Is The Cato Institute A, You Know, Libertarian Think-Tank?

It seems Gary Johnson/Bill Weld have been disappointing to conservatives and right-leaning libertarians (fusionists), looking for an alternative to Trump. For example, Ilya Shapiro, in “Is Johnson-Weld a Libertarian Ticket?”



Plenty of libertarians were wary of seeing former Massachusetts governor Bill Weld as the Libertarian Party’s nominee for vice president. Even those of us who haven’t had anything to do with the LP would like to see the party represented by, you know, libertarians. Weld, who seems like a nice man and was apparently a decent governor, is the living expositor of the difference between a libertarian and someone who’s “socially liberal and fiscally conservative.”

Is it supposed to be some sort of analytic truth that principled libertarianism doesn’t tend to make you socially liberal and fiscally conservative, to a first approximation?

My distinct impression is that the shoe is on the other foot. Any libertarian who isn’t, broadly, fiscally conservative and socially liberal owes a pretty good story about how she got there without mixing in non-libertarian principles/values.

Small government, ergo fiscally conservative (although it buries the lede to emphasize saving money, rather than minimizing coercion/maximizing individual liberty); and socially liberal, since you are going to be fine with what consenting adults get up to in private, so long as they don’t harm others. Yeah, you can be a fusionist and maintain that conservative cultural/religious values are needed to underpin ‘ordered’ libertarian liberty. But if you are a fusionist, you are, you know, fusing. Ergo, you don’t get to lecture others about philosophical purity.

Case in point: this week’s ReasonTV interview, where Weld praises Justice Stephen Breyer and Judge Merrick Garland, who are the jurists most deferential to the government on everything, whether environmental regulation or civil liberties.

I get it: Federalist Society types don’t like Breyer. Because they are conservatives, mostly. But conservatism’s not libertarianism. There is no simple, straight-line argument from libertarian first principles to ‘thus, you should dislike Breyer’s legal philosophy.’ Whether it is good to have activist judges or deferential judges, about which things, in what ways, is far afield from libertarian first principles. A more ‘Republican’ Constitution, a more ‘Democratic’ one? There are libertarian considerations in favor of both strategies, I think. Also, one cannot transcendentally deduce what the US Constitution says from libertarian first principles. You just can’t.

Former New Mexico governor Gary Johnson, in an interview with (my friend) Tim Carney of the Washington Examiner, calls religious freedom “a black hole” and endorses a federal role in preventing “discrimination” in all its guises. More specifically, he’s okay with fining a wedding photographer for not working a gay wedding – a case from New Mexico where Cato and every libertarian I know supported the photgrapher – and forcing the Little Sisters of the Poor to pay for contraceptives (where again Cato and libertarians supported religious liberty).

I can’t say that Johnson’s ‘black hole’ metaphor was entirely clear, but it ought to be clear what he is worried about. If I can refuse to serve a gay person, on religious grounds, why not a Jew, a Catholic, an African-American? To adapt Keynes Sinclair: it’s hard to get a man NOT to believe something sincerely, on religious grounds, if believing it, sincerely, on religious grounds, will permit him to push around his neighbor, whom he dislikes, with legal impunity he would not otherwise enjoy. (Does anyone doubt that the Bob Jones folks sincerely believed the Bible supported them?)

It is consistent with libertarian principles to hold that the right of free, private association/discrimination must be allowed to generate social systems in which, effectively, many – most? all? – are less free than they could be under an alternative system that restricted such rights. But it is not consistent with libertarian values to regard this result as unproblematic, rather than as potentially undermining of libertarianism as a credible political philosophy.

The thought-experiment is easy and obvious: suppose a crushing form of Jim Crow were maintained, not by the government, but by a powerful, coordinated coalition of private actors who, for good measure, sincerely believe their religion demands no less of them? Would that be acceptable? Would this be ‘freedom’, technically, not just for those maintaining the system but also for those kept down by it? If so, is it obvious we should care about maximizing ‘freedom’ – rather than something more, you know, free.

Johnson’s point is, obviously, that ‘religious liberty’ is problematic if understood in ways that may be freedom-undermining. This isn’t that hard, political philosophy-wise. What to do about it is tough, for a thoughtful libertarian. But seeing that there is a tough issue ought to be easy.

Shapiro says all the libertarians he knows support the photographer and the Little Sisters. That’s fine. But if all the libertarians he knows fail to see what Gary Johnson is worried about, he needs to start hanging with a more thoughtful class of libertarians.

In other words, Johnson doesn’t just come off as anti-religion, but completely misses the distinction between public (meaning government) and private action that is at the heart of (classical) liberal or libertarian legal theory.

Libertarianism – classical liberalism – comes in many shapes and sizes. But it really is not remotely adequate to gloss it – any intellectually respectable form of it – as Shapiro does here, as some vague yet mysteriously reliable engine for generating reasons why the Reaganish sentiment that ‘government is the problem’ is warranted. There is no libertarian/classical liberal first principle that government = bad; private action = good. Libertarianism and classical liberalism are not based on a government/private distinction, per se. The conceptual keynote is, rather, liberty (against coercion.) Since government is coercion, there is a natural tendency of libertarian philosophy to be anti-government. But since some coercion may be individual liberty-enhancing, some government may be ok. (I hope Shapiro is writing this stuff down!) The same is true of private action. Presumptively, permitting individuals to act as they like is good. But if they wish to act in ways that harm or restrict the freedom of others, this presumption may be defeated. This is what Johnson sees but Shapiro, evidently, has not adequately considered.

I have a soft spot for Gary Johnson. Of course I don’t agree with him about a lot. But he looks to me like a guy who takes his libertarian philosophy seriously. If that means libertarians can’t stand him – well, so be it.

That said, you’d be nuts to vote for Johnson in any state in which there’s any chance that Trump might win. So don’t do that.

What does the CT commentariat think of Johnson/Weld?