[cross-posted at Liberty & Power]
As promised, here’s my follow-up post on the exchange between David Gordon and Charles Johnson over the merits of Ron Paul’s candidacy. (To see the context of the following excerpts, see here, here, here, here, here, here, here, here, and here – apologies if I missed any installments.)
Abortion and Federalism
DAVID: One critic of Ron Paul has admitted that Roe v. Wade is bad law but thinks we should somehow get to the “correct” pro-abortion view. Is this not to surrender the possibility of constitutional limits on the federal government?
CHARLES: Yes. So what? Anarchists don’t believe in constitutional government.
DAVID: Anarchists oppose a monopoly state, but it hardly follows from this that if there is a government, anarchists shouldn’t be concerned with restraining it.
CHARLES: But I do not claim that anarchists shouldn’t be concerned with restraining actually existing governments. … But if constitutional government has no special claim on our allegiance with respect to its legitimacy, then restraining government through the instrument of a written constitution is, at the most, a pragmatic strategy which should be pursued or abandoned in any given case according to its likelihood of success. … But if the question is one of practical prospects, then the strategy of trying to restrain the federal government through the instrument of the United States Constitution has already been empirically tested, and it has already failed. …
Since I am an anarchist, I regard the U.S. constitution as having no color of legal authority, so I don’t much think that there is a “right way” or a “wrong way” to read the Constitution in legal contexts. … To the extent abortion laws are invasions against the liberty of pregnant women to dispose of their own bodies as they see fit, a ruling that repeals those laws is a good ruling, even if it doesn’t line up with a literalist reading of the Constitution.
DAVID: Even if one thinks that women have an unlimited right to abortion, it does not follow that the federal government should enforce this right. People are under no obligation to enforce anyone’s rights, and it doesn’t violate libertarian principles to think that the federal government should be denied standing in this area.
My take: Part of what’s at issue between Charles and David is whether being pro-choice on abortion means favouring federal imposition of pro-choice policies on the states. Certainly David is right that favouring a given policy doesn’t necessarily imply favouring its imposition by the federal government on the states; after all, most of us wouldn’t want the United Nations to be empowered to impose libertarian laws on the U.S. But on the other hand, the case for general decentralisation doesn’t automatically translate into support for turning any particular issue back to the states. Just as whether deregulation counts as a move toward or away from liberty depends on the extent to which the deregulated industry remains the beneficiary of state privilege, so whether turning any particular issue back to the states counts as a move toward or away from liberty depends on the extent to which the states remain entangled with the federal government. As I’ve written elsewhere:
Since neither the central government nor the member states can be counted on to be consistently libertarian, I favour decentralisation simply because it allows for more competition: if Alabama passes a crummy law there’s the hope that I can move to some other State with better laws, whereas if the Federal judiciary imposes a crummy decision on the entire country then my ability to vote with my feet is much weaker. … So as a matter of general policy the Federal government ought to follow a hands-off policy toward State-level legislation. … In the actual world, however, where federalism does not remotely reign as it should, it is by no means clear that refusing to strike down local legislation is the decision we should hope for. … [I]t is an anachronism to think of our State governments as in any serious sense counterweights to Federal tyranny. While Federal and State governments may clash from time to time … for the most part the State and Federal governments are entwined into a single criminal organisation that oppresses us.
Hence I would favour turning abortion back to the states if doing so were part of a thoroughgoing overall shift in power from the federal government to the states. In the absence of such a shift, though, I see the states as little better than administrative departments of the federal government, and if one branch of the Leviathan wants to prohibit abortion, I would prefer to see it checked by another branch. This is one of the many cases where what would be a move toward liberty if implemented completely becomes a move away from liberty if implemented partially. (By the same principle, tax credits for everybody who wants to buy body armor might be acceptable, but tax credits just for cops to buy body armor makes things worse.) Thus one can agree in principle with David’s case for decentralisation and still agree with Charles that as things stand, Roe v. Wade is a good thing.
What are the implications for Ron Paul’s candidacy? Unlike many Republicans who agree with him in wanting to return abortion to the states, Paul does favour a “thoroughgoing overall shift in power from the federal government to the states” – which makes his abortion policy less objectionable to me than theirs. But would a Paul presidency actually result in such a thoroughgoing federalism? Or would it be more likely, given the political context in which he’d be operating, to result in only a partial federalism of the kind that I’ve argued would make things worse? That’s harder to say.
I’ve heard some Paul supporters say that Paul as president would have relatively little influence on abortion policy, so pro-choice libertarians should have no objection to voting for him. That’s a fair argument, but of course it works both ways; how much influence would Paul as president be able to have on federalism itself? (I suppose that might depend on how many Supreme Court vacancies might arise during his term.) It’s also worth noting that Paul evidently favours banning abortion at the state level. If helping to spread a general libertarian attitude is part of the reason to support Paul (as Paul’s supporters often argue), then worries about spreading a general anti-abortion attitude would logically have to be part of the reason not to support him. How those competing considerations weigh out is a trickier issue.
DAVID: Free immigration combined with a welfare state is a dangerous brew: does it make sense to reject Ron Paul because he cannot accept it?
CHARLES: It may be true that when you combine something fundamentally moral – free immigration – with something completely immoral – a coercive welfare state funded by expropriated tax funds – you’ll get bad consequences from the combination. But that’s a good reason to try to limit or eliminate the immoral part of the combination, by undermining or dismantling the apparatus of taxation and government welfare. It’s certainly not a good reason to try to limit or eliminate the moral part of the combination by escalating the federal government’s surveillance, recording, searching, beating, jailing, and exiling innocent people.
DAVID: He points out that some efforts to restrict immigration use violence against people; and he is right that here lies danger. Libertarians who favor immigration restrictions need to specify exactly what measures they think permissible. Ron Paul doesn’t favor beating and jailing people.
CHARLES: Of course Ron Paul does favor beating and jailing people in the name of his immigration control policy. He favors the creation and enforcement of federal immigration laws, including a paramilitary lock-down of the land borders, aggressive enforcement of the existing visa system, and the continued criminalization (“no amnesty”) of currently undocumented immigrants. He also favors the necessary means to these ends: border walls, paramilitary border patrols, government immigration dossiers and employment papers, internal immigration cops, detention centers, and all the other necessary means to interdicting, discovering, arresting, jailing, and deporting people who try to live and work peacefully in the United States without a federal permission slip for their existence. If you don’t believe that this process necessarily involves violent means, then just try to cross the border without government papers and see what happens to you.
DAVID: I don’t think one should accuse Paul of supporting immoral conduct unless one has clear evidence that he does. Perhaps he disagrees that such measures are necessary to enforce the restrictions he wants. If it turns out that restrictions do require such tactics, why assume that he would use them rather than abandon the restrictions?
David’s position seems a bit odd to me. He is technically correct, of course, that Paul conceivably might favour some noncoercive means to his immigration ends. If Ron Paul were being tried in a court of law (perhaps the sort of tribunal Walter Block fantasises about convening after the revolution), then sure, the burden of proof would lie with those who claim that he must favour immoral means to his ends. But Ron Paul is asking us to entrust to him the supreme executive power of the world’s most powerful nation; in that context surely the burden of proof rests with him and his supporters to show that, unlike just about everyone else who opposes open-borders, Paul favours some unknown and never-hinted-at noncoercive means of securing compliance with immigration laws (perhaps really big signs saying “Immigrants, please go away”?).
DAVID: I do not contend that [closed borders] is the best libertarian view, only that it isn’t clearly unlibertarian. Charles vehemently disagrees. It is clear from his articles on this site that he regards restrictions on immigration as morally abhorrent. If he is right, though, it doesn’t follow that these restrictions violate libertarian principles. Not everything immoral is also unlibertarian.
First, I’m not sure why it matters whether a view is clearly unlibertarian or not. Suppose it is unlibertarian in fact, but not “clearly” so – meaning, I suppose, that the case for its being unlibertarian is complex or not obvious. This might be relevant if we were trying to decide whether Paul is intellectually culpable for reaching the wrong conclusion; but I didn’t think that was what we were doing. (For more on this see here.)
Second, while it’s true that not everything immoral is unlibertarian, a) Charles does argue not just that restrictions on immigration are immoral but that they are unlibertarian, and b) even if they were immoral but not unlibertarian, advocacy of an immoral policy would presumably be a reason not to vote for someone.
CHARLES: It’s perfectly likely that at some point in the upcoming years, Congress might pass a declaration of war in the name of bogus “national interests” in order to spread the slaughter into Iran or North Korea. At this point, President Ron Paul has two options:
1. He can fulfill his Constitutionally-enumerated role as commander-in-chief of the military, and prosecute the imperial war that Congress has ordered him to prosecute; or
2. He can refuse to fulfill his Constitutionally-enumerated role, by sitting on his hands and refusing to prosecute the war in any way even though Congress has declared it, on the grounds that there is a higher law than the Constitution ….
Which would he be willing to do?
DAVID: Grover Cleveland said that even if Congress declared war against Spain, he would, as Commander-in-Chief, refuse to enforce the declaration.
Good for Grover Cleveland, but what would Ron Paul do? For the reasons mentioned above, the burden seems to lie with Paul’s supporters to give reason to expect (2) rather than (1).
DAVID: Oddly, some of the same people who condemn Ron Paul for apostasy are themselves so devoted to “left libertarianism” that they subordinate libertarian principles to certain cultural values. They favor gender equality and are concerned lest we think ill of certain preferred minority groups. Libertarianism, they think, will best promote these values, and this fact is for them a chief reason to support libertarianism. … Does not the question then arise, should libertarianism be subordinated to these values?
CHARLES: First, I don’t think that libertarianism should be “subordinated to certain cultural values” such as radical feminism. I believe that libertarianism, rightly understood, is both compatible with and mutually reinforcing with the cultural values of radical feminism, rightly understood.
Second, “libertarianism” is not conceptually equivalent to “actively supporting the most libertarian candidate in a government election.” Libertarianism is a theory of political justice, not a particular political party or candidate. If one invokes feminist, anti-racist, or any other reasons not to actively support Ron Paul’s candidacy, those reasons may be good reasons or they may be bad reasons. But they are reasons for subordinating one particular strategy for libertarian outreach and activism – a strategy which, by the way, has basically zero empirical evidence whatever in favor of its effectiveness – to other concerns. But so what? There’s no reason for libertarians, and especially not for anarchists, to treat government elections as the be-all and end-all of libertarian principle.
DAVID: Johnson correctly claims that the concept of libertarianism doesn’t imply political support for libertarians in elections. I think, though, that if someone who defends political action refuses to support Ron Paul just because he is not a left libertarian, then he is subordinating libertarianism to leftist views.
CHARLES: There is no reason for principled libertarians to treat a candidate’s overall level of libertarianism as the sole or the decisive or even the most important criterion in choosing whether to vote for that candidate, or someone else, or nobody at all. Insofar as voting has any worth at all for anarchists, it is only instrumentally, as a means of defense against government invasions of your own or the liberty of other people you are concerned for. But there’s no guarantee that that end will always be best served by adopting the candidate’s overall level of libertarianism as the sole or the decisive criterion for supporting that candidate.
Part of what’s at issue here is the relation between libertarianism and other values. Charles believes (as do I) that libertarianism is allied to other values by various kinds of “thickness,” such as application thickness (where values other than non-aggression are needed in order to determine how to apply the non-aggression principle), instrumental/strategic thickness (where values other than non-aggression are causal preconditions for the stable implementation of the non-aggression principle), and grounds thickness (where values other than non-aggression are supported by the best reasons for accepting the non-aggression principle, so that one couldn’t reasonably reject them while accepting it). (For more on these and other forms of libertarian thickness, see here and here.) Charles also believes (as again do I) that various values traditionally associated with the left are among those that libertarianism is thickly related to. If any of that is correct, then the fact that a given libertarian candidate does not share those values is going to be not just a lefty reason but a libertarian reason (not necessarily a decisive reason, but surely some, perhaps defeasible, reason) not to support his candidacy – and not a matter of subordinating libertarianism to other values.
DAVID: I maintained that some left libertarians subordinate libertarianism to their leftist views. He wonders whether my remarks were directed against a paper written by him and Roderick Long and defends himself against the subordination charge. My remarks were not about his paper, which is about the compatibility of libertarianism and feminism and doesn’t discuss support for non-leftist libertarians.
I suspect the reason Charles thought David might have had our paper in mind is that in that paper we defend not just the compatibility of libertarianism with feminism, but more strongly their being thickly related; we argued in particular that statism and patriarchy were part of an interlocking, mutually reinforcing system, so that one could not effectively combat one without combating the other. If that’s right, then the fact that a given libertarian candidate is not also, e.g., a feminist candidate is going to be reason (again – not necessarily decisive reason, but surely some, perhaps defeasible, reason) to regard his candidacy as an unpromising method of advancing libertarianism.
There are also questions here about electoral strategies in general, but I’ll save those for part 3.