Rand Paul has gotten libertarianism wrong again. Despite the fact that he has attempted at times to throw off the libertarian label as too limiting and ultimately inaccurate in describing the whole of his political philosophy, Paul has also clearly embraced the label many times. More importantly for our discussion, many movement libertarians have embraced Paul as a movement leader, giving the initial fundraising momentum necessary to Paul’s political success. So why is Paul seemingly so intent on violating whatever limited principles libertarianism might hold?

It’s no surprise that most libertarians are doing libertarianism wrong of course: most of us don’t think through most of our positions, even many times on important issues. There simply are too many important issues for us to be educated or even thoughtful about every single one. I’m sure I do progressive queer feminism wrong many times as well. In fact, that’s part of the reason why I’ve chosen the life path that I have, with its focus on study that permits more time to examine those positions, more exposure to knowledgable, thoughtful takes on important issues I haven’t yet considered, and more support for rethinking issues that one had previously thought settled.

Nonetheless, you don’t exactly expect movement leaders to do that movement wrong. If a person wasn’t competent on issues important to a movement why would that person have been accepted as a leader?

 

Still, merely as a human phenomenon, it has to occur sometimes. If it was merely a general human failing, however, the phenomenon of doing one’s own movement wrong would be evenly dispersed among all social/community endeavors. Yet it seems to be (from my outsider’s perspective) particularly common among specific movements. Mass animal releases are uncommon and as far as I know are probably discouraged by animal rights movement leaders, but we can still use them as an example of left-wing activists doing their movement wrong. An even more classic example is the Christian doing Christianity wrong, but there are a lot of Christians and a lot of Christianities, and the attention given to such hypocrites in circles I travel might be disproportionate. Perhaps the availability heuristic is causing me to think this is more common than it is?

So that said, why does it seem so common that libertarian heroes do libertarianism wrong? Is it just the availability heuristic again, fueling a particular train of thought similar to this:

I remember famous libertarian hypocrites, so (falsely or not) I  believe the phenomenon more common among libertarians.

Is it that there are, indeed, some libertarian realists who choose against libertarianism when implementing libertarianism is impossible because of the will of the greater electorate (possibly justifying this with the possibility that the non-libertarian policy is a stop-gap until a majority of truly libertarian lawmakers can be elected by a more educated/better persuaded electorate)? Libertarianism seems so far off the range of “realism” it’s hard to see how libertarian realism might itself be tolerated among the movement’s leaders, but it’s a possibility to consider.

My favorite hypothesis is that libertarianism is simply incoherent, and so it is inevitable that incoherent sets of decisions emerge from the thinking of even libertarianism’s best and brightest. For me the most persuasive example of libertarianism’s fundamental incoherence is the desperate prioritization of tort over other forms of ameliorating widespread harms within a society.

In the many cases of domestic violence and child abuse, there is no harm cognizable by tort law. In marriage, an economic unity is created, and what is an economic harm to one spouse is an economic harm to the other. Likewise, one spouse “paying” another damages is meaningless, because the spouse doing the paying has equal access to the money after “payment” has been made. The situation is worse when a parent (or a sibling who is still under 18) abuses a child, as the economic losses cognizable by courts are actually the parents’ economic losses. The child is simply not legally competent to enter contracts and thus can’t truly be said to “own” money in a bank account and, by various complex extensions, virtually anything else. In the libertarian schema, abusive parents, or parents of a child abused by another of the same parent’s children, end up owing the money to themselves. The abused child gets nothing. Libertarians seem mostly ignorant about this point, though when confronted with it they rarely actually deal with it. This of course makes one wonder if those libertarians actually care that domestic violence or child abuse become more rare over time. And let’s not mince words: domestic violence within a marriage and child abuse by a parent or sibling together include a huge number of rapes that are not cognizable to the law.

Libertarians account for their fundamental opposition to any government by a philosophical commitment to limiting aggression. But does it do so? By relying on tort law to redress harms caused by aggression, social recognition of marriages and parenthood become licenses to commit near-infinite aggression. It is not surprising that most acts of simple aggression of the kind recognized by libertarians are actually committed intrafamily. How many times have you been hit in your lifetime? Of those, how many blows were struck by a sibling or parent? The majority of assaults inflicted on a member of society are inflicted before a person reaches the age of 18 – usually well before, though at the individual level this can vary quite a bit. So, sure, we can imagine that one adult punched by another adult could sue the puncher and perhaps gain some measure of justice, but this will be the minority of punches thrown.*1 Of the kind of overt, simple-to-understand instances of aggression with which libertarianism is equipped to deal, the chosen solution provides little to no deterrence in the vast majority of cases. Worse, it provides literally no opportunity for justice in those same non-deterred cases.

This shows that even where the chosen solution is intended to work, it fails badly because libertarians simply have not thought through the nature of violence. They fail to reflect even on their own experiences (much less well-conducted research) which would guarantee that most libertarians would recognize the problem of where and how most assaults occur. But of course, they fail to think through their theories on other important issues as well. Torts have been framed as a solution to problems such as pollution. Pollution is often (in this frame) but not always framed as another form of aggression because acts are taken by one person that harm others. But pollution is not aggression in any familiar sense because rarely (if ever) is harm intended in the way that notions of aggression typically require.

Pollution’s harms are also not easily compensated: while depression of property values can be well-measured after a paper mill opens up next door, most people who develop cancer can’t be certain exactly which life events or which genetic predispositions or which environmental exposures can be blamed. For the philosophers among us, if more than one cause was necessary, and no necessary cause was sufficient, who is responsible for how much money? What if two (or more) things do not independently qualify as either necessary or sufficient causes, but together become a sufficient or necessary cause when they co-occur?

Finally, there are many occasions where the risks of a substance used in a course of business are not actually known (or at least not well understood) by a business owner. To what extent should intent to harm be incorporated in this area of law? If intent to harm is de-emphasized, then pollution would seem not to count as aggression and is ill-justified as a potential tort on libertarian grounds. If a tortfeasor’s intent to harm is required to prove a claim, the primacy of limiting aggression is maintained at the expense of actually limiting aggression. This is true not least because proving the state of mind of another person can be as difficult as proving the causes of a particular person’s cancer.

But whether we are attempting to prevent or compensate harm or whether we are attempting to prevent or compensate aggression, in either case a government’s regulation of sources of pollution presents, to the libertarian mind, a very real diminishment of the freedoms of businesses (and, rarely in pollution regulation, persons). One can either frame this as one large intrusion on the freedom of a business or many small intrusions, but either way the research is now in that a single source of pollution can easily harm thousands of individuals. If respiratory infections increase because of a local source of pollution, then in some percent of cases of respiratory infection, individuals lose a lot of freedom for one or more days. If we’re limiting the total number of harms or aggressive acts in a society, where regulation requires fewer harms (or aggressions) than it prevents, libertarianism should be for regulation. Since, in fact, in industrialized, urbanized democracies these are exactly the situations in which regulation typically occurs, then libertarians should be for well-written regulations. Yet they are not. Sad.

All this is to say that libertarians are pro-freedom from aggression/harm in exactly the same way that anti-abortionists are pro-life. When presented with the real world data on what actually leads to more harms and more acts of aggression in a society, libertarians respond in the same way that pro-lifers respond when presented with real world data on what actually leads to fewer abortions. It’s hard to know exactly why this might be, but part of the answer might lie in simple self-centeredness. If a particular policy is better for society but not better for me, I might be tempted to oppose it. Libertarianism is particularly popular among business owners, and regulations of the sort that are commonly vocally opposed by libertarians are commonly imposed on businesses, oftentimes only business above a certain size. If the hypothesis of self-centeredness has merit, libertarianism as constructed and practiced would be expected to disproportionately benefit those who create and maintain it. This is exactly what we find.

Yet this is also a very human thing. We can’t say that a movement is less valuable merely because we know that its largest benefits would flow to its staunchest adherents. Charles Hamilton Houston’s anti-racist legal work isn’t less valuable because Houston and his most famous protege, Thurgood Marshall, were both Black. Nonetheless, there is an intuition that there is some reasonable consideration to be had in asking cui bono?

Though Houston’s work was fundamentally anti-racist, and though it could be said to benefit him in myriad ways as a Black man in a(n anti-Black) racist country, if you look at the important cases that were part of Houston’s long term plan to desegregate schools you can’t escape the fact that  Missouri ex rel. Gaines, Oklahoma Board of Regents, and Sweatt v Painter*2 were all cases against law schools that came long after Houston had obtained his law degree, and that the ultimate goal, desegregating primary and secondary public education, could never directly benefit any of the adults fighting for justice in Brown and Griffin*3. This is in stark contrast to wealthy libertarians fighting against taxation, who would receive immediate, personal increases in income and/or wealth from implementation of their policies.

So is selfish short-sightedness a major player in the incoherence of libertarianism and, ultimately, the hypocrisy of such a seemingly large number of libertarian leaders? I think the conclusion of reasonable observers must inevitably be yes. Libertarians seem to accept that it is important that we are guided by one or more ethical principles, but do not appear to follow any principle to its logical ends given accurate information about the real world in which such a principle would be applied. Instead, the principles of libertarianism seem only to apply to behaviors of non-libertarians when those behaviors impact libertarians.

In this tradition of selfish ethics, perhaps it is no surprise that Rand Paul has endorsed Roy Moore, a man who hates law and ethics when they stand in opposition to what he wants, yet grips the law fiercely when it seems to form a cudgel with which he can beat his opponents into submission.

Judge Roy Moore has spent a lifetime defending and standing up for the Constitution while fighting for the people of Alabama. We need more people in Washington, D.C. that will stand on principle and defend the Constitution

Paul said in his endorsement. Yet the constitution clearly spells out a hierarchy of law, with the US Constitution and ratified treaties on top, and justice, with federal courts the final arbiters on matters of federal law and the US Constitution. Despite this clarity, Moore has repeatedly violated the orders of federal courts, leading to his removal from the Supreme Court of Alabama not once, but twice. Moore is anything but a defender of the Constitution.

Perhaps, then, this is boilerplate? Perhaps Moore is simply a strong libertarian and movement libertarian praise is motivated by common principle such as maximizing freedom or minimizing aggression, despite being inaccurately phrased as growing out of respect for the constitution?

In a word, no. A libertarian position maximizing freedom would not permit sex (or sexual orientation) discrimination in the issuance of marriage licenses. A libertarian position would certainly not permit Moore’s horrifyingly violent, aggressive, totalitarian and harmful take on queer people engaged in parenting children:

The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward [queer lifestyles], to not encourage a criminal lifestyle

It is a function of libertarian incoherence that Rand Paul could endorse such a man without the movement instantly, loudly, and publicly disavowing Paul completely. I argue that it is a function of the selfishness, the self-centeredness of libertarianism that allows this particular instance of incoherence, where a straight, adult man endorses another straight man who publicly argues that it would be better to kill lesbian, bi and queer women than allow them to visit their children after parental separations.

Of course, maybe libertarians really will be storming the internet to denounce Paul over the next couple of days. But if you’re thinking of spending your time actively searching the internet for movement statements doing just that, I suggest you contemplate the Moa Theory midrash.

 

*1: Even in that minority of cases, no small number will be people not equipped to reimburse the full and just amount that would make the victim whole. In a world ruled by tort, penniless aggressors are beyond the reach of justice and their victims are beyond the reach of aid or comfort.

*2:  Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Board of Regents of Univ. of Okla., 332 U.S. 631 (1948); and Sweatt v. Painter, 339 U.S. 629 (1950)

*3: Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964)