STOP STEPPING ON MY BREAKTHROUGH

Doing his best to sweet-talk electorally-ascendent liberals into hitching their wagon to the libertarian rickshaw, Brink Lindsey offers a list of shared victories in which liberals and libertarians can revel together:

an honest survey of the past half-century shows a much better match between libertarian means and progressive ends. Most obviously, many of the great libertarian breakthroughs of the era–the fall of Jim Crow, the end of censorship, the legalization of abortion, the liberalization of divorce laws, the increased protection of the rights of the accused, the reopening of immigration–were championed by the political left.

If these are victories for libertarians, then this is a better argument for why libertarians should support liberals and leftists – the people who actually won each of these victories – than for why the left should turn libertarian. But it’s worth asking whether these markers of social progress even qualify as “libertarian breakthroughs” or “libertarian ends.”

The Jim Crow regime was undone in part by the elimination of the poll tax, a nasty law which restricts access to a government function to those able to pay for it and rewards those with more money to spend on their politics with more voice in them. What about undoing those laws qualifies as libertarian? The Jim Crow regime was undone in part by anti-discrimination laws that empower government to use regulation to limit the freedom of employers to employ a workforce that looks like themselves. Inflicting government intervention on market transactions is not exactly the libertarian m.o. Neither is government-mandated busing to integrate a public school system that if libertarians had their way wouldn’t exist in the first place.

Many libertarians no doubt break with Barry Goldwater and support the Civil Rights legislation of 1964 and 1965. But their support for good progressive law doesn’t demonstrate a fundamental affinity between liberalism and libertarianism. It simply demonstrates that even its devotees sometimes reject the maxim that “the government is best which governs least” when faced with the liberty-denying consequences of the “free market” whose “relentless dynamism” Lindsey urges liberals to recognize.

Libertarians may support freedom of the press from censorship, but they’re more likely to fret over how to sell off our publically-owned airwaves than how to ensure airtime for grassroots candidates. They may support a woman’s right to choose, but I wouldn’t count on their assistance in ensuring that women have the economic means to choose abortion or childbirth, or the educational resources to make informed choices. They may support the rights of the accused to a trial, but they’re not the first to line up to be taxed to pay for decent lawyers to represent them (then there are the ones who would like to replace the criminal justice system with a system of private torts). They may support allowing more immigrants into this country, but if you expect them to face down employers who exploit the fear of deportation to suppress the right to organize, you’ve got another think coming.

And though the Cato Institute won’t be joining Rick Santorum’s crusade against no-fault divorce any time soon, there’s no need for an earnest Ayn Rand devotee to support a right to divorce at all. After all, isn’t marriage a binding contract that the parties should know better than to get into lightly? Aside from the reality that it presides over marriage in the first place, why should government have any more right to stop consenting adults from entering contracts for lifelong marriage than it does to bar contracts for human organ sales or pennies-an-hour employment?

SPEAKING OF LOCHNER…

Kevin LoVecchio is right to argue over at TPMCafe that the libertarian faith in free contracts willfully ignores to extent to which many of the contracts Americans are coerced into on a daily basis are “not about negotiations, but instead are about tricks and traps.”

The conservatives’ ironclad, reality-be-damned faith in the absolute inviolability of contract has an ugly historical pedigree, going back to Congress’ refusal, on “free contract” grounds, in the wake of the Civil War to punish industrialists who knowingly sold defective weapons to the US Army. It’s philisophical pedigree is fraught as well. Hobbes, for example, insists that “Covenants entered into by fear, in the condition of meer nature, are obligatory” lest collective irrationality in the absence of contract fundamentalism drive societies into the war of all against all whose avoidance Leviathan sets forth as the major task of political philosophy.

Such an argument begs the question of whether human desires can really be inferred from contractual behavior in absence of full information or meaningful alternatives, and of whether human beings have any inalienable rights which they are themselves unable to contract away.

Modern conservatives would do well to remember that even Hobbes is forced later in Leviathan to recognize that there are indeed limits on the individual’s freedom to contract freedoms away. “A Covenant not to defend my selfe from force, by force,” he writes, “is alwayes void.” No human being, Hobbes argues, would knowingly trade away the fundamental right to self-defense, nor should an attempt to do so be recognized as valid. Hobbes thus qualifies his faith in contracts as guardians of collective peace and individual liberty with a nod to inalienable rights. What Hobbes does not or cannot set forth is what should distinguish a promise not to defend oneself from violence from a range of other contractual promises – from mortgaging your home to renouncing union membership – which men and women are coerced into making every day, and which many experience as threats to their bodily integrity or that of their families. None of the free contract fundamentalists, most of them members like Hobbes of a class with little reason to fear for their economic security, has come up with a convincing answer since then either.