Libertarianism Withering Under the Spotlight

I don't see much point in discussing libertarianism as a theory of government, as it's not much of a challenge to go after the low hanging fruit. Libertarianism has value. There's value in resisting the tendency of government to grow in size, scope and power, whether in relation to individual rights and freedoms or the regulation of business and industry.

Let's face it, when it comes to running a government, libertarianism is best left to dystopian science fiction. The best "defense" of libertarian government that you're likely to hear is that "we haven't tried it". It's the same thing that Marxists and communists argue - you can't judge their theories of government based upon history, because every implementation to date has been flawed. Libertarians can spot the defect in that argument when it comes to communism, but not when it comes to their own theories.

There are very few pure libertarians - those who truly embrace the extreme form of the theory that I've heard described as "anarchy with lawyers". If your neighbor builds a toxic waste dump in his back yard, it's his land. If the smell bothers you or the sludge is contaminating your land or water, you can sue him. What could possibly go wrong? (Never mind that lawsuits require laws and court rules, are time consuming and expensive, and can impose serious financial hardship or be unaffordable if you're going up against a defendant with deep pockets.) In fairness, next to nobody falls into that category. Libertarianism transforms itself into a theory of more limited regulation and government, with nothing approximating consensus between libertarians as to what lines should be drawn and where to draw them. It's not just that pure libertarianism, when explained, is unappealing to most people - it's unappealing to most libertarians.

The next problem is that most libertarians are either cafeteria libertarians - they'll pick and choose where the government can intrude on people's lives - or single issue libertarians. Rand Paul is getting a lot of flak over his "libertarian" approach to civil rights, and skepticism over his call for the abolition of the Department of Education, but when government intrusion and wealth distribution benefits him, he's the first to the trough. Should we consider a significant deductible on Medicare recipients? Sure, why not - that's consistent with being libertarian - but you have to make sure that compensation for doctors is not affected, and certainly that it's not cut. (Minimum wage, on the other hand, doesn't affect doctors' wages.) In fairness to Paul, he has previously distanced himself from the label, "libertarian", even though he seemed please to be regarded in that light.

When I hear Rand Paul's defense of BP, I can't help but wonder if, in a different context, he would be complaining about the violation of the rights and destruction of property of a business that did nothing more than successfully lobby for a tax cut. Tea Party hero, indeed.

The single issue libertarians can be a bit scary. Even with cafeteria libertarians it's often difficult to tell whether their beliefs are motivated by libertarianism, or if they embrace libertarianism as cover for their controversial beliefs. It's much more comfortable, after all, to attack the Civil Rights Act from the cover of libertarianism than... well, from any other angle. Then you encounter the brand of libertarian who seems to care primarily, if not exclusively, about abolishing age of consent laws, and... what do you make of that? But what you will often find is that the libertarian you're talking to is a lot like Rand Paul - they want to cut government programs and spending that don't directly benefit themselves, but want to perpetuate those programs that provide them with a benefit. You can find self-professed libertarians living in Section 8 housing.

The libertarian focus is often on "property rights" - you own a business, so what right does the government have to tell you that you can't exclude a particular individual from your business. "Racism is wrong and I don't support it," they may explain, "But market forces will prevail, and the business down the street that hires the best candidate regardless of race, or the business down the street that doesn't discriminate, will win out over the business that does."

Try pointing to the history of Jim Crow or apartheid, and you'll hear about the role of government in enabling and perpetuating institutionalized racism, as if that erases the fact that nothing short of massive government intervention could bring it to an end. You'll hear again about market forces, but no explanation as to why it took another thirty years, a massive lawsuit, and an eight figure payout before Denny's caught on that segregated seating in its restaurants was supposed to have been a thing of the past. The same market forces that perpetuated Jim Crow perpetuated that practice at Denny's, and it appears that the involved restaurants were responding to local market preferences. Just as with some members of the chain providing discounts for churchgoers. Sometimes discrimination boosts business, even if a few people are offended or a different class of people is excluded. Libertarians will tell you what a good thing it is that social clubs were exempted from anti-discrimination laws, but seem to forget the obvious lesson that the same reasons people may prefer the "exclusivity" of their social club can be paralleled in other contexts.

Let's say we grant the Rand Paul dream and let private businesses discriminate. What happens if an individual attempts to get service? What happens if there's a protest? What happens if there's a sit-in? How much force does the state license the business owner to use to enforce his right to discriminate against somebody who has the temerity to want a cup of coffee at a "whites only" business? If the business owner calls the police and says, "I have a trespasser in my business," will the person be arrested and prosecuted by the state for violating the business owner's rights - simply because he had the wrong color skin to patronize that business?

Whether it's through the sanctioning of violence or criminal prosecutions to enforce property rights, if the power of the state falls behind those who want to discriminate, how is that libertarian? Would the most libertarian solution be to allow the business owner to file a civil lawsuit against the unwanted patron, a "solution" not likely to satisfy anybody? (Maybe the trespasser could countersue, adopting the libertarian argument that the business owner was harming his business by discriminating, and was thus unjustly enriched through the unwanted patron's presence in the store.)

There is a cure for all of this - it's called "thinking things through". Once you do that, you'll find that you may be sympathetic toward libertarianism, and even embrace the notion that the government has next to no role in certain areas of our business and personal lives. You may embrace limited government. But by the time you're through, if you still call yourself a libertarian it will be in a similar sense to calling yourself "a vegetarian who enjoys an occasional steak."

Update: Charles Lane offers what may be a more clear statement of my point about how private discrimination would rely upon state power for its enforcement.