Why I am Not a Libertarian

I did not haphazardly choose Cato as the inspiration for this blog’s name or for my pseudonym. Both the historical Cato as well as the collective of Gordon and Trenchard are inspirational figures. The latter, in particular, are truly the forerunners of the American Revolution and the ideals of the early American republic. These are ideals that, I believe, have been abandoned by the majority of Americans on both sides of the spectrum.

I am not a libertarian, though I am about as close to being one as you could be without actually being one. Am I a classical liberal? Perhaps that’s a better descriptor. Whatever the case may be, I have never been a full-fledged libertarian, and so-called libertarians do their damndest to regularly remind me why I never will be one. Two recent controversies remind me why.

Let’s take the more serious issue first. Recent anti-abortion bills have passed in Georgia and Alabama. The former prohibits abortion once a heartbeat has detected. Alabama’s law is more sweeping, completely banning abortion except in cases where the mother’s life is at risk.

There are prudential reasons even pro-lifers object to these laws. These laws will almost certainly be struck down by lower courts, and there is no guarantee that the Supreme Court will take up the cases. And if it did, there’s a better than even chance that the Supreme Court will not vote to overturn Roe v. Wade.  Clarence Thomas is arguably the only bedrock certain vote against Roe, though Alito would likely join him, as Gorsuch probably would. Justice Kavanaugh and especially Chief Justice Roberts, however, seem to be of the judicial temperament that would incline them against overturning Roe. Therefore we’re back to the drawing board, and arguably we could take a step back.

David French is one of the few voices against restraint, and I agree with him. I think he’s particularly correct in suggesting that instead of simply upholding Roe and laying the hammer down on these states, the justices could work out a middle-ground that modifies the Casey decision. While Kavanaugh and Roberts are temperamentally conservative jurists, I would guess they also do not agree with the Roe decision. I don’t think they would vote to uphold it, full-stop.

While I might understand these prudential concerns, I am much more distressed by some of the feedback from the larger pro-life community. Here’s one example, from Guy Benson.

“I’m pro-life but a bill that actually bans abortion is too extreme.” What? This is incoherent to me. This is more than a pragmatic objection and gets to the heart of the debate. If you’re pro-life, then what exactly are you supposed to be fighting for? This isn’t some debating society thought experiment we’re talking about. The ultimate aim of the pro-life movement is to, you know, ban abortion. This may come as a surprise to some people who call themselves pro-life, but pro-lifers view unborn children as human beings endowed with the right to live. An abortion is thus the deliberate taking of human life. This is not some icky thing we disapprove of but otherwise tolerate legally because we recognize humans must be free to act as they choose. That freedom to choose ends when that choice necessitates killing another person. This is one of the basic building blocks of human society, and I thought it was a sentiment shared by all pro-lifers. Evidently not, because when confronted by the logical conclusion of their position, they are suddenly balking.

Others, however, don’t even bother trying to defend the sanctity of life. The twitter user by the name of neontaster offers up what I think is the position of many libertarians:

So let’s get this straight – it’s not a life deserving of legal protection unless it can survive outside the womb. Of course, this is an even more obscure standard than the heartbeat standard. Medical advances continually reduce the age by which fetuses can survive outside the womb. Fetsuses as young as 21 weeks have now survived. So is the standard the lowest possible age a fetus can live outside the womb? The lowest typical age it is likely to survive?

Aside from being an impossible standard to apply, it’s not logical from a moral and legal standpoint. Either the fetus is a human life or it is not. Its dependence on the mother for continued existence doesn’t diminish this reality.I won’t even get into argument that, taken to its logical conclusion, this would be an argument for permitting the murder of any child up to about age 18, or any special needs child, or anyone dependent on another life. I’ll grant neontaster’s distinction about the ability to live outside the womb, although logically this distinction doesn’t really add up when you think about it. If the child cannot survive without my ability to nurture it, how does that make it any less dependent? Sure, a mother can beg off once the child is born, but the child is still dependent for quite a long time. But, again, for the sake of argument I’ll just grant this distinction. It still fails to address the fundamental humanity of the unborn child. A legal standard that permits abortion as long as the child cannot live outside of the mother’s womb is still a legal standard that permits murdering human life. There is no law if this is law.

Unfortunately this is the standard argument of many libertarians. Some, such as Rand Paul, reject this form of thinking, but they are in the minority. As long as libertarians cherish bodily autonomy at the expense of defending human life, then this is a movement I want no part of.

Another issue where I depart from libertarians, at least in part, is on foreign policy. A kerfuffle surrounding Senator Tom Cotton’s remarks about potential war with Iran is what reminds me of the extremism of the libertarian position. Here is a link to a tweet in which the video is embedded.

Cotton is asked if we could win a war with Iran, and he replied, instantly, that we would. He adds, “Two strikes. The first strike and the last strike.” In the rest of the clip he then clarifies that he does not in fact want war with Iran. The question which was postulated was based on a scenario in which Iran struck us or our allies first. Cotton makes it very clear that he doesn’t want war and wants to exhaust every peaceful solution possible. He things regime change ought to happen, but that it isn’t going to come because we sparked a war with Iran. His response, again, was predicated on whether we would win the war.

This naturally outraged many who accused Cotton of being some neocon warmonger.

Cotton’s “two strikes” comments are admittedly worrisome. A particularly negative interpretation is that he’s talking about nuclear strikes. If not, he is perhaps widely over-estimating the ease with which we would win a military confrontation with Iran. Whichever interpretation you go with, Cotton’s remarks on this score merit criticism. But beyond that, the blowback is hysterical.

First of all, there seems to be a wide contingent of Americans who seem offended by the notion that someone would dare to be confident about America’s military capabilities. Yes, how dare a sitting US Senator think America could win a war – the nerve of the guy. Better for Senator Cotton to respond that America would curl into the fetal position and immediately surrender were Iran to attack us. That’s the sort of 21st century American spirit we have come to know and love.

The rest of the criticism comes from those who have not seemingly watched the entire clip – in other words, the overwhelming majority commenting on it. To accuse Cotton of being some kind of neocon warmonger based on these remarks is a calumny. He does not in any way indicate some desire for pre-emptive war. But to an increasing number of Americans – both on the libertarian side and for large swathes of the right – any mention of military action, even theoretically, sends them into paroxysms of rage. To even think about a military action, even a theoretical one based on the idea that we’ve been attacked by a foreign power, is basically the same thing as wanting to just bomb every country in existence.

Noah Rothman doesn’t exactly address this specific video, but he writes about this general sentiment in Commentary. He shoots down this notion that there’s just some large neoncon cabal itching to fight endless wars.

Rothman is hardly a fan of this administration, but he gets it right. While the Trump administration (and one would think any rational human being) wants regime change in Iran, military action to achieve it would be counter-productive.

Sadly our conversations around foreign policy seem to assume there are only two options: Paulite isolationism or McCain-like bellicosity. There are, in fact, other approaches. A reasonable approach – okay, my approach – is to be incredibly circumspect about military action without completely abandoning the possibility that we might, as a last resort, have to engage militarily with other countries. Discussing the potential of what might happen were we to engage in military conflict doesn’t mean you’re actively pursuing that agenda.

Again, not all libertarians necessarily subscribe to the extremist “don’t even think about it” approach to potential military entanglements, but this is certainly the view of the overwhelming majority. What’s more, for some it seems to go beyond mere principled opposition to military conflict and becomes an almost paranoid fear of the subject, and even a subtle deprecation of the American military.

I’m sympathico with much of the libertarian agenda, but these are just some of the reasons why I will never be a libertarian myself.

 

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Cato and the Origins of Government

Thomas Gordon and John Trenchard, aka Cato, covered a lot of ground in three years, but several themes kept-emerging, and would sound familiar to students of early American political thought. This post will cover Cato’s musings on the origins of civil society, and the purposes for which man consents to be governed by others.

There are certainly echoes of John Locke in Cato’s writings, though neither Gordon or Trenchard delve as deeply into the concept of the state of nature as does Locke or even Hobbes. But Cato sees the origins of government in Lockean terms. In the 11th letter, Cato (here Gordon) writes*:

Salus populi suprema lex esto: That the benefit and safety of the people constitutes the supreme law, is an universal and everlasting maxim in government; It can never be altered by municipal statutes: No customs can change, no positive institutions can abrogate, no time can efface, this primary law of nature and nations. The sole end of men entering into political societies, was mutual protection and defence; and whatever power does not contribute to those purposes, is not government, but usurpation.

This minimalist interpretation of the origins of political society is certainly in accord with a Lockean conception of government. Yet Cato concedes that governments may retain the power to punish transgressions which are not statutorily unlawful. Rogues may devise ways to violate “the laws of God and nature” that nations do not have the foresight to prevent. Nations should not be powerless to punish these transgressions, as England’s legislature has done, though only in extraordinary circumstances. “Jove’s thunderbolts were only launched against such as provoked the thunderbolts of Jove.”

Nonetheless, punishing transgressors of the law is the primary purpose for which governments are instituted, a sentiment repeated in the 20th letter: “Parcere subjectis & debellare superbos; to pay well, and hang well, to protect the innocent, and punish the oppressors, are the hinges and ligaments of government, the chief ends why men enter into societies.”

Considering the limited aims of government, personal liberty is at a maximum in Cato’s conception of civil society. In future posts we’ll look more closely at Cato’s views on freedom of speech and religion, but for now we’ll just look at the principles Cato lays down, best expressed in letter 62:

By Liberty, I understand the Power which every Man has over his own Actions, and his Right to enjoy the Fruit of his Labour, Art, and Industry, as far as by it he hurts not the Society, or any Members of it, by taking from any Member, or by hindering him from enjoying what he himself enjoys. The Fruits of a Man’s honest Industry are the just Rewards of it, ascertained to him by natural and eternal Equity, as is his Title to use them in the Manner which he thinks fit: And thus, with the above Limitations, every Man is sole Lord and Arbiter of his own private Actions and Property.–A Character of which no Man living can divest him but by Usurpation, or his own Consent.

The entering into political Society, is so far from a Departure from his natural Right, that to preserve it was the sole Reason why Men did so; and mutual Protection and Assistance is the only reasonable Purpose of all reasonable Societies. To make such Protection practicable, Magistracy was formed, with Power to defend the Innocent from Violence, and to punish those that offered it; nor can there be any other Pretence for Magistracy in the world. In order to this good End, the Magistrate is intrusted with conducting and applying the united Force of the Community; and with exacting such a Share of every Man’s Property, as is necessary to preserve the Whole, and to defend every Man and his Property from foreign and domestick Injuries. These are the Boundaries of the Power of the Magistrate, who deserts his Function whenever he breaks them. By the Laws of Society, he is more limited and restrained than any Man amongst them; since, while they are absolutely free in all their Actions, which purely concern themselves; all his Actions, as a publick Person, being for the Sake of Society, must refer to it, and answer the Ends of it.

This is perhaps an even more libertarian conception of government than Locke’s. Indeed, later on this letter Cato develops a very narrow view of permissible governmental action.

And it is as foolish to say, that Government is concerned to meddle with the private Thoughts and Actions of Men, while they injure neither the Society, nor any of its Members. Every Man is, in Nature and Reason, the Judge and Disposer of his own domestick Affairs; and, according to the Rules of Religion and Equity, every Man must carry his own Conscience. So that neither has the Magistrate a Right to direct the private Behaviour of men; nor has the Magistrate, or any body else, any manner of Power to model People’s Speculations, no more than their Dreams. Government being intended to protect Men from the Injuries of one another, and not to direct them in their own Affairs, in which no one is interested but themselves; it is plain, that their Thoughts and domestick Concerns are exempted intirely from its Jurisdiction: In Truth, Mens Thoughts are not subject to their own Jurisdiction.

Idiots and Lunaticks indeed, who cannot take Care of themselves, must be taken Care of by others: But whilst Men have their five Senses, I cannot see what the Magistrate has to do with Actions by which the Society cannot be affected; and where he meddles with such, he meddles impertinently or tyrannically. Must the Magistrate tie up every Man’s Legs, because some Men fall into Ditches? Or, must he put out their Eyes, because with them they see lying Vanities? Or, would it become the Wisdom and Care of Governors to establish a travelling Society, to prevent People, by a proper Confinement, from throwing themselves into Wells, or over Precipices; Or to endow a Fraternity of Physicians and Surgeons all over the Nation, to take Care of their Subjects Health, without being consulted; and to vomit, bleed, purge, and scarify them at Pleasure, whether they would or no, just as these established Judges of Health should think fit? If this were the Case, what a Stir and Hubbub should we soon see kept about the established Potions and Lancets? Every Man, Woman, or Child, though ever so healthy, must be a Patient, or woe be to them! The best Diet and Medicines would soon grow pernicious from any other Hand; and their Pills alone, however ridiculous, insufficient, or distasteful, would be attended with a Blessing.

It’s easy to see why the Cato Institute may have chosen its name. Essentially, according to Cato, as long as a man is not harming anyone else, government should not interfere in his actions. Considering this narrow prescription, governments that step outside of their lawful authority become illegitimate. Circling back to the 59th letter, Cato writes:

All governments, under whatsoever form they are administered, ought to be administered for the good of the society; when they are otherwise administered, they cease to be government, and become usurpation. This being the end of all government, even the most despotick have this limitation to their authority: In this respect, the only difference between the most absolute princes and limited magistrates, is, that in free governments there are checks and restraints appointed and expressed in the constitution itself: In despotick governments, the people submit themselves to the prudence and discretion of the prince alone: But there is still this tacit condition annexed to his power, that he must act by the unwritten laws of discretion and prudence, and employ it for the sole interest of the people, who give it to him, or suffer him to enjoy it, which they ever do for their own sakes.

Man is naturally born in a state of liberty, and he cannot alienate this freedom by consent. The magistrate has a narrow scope under which he can punish.

The right of the magistrate arises only from the right of private men to defend themselves, to repel injuries, and to punish those who commit them: That right being conveyed by the society to their publick representative, he can execute the same no further than the benefit and security of that society requires he should. When he exceeds his commission, his acts are as extrajudicial as are those of any private officer usurping an unlawful authority, that is, they are void; and every man is answerable for the wrong which he does. A power to do good can never become a warrant for doing evil.

This is, once again, a fairly Lockean conception of government. We enter into civil society and convey to the magistrate the right to punish transgressors of the law – those who violate the property and personal rights of others. Beyond this, the magistrate’s power is quite constrained.

This brings us to the precipice of a central question: what recourse do citizens have if the magistrate exceeds his rightful authority? Cato’s answer to this question is one which would reverberate decades later in colonial America, and we’ll address that in the future as well. In the meantime, observe what Cato has to say on restraining the natural impulse of magistrates to exceed their authority in letter 60:

The only Secret therefore in forming a Free Government, is to make the Interests of the Governors and of the Governed the same, as far as human Policy can contrive. Liberty cannot be preserved any other Way. Men have long found, from the Weakness and Depravity of themselves and one another, that most Men will act for Interest against Duty, as often as they dare. So that to engage them to their Duty, Interest must be linked to the Observance of it, and Danger to the Breach of it. Personal Advantages and Security, must be the rewards of Duty and Obedience; and Disgrace, Torture, and Death, the Punishment of Treachery and Corruption.

Cato will repeat this theme frequently in his letters. If rulers govern for their own sake, and care only for their own gain, then they will be prone to abusing their authority. As long as magistrates are concerned primarily with the common good, then the governed will have less to fear.

What’s notable about these letters and their conceptions of the origin of government is how much they presage the Framers. It is impossible not to hear echoes of Publius in these words, or in the words quoted further up above regarding “checks and restraints appointed and expressed in the constitution itself.”

These are radical words: perhaps more radical than Locke, and certainly more radical than Hobbes. This is a libertarian vision of government in which the sovereign authority is extremely constrained, and where checks and limits of said authority are ingrained in the constitution. Hobbes would not have countenanced such a limit on the sovereign’s authority, whereas Cato has made clear that abuses of the sovereign authority justify revolution. But more on that next time.

* The text I am using has kept much of Cato’s original grammatical structure.