Libertarian Psychosis

If you know any engineers, then you probably have argued about libertarianism with someone who seems as doctrinaire as any theologian. For some reason, engineers seem to be especially taken with libertarianism's promotion of individualism above all and denunciation of government. I think it has to do with geeky people reading too much Ayn Rand and believing that they would rule the world (and get lots of hot babes in the process) if the government would just get out of their way.

A couple of recent posts reminded me of why libertarianism strikes me as a set of absolute rules that ignore or minimize reality.

In this article at Frontpagemag.com, David Bernstein excerpts part of his book that his is constantly flogging at Volokh. In it, he says silly things like:

The American Civil Liberties Union has a well-earned public image as a stalwart defender of civil liberties, even when the rights in question conflict with extremely popular and seemingly important legislation. Unfortunately, however, the ACLU, bowing to intellectual trends in left-liberal circles, is increasingly willing to support the enforcement of antidiscrimination laws at the expense of civil liberties. ...

Religious freedom is hardly the only civil libertarian concern the ACLU has downgraded in favor of antidiscrimination concerns. The national ACLU, for example, believes that plaintiffs should be able to win antidiscrimination lawsuits by showing "disparate impact..." ....

To take another example, despite the ACLU's commitment to academic freedom, the organization vigorously supported the Civil Rights Restoration Act of 1987, which was passed in part to force small private colleges like Grove City College to kowtow to heavy-handed government regulation of their admissions and employment policies. ...

The ACLU's commitment to using government power to thwart discrimination is even threatening the organization's commitment to ''pure speech''-expression untied to any act of discrimination against any individual. ...

To maintain its large membership base, the ACLU recruits new members by directing mass mailings to mailing lists rented from a broad range of liberal groups. The result of the shift of the ACLU to a mass membership organization is that it is gradually transforming itself from a civil libertarian organization into a liberal organization with an interest in civil liberties. ...

As the left has generally turned its back on civil liberties in favor of antidiscrimination concerns, the ACLU has become increasingly reluctant to defend civil liberties at the expense of antidiscrimination laws.

Seth Finkelstein of Infothought blog has an old piece called Libertarianism Makes You Stupid. (Via All About George.) This part sums it up:

The fanatical opposition of Libertarians to anti-discrimination laws also illuminates a crucial aspects of the stupid-making effects of the philosophy. They can never admit even one instance of government intervention doing good overall for society as opposed to the effects of the market. This isn't a matter of preference, it's absolutely crucial to the function of the ideology. If they ever do that, then it's an admission that social engineering can work, the market can fail, and it's just a matter of figuring out what is the proper mixture to have the best society.

This is what sets it apart from Liberalism, Conservatism, and so on. One outcome against prediction will not send those intellectual foundations crashing down, because they aren't based so heavily on absolute rules applications. Libertarianism, by contrast, if it ever concedes a market failure fixed by a government law, is in deep trouble. ...

So this in turn leads Libertarians into amazing flights of fancy, for example, to deny the success of civil-rights laws. They must say institutional segregation was somehow all the government's fault, or it would have gone away anyway, or something like that. Rather than racism, it's being made stupid by ideology-poisoning.

(Emphasis added.)

Bernstein is the kind of libertarian that Finkelstein is talking about. According to Bernstein, nothing about fighting discrimination in employment, in housing, in public accomodations, or in education can possibly require government action. He criticizes the ACLU for not being purist enough, which is ironic, given that most right-wing criticism of the ACLU is that it is too purely devoted to individual liberties when they conflict with other laws. And the notion that the ACLU is not devoted to free speech is simply ludicrous, as anyone (like me) who has witnessed the internal battles over campaign finance reform can attest. The reason why the "mass membership" of the ACLU has grown and is growing so quickly is that people - left, right and center - know that the ACLU stands for the Constitution.

Right-wing libertarians like Bernstein don't like the idea that the government sometimes needs to intervene in individuals' private choices in order to secure the civil rights of others. But it's something that happens all the time. Just as we wouldn't expect the government to stand idly by while some people tried to keep others from, say, voting at the polls, we wouldn't expect the government to do nothing while some people dramatically limit others' ability to obtain education, jobs, or housing, or to participate in commerce. Bernstein says that is exactly what we must do, and would turn back the clock on decades of social progress as a result.

Comments

[mark safranski]

The problem a lot of libertarians have with " antidiscrimination laws " is not the ending of actual discrimination in terms of jobs, housing etc. but the fairly regular hostile assault on free speech rights by multiculturalists in the name of " antidiscrimination", " diversity" or other vaguely defined concepts.

More or less there is an ongoing attempt to censor critical views and silence policy debate by invoking " hostile climate " or " feeling uncomfortable ", as if the Constitution provided a right to liberal ideological insularity. Unconstitutional speech codes and " free speech zones " have been initiated by the left and tossed out by courts with great regularity in recent years so this is not a figment of right wing imaginations.

Frankly. if the ACLU was more vigorous and even-handed in it's pursuit of Free Speech rights cases I'd probably donate.

[Mithras]

Um, if you can find an instance of the ACLU arguing in favor of "free speech zones," I will pay you $100, Mark.

"Speech codes" - bans on the use of certain language on college campuses - are restrictive of speech. But for private colleges, I can't see how one reconciles overturning such codes with the libertarian principle of unfettered action by private actors. At public universities, they are clearly unconstitutional. The grey area is when the public university has an anti-discrimination policy in place that includes a ban on sustained, hostile speech that makes learning more difficult. This is analogous to the workplace where male workers put pornography all over the female workers' and make sexual comments on a regular basis. Most courts, I think, would regard that kind of treatment as speech that can lawfully be restricted. (Of course, libertarians might just say that is political correctness.)

[mark safranski]

I didn't say the ACLU litigated on behalf of creators of " free speech zones " - but the ACLU ought to be taking the lead in fighting them ! And at one time, they would have but at present, race/gender ideology trumps civil liberties at the ACLU.

As for private universities I'm inclined to agree that they may be as restrictive as they wish. The sticky point is that under current precedents, generally accepting Federal money -even GSL - obligates private universities to accept Federal regulations even when the funds in question are tangential to the issue at hand. Not always but generally.

The problem with sexual harrassment law is when it comes to the " hostile climate " claim arguments you get into a slippery slope situation where the courts move from a neutral " reasonable person" standard to a " reasonable woman " standard ( itself discriminatory) until in practice the standard in some jurisdictions becomes " unreasonable woman " where assertion of discomfort is virtually proof of harm and the burden of proof is de facto shifted to the defendent.

Secondly, what is " hostile " conduct in a supermarket workplace or an office may not fit a university classroom where classes on sexuality and psychology are taught or for that matter in a nightclub,strip club or Hooter's restaurant. The arbitrariness and one-sided subjectivity of such claims requires that courts ought to at least apply a strict scrutiny to claims of harm. Harrassment ought to be at least proven to be repetitive and intentional. ( Fortunately, many courts strike down " one time event" claims)

( And no, I am not claiming that hostile environments are impossible or even rare, just that the evolution of sexual harrassment case law tends to violate equal protection standards, encourage false claims and provoke draconian preventive responses on the part of employers fearing litigation. Quid pro quo claims are much more objectively adjudicated)

[raj]

Bernstein's comments suggest that he is something of a nut, and I have more than a few issues regarding the "engineers are libertarians" thought (computer people maybe, but they have problems themselves), but that would take more time than is warranted to respond to here. Regarding the comment that

"I didn't say the ACLU litigated on behalf of creators of " free speech zones " - but the ACLU ought to be taking the lead in fighting them !"

I assume that the poster knows that the ACLU cannot itself bring a case unless it has a plaintiff who believes that he or she has been wronged. The ACLU provides legal assistance to people who bring complaints to it. Does the poster know whether anyone has sought ACLU assistance in this regard?

"I assume that the poster knows that the ACLU cannot itself bring a case unless it has a plaintiff who believes that he or she has been wronged. The ACLU provides legal assistance to people who bring complaints to it. Does the poster know whether anyone has sought ACLU assistance in this regard?"

Good question. I'd have to ask some of FIRE's clients and see if they had approached the ACLU as well. The ACLU does make a practice of actively seeking plaintiffs for test cases.

[Russian student of Ayn Rand]

1. Comments like "libertarians are geeks who can't get hot babes" don't reflect highly on the author. If you really need to retort to such absurd stereotypes to make your point, you likely don’t have much of a point to make.

2. Finkelstein’s take on libertarianism is very, very weak. It is plainly incorrect that libertarian philosophy is based on the idea that no government intervention is ever good. Most libertarians, for example, believe that the government has at least two legitimate purposes: to enforce private contracts and to protect people from violence. Most libertarians also support government’s spending on the military and the police. Many libertarians also support various redistributive programs, which are to be conducted by the government, so long as the role of bureaucracy is reduced and the role of the market is increased. School vouchers, for example, is something that most libertarians support, even though vouchers are far, far removed from the “ideal” no-government position, which, I repeat, exists only in the imagination of Mr. Finkelstein. If libertarians were that crazily anti-all-government-intervention, they would stop pushing for the vouchers and instead suggested one of the following alternatives: (1) everyone pays for his/her own education, including primary education; or (2) the role of the government is limited to helping families to borrow against children’s future income to pay for kids’ education – that is, to reducing transaction costs of borrowing; or (3) the government is allowed to distribute education subsidies, but it must do so in cash, so that it wouldn’t force its view on how to spend onto the families, who know their kids’ needs better – thereby avoiding deadweight social losses. Libertarians who support vouchers realize that vouchers is not only a redistributive program, but a government-run and in-kind redistributive program – and yet, most libertarians support this program, not only out of political necessity, but out of personal believes that this is indeed a good idea.

Pretending that the thoughtful, careful modern libertarianism does not exist, and limiting one’s attention to an imaginary scarecrow of libertarianism of 1950s, makes it easier to write bloggs, but doesn’t make for a good-quality commentary. Libertarians have no difficulty maintaining their positions while admitting the role for a limited government involvement. What distinguishes libertarians from the rest of the political pack is the acute sense that the government involvement comes at a cost. Mischaracterizing basic tenets of libertarianism doesn’t help your argument.

3. The idea that government action is necessary to fight discrimination in employment or education has been criticized by many scholars, libertarians and non-libertarians alike. The success of the Jews, Asians, and many other immigrant groups in the US suggests that it’s the market, not the government, who is the best friend of the persecuted. Bernstein’s book offers many examples where the government’s intervention was either purposefully used to harm African-Americans or harmed them unintentionally, all the while the market forces were working to integrate them. You may or may not agree with the extensive economic literature on the role of markets in reducing discrimination, but ignoring it altogether doesn’t make your blogs more persuasive.

[Classic Liberal]

If the ACLU is so devoted to free speech, then why is there such a big internal debate over campaign finance laws? I guess some ACLU'ers have trouble understanding the "no law" portion of the First Amendment?

[Mithras]

If the ACLU is so devoted to free speech, then why is there such a big internal debate over campaign finance laws?

Because, as with any policy, there are good points and bad points. For example, the PATRIOT Act is not all bad, and the ACLU says so.

I guess some ACLU'ers have trouble understanding the "no law" portion of the First Amendment?

Wow, what a deeply stupid argument. Many laws have an effect on people's ability to express themselves; no one in their right mind believes that they all should be struck down on free speech grounds. If you're some kind of originalist (this kind of insanity usually occurs among people like that), please check the historical record and note that the Framers didn't believe what you believe.

[Johnny]

Mithras, if you would spend more time actually educating yourself by reading and less time mouthinng off, and actually read Bernstein's whole book, you would find that he never claims to be against all antidiscrimination laws, much less to argue that "nothing about fighting discrimination in employment, in housing, in public accomodations, or in education can possibly require government action." He does criticize the ACLU for not being sufficiently devoted to civil liberties. It is after all, supposed to be a civil liberties group. There may be competing interests out there, including civil rights concerns, but there are plenty of other groups (NOW, NAACP, etc.) who are taking care of those issues, the ACLU is supposed to be worried about the First Amendment and the like.

[Mithras]

Bernstein argues that "pure speech" discrimination should be absolutely protected by the First Amendment. That's batshit. That means all of your coworkers are constitutionally privileged to harrass you all day long, calling you the most filthy, vile, disgusting names you can think of, so long as management doesn't do anything concrete that is discriminatory. Basically this is carte blanche for companies that want to create hostile work environments for, say, women or racial minorities to go right ahead and do so. As I said, batshit.

The implication of all this is that discrimination itself is protected expression. If Bernstein can find a principled way to distinguish his attack on laws prohibiting hostile environment discrimination from other types of discrimination, I'd like to hear it. I seriously doubt he can do it.

The ACLU is a civil rights and civil liberties organization. The fact that Bernstein can write the crazy things he does about the organization leads me to conclude he never bothered to even call the principals and ask for interviews. Yet he feels qualified to criticize. You know, since he demonstrates such poor research skills, I am not going to subsidize him by buying his book, and the local library doesn't have it. I'd love a free copy - I'd shred it at length, which is probably the best he can do in publicity anyway, so why not? In the meantime, I will continue to respond to the excerpts he posts on the web, and to the tendentiously anti-ACLU line he pushes on Volokh. (Witness, for example, this week's insinuation that ACLU supports terrorism and censorship. Why should he expect anyone to take the time to engage him, when he's such a dishonest asshole?)

[mad dog]

"Bernstein argues that "pure speech" discrimination should be absolutely protected by the First Amendment. That's batshit. That means all of your coworkers are constitutionally privileged to harrass you all day long, calling you the most filthy, vile, disgusting names you can think of, so long as management doesn't do anything concrete that is discriminatory. Basically this is carte blanche for companies that want to create hostile work environments for, say, women or racial minorities to go right ahead and do so. As I said, batshit."

There was a time when I would have sympathized with this sentiment, but that is when I sympathized with political correctness. Nowadays, I see things the libertarian way.

If the employee does not like the treatment by his/her co-workers, then that employee can go complain to the boss. If the boss does not co-operate, then that employee can go work somewhere else. Nobody is forcing that employee to work there. The only appropriate time for government intervention is when the co-workers ASSAULT the employee. Then those co-workers can and should be arrested for assault.

Why do I feel that verbal insults require no-intervention, but assault does? Because anyone could clearly see that assault is a clear infringement on other people's rights.

I feel that another possible appropriate time for government intervention is when the co-workers would THREATEN the employee with bodily harm. That can be considered a form of coercion by the co-workers. However, I feel threats to be more of a gray area than physical assault.

Now, merely insulting someone, or putting up porn pictures, or listening to heavy metal should be protected, because some may be offended, others might not have any problems whatsoever. No one is forcing anyone else to listen to their music or to look at their pictures.

Only, persistent, deliberate, repeated, targeted harassment should be prosecuted, especially if the harasser in question is standing in someone's way, stealing their property, vandalizing/destroying their property, or using other forms of force/coercion.