges and incidents of social injustice X, then the rest of the Constitution can hardly forbid eliminating “badges and incidents” of social injustices Y and Z, by legislative means. That’s some serious penumbra, shaping up. Or am I missing something ?

Look the constitution allows amendments to do anything (except deprive states of their equal suffrage in the Senate). There is no need for an amendment to not contradict the rest of the constitution. The 21st amendment contradicted the 18th amendment, yet it is a valid part of the constitution. The 13th amendment contradicted the clause that said that slaves who escaped to free states remained slaves and had ot be returned to their owners. If an amendment contradicts the pre-existing constitution, then it cancels and nullifies the bits it contradicts.

Can the constitution ban some discrimination and mandate other discrimination ? Of course it can. Consider the 14th, 15th, 19th and 26th amendments. The 15th said suffrage could not be denied to men over 21 on account of race, women were still not allowed to vote. State legislatures maintained the constitutional power to decide if women could vote. A mere law passed by congress and signed by the President which mandated women’s suffrage (at least in presidential elections) would have been plainly unconstitutional : “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress … .” Even now states can deprive felons of the suffrage.

The main body of the constitution forbad a religious condition for holding office ” no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” but said nothing about race, gender (or height or weight). From the quote above, it is clear that States had the authority to declare that their electors in the electoral college must be female or over 6 feet tall or anything they want which doesn’t involve religion.

The constitution is under no obligation to be elegant or harmonious or philosophically consistent. What would such an obligation even mean ? If the constitution can’t do something, that means that some court can find the constitution unconstitutional. Can you even imagine such a [non]constitutional order ? If you can, could you will it into being ? It would make the USA an oligarchy ruled by the supreme court of the day.

@ Bruce Baugh: very nice.

@ Sebastian: I’d call myself a socialist in some contexts, and I don’t think social injustice matters at all except as it manifests as injustice to individuals. But I’ll be happy to point out when certain (probably wealthy) people’s “rights” are interfering grossly with a lot of (probably not so wealthy) people’s rights, over there.