The controversy about the ground-zero mosque illustrates an important aspect of liberty, namely, that its preservation requires line-drawing. There are times when government intervention in private matters is required to preserve liberty, in its fullest sense: life and the pursuit of happiness.
A libertarian purist would disagree. He would say that property rights are property rights, period. The owners of the land on which the mosque is to be situated have the right to decide what to build on their land. Further, if that right is compromised by government intervention, then it is possible for government to dictate how anyone may use his land.
Ignoring that fact that government already dictates how land may be used — through zoning laws, building codes, environmental restrictions, and other forms of regulation — I concede readily that the purist is correct, in principle. We know from long experience that as politicians and bureaucrats acquire the power to intervene in private transactions, they will apply that power in arbitrary and capricious ways.
Does that mean government should never intervene in private transactions? Imagine the following situation: A convicted car thief, having served his sentence, buys a defunct auto-repair shop with backing from some unsavory friends. If the police get word of this setup, what should happen?
1. Nothing, because the shop hasn’t begun to operate, and so there is no evidence that it will be used for criminal activity.
2. Keep watch on the shop, on the reasonable suspicion that the convicted felon and his unsavory associates are setting up a front for a stolen-car operation.
3. Find a legal pretext for closing down the shop.
What are the likely consequences of the three options?
1. The ex-convict will set up a stolen-car operation, and many cars will be stolen, causing great inconvenience to the owners of the stolen cars and higher insurance premiums for the owners of all cars in the area. Justice may prevail, but much harm has been done.
2. The stolen-car operation will be detected quickly, and shut down quickly, thus preventing most of the harm that would arise under option 1. Further, prison terms for the ex-convict and his unsavory associates will prevent them from doing further harm — for a while at least.
3. Allowing the police to shut down the shop without evidence of wrong-doing will encourage the police to persecute legitimate businesses and innocent individuals who happen to incur their disapproval.
If you are a libertarian purist (or a reflexive, anti-police “liberal”), you will prefer option 1; you are a one-day-at-a-time rationalist who adopts a pose of studied agnosticism. If you are a reflexive, law-and-order “conservative” you will prefer option 3. Option 2 is reserved for those who are willing to acknowledge the ex-convict’s history and its implications for his future behavior, but who want to preserve the bulwark of due process against the power of the state.
The question of where to draw the line around the authority of the state should not be decided by simplistic rules. Libertarian purists want to draw the line in the wrong place because their focus in on narrow issues — such as privacy and property rights — and not on the broader issue of liberty.