A new libertarianism is coming. It is more accommodating, less strident, more pragmatic, less hard core, more moderate. It is more in line with mainstream American values and less opposed to core elements of a mixed economy and the modern welfare state. It is being developed in libertarian think tanks, political science departments, and campaign headquarters across the country. If the new doctrine keeps spreading and makes its way into political platforms and public policy, the last major American political doctrine even nominally defending individual rights will be gone.

Let’s call the new doctrine simply New Libertarianism. And let’s look at where it came from, why it is importantly different, and why it is generating both excitement and contention. To do that, we need to understand where the current libertarianism came from. And to do that, we need to review some history.

. . . endowed with certain unalienable rights . . . and to protect these rights governments are instituted

The term “libertarian” has long been used to refer to anyone who believes that citizens have rights and that a proper political system is one that protects those rights. The 1934 textbook The American Problem of Government called Patrick Henry, Thomas Jefferson, and Benjamin Franklin “convinced and fairly consistent libertarians.” These men believed a good government protects rights to life, liberty, and property. In the late 1800s there were also writers who thought rights would be more secure if there were no government at all. These writers also called themselves libertarians.

In the mid 1900s, there were lively debates about what rights citizens actually have. The rights enumerated in the Declaration of Independence and the Constitution were widely accepted. But Franklin D. Roosevelt proposed to go further. His New Bill of Rights (1944), included, for example, rights to a decent home, a good education, and adequate medical care. The United Nations’ Universal Declaration of Human Rights (1948) added, among others, a right to paid holidays and a right to good working conditions. Conflicts then necessitated debates. How will everyone be provided with housing and education without violating the rights of citizens to choose their own profession and keep their earnings? Who will fund the unemployment insurance, the pensions, the medical care, and the paid vacations if employers and other citizens do not voluntarily provide them?

NAP: No one may initiate the use or threat of physical violence against the person or property of anyone else.

Out of these debates grew the main sort of libertarianism of the last fifty years. It was based on a principle articulated by Murray Rothbard in the 1970s this way: No one may initiate the use or threat of physical violence against the person or property of anyone else. The idea had roots in John Locke, America’s founders, and more immediately Ayn Rand, but it was Rothbard’s formulation that became standard. It became known as the non-aggression principle (NAP) or—since Rothbard took it as the starting point of political theory and not the conclusion of philosophical justification—the non-aggression axiom. In the late twentieth century, anyone who accepted this principle could call himself, or could find himself called, a libertarian, even if he disagreed with Rothbard’s own insistence that rights are best protected when there is no government at all.

The non-aggression principle sets boundaries on what is and is not a right. If a proposed right to paid vacation would conflict with the right of an employer to offer whatever employment terms he wants, then the proposed vacation pay has to be rejected, since forcing the employer to pay for vacation time would amount to a threat of physical violence against him or his property. The same logic applies to minimum wage laws, government-provided pensions (Social Security), tax-funded schools, regulated medical care, prohibition on recreational drugs, an enforced postal monopoly, and many other aspects of a mixed economy and the modern welfare state. All violate the non-aggression principle. Over the objection of “left libertarians” who reject the content of Rothbard’s axiom and of Objectivists who reject its being an axiom, libertarianism has come to be seen as a principled defense of laissez-faire capitalism based on the doctrine that people have an inalienable right to be secure in their person and property.

From the time of the Progressives, both Republicans and Democrats increasingly abandoned this doctrine, even if they kept some of the old language. Woodrow Wilson (D) said liberty is an attribute of societies, not of individuals. A society is free if it runs without obstructions. “It is still intolerable,” he said, “for the government to interfere with our individual activities, except where it is necessary to interfere with them in order to free them.” Herbert Hoover (R) insisted he was an individualist, but of a distinctly American sort. He was proud to have abandoned the laissez faire of the 1700s and said the first consideration in government should be a high and increasing standard of living. This preference for advancing the collective over protecting the individual has become the norm. John F. Kennedy (D) said, “Ask not what your country can do for you; ask what you can do for your country.” John McCain (R) took “Country First” as his 2008 presidential campaign theme. Before Clarence Thomas’s 1991 Supreme Court nomination hearings got redirected into allegations of sexual misconduct, the primary attack against Thomas—launched in the opening statement by then Chairman of the Senate Judiciary Committee, Joe Biden—was that Thomas actually still believed in the doctrine of natural law and inalienable natural rights. The Cato Institute, the country’s leading libertarian think tank, paraphrased Biden’s attack as “Are you now or have you ever been a libertarian?”

The Libertarian Party was founded in December, 1971. Although it is the third largest political party in the United States, it remains tiny. Much more influential now is the libertarian wing of the Republican Party. Congressman Ron Paul was the Libertarian Party’s presidential candidate in 1988, but in 2008 and 2012 he sought the Republican Party’s presidential nomination instead. His son Rand Paul, also a self-described libertarian, is a Republican senator. Joining him on the Senate’s libertarian wing is another young Republican, Ted Cruz of Texas, a Tea Party favorite. In the House, Republican Justin Amash of Michigan, another self-described libertarian, is chairman of the increasingly influential House Liberty Caucus. Libertarianism is becoming more mainstream. But the cause is not, or not just, that Americans are warming up to libertarian’s laissez-faire principle of non-aggression. It is that libertarianism itself is changing. It is becoming less distinctive, less different from other political ideologies. And some old-timers don’t like this.

Rothbard was an anarchist. He held that rights could best be protected if there was no government. After all, he argued, governments have been the worst violators of rights in history, much worse than private companies have ever been. Private companies could, he claimed, provide the same protection that people had commonly sought in governments. This claim was rebutted by the Harvard philosophy professor Robert Nozick. Nozick argued that even if we adopt the non-aggression principle and start with private companies that provide legislative, judicial, and enforcement services, these companies will become indistinguishable from a minimalist, Lockean or Jeffersonian, rights-protecting, laissez-faire government. The companies’ executives would for all purposes act just as mayors, sheriffs, governors, congressmen, and judges would. Nozick’s 1974 Anarchy, Utopia, and State became the standard theoretical defense of libertarian government.

Canonical libertarian theorists: Rothbard, then Nozick, now Hayek

But Nozick is increasingly being replaced as libertarianism’s canonical theorist by F. A. Hayek, Nobel-winning economist and author of The Road to Serfdom (1944) and The Constitution of Liberty (1960). Our entire civilization, Hayek insisted, depends on capitalism. There is simply no other way to inform individuals how to contribute as much as possible to society’s total product. No central authority could ever match the economic efficiency of many people left to make their own decisions. If government just sticks to establishing and enforcing an objective set of laws, a spontaneous order will emerge and prosperity will be maximized. Hayek did not defend the propriety of laissez-faire capitalism by saying government regulation and coercion violate the individual rights of citizens. Rather, he said, arbitrary governmental coercion is bad because it prevents a person from using his mental powers to the full and consequently from making the greatest contribution he can to his community.

So Hayek is no strict laissez-faire defender of free markets. He insists that laws should be objectively written and consistently enforced, but he offers no strict principles about what those laws should prohibit or allow. He himself believes providing minimum food, shelter, and clothing, providing social insurance, prohibiting certain kinds of trade, enforcing minimum wages, providing an education system, running public works projects, regulating techniques of production, and regulating factories are all legitimate functions of government. He might object to some of these on grounds of economic efficiency, but he has no objection on moral grounds. He also has no objection to laws justified on religious grounds—again, as long as they are written objectively and enforced consistently.

Hayek’s eclipsing of Nozick is one aspect of the recent change in libertarian political theory. But another is crucial. This is libertarian’s growing adoption of the Progressive’s doctrine of social justice. To understand this, again, some history is needed.

Political theory, 1900–1920: “Social justice” emerges.

Any theory of individual political rights is necessarily based on a morality of individualism. Whether you say individuals have a right to life, liberty, and property, or to food, clothing, and shelter, or to free speech and unhindered religious practice, or to equal wages and low-cost medical care, you put at the center of your theory an individual demanding something for his or her personal benefit. You hold that individuals may justifiably place demands on society—even if the demand is just to be left alone. In the Enlightenment and in America into the nineteenth century, this was not particularly controversial. “Individualism,” “selfishness,” and “egoism” were not treated with the disdain they are nowadays. As late as 1888, John Oberly, a commissioner in the Department of the Interior could get to the motherhood-and-apple-pie summary of his public report on what a good job he was doing by saying he was spreading the “exalting egotism of American civilization,” where a man could say “I” instead of “we,” “This is mine” instead of “This is ours.”

But the morality of individualism came under strong attack in the mid-nineteenth century, first in Europe and then in the United States. In 1844, young Karl Marx railed against how the “self-interest,” “practical need,” and “egoism” of the “everyday Jew” had become the norm among Christians. In France, Auguste Comte invented the term “altruism” to oppose “egoism.” He said that we must consider society as prior to the individual. People should give up their selfishness. A proper political philosophy could not tolerate rights, for such a notion rests on individualism. Rights are absurd and immoral. They must be eliminated. In the American South in 1857, the defender of slavery George Fitzhugh said the “present philosophy” of human equality, selfishness, individual sovereignty, and right of private judgment may have stimulated a revolution, but it is false, untenable, absurd, and must be replaced. He rightly observed that if that philosophy were true, then clearly slavery would be wrong.

The moral attacks on individualism of the mid 1800s turned into the Progressives’ attacks on laissez-faire capitalism in the 1910s and ’20s. In 1901, a baker named Joseph Lochner received his second fine for violating a law against letting an employee work more than sixty hours in a week. Lochner challenged the conviction and the case made it to the United States Supreme Court. The Court ruled in Lochner’s favor, saying that a labor law regulating terms between employer and employee amounted to an “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract.” But things soon changed. Wilson sought to ensure the machinery of society ran freely even if this meant interfering with individual liberty. In the 1910s and ’20s, the United States got a federal bank, national factory regulations, national labor laws, major “public works” projects, a ubiquitous and compulsory government-run education system, and a national income tax. Roosevelt’s New Deal accelerated the change and brought a national old-age pension program, laws to support labor unions, a national lending program to provide citizens with housing, and large government-run farms. The Federal government became the largest employer in the nation. The so-called Lochner Era ended in 1937, when the Supreme Court ruled that voluntarily agreed terms of employer and employee could legitimately be overruled when doing so served the “interests of the community” or the “public interest.” All the main pillars of the modern mixed economy and welfare state were laid.

Since the 1910s, “Social justice” has been the more common term.

The moral standard for political institutions had changed. No longer was it protection of individual rights. It became the advancement of “social justice.” Wilson: “We must inspirit our people with the prospects of social justice.” Hoover: “We now legislate for social and economic justice.” Social Justice: A Critical Essay was published in 1910, Essays in Social Justice in 1915, Stephen Leacock’s The Unsolved Riddle of Social Justice in 1920. And the term took on a particular meaning. Leacock’sElements of Political Science, probably the most popular textbook on political theory all through the 1910s and ’20s, said, “The view that social justice demands that the individual should be left in possession of his ‘natural rights’ may therefore be discarded.” It had to be discarded, for “the narrow individualism of the nineteenth century refused to recognize the social duty of supporting somebody else’s grandmother,” Leacock wrote. “Social justice” came to mean altruism applied to politics: Everyone should work for the good of others. Trade between citizens must be regulated to meet societal goals. Nearly all income above a certain amount had to be handed over for distribution by government authorities. (Federal marginal tax rates were above 90% for most of the 1940s and ’50s.) Social justice came to mean equality for all.

John Rawls upended social-justice theory.

This norm was upset in 1971, with publication of John Rawls’ A Theory of Justice. Harvard professor Rawls worked from a simple premise: A rational and self-interested poor person should not demand equality if he could be better off with inequality. A smaller share of a bigger pie might be better than an equal share of a smaller pie. The poor person should be content with inequality if he himself is better off. This part of Rawls’ theory (the “difference principle”) came to be the new standard of social justice. Economic inequalities in a society should be distributed to the greatest advantage of the least advantaged. That social institution is morally best which best serves the interests of the poor.

In a field dominated by calls for economic equality, Rawls was at first seen as a reactionary. To be a defender of inequality was to be a defender of laissez-faire capitalism. But the tide soon turned, and Rawls became the primary political theoretician of America’s political left. His argument was forceful. There is no good reason for the rational poor to shoot themselves in the collective foot by demanding equality, when inequality would serve them better. Let the rich keep some of their money, as long as the poor realize a net benefit. By the late 1970s nearly all political philosophy took Rawls’ standard for redistribution of wealth as its reference. Robert Nozick was not only answering Murray Rothbard’s anarchism. He also said, “Political philosophers must now either work within Rawls’s theory or explain why not.”

Rawls became the standard theoretician of the political left. Hayek replaced Nozick as the standard theoretician of the libertarian right. And that is where American political theory stood at the end of 2006. And that’s when the foundations of libertarian philosophy got hit by an earthquake.

Cato’s Brink Lindsey: Let’s change libertarianism to agree with Rawls. Abandon natural rights.

Brink Lindsey, then Vice President for Research at the Cato Institute, called on libertarians to abandon the doctrine that a good government is one that protects the rights of its citizens, abandon the non-aggression principle, and instead adopt the moral standard of social justice advanced by Rawls. By Lindsey’s reasoning, free markets are not moral because they protect individuals’ rights to keep the fruits of their own labors and to freely contract with other individuals doing the same but are moral because they benefit the poor. Period.

The proposed new libertarianism would be a marriage of left and right, “liberaltarianism”; it would be a marriage of Rawls and Hayek, “Rawlsekianism.”

Brink Lindsey and his collaborator on this, Will Wilkinson, left—or, many speculate, were made to leave—the Cato Institute. But the cat was out of the bag. There was now a new libertarianism to be reckoned with, advanced by one of Cato’s most distinguished thinkers. The American Conservative, The Atlantic, Slate, and Salon took notice. Lindsey took the proposal to academic venues across America. A conference dedicated to it was held at the Woodrow Wilson School of Princeton University in October of 2008. The idea was picked up at leading academic centers of libertarian philosophy, such as the University of Arizona’s Center for the Philosophy of Freedom and Brown University’s Political Theory Project.

Then, in October 2012, after the organization appointed a new president, John A. Allison, Brink Lindsey returned to the Cato Institute as a Senior Fellow. He has since become, again, Vice President for Research.

Lindsey calls for a union of progressive ends and libertarian means. He proposes a compromise: Lift regulations to encourage economic growth. Then use the resulting wealth to improve the social safety net. Treat economic policy issues as empirical questions about what works rather than as tests of ideological commitment. When we do this, and make some adjustment to the details, libertarians should, Lindsey believes, accept policies they have been rejecting. “Go ahead, tax the rich, but don’t do it when they’re being productive. . . . And tax everybody’s energy consumption.” Go ahead and have the government fund unemployment insurance, pensions for the indigent, health care for those with catastrophic expenses, various programs for the poor.

Scholarly resources on New Libertarianism

In academia, the call for a Rawlsian libertarianism has been defended most vigorously by (my colleague) John Tomasi, professor of political science at Brown University. His book, Free Market Fairness, was released in February 2012 and for at least a year, there was, on average, at least one colloquium, lecture, or workshop a month on it, at venues that include the Cato Institute, Princeton University, Stanford University, University of Notre Dame, George Mason University, and several forums in Europe. Tomasi calls for an end to the antagonism between the Rawlsian critics of free markets on the left and the Hayekian defenders of them on the right. He is being hailed as “one of America’s leading social and political philosophers” and his book as “the very best philosophical treatment of libertarian thought, ever.” Stalwarts of libertarian and conservative thought, such as Charles Murray, Michael Zuckert, Richard Epstein, and Loren Lomasky are cheering Tomasi’s proposal.

A more accessible treatment, for a non-academic audience, is Libertarianism: What Everyone Needs to Know, published in 2012 by the young scholar and recent graduate of the PhD program at the University of Arizona, Jason Brennan. Brennan claims there have been three kinds of libertarians: classical liberals, such as Adam Smith, John Locke, F. A. Hayek, Milton Friedman, and America’s founders; “hard libertarians” such as Ayn Rand, Murray Rothbard, and Nozick; and neoclassical liberals, such as Brennan, Tomasi, and others of the new Rawlsian doctrine. The first group were defenders of liberty but not as doctrinaire as the hard libertarians, Brennan says. And those hard libertarians of the late 1900s, he assures his readers, are now only a fringe part of libertarianism. (Older libertarians have been appalled to be so marginalized.) Libertarians that are now the mainline, Brennan reports, are not dogmatically committed to the non-aggression principle. They defend their commitment to free-market institutions because these institutions are the ones that best “serve the interests of the poor and least advantaged.” The new mainstream libertarians are not ideologically opposed to, say, government schools or social safety nets.

The academic new libertarians have a web site, BleedingHeartLibertarians.com. Regular contributors include Brennan, fellow Arizona graduate and John Tomasi’s co-author Matt Zwolinski, and a dozen others dedicated to, as the masthead say, “free markets and social justice.” Guest contributors include Tomasi, Lindsey, Wilkinson, the University of Arizona’s Founding Director of the Freedom Center David Schmidtz, George Mason University’s BB&T Professor for the Study of Capitalism Peter Boettke, and other young and influential scholars.

Other proponents of Rawlsian libertarianism.

Another prominent defender of free markets, Arthur Brooks, president of the American Enterprise Institute, a large think tank dedicated to limited government, private enterprise, and individual liberty, is actively promoting the bleeding heart defense of capitalism. Brooks calls it “conservative social justice.” He says that the problem with Social Security and Medicare is not that they take money from one group of citizens and give it to another. It is that the programs’ impending insolvency imperils the social safety net for the neediest citizens. New approaches to education are needed, he says, not because it is immoral to educate the children of some parents using money forcibly taken from others but because poor children deserve good schools.

The young Senator Ted Cruz, mentioned above as a Tea Party favorite, a thought leader on the Republican’s libertarian wing, says his party needs a new message. “Republicans should conceptualize and articulate every domestic policy with a single-minded focus on easing assent up the economic ladder. We should assess policy with a Rawlsian lens.”

New Libertarians endorse many conventional liberal social programs, including government schools (Adam Smith, they note, gave it limited support and Thomas Jefferson, after all, founded the University of Virginia), anti-trust laws (Milton Friedman endorsed them), government-funded health care (Hayek allowed it), government pensions (Hayek again), product regulation (Hayek), and minimum wages (Hayek).

New Libertarianism endorses many Progressive social programs.

Many New Libertarians are now particularly enthusiastic about making welfare universal, using what is called a basic income guarantee (BIG): Instead of giving welfare money only to those who can claim to need it, send welfare checks to everyone, and then, using taxes, take the money back from those who don’t really need it. Having everyone on the dole is supposed to be more efficient and to create fewer weird incentives than conventional welfare.

New Libertarians confuse benefit and justification. Not all benefits, no matter how wonderful, make legitimate standards of right and wrong. Having grandchildren is a wonderful benefit of having children. There should be no end of meetings, books, and web sites about the joys of grandparenting. But if you make your parenting decisions based on what will bring you grandchildren, you will make some very bad decisions.

Let’s not stop celebrating all that secure private property and unfettered free trade can do for the poor. But if helping the poor becomes your very standard of right and wrong, you’ll end up proposing universal welfare and other schemes that abandon even a facade of defending people’s individual and inalienable rights to life and liberty.

That’s what New Libertarianism does.