How Libertarians Ought to Think about the Constitution

I’m deeply grateful to Timothy Sandefur for causing me to change my mind about the constitutionality of secession. I used to believe that secession is permissible under the Constitution, and that the forcible suppression of an attempt to secede doesn’t negate the right to secede (see this and this, for example). I still believe that secession is permissible, but for a wholly different reason, to which I’ll come in due course.

My story begins with a post at Sandefur’s blog, Freespace, in which he writes:

[I] once believed that secession was legally justified. I thought slavery was evil, of course; that much is obvious. But I had read the Kentucky Resolutions, and that persuaded me that the Constitution is basically a treaty among sovereign states, who retain the right to leave the union if they want. It’s like a club, right? If you’re in a club, and you decide to leave the club, you should be free to go—even if you choose to do that for an immoral reason, right?

Then I started delving into these issues. I read The Federalist Papers, particularly number 15. I read Lincoln’s July 4, 1861, address to Congress. I read the Lincoln-Douglas Debates. I read Calhoun’s speeches and Douglass’ speeches and the Webster-Hayne debate. I read John Marshall’s decisions. I read Madison, and especially the debate between Madison and Henry at Richmond. And I read the arguments of other scholars—Jaffa, McCoy, Banning, Amar, Farber. These things changed my mind. Turns out it’s not a club. And it turns out slavery can’t be considered a separate question. (“P.S.: A word to my libertarian friends who think secession is constitutional,” Freespace, January 28, 2014)

The last link in the quoted text points to a piece by Sandefur that appeared in Reason Papers several years ago: “How Libertarians Ought to Think about the U.S. Civil War” (Vol. 28, Spring 2006, pp. 61-83). There, Sandefur quotes several writers who had a hand in the drafting and ratification of the Constitution (James Madison, James Wilson, Alexander Hamilton, and John Marshall), and says this:

These sources reveal how well understood was the central fact that the Constitution was a government of the whole people of the United States, not a league or treaty of states in their corporate capacities, as the compact theory would have it. Contrary to Calhoun’s later claim that “the States, when they formed and ratified the Constitution, were distinct, independent, and sovereign communities,”30 the reality is that, in Marshall’s words, federal sovereignty

proceeds directly from the people; is ‘ordained and established’ in the name of the people. . . . It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties. . . . The government of the Union, then . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit . . . . [T]he government of the Union, though limited in its powers, is supreme within its sphere of action.31

… The federal government is directly vested with sovereignty of the whole people of the United States. Secession is not, therefore, like a person who chooses to cancel his membership in a club—because the states are not in the “club” to begin with. Only “We the People” are members of the federal club, and only the “people” which created it can change it, by altering the contours of that “people” through amendment, or a new Constitutional Convention. So, while the whole people may allow a state out of the union, or may even dissolve the Constitution entirely, a state cannot claim on its own the authority to withdraw from the union. Lincoln put it with dry understatement when he noted that advocates of secession were “not partial to that power which made the Constitution, and speaks from the preamble, calling itself ‘We, the People.’”33

These sources reveal that in 1787, both the Federalists and Anti-Federalists recognized that the U. S. Constitution was just that—a constitution for a nation, not a league of sovereign states. And, if these sources are not enough, as Akhil Reed Amar points out, “no major proponent of the Constitution sought to win over states’ rightists by conceding that states could unilaterally nullify or secede in the event of perceived national abuses. The Federalists’ silence is especially impressive because such a concession might have dramatically improved the document’s ratification prospects in several states.”34 “[I]f a more explicit guard against misconstruction was not provided,” wrote Madison in 1831, “it is explained . . . by the entire absence of apprehension that it could be necessary.”35 …

… We have seen that the nature of federal sovereignty under the Constitution makes unilateral secession illegal. Since the Constitution is a law binding the People, and not a league of states, states have no authority to intervene between the people and the national government. If the people of a state wish to leave the union, they may not do so unilaterally, but must obtain the agreement of their fellow citizens—or they must rebel in a legitimate act of revolution. (pp. 70-74, emphasis added)

There’s more, but the quoted passages seem to cover the main points of Sandefur’s case against the constitutionality of secession.

It’s my understanding that the Constitution — if it is law — is not just law, but positive law: “statutory man-made law, as compared to ‘natural law’ which is purportedly based on universally accepted moral principles.” Sandefur’s rejection of secession as a contravention of the Constitution therefore strikes me as odd, inasmuch as Sandefur disdains legal positivism. (Just search his site, and you’ll see.)

This led me to the possibility that the Constitution isn’t “real” law, but just a legal mechanism through which state actors can impose their will on citizens. For enlightenment, I turned to Lysander Spooner, whose The Unconstitutionality of Slavery (1860) is cited in Sandefur’s paper (p. 63). Why would an anarchist and believer in natural law, as Spooner was, care a whit about the authority of the Constitution? After all, Spooner’s No Treason (1867) opens with this:

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:

We, the people of the United States (that is, the people then existing in the United States), in order to form a more perfect union, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

It is plain, in the first place, that this language, as an agreement, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquillity, liberty, etc.

Note well Spooner’s description of the Constitution as a contract (i.e., a compact) — entered into by certain persons at a certain time, for certain purposes. This suggests a possibility not entertained in Sandefur’s Reason Papers essay, namely, that the Constitution is neither a compact between States (as sovereign entities) nor a law adopted by “the people,” but a contract entered into by a fraction of the populace that became binding on the whole populace through state power.

I’ll return to that possibility after I explain how Spooner could defer to the very Constitution that he clearly disdained. The answer is found in Chapter II of The Unconstitutionality of Slavery:

Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals—let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.

In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed “strictly” in favor of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit:

“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.” [United States vs. Fisher, 2 Cranch, 390.]

It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law.

Translation: The Constitution is a fact. State actors have the power to enforce it. The text of the Constitution doesn’t authorize slavery. Slavery is against natural law. Therefore, it accords with natural law to enforce the Constitution against slavery.

What is natural law? Here’s Spooner, writing in Chapter I of the Unconstitutionality of Slavery:

The true and general meaning of it, is that natural, permanent, unalterable principle, which governs any particular thing or class of things. The principle is strictly a natural one; and the term applies to every natural principle, whether mental, moral or physical. Thus we speak of the laws of mind; meaning thereby those natural, universal and necessary principles, according to which mind acts, or by which it is governed. We speak too of the moral law; which is merely an universal principle of moral obligation, that arises out of the nature of men, and their relations to each other, and to other things—and is consequently as unalterable as the nature of men. And it is solely because it is unalterable in its nature, and universal in its application, that it is denominated law. If it were changeable, partial or arbitrary, it would be no law. Thus we speak of physical laws; of the laws, for instance, that govern the solar system; of the laws of motion, the laws of gravitation, the laws of light, &c., &c.—Also the laws that govern the vegetable and animal kingdoms, in all their various departments: among which laws may be named, for example, the one that like produces like. Unless the operation of this principle were uniform, universal and necessary, it would be no law.

Law, then, applied to any object or thing whatever, signifies a natural, unalterable, universal principle, governing such object or thing. Any rule, not existing in the nature of things, or that is not permanent, universal and inflexible in its application, is no law, according to any correct definition of the term law.

What, then, is that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men? Those rights of person, property, &c., which one human being has, as against other human beings?

I shall define it to be simply the rule, principle, obligation or requirement of natural justice.

This rule, principle, obligation or requirement of natural justice, has its origin in the natural rights of individuals, results necessarily from them, keeps them ever in view as its end and purpose, secures their enjoyment, and forbids their violation. It also secures all those acquisitions of property, privilege and claim, which men have a natural right to make by labor and contract.

Such is the true meaning of the term law, as applied to the civil rights of men.

Spooner goes on and on, but never defines natural law concretely. Natural law, like natural rights, arises from human coexistence, and does not precede it. But Spooner — like most theorists who address natural law and natural rights — treats them as if they were eternal, free-standing Platonic ideals or mysterious essences. Those less inclined to mysticism, like Sandefur, strive vainly to find natural rights in the workings of human evolution. (Aside: Sandefur and I have gone several rounds on the issue of natural rights: here, here, here, here, and here; see also this.)

If there is any kind of natural law, it is the Golden Rule:

I call the Golden Rule a natural law because it’s neither a logical construct (e.g., the “given-if-then” formulation discussed in the preceding post) nor a state-imposed one. Its long history and widespread observance (if only vestigial) suggest that it embodies an understanding that arises from the similar experiences of human beings across time and place. The resulting behavioral convention, the ethic of reciprocity, arises from observations about the effects of one’s behavior on that of others and mutual agreement (tacit or otherwise) to reciprocate preferred behavior, in the service of self-interest and empathy. That is to say, the convention is a consequence of the observed and anticipated benefits of adhering to it.

Is this a recipe for chaotic moral relativism? No. Later, in the post just quoted, I note that there’s a common, cross-national, cross-cultural, and cross-religious interpretation of the Golden Rule which comes down to this:

Killing is wrong, except in self-defense. (Capital punishment is just that: punishment. It’s also a deterrent to murder. It isn’t “murder,” muddle-headed defenders of baby-murder to the contrary notwithstanding.)

Various kinds of unauthorized “taking” are wrong, including theft (outright and through deception). (This explains popular resistance to government “taking,” especially when it’s done on behalf of private parties. The view that it’s all right to borrow money from a bank and not repay it arises from the mistaken beliefs that (a) it’s not tantamount to theft and (b) it harms no one because banks can “afford it.”)

Libel and slander are wrong because they are “takings” by word instead of deed.

It is wrong to turn spouse against spouse, child against parent, or friend against friend. (And yet, such things are commonly portrayed in books, films, and plays as if they are normal occurrences, often desirable ones. And it seems to me that reality increasingly mimics “art.”)

It is right to be pleasant and kind to others, even under provocation, because “a mild answer breaks wrath: but a harsh word stirs up fury” (Proverbs 15:1).

Charity is a virtue, but it should begin at home, where the need is most certain and the good deed is most likely to have its intended effect.

What does all of this mean for secession? Here it is, from the beginning and by the numbers:

1. The Constitution was a contract, but not a contract between “the people.” It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States. Its purpose, in good part, was to promote the interests of many of the Framers, who cloaked those interests in the glowing rhetoric of the Preamble (“We the People,” etc.). The other four of the original thirteen States could have remained beyond the reach of the Constitution, and would have done so but for the ratifying acts of small fractions of their populations. (With the exception of Texas, formerly a sovereign republic, States later admitted weren’t independent entities, but were carved out of territory controlled by the government of the United States. Figuratively, they were admitted to the union at the point of a gun.)

2. Despite their status as “representatives of the people,” the various fractions of the populace that drafted and ratified the Constitituion had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations. (Representative government is simply an alternative to other types of top-down governance, such as an absolute monarchy or a police state, not a substitute for spontaneous order. At the most, a minimal, “night watchman” state is required for the emergence and preservation of beneficial spontaneous order, wherein social norms enforce the tenets of the Golden Rule.)

3. The Constitution was and is binding only in the way that a debt to a gangster who demands “protection money” is binding. It was and is binding because state actors have the power to enforce it, as they see fit to interpret it. (One need look no further than the very early dispute between Hamilton and Madison about the meaning of the General Welfare Clause for a relevant and crucial example of interpretative differences.)

4. The Constitution contains provisions that can be and sometimes have been applied to advance liberty. But such applications have depended on the aims and whims of those then in positions of power.

5. It is convenient to appeal to the Constitution in the cause of liberty, as Spooner did, but that doesn’t change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

6. Any person and any government in the United States may therefore, in principle, reject the statutes, executive orders, and judicial holdings of the United States government (or any government) as non-binding.

7. Secession is one legitimate form of rejection, though the preceding discussion clearly implies that secession by a State government is morally binding only on those who assent to the act of secession.

8. An act of secession may be put down — through legal process or force of arms — but that doesn’t alter the (limited) legitimacy of the act.

9. Given the preceding, any act of secession is no less legitimate than was the adoption of the Constitution.

10. The legitimacy of an act of secession isn’t colored by its proximate cause, whether that cause is a desire to preserve slavery, or to escape oppressive taxation and regulation by the central government, or to live in a civil society that is governed by the Golden Rule. The proximate cause must be evaluated on its own merits, or lack thereof.

I close by quoting from an earlier post of mine:

[G]overnmental acts and decrees have stealthily expanded and centralized government’s power, and in the process have usurped social norms [the civilizing products of spontaneous order]. The expansion and centralization of power occurred in spite of the specific limits placed on the central government by the original Constitution and the Tenth Amendment. These encroachments on liberty are morally illegitimate because their piecemeal adoption has robbed Americans of voice and mooted the exit option. And so, liberty-loving Americans have discovered — too late, like the proverbial frog in the pot of water — that they are impotent captives in their own land.

Voice is now so muted by “settled law” (e.g., “entitlements,” privileged treatment for some, almost-absolute control of commerce) that there a vanishingly small possibility of restoring constitutional government without violence. Exit is now mainly an option for the extremely wealthy among us. (More power to them.) For the rest of us, there is no realistic escape from illegitimate government-made law, given that the rest of the world (with a few distant exceptions) is similarly corrupt….

Having been subjected to a superficially benign form of slavery by our central government, we must look to civil society and civil disobedience for morally legitimate law….

When government fails to protect civil society — and especially when government destroys it — civil disobedience is in order. If civil disobedience fails, more drastic measures are called for:

When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup. (Thomas Sowell, writing at National Review Online, May 1, 2007)

In Jefferson’s version,

when wrongs are pressed because it is believed they will be borne, resistance becomes morality.

The Constitution may be a legal fiction, but — as I’ve said — it’s a useful fiction when its promises of liberty can be redeemed.

That’s how this libertarian (conservative) thinks about the Constitution.

See also “The Constitution: Myths and Realities“.

Facets of Liberty

Liberty is not a “thing” or a kind of Platonic ideal; it is a modus vivendi. Roger Scruton captures its essence in this pithy paragraph:

People are bound by moral laws, which articulate the idea of a community of rational beings, living in mutual respect, and resolving their disputes by negotiation and agreement. (An Intelligent Person’s Guide to Philosophy, p. 112)

Fittingly, Scruton’s observation comes at the beginning of the chapter on “Morality.” I say fittingly because liberty depends on morality — properly understood as a canon of ethical behavior — and morality, as I argue below, depends very much on religion.

Where is libertarianism in all of this? Read on:

LIBERTY: ITS MEANING AND PREREQUISITES

Liberty can be thought of as freedom, when freedom is understood as permission to act within agreed limits on behavior.

Liberty, in other words, is not the absence of constraints on action. In a political context (i.e., where two or more persons coexist), there are always constraints on the behavior of at least one person, even in the absence of coercion or force. Coexistence requires compromise because (I daresay) no two humans are alike in their abilities, tastes, and preferences. And compromise necessitates constraints on behavior; compromise means that the parties involved do not do what they would do if they were isolated from each other or of a like mind about everything. Compromise is found in marriage, in friendships, in social circles, in neighborhoods, in workplaces, as well as the formal institutions (e.g., Congress) that one usually thinks of as “political.”

Where there is liberty, social norms are not shaped by the power of the state (though they may be enforced by the state). Rather, where there is liberty, social norms consist solely of the ever-evolving constellation of the voluntary compromises that arise from “non-political” institutions (i.e., marriage, etc.). It is the observance of social norms that enables a people to enjoy liberty: peaceful, willing coexistence and beneficially cooperative behavior.

Self-styled libertarians (about whom, more below) seem to reject this reasonable definition of liberty, and its antecedent conditions. They can do so, however, only by envisioning a Utopian polity that comprises like-minded persons who are for abortion, same-sex “marriage,” and open borders, and against war (except, possibly, as a last-ditch defense against invading hoards). They are practically indistinguishable from “liberals,” except in their adamant defense of property rights and free markets. (And some of them are lukewarm about property rights, if the enforcement of those rights allows discrimination based on personal characteristics.)

In summary, only where voluntarily evolved social norms are untrammeled by the state can individuals possibly live in peaceful, willing coexistence and engage in beneficially cooperative behavior — that is to say, live according to the Golden Rule.

What are the key attributes of those norms? Jennifer Roback Morse says, in “Marriage and the Limits of Contract” (Policy Review, No. 130, April 1, 2005):

[l]ibertarians recognize that a free market needs a culture of law-abidingness, promise-keeping, and respect for contracts…. A culture full of people who violate their contracts at every possible opportunity cannot be held together by legal institutions, as the experience of post-communist Russia plainly shows.

But whence “a culture of law-abidingness, promise-keeping, and respect for contracts”? Friedrich Hayek knew the answer to that question. According to Edward Feser (“The Trouble with Libertarianism,” TCS Daily, July 20, 2004), Hayek was firmly committed

to the proposition that market society has certain moral presuppositions that can only be preserved through the power of social stigma. In his later work especially, he made it clear that these presuppositions concern the sanctity of property and of the family, protected by traditional moral rules which restrain our natural impulses and tell us that “you must neither wish to possess any woman you see, nor wish to possess any material goods you see.”[1]

“[T]he great moral conflict… which has been taking place over the last hundred years or even the last three hundred years,” according to Hayek, “is essentially a conflict between the defenders of property and the family and the critics of property and the family,”[2] with the latter comprising an alliance of socialists and libertines committed to “a planned economy with a just distribution, a freeing of ourselves from repressions and conventional morals, of permissive education as a way to freedom, and the replacement of the market by a rational arrangement of a body with coercive powers.”[3] The former, by contrast, comprise an alliance of those committed to the more conservative form of classical liberalism represented by writers like Smith and Hayek himself with those committed to traditional forms of religious belief. Among the benefits of such religious belief in Hayek’s view is its “strengthening [of] respect for marriage,” its enforcement of “stricter observance of rules of sexual morality among both married and unmarried,” and its creation of a socially beneficial “taboo” against the taking of another’s property.[4] Indeed, though he was personally an agnostic, Hayek held that the value of religion for shoring up the moral presuppositions of a free society cannot be overestimated:

“We owe it partly to mystical and religious beliefs, and, I believe, particularly to the main monotheistic ones, that beneficial traditions have been preserved and transmitted… If we bear these things in mind, we can better understand and appreciate those clerics who are said to have become somewhat sceptical of the validity of some of their teachings and who yet continued to teach them because they feared that a loss of faith would lead to a decline in morals. No doubt they were right…”[5]

LIBERTY IN TODAY’S WORLD

Social norms and socializing influences (like religion) are essential to self-governance, but self-governance by mutual consent and mutual restraint — by adherence to the Golden Rule — is possible only for a group of about 25 to 150 persons: the size of a hunter-gatherer band or Hutterite colony. It seems that self-governance breaks down when a group is larger than 150 persons. Why should that happen? Because mutual trust, mutual restraint, and mutual aid — the things implied in the Golden Rule — depend very much on personal connections. A person who is loath to say a harsh word to an acquaintance, friend, or family member — even when provoked — often waxes abusive toward strangers, especially in this era of e-mail and comment threads, where face-to-face encounters are not involved.

More generally, there is a human tendency to treat friends differently than acquaintances, acquaintances differently than strangers, and so on. The closer one is to a person, the more likely one is to accord that person trust, cooperation, and kindness. Why? Because there usually is a difference between the consequences of behavior that is directed toward strangers and the consequences of behavior that is directed toward persons one knows, lives among, and depends upon for restraint, cooperation, and help. The allure of doing harm without penalty (“getting away with something”) or receiving without giving (“getting something for nothing”) becomes harder to resist as one’s social distance from others increases.

When self-governance breaks down, it becomes necessary to spin off a new group or establish a central power (a state), which codifies and enforces rules of behavior (negative and positive). The problem, of course, is that those vested with the power of the state quickly learn to use it to advance their own preferences and interests, and to perpetuate their power by granting favors to those who can keep them in office. It is a rare state that is created for the sole purpose of protecting its citizens from one another and from outsiders, and rarer still is the state that remains true to such purposes.

In sum, the Golden Rule — as a uniting way of life — is quite unlikely to survive the passage of a group from community to state. Nor does the Golden Rule as a uniting way of life have much chance of revival or survival where the state already dominates. The Golden Rule may have limited effect within well-defined groups (e.g., parishes, clubs, urban enclaves, rural communities), by regulating the interactions among the members of such groups. It may have a vestigial effect on face-to-face interactions between stranger and stranger, but that effect arises mainly from the fear that offense or harm will be met with the same, not from a communal bond.

In any event, the dominance of the state distorts behavior. For example, the state may enable and encourage acts (e.g., abortion, homosexuality) that had been discouraged as harmful by group norms, and the ability of members of the group to bestow charity on one another may be diminished by the loss of income to taxes and discouraged by the establishment of state-run schemes that mimic the effects of charity (e.g., Social Security).

LIBERTY VS. “LIBERALISM”

The dominance of the state is the essential creed of modern “liberalism,” which has been diagnosed, quite rightly, as superficially benign fascism.

What about the “liberal” agenda, which proclaims the virtues of social liberty even as it destroys economic liberty. This is a convenient fiction; the two are indivisible. There is no economic liberty without social liberty, and vice versa:

[W]hen the state taxes or regulates “economic” activity, it shapes and channels related “social” activity. For example, the family that pays 25 percent of its income in taxes is that much less able to join and support organizations of its choice, to own and exhibit tokens of its socioeconomic status, to afford better education for its children, and so on. The immediate rejoinder will be that nothing has been changed if everyone is affected equally. But because of the complexity of tax laws and regulations, everyone is not affected equally. Moreover, even if everyone were deprived equally of the same kind of thing — a superior education, say — everyone would be that much worse off by having been deprived of opportunities to acquire remunerative knowledge and skills, productive relationships, and mental stimulation. Similarly, everyone would be that much worse off by being less well clothed, less well housed, and so on. Taxes and regulations, even if they could be applied in some absolutely neutral way (which they can’t be), have an inevitably deleterious effect on individuals.

In sum, there is no dividing line between economic and social behavior. What we call social and economic behavior are indivisible aspects of human striving to fulfill wants, both material and spiritual. The attempt to isolate and restrict one type of behavior is futile. It is all social behavior.

If markets are not free neither are people free to act within the bounds of voluntarily evolved social norms.

LIBERTARIANS AND LIBERTY

Although most of today’s libertarians (rightly) pay homage to Hayek’s penetrating dismissal of big government, his cultural views (noted earlier) are beneath their notice. And no wonder, for it is hard these days to find a self-styled libertarian who shares Hayek’s cultural views. What now passes for libertarianism, as I see it, is strictly secular and even stridently atheistic. As Feser puts it in “The Trouble with Libertarianism,” these

versions of libertarianism … do not treat conservative views as truly moral views at all; they treat them instead as mere prejudices: at best matters of taste, like one’s preference for this or that flavor of ice cream, and at worst rank superstitions that pose a constant danger of leading those holding them to try to restrict the freedoms of those practicing non-traditional lifestyles. Libertarians of the contractarian, utilitarian, or “economistic” bent must therefore treat the conservative the way the egalitarian liberal treats the racist, i.e. as someone who can be permitted to hold and practice his views, but only provided he and his views are widely regarded as of the crackpot variety….

[T]here are also bound to be differences in the public policy recommendations made by the different versions of libertarianism. Take, for example, the issue of abortion. Those whose libertarianism is grounded in … Hayekian thinking are far more likely to take a conservative line on the matter. To be sure, there are plenty of “pro-choice” libertarians influenced by Hayek. But by far most of these libertarians are (certainly in my experience anyway) inclined to accept Hayek’s economic views while soft-pedaling or even dismissing the Burkean traditionalist foundations he gave for his overall social theory. Those who endorse the latter, however, are going to be hard-pressed not to be at least suspicious of the standard moral and legal arguments offered in defense of abortion….

By contrast, libertarians influenced by contractarianism are very unlikely to oppose abortion, because fetuses cannot plausibly be counted as parties to the social contract that could provide the only grounds for a prohibition on killing them. Utilitarianism and “economism” too would provide no plausible grounds for a prohibition on abortion, since fetuses would seem to have no preferences or desires which could be factored into our calculations of how best to maximize preference- or desire-satisfaction.

There are also bound to be differences over the question of “same-sex marriage.”… [A] Hayekian analysis of social institutions fail to imply anything but skepticism about the case for same-sex marriage. Hayek’s position was that traditional moral rules, especially when connected to institutions as fundamental as the family and found nearly universally in human cultures, should be tampered with only with the most extreme caution. The burden of proof is always on the innovator rather than the traditionalist, whether or not the traditionalist can justify his conservatism to the innovator’s satisfaction; and change can be justified only by showing that the rule the innovator wants to abandon is in outright contradiction to some other fundamental traditional rule. But that there is any contradiction in this case is simply implausible, especially when one considers the traditional natural law understanding of marriage sketched above.

On the other hand, it is easy to see how contractarianism, utilitarianism, and “economism” might be thought to justify same-sex marriage. If the actual desires or preferences of individuals are all that matter, and some of those individuals desire or prefer to set up a partnership with someone of the same sex and call it “marriage,” then there can be no moral objection to their doing so.

I do not mean to belabor the issues of abortion and same-sex “marriage,” about which I have written at length (e.g., here and here). But, like war, they are “wedge” issues among libertarians. And most (perhaps all) libertarians whose writings I encounter on the internet — Feser’s contractarian, utilitarian, and economistic types — are on the libertine side of the issues: pro-abortion and pro-same-sex “marriage.” A contractarian, utilitarian, economistic libertarian will condone practices that even “liberals” would not (e.g., blackmail).

RELIGION AND LIBERTY

The libertine stance of “mainstream” libertarians points to moral rootlessness. Such libertarians like to say that libertarianism is a moral code, when — as Feser rightly argues — it is destructive of the kind of morality that binds a people in mutual trust and mutual forbearance. These depend on the observance of actual codes of conduct, not the rote repetition of John Stuart Mill’s empty “harm principle.”

It is my view that libertarians who behave morally toward others do so not because they are libertarians but because their cultural inheritance includes traces of Judeo-Christian ethics. For example, the non-aggression principle — a foundation of libertarian philosophy — is but a dim reflection of the Ten Commandments.

As Roback Morse and Hayek rightly argue, a libertarian order can be sustained only if it is built on deeply ingrained morality. But that morality can only operate if it is not circumscribed and undermined by the edicts of the state. The less intrusive the state, the more essential are social norms to the conditions of liberty. If those norms wither away, the results — more rapaciousness, heedlessness, and indolence — invite the the growth of the state and its adoption of repressive policies.

The flimsy morality of today’s libertarianism will not do. Neither the minimal state of “mainstream” libertarians nor the stateless Utopia of extreme libertarians can ensure a moral society, that is, one in which there is mutual trust, mutual forbearance, and promise-keeping.

Where, then, is moral education to be had? In the public schools, whose unionized teachers preach the virtues of moral relativism, big government, income redistribution, and non-judgmentalism (i.e., lack of personal responsibility)? I hardly think so.

That leaves religion, especially religion in the Judeo-Christian tradition. As the Catholic Encyclopedia puts it:

The precepts [of the last six of the Commandments] are meant to protect man in his natural rights against the injustice of his fellows.

His life is the object of the Fifth;

the honour of his body as well as the source of life, of the Sixth;

his lawful possessions, of the Seventh;

his good name, of the Eighth;

And in order to make him still more secure in the enjoyment of his rights, it is declared an offense against God to desire to wrong him, in his family rights by the Ninth;

and in his property rights by the Tenth.

Though I am a deist, and neither a person of faith nor a natural-rights libertarian, I would gladly live in a society in which the majority of my fellow citizens believed in and adhered to the Ten Commandments, especially the last six of them. I reject the currently fashionable notion that religion per se breeds violence. In fact, a scholarly, non-sectarian meta-study, “Religion and its effects on crime and delinquency” (Medical Science Monitor, 2003; 9(8):SR79-82), offers good evidence that religiosity leads to good behavior:

[N]early all [reports] found that that there was a significant negative correlation between religiosity and delinquency. This was further substantiated by studies using longitudinal and operationally reliable definitions. Of the early reports which were either inconclusive or found no statistical correlation, not one utilized a multidimensional definition or any sort of reliability factor. We maintain that the cause of this difference in findings stemmed from methodological factors as well as different and perhaps flawed research strategies that were employed by early sociological and criminological researchers.The studies that we reviewed were of high research caliber and showed that the inverse relationship [between religiosity and delinquency] does in fact exist. It therefore appears that religion is both a short term and long term mitigat[o]r of delinquency.

But a society in which behavior is guided by the Ten Commandments seems to be receding into the past. Consider the following statistics, from the 2011 Statistical Abstract, Table 75. Self-Described Religious Identification of Adult Population: 1990, 2001 and 2008.
Between 1990 and 2008

the percentage of American adults claiming to be Christian dropped from 86 to 76,

the percentage of American adults claiming to be Jewish dropped from 1.8 to 1.2 percent, and

the percentage of American adults professing no religion rose from 8 to 15 percent.

What is noteworthy about those figures is the degree of slippage in a span of 18 years. And the degree of religious belief probably is overstated because respondents tend to say the “right” thing, which (oddly enough) continues to be a profession of religious faith.

Moreover, claiming adherence to a religion and receiving religious “booster shots” through regular church attendance are two entirely different things. Consider this excerpt of “In Search of the Spiritual” (Newsweek, August 28, 2005):

…Of 1,004 respondents to the NEWSWEEK/Beliefnet Poll, 45 percent said they attend worship services weekly, virtually identical to the figure (44 percent) in a Gallup poll cited by Time in 1966. Then as now, however, there is probably a fair amount of wishful thinking in those figures; researchers who have done actual head counts in churches think the figure is probably more like 20 percent. There has been a particular falloff in attendance by African-Americans, for whom the church is no longer the only respectable avenue of social advancement, according to Darren Sherkat, a sociologist at Southern Illinois University. The fastest-growing category on surveys that ask people to give their religious affiliation, says Patricia O’Connell Killen of Pacific Lutheran University in Tacoma, Wash., is “none.” But “spirituality,” the impulse to seek communion with the Divine, is thriving. The NEWSWEEK/Beliefnet Poll found that more Americans, especially those younger than 60, described themselves as “spiritual” (79 percent) than “religious” (64 percent). Almost two thirds of Americans say they pray every day, and nearly a third meditate.

But what does “spirituality” have to do with morality? Prayer and meditation may be useful and even necessary to religion, but they do not teach morality. Substituting “spirituality” for Judeo-Christian religiosity is like watching golf matches on TV instead of playing golf; a watcher can talk a good game but cannot play the game very well, if at all.

Historian Niall Ferguson, a Briton, writes about the importance of religiosity in “Heaven knows how we’ll rekindle our religion, but I believe we must” (July 31, 2005):

I am not sure British people are necessarily afraid of religion, but they are certainly not much interested in it these days. Indeed, the decline of Christianity — not just in Britain but across Europe — stands out as one of the most remarkable phenomena of our times.

There was a time when Europe would justly refer to itself as “Christendom.” Europeans built the Continent’s loveliest edifices to accommodate their acts of worship. They quarreled bitterly over the distinction between transubstantiation and consubstantiation. As pilgrims, missionaries and conquistadors, they sailed to the four corners of the Earth, intent on converting the heathen to the true faith.

Now it is Europeans who are the heathens. . . .

The exceptionally low level of British religiosity was perhaps the most striking revelation of a recent … poll. One in five Britons claim to “attend an organized religious service regularly,” less than half the American figure. [In light of the relationship between claimed and actual church attendance, discussed above, the actual figure for Britons is probably about 10 percent: ED.] Little more than a quarter say that they pray regularly, compared with two-thirds of Americans and 95 percent of Nigerians. And barely one in 10 Britons would be willing to die for our God or our beliefs, compared with 71 percent of Americans. . . .

Chesterton feared that if Christianity declined, “superstition” would “drown all your old rationalism and skepticism.” When educated friends tell me that they have invited a shaman to investigate their new house for bad juju, I see what Chesterton meant. Yet it is not the spread of such mumbo-jumbo that concerns me as much as the moral vacuum that de-Christianization has created. Sure, sermons are sometimes dull and congregations often sing out of tune. But, if nothing else, a weekly dose of Christian doctrine helps to provide an ethical framework for life. And it is not clear where else such a thing is available in modern Europe.

…Britons have heard a great deal from Tony Blair and others about the threat posed to their “way of life” by Muslim extremists such as Muktar Said Ibrahim. But how far has their own loss of religious faith turned Britain into a soft target — not so much for the superstition Chesterton feared, but for the fanaticism of others?

Yes, what “way of life” is being threatened — and is therefore deemed worth defending — when people do not share a strong moral bond?

I cannot resist adding one more quotation in the same vein as those from Hayek and Ferguson. This comes from Theodore Dalrymple (Anthony Daniels), a no-nonsense psychiatrist who, among his many intellectual accomplishments, has thoroughly skewered John Stuart Mill’s fatuous essay, On Liberty. Without further ado, here is Dalrymple on religion:

I remember the day I stopped believing in God. I was ten years old and it was in school assembly. It was generally acknowledged that if you opened your eyes while praying, God flew out of the nearest window. That was why it was so important that everyone should shut his eyes. If I opened my eyes suddenly, I thought, I might just be quick enough to catch a glimpse of the departing deity….

Over the years, my attitude to religion has changed, without my having recovered any kind of belief in God. The best and most devoted people I have ever met were Catholic nuns. Religious belief is seldom accompanied by the inflamed egotism that is so marked and deeply unattractive a phenomenon in our post-religious society. Although the Copernican and Darwinian revolutions are said to have given man a more accurate appreciation of his true place in nature, in fact they have rendered him not so much anthropocentric as individually self-centred….

[T]he religious idea of compassion is greatly superior, both morally and practically, to the secular one. The secular person believes that compassion is due to the victim by virtue of what he has suffered; the religious person believes that compassion is due to everyone, by virtue of his humanity. For the secular person, man is born good and is made bad by his circumstances. The religious person believes man is born with original sin, and is therefore imperfectible on this earth; he can nevertheless strive for the good by obedience to God.

The secularist divides humanity into two: the victims and the victimisers. The religious person sees mankind as fundamentally one.

And why not? If this life is all that you have, why let anything stand in the way of its enjoyment? Most of us self-importantly imagine that the world and all its contrivances were made expressly for us and our convenience….

The secularist de-moralises the world, thus increasing the vulnerability of potential victims and, not coincidentally, their need for a professional apparatus of protection, which is and always will be ineffective, and is therefore fundamentally corrupt and corrupting.

If a person is not a victim pure and simple, the secularist feels he is owed no compassion. A person who is to blame for his own situation should not darken the secularist’s door again: therefore, the secularist is obliged to pretend, with all the rationalisation available to modern intellectuals, that people who get themselves into a terrible mess – for example, drug addicts – are not to blame for their situation. But this does them no good at all; in fact it is a great disservice to them.

The religious person, by contrast, is unembarrassed by the moral failings that lead people to act self-destructively because that is precisely what he knows man has been like since the expulsion from Eden. Because he knows that man is weak, and has no need to disguise his failings, either from himself or from others, he can be honest in a way that the secularist finds impossible.

Though I am not religious, I have come to the conclusion that it is impossible for us to live decently without the aid of religion. That is the ambiguity of the Enlightenment. (“Why Religion Is Good for Us,” NewStatesman, April 21, 2003)

The weakening of the Judeo-Christian tradition in America is owed to enemies within (established religions trying in vain to be “relevant”) and to enemies without (leftists and nihilistic libertarians who seek every opportunity to denigrate religion). Thus the opponents of religiosity seized on the homosexual scandals in the Catholic Church not to attack homosexuality (which would go against the attackers’ party line) but to attack the Church, which teaches the immorality of the acts that were in fact committed by a relatively small number of priests. (See “Priests, Abuse, and the Meltdown of a Culture,” National Review Online, May 19, 2011.)

Then there is the relentless depiction of Catholicism as an accomplice to Hitler’s brutality, about which my son writes in his review of Rabbi David G. Dalin’s The Myth of Hitler’s Pope: How Pius XII Rescued Jews from the Nazis:

Despite the misleading nature of the controversy — one which Dalin questions from the outset — the first critics of the wartime papacy were not Jews. Among the worst attacks were those of leftist non-Jews, such as Carlo Falconi (author of The Silence of Pius XII), not to mention German liberal Rolf Hochhuth, whose 1963 play, The Deputy, set the tone for subsequent derogatory media portrayals of wartime Catholicism. By contrast, says Dalin, Pope Pius XII “was widely praised [during his lifetime] for having saved hundreds of thousands of Jewish lives during the Holocaust.” He provides an impressive list of Jews who testified on the pope’s behalf, including Albert Einstein, Golda Meir and Chaim Weizmann. Dalin believes that to “deny and delegitimize their collective memory and experience of the Holocaust,” as some have done, “is to engage in a subtle yet profound form of Holocaust denial.”

The most obvious source of the black legend about the papacy emanated from Communist Russia, a point noted by the author. There were others with an axe to grind. As revealed in a recent issue of Sandro Magister’s Chiesa, liberal French Catholic Emmanuel Mounier began implicating Pius XII in “racist” politics as early as 1939. Subsequent detractors have made the same charge, working (presumably) from the same bias.

While the immediate accusations against Pius XII lie at the heart of Dalin’s book, he takes his analysis a step further. The vilification of the pope can only be understood in terms of a political agenda — the “liberal culture war against tradition.” . . .

Rabbi Dalin sums it up best for all people of traditional moral and political beliefs when he urges us to recall the challenges that faced Pius XII in which the “fundamental threats to Jews came not from devoted Christians — they were the prime rescuers of Jewish lives in the Holocaust — but from anti-Catholic Nazis, atheistic Communists, and… Hitler’s mufti in Jerusalem.”

I believe that the incessant attacks on religion have helped to push people — especially young adults — away from religion, to the detriment of liberty. It is not surprising that “liberals” tend to be anti-religious, for — as Dalrymple points out — they disdain the tenets of personal responsibility and liberty that are contained in the last six of the Ten Commandments. It is disheartening, however, when libertarians join the anti-religious chorus. They know not what they do when they join the left in tearing down a bulwark of civil society, without which liberty cannot prevail.

Humans need no education in aggression and meddling; those come to us naturally. But we do need to learn to take responsibility for our actions and to leave others alone — and we need to learn those things when we are young. Such things will not be taught in public schools. They could be taught in homes, but are less likely to be taught there as Americans drift further from their religious roots.

Am I being hypcritical because I am unchurched and my children were not taken to church? Perhaps, but my religious upbringing imbued in me a strong sense of morality, which I tried — successfully, I think — to convey to my children. But as time passes the moral lessons we older Americans learned through religion will attenuate unless those lessons are taught, anew, to younger generations.

Rather than join the left in attacking religion and striving to eradicate all traces of it from public discourse, libertarians ought to accommodate themselves to it and even encourage its acceptance — for liberty’s sake.

Today’s Wisdom . . .

. . . comes from Tom Smith of The Right Coast:

I find the hostility towards the Tea Parties from libertarians hard to understand. These people appear to generally favor small government. Yes, they have differences on some issues, but they are much closer to libertarians than anyone else.

The only explanation that I can see for the hostility is based on a cultural view of libertarians — most of the libertarians think of themselves as part of a cultural elite and therefore reject the Sarah Palins of the world. (I don’t mean to speak of Sarah Palin in particular, but of the Tea Partiers from her socio-economic group.) Sad, very sad. One would think that liberty would be more important to libertarians than self-image, but perhaps not. Let’s hope I am wrong and the libertarians are warming to the Tea Partiers.

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