November 4, 2012

The Libertarian’s Dilemma

Which statist candidate should lovers of freedom vote for this Tuesday?

In the final countdown to what promises to be a close election, the libertarian finds himself without a comfortable home in either political party. Political parties and their presidential candidates offer market baskets of policy prescriptions on a large array of different issues. We do not have the option of picking out from each basket the policies that we like and rejecting the rest. Politics do not come served a la carte in our two-party system.

As an academic, my objective is to analyze each package inside each market basket. As a voter, I don’t have that luxury; choosing between baskets means taking the bitter with the sweet. That means voting for a candidate whose policies I may oppose on many key issues. For most voters, those choices are less painful than they are for libertarians. A typical Republican or Democrat believes in most of the policies that his candidate puts forth. For a libertarian, voting for either candidate causes internal philosophical dissonance.

Epstein
Illustration by Barbara Kelley

The source of the puzzle lies in the libertarian attitude toward individual liberty. To put it crudely, Republicans tend to be market liberals and social conservatives, while Democrats tend to be market regulators with mixed sentiments on social issues. Libertarians tend to take the same stance on the market and social issues, which is that state intervention into both should be presumed bad until it can be shown good. In other words, libertarians lean to small government in all policy domains.

How the Left and the Right Go Haywire on Social Issues

With social issues, for instance, one topic of controversy is the complex tangle over abortion rights. For Republicans, Roe v. Wade remains a persistent thorn in the side that should be overruled as soon as possible in favor of a regime that allows for the recriminalization of abortion. Indeed, it appears that the Republican platform goes far beyond opposing abortion on demand. It also appears to rule out abortions that save the life of the mother, or to deal with incest, rape, or hopelessly defective children. It is easy to see why liberal writers like Nicholas Kristof go bonkers over that dogmatic stance. 

Yet it is equally important to note the weaknesses in Kristof’s position. The decision in Roe v. Wade was a constitutional fabrication, which in one move invalidated the laws of every state in the union on legal and philosophical grounds that were insufficient to the task.  It is also a mistake to think that overturning Roe will lead to harsh repression against women’s reproductive rights. For the law prior to Roe was chiefly directed against abortion clinics, not the women who patronized them.

Yet, by the same token, I think that it is a mistake for the Republicans to, as the Romney campaign urges, overturn Roe at this point and return the matter to the states. I believe that this position made sense before Roe was decided. But the decision has been the law of the land for 40 years, and has produced a stable set of expectations that would be shattered in unpredictable ways if the issue went to the states. On abortion, it is indeed hard to choose between dogmatic Republicans and shrill Democrats. Neither can be counted on to keep the temperature down on what has become a very hot issue.

The situation is equally clouded on gay marriage. To many conservatives, the issue is resolved by an appeal to traditional family values and perhaps the Bible. Conservatives have invested vast amounts of resources into defining marriage, by law, as a union between one man and one woman. I have no quarrel with those churches that wish to limit their memberships to persons who follow that definition of marriage. Voluntary organizations should be allowed to choose the composition of their own memberships, and disregard the loud complaints from outsiders that they mend their ways.

But it is quite a different thing for conservatives to use the levers of government power to crowd other individuals out of the marriage field, which is what social conservatives do when they try to make their definition the only game in town. On this point, I am not making any constitutional claim. I’m simply observing that a society works better when the state does not use its power to favor one class of civil unions over another.

Democrats, including President Obama, are even more regulatory and strident than the conservatives on social issues. Consider the contraception mandate that is part of the ObamaCare program. Here, the Democrats want to federally legislate their social philosophy onto the entire nation. They pay no respect whatsoever to the principles of freedom of association or to religious liberty. Their definition of liberty is one that uses government regulation to protect the reproductive rights of women. Like women’s rights activist Patty Stonesifer, Democrats insist that it is unthinkable “to allow a boss's religion or moral conscience to dictate whether insurance plans can cover a female employee's birth control.”

This is an odd place in which to plant the flag of individual liberty. In some of those cases, the boss turns out to be the Roman Catholic Church, whose only claim is that it should not be forced by government action to pay, either directly or through insurers, for medical services that contravene its religious beliefs. The Church gets no support from me if it wishes to outlaw the provision of health-care services that women can buy on their own. But it is a grotesque claim of individual liberty that lets one person coerce any institution against its will because it bears the title of employer. 

In this dispute, the Pledge of Allegiance cases from the Second World War should have taught us that it is dangerous to force an individual to profess loyalty to a cause in opposition to his beliefs. It doesn’t get any better in using state power to force groups to act against their consciences or to be locked out of health-care programs to which they and their supporters are forced to contribute. The tragic point is that the forces of intolerance are today on the rise on both sides of the political divide.

Hazy on the Economy

What about the economic issues that this nation has to face? A central issue here is free trade. The case for free trade rests on the principle of comparative advantage, which says that all nations gain from an open economy in which goods and services flow freely across national lines. Of course, free trade results in job displacement at home when competition comes calling. But it also results in job creation at home by allowing American firms to use foreign inputs to make better products that serve their customers in both domestic and foreign markets.

No one would argue that the government owes anything to a worker whose job is lost to domestic competition. It is foolish to think the same about domestic jobs lost to foreign competition. The key in all cases is to promote a program of overall growth that will generate an ever larger supply of jobs.

So why is Romney running an ad that stupidly claims that the president has “sold Chrysler to Italians who are going to build Jeeps in China,” especially when there are so many better ways to attack Obama’s dubious bailout scheme? The auto bailout snatched Chrysler out of the hands of its creditors in order to dump it into the hands of the president’s close union confederates—who, not coincidentally, are the largest contributors of dollars and services to his campaign.

But Obama has done little to acquit himself well on free trade. In his closing argument written for the Wall Street Journal this past weekend, the president takes the same view that exporting jobs makes America weaker. He claims that “we grow faster when our tax code rewards . . . companies that create jobs in America.” Like the Chicago Tribune columnist Steve Chapman, I hope that both candidates are lying when it comes to trade.

Unfortunately, neither candidate is running as a libertarian on economic issues. But as the election draws near, the best cannot be the enemy of the good. So the hard question is who is likely to do a better job on the economy. In this regard, we can learn nothing from the bland statement of position that Mitt Romney contributed to the Wall Street Journal. Apart from his sympathy for people down on their luck, he promises “real change, big change,” which sounds like the similarly empty promises that the current president used to organize his campaign in 2008.

Comparatively speaking, however, Romney’s bland generalities inspire great confidence when compared to the more specific programs that the president outlines in the Wall Street Journal. Once again, Obama plays a zero sum game. In announcing that we “shouldn't end college tax credits to pay for millionaires' tax cuts,” he acts like these two randomly selected government programs are linked even though they are not.

What he should have instead addressed is whether the high marginal tax rates that are now in place on both individual and corporate wealth are partly responsible for the economic stagnation that we have endured as a nation over the past four years. But, no: the president pulls blinders over that issue as well, citing that we have created 5 million jobs over the past two and a half years, many of which are part-time and low-paid. He doesn’t bother to note that this rate is exceedingly low, given the expansion of the population base during that time.

As Hoover economist John Taylor points out, Obama might have also noted that this weak employment rebound has been accompanied by a consistent decline in the standard of living for most Americans during the past four years, the accumulation of trillion dollar deficits that will prove difficult to service when interest rates turn upward, and a huge expansion in entitlements without any attending effort to restructure Medicare or Social Security.

What is most striking about the president is his intellectual and political rigidity on these issues. He thinks that the art of persuasion works best by repetition and oversimplification. He attributes, for example, the financial meltdown of 2008 to “top down economics,” as if only large private financial institutions bear the blame for the crisis. He makes no mention of the role that the Fed, Fannie Mae, and Freddie Mac played in the blowout. Of course, criticizing past regulatory sins that occurred (with large Democratic support) undercuts his simple story that private greed, not public policies, landed us in the current situation.

His policy proposals for the next four years simply regurgitate his earlier failed proposals, which will only make matters worse. Train two million more Americans with job schools? Subsidize the overburdened and ineffective system of public community colleges? Push for “clean” energy sources like solar and wind? These positions may have been credible four years ago, but the president should have by now learned from his big government failures.

Though no libertarian can take comfort in the blurry Romney campaign, the scorecard does tip in his balance. The state of play nationwide on social issues is decidedly mixed, with too much intolerance on both sides. But on economic issues, the one confident point is that in an age of bloated government, the correct vote goes to the party, when the campaigning is mercifully done, that is more likely to limit the rate of government growth, if not shrink the size of government altogether. This election cycle, that party is the GOP. It is time for a change from Blue to Red, from Obama to Romney.


Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).


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