The Conservative-Libertarian Schism

[After I’d read this essay by humorist P.J. O’Rourke, it occurred to me that the time was right for a reprint of the following essay, which first appeared at the old Palace Of Reason in November, 2002. -- FWP]

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1. A Harmonization.

In 1987, a California organization called the Advocates for Self-Government, led by a brilliant polemicist named Marshall Fritz, set forth to persuade the nation that the libertarian political philosophy could answer most, if not all, of the most vexing questions in public debate. To aid in opening minds to his message, Mr. Fritz composed a short quiz, whose results were intended to determine where a man's opinions placed him in the overall distribution of political opinion. Mr. Fritz built a campaign around this quiz, and called it "Operation Politically Homeless," to emphasize the considerable gap that had grown up between the major political parties and the typical American. It was upon meeting Mr. Fritz and being exposed to his presentation of the libertarian idea that I first decided to call myself a libertarian.

Yet I'm still a politically homeless man, and am still made uncomfortable by it. Yes, I call myself a libertarian; note the lower-case L. However, I differ with "party" Libertarians -- note the upper-case L -- on several important topics. And the people I get along best with, by party affiliation, are not Libertarians but Republicans.

Many conservatives find themselves at odds with the official positions of the Republican Party on one or more important points. Yet most of those persons would not be comfortable with "pure" libertarianism, and for good reasons. It's too wholesale. It attempts to answer every question, to be all things to all men. And it fails to recognize where it ceases to provide palatable answers.

Please don't mistake me. I think the libertarian political philosophy, where applicable, is a very good one. It's more accurate in its assessment of human nature and its controlling influences, and leads to better societies and better economic results, than any other political concept ever advanced. But the "where applicable" part is very important; in fact, it's the most important part of this paragraph, as it explains in near-totality the "conservative-libertarian schism."

Where would the libertarian postulates of individual rights and individual responsibilities fail to apply? Three generic places:

1. Where the atoms that interact are not individuals, but collectivities;
2. Where the "individual" under discussion is incapable, either from innate incapacity or from injury, of understanding rights and responsibilities;
3. Where rights clash in an absolute and irreconcilable way.

Important specific topics that fall within these categories are:

1. National defense and foreign dealings;
2. The protection and restraint of the immature and the mentally diseased;
3. Abortion.

On the subject of international dealings, including military excursions, American libertarians have strained under the tension of conflicting desires. On the one hand, the State's warmaking power is the most dangerous thing it possesses, at least superficially. On the other, no one has yet advanced a plausible market-based scheme for protecting the country that would operate reliably enough to satisfy us. Moreover, the American military, with a few exceptions, really has been used in a wholesome, life-and-freedom-promoting way, against genuinely deserving targets, and has met high ethical standards wherever it's been sent.

Immigration is another area of real agony for American libertarians. There's much truth to the old saw that you can't be anti-immigrant without being anti-American, for America is largely a nation of immigrants. Yet the demise of the assumption of assimilation has rendered large-scale immigration to these shores a positive danger to the commonalities on which our national survival depends. It's unclear, given world trends, that we could re-invigorate the mechanisms that enforce assimilation any time soon. Until we do, the path of prudence will be to close the borders to all but a carefully screened trickle from countries with compatible cultures. Our collectivity must preserve its key commonalities -- a common language, respect for the law, a shared concept of public order, and a sense of unity in the face of demands posed by other nations or cultures -- if it is to preserve itself.

Milton Friedman, one of the century's greatest minds, wrote in his seminal book Capitalism And Freedom: "Freedom is a tenable objective for responsible individuals only. We do not believe in freedom for children or madmen." How true! "Pure" libertarianism has wounded itself badly by attempting to deny this obvious requirement of life: the irresponsible must be protected and restrained until they become responsible, so that they will be safe from others, and others will be safe from them. Madmen who were granted the rights of the sane nearly made New York City unendurable. If the "children's rights" lobby ever got its way, children would die in numbers to defy the imagination, and the American family would vanish.

Of course there are difficulties in determining who is responsible and who isn't. No one said it would be easy. Yet our court system, excepting the obscene, supra-Constitutional "Family Courts," works quite well to determine competence, and would work still better if it were relieved of the burden of all the victimless crimes that swell court dockets nationwide.

Finally, abortion. Let it be conceded that a woman has the right to control her body and its processes. But let it also be conceded that a fetus in the womb is a human being with human rights, not to be deprived of that status by any sophistry. The clash is absolute; rights theory cannot resolve it. Therefore an arbitrary political decision must be made. The position most compatible with other American ideals is to protect the weaker party -- the developing baby -- from destruction by the stronger, unless doing so would demonstrably endanger the life of the mother. Other positions exist, such as a "brain-wave" criterion for protected human life, which has the virtue of consistency with the way we define human death. However, whatever position we ultimately reach will be arbitrary, as no unassailable logical defense can apply to any decision to use (or not use) force when rights clash.

Pure libertarian thinking must concede these bounds -- the bounds of individual action, individual responsibility, and clearly defined, non-contradictory rights -- before "orthodox" conservatives will take it seriously.

By contrast with the above, matters such as the War On Drugs are minor bagatelles. Most conservatives are open-minded enough to consider the possibility that the Drug War might be misconceived. Indeed, there are far more conservatives in the pro-legalization ranks than liberals. The harmony between rights theory and the argument for legalization only buttresses the practical evidence that the Drug War's massive invasions of privacy, erection of unaccountable vice squad bureaus, and sanctification of police-state tactics has done far more harm than good. The conversation will continue, the evidence will accumulate still further, and eventually the Drug War will end.

On the purely practical matter of political efficacy, the Libertarian Party should not be expected to produce electoral victories. It can't, in the nature of things. It's not pragmatic enough to play to the populace's current desires or demands. As a particular "libertarian" position becomes popular enough to command wide support, it will usually be adopted by the Republicans. This is as it should be; third parties do their best work along the margins of the debate, by addressing the more "daring" ideas that the institutionally committed major parties can't afford to play with while they're still controversial.

There's no shame in adhering to either the LP or the GOP, whether your convictions are libertarian or more conventionally conservative. The only shame is in insisting that you must be right, that all precincts have reported now and forever, that your mind is unchangeably made up regardless of whatever new logic or evidence might be presented to you, from whatever source. But this was put far better by the polemicist admired by more conservatives and libertarians than any other, the late, great Ayn Rand:

"There are no evil thoughts, Mr. Rearden," Francisco said, "except one: the refusal to think." (from Atlas Shrugged)

2. Constitutionalism.

Since I first composed the above essay, a number of readers have written me to comment on "the missing ingredient" of libertarianism: a respect for the law, in particular for the supreme law of the land, the Constitution of the United States. Adherents to the libertarian philosophy, they claim, are entirely too willing to flout the law and to disregard Constitutional stricture in their boundless devotion to principle.

I won't dismiss the charge out of hand. It has some substance. And constitutionalism is an important element in the defense of liberty, as we shall see. However, to condemn a group or its animating ideal because, at a particular point in time, what it advocates is outside the law is a bit shortsighted and low on context.

First, the negative aspects of rigid adherence to the law must be admitted. A case in point: There was a time when slavery was not only condoned by the Constitution and the law in several states, but the other states of the Union, against their own law and the inclinations of their citizens, were compelled by the Fugitive Slave Act to return escaped slaves to their "rightful owners." No one would rise to defend these legal obscenities today, yet at that time, they were enforced with federal power. Those who defied them were not villains, but the heroes of the time. Like another great Hero, the greatest known to history, they came not to overthrow the law, but to fulfill it.

Another case in point: At the conclusion of World War II, the Allied Powers imposed war crimes trials on defeated Germany and Japan. The Nuremberg Tribunal executed or imprisoned many persons, not all of whom were Third Reich policy makers, and not all of whom were personally guilty of direct violence against undeserving victims. The argument used to convict them was that they were instruments in the Nazi death machine, that they knowingly participated in organizing its crimes against humanity and giving them the patina of legality, and that the written law of the Reich, which often explicitly prescribed their deeds under threat of horrific punishment, was no defense. Many judges were imprisoned for life on this basis.

These examples and others like them suggest that there are limits to the fidelity a man owes to the written law. Of course, opinions will vary as to where those limits lie, but a key element of our founding tradition is the recognition that they exist:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. (From the Declaration of Independence)

But let it not be thought that written law and its observance are merely shackles for the citizen. The concept of written law, properly understood, and the principle of constitutionalism are the best formal safeguards for freedom that any society has ever devised. They must be twisted and abused to be made into instruments of despotism.

A side observation: Isn't it one of the major criticisms of the federal government at this time that the overwhelming majority of "laws" are made, not by Congress, whose members seldom even read the bills they vote on, but by the unelected regulators and bureaucrats of the "alphabet agencies"? Isn't it a great part of our unhappiness with Washington that the gigantic Federal Register, whose contents are legally binding on every American, is produced by faceless men no voter can remove, and is as fluid and elusive as the proverbial butterfly of love?

The Federal Register, which is arguably more important to American life than any other emission of the federal government, fails to exhibit the most important, legitimizing characteristics of written law -- and from here we pass to what those characteristics are.

To possess widely recognized legitimacy:

1. The law must be made by accepted mechanisms.
2. The law must be made through accepted procedures.
3. The law must clearly conform to broad, and broadly accepted, standards of right and wrong.

In the United States, at the federal level, that means the law must be made by Congress, with approval by the President and contingent sanction from the federal courts. It also means that the law must conform to the requirements of the Constitution and the great tradition of the Anglo-American common law, in which the common understanding of right and wrong have been codified over a millennium of reasoning and practice.

The principle of constitutionalism was invented on these shores. It was the first assertion of any standard for legitimacy other than divine right or force of arms. In exalting the law above the ruler -- indeed, in asserting that the rulers themselves are subject to the law, bound by it quite as much as any private citizen -- it first announced to the Old World that something new was going on here.

Constitutionalism doesn't sit alone in the void, giving birth to all our ideas. It is itself grounded in the postulate that government must have the consent of the governed, or at least an overwhelming majority thereof. At the time of the Founding, the "overwhelming majority" standard was set at three-fourths of the states. That was the requirement for ratification, and also the requirement for amendment.

It's worth reflecting on how little the Constitution would be worth if it were possible for Congress to amend it by a simple majority vote. That's the case in New York, whose state constitution is hardly worth the paper it's written on. Whenever the New York legislature wants to extend its powers, it simply votes itself new ones. This happens rather frequently. Yet even this smirk at the consent of the governed pays homage to the underlying rule: that government is bound by the document that expresses the people's consensus about its legitimate powers.

A government that seizes powers not granted by the people's consensus -- in the United States, a government that transgresses the bounds set by its constitution -- is an illegitimate government, that has no rightful claim on the obedience of its citizens.

Obviously, when practiced properly, without any "evolving document" evasions, constitutionalism is an enormously conservative idea. It puts a brake on rapid and wide-ranging changes in government and its authority. It requires the fulfillment of an elaborate set of procedures to approve expansions of power. It keeps the rulers intimately in touch with the people whose natural individual sovereignty they borrow.

This is not just a conservative, tradition-affirming idea; it is a powerful liberty-affirming idea. Any bounds on the powers of the State are libertarian in nature. They insist that the Republic must confine itself to the rei publicae: the public matters upon which legislation and exertion of political authority are appropriate. If the precise placement of the bounds changes, it will be gradually, and only with the express consent of the governed.

Opponents of constitutionalism, who dislike its conservative tendency, often raise the "slavery objection" to the original document: how, they ask, can you sanctify a document that allowed some men to own others? What they fail to see is that, though the Constitution as ratified permitted the obscenity of slavery -- ratification would not have been possible otherwise -- the principles behind the Constitution and enshrined in its provisions guaranteed slavery's eventual demise. To protect slavery for even a few years, Chief Justice Roger Taney had to claim in the Dred Scott decision that a Negro was not a human being, an entirely unsustainable position.

The chief problem with constitutionalism is the problem constitutionalism itself tries to solve: the problem of lawless government. At this time, more than 90% of federal activity and lawmaking is in violation both of the provisions of the Constitution and of the principles upon which it's based. The greatest obscenity is Congress's routine delegation of its lawmaking power to unelected regulators. This privilege was not granted to Congress in the Constitution, and for good reason: It puts the real lawmakers of the United States out of reach of the electorate, safe from removal.

This was made possible by citizen passivity. The enforcement agency of the Constitution is the citizenry; there is no other.

Libertarians and conservatives must find ways to reimpose Constitutional limits on the State, without interpretive legerdemain to accommodate particular interest groups, and without carving holes in the fundamental rights expressed by the Bill Of Rights that would allow governments to conduct campaigns against private practices that some people dislike.

The alternatives to a properly framed, properly observed constitution and objective written laws consistent with it are anarchy and tyranny. Anarchy looks ever more attractive to a people who cannot restrain the State that rules over them. Tyranny, of course, always looks attractive to people who want power over others.

3. The Confidence Factor.

Each abridgement of liberty has been used to justify further ones. Scholars of political systems have noted this repeatedly. The lesson is not lost on those whose agenda is total power. They perpetually strain to wedge the camel's nose into the tent, and not for the nose's sake.

Many a fine person will concede to you that "liberty is all very well in theory," follow that up with "but," and go on from there to tabulate aspects of life that, in his opinion, the voluntary actions of responsible persons interacting in freedom could never cope with. Oftentimes, free men and free markets have coped with his objections in the recent past, whether he knows it or not. You could point this out to him, provide references and footnotes, and still not overcome his resistance, for it does not depend on the specifics he cited.

His reluctance to embrace freedom is frequently based on fear, the power-monger's best friend.

Fantasist Robert Anton Wilson has written: "The State is based on threat." And so it is. After all, the State, no matter how structured, is a parasitic creature. It seizes our wealth and constrains our freedom, gives vague promises of performance in return, and then as often as not fails to deliver. No self-respecting people would tolerate such an institution if it did not regard the alternatives as worse.

The alternatives are seldom discussed in objective, unemotional terms. Sometimes they are worse, by my assessment, but why should you accept my word for it?

Let it be. The typical American, when he opts for State action over freedom, isn't acting on reasoned conviction, but on fear of a negative result. Sometimes the fear, which is frequently backed by a visceral revulsion, is so strong that no amount of counterevidence can dissolve it, including the abject failure of State action.

We've had a number of recent examples of this. To name only two prominent ones:

1. The welfare reform of 1996, which limited total welfare benefits to healthy adults and imposed work and training requirements for collecting them, is among the most successful social policy enactments of our time. Huge numbers of welfare recipients have left the dole and assumed paying jobs, transforming themselves from dead loads on society to contributors to it. Yet many politicians and those sympathetic to their aims continue to argue that the welfare system must be expanded, liberalized, and made more generous. A good fraction of these are honestly concerned about the possibility that the 1996 restrictions, the first substantial curtailments of State welfarism since the New Deal, are producing privation among Americans unable to care for themselves.
2. The War On Drugs, whose lineage reaches back to the 1914 Harrison Narcotics Control Act, has consumed tens of billions of dollars, radically diverted the attentions of state and federal law enforcement, exercised a pernicious corrupting influence on police forces, polluted our relations with several other countries, funded an immense underworld whose marketing practices are founded on bloodshed, and abridged the liberty and privacy of law-abiding Americans, but has produced no significant decrease in recreational drug consumption. Yet many Americans will not even consider the possibility that the War On Drugs should be scaled back or terminated altogether. Most resist from the fear that drug use and violence would explode without limit, possibly leading to the dissolution of civil society.

In either of the above cases, could we but take away the fear factor, there would be essentially no argument remaining.

Fear, like pain, can be useful. When it engenders caution, it can prolong life and preserve health. Conservatives in particular appreciate the value of caution. The conservative mindset is innately opposed to radical, destabilizing change, and history has proved such opposition to be wise.

However, a fear that nothing can dispel is a pure detriment to him who suffers it.

Generally, the antidote to fear is knowledge: logically sound arguments grounded in unshakable postulates and well buttressed by practical experience. Once one knows what brings a particular undesirable condition about, one has a chance of changing or averting it. The great challenge is to overcome fears so intense that they preclude a rational examination of the thing feared.

Where mainstream conservatives and libertarians part company is along the disjunction of their fears. The conservative tends to fear that, without State involvement in various social matters, the country and its norms would suffer unacceptably. Areas where such a fear applies include drug use, abortion, international trade, immigration, cultural matters, sexual behavior, and public deportment. The libertarian tends to fear the consequences of State involvement more greatly. He argues to the conservative that non-coercive ways of curbing the things he dislikes, ways that are free of statist hazards, should be investigated first, before turning to the police.

I call myself a libertarian, but I can't discount conservative fears in all cases -- especially where the libertarian approach to some social ill involves a major change to established ways. Radical transformations of society don't have a rosy history.

Yet conservatives, too, could be more realistic, and could show more confidence in the ideals they strive to defend. As Thomas Sowell has written in discussing the War On Drugs, "If at first you don't succeed, try, try again. Then quit. No use being a damned fool about it."

The past two decades, starting roughly with Ronald Reagan's ascent to national prominence, have laid the foundations for an enduring coalition between freedom-oriented libertarian thinkers and virtue-and-stability-oriented conservative thinkers. Each side needs to learn greater confidence in the other, if we are to establish the serious exchange of ideas and reservations, free of invective and dismissive rhetoric, as an ongoing process. Such confidence must include sufficient humility to allow for respect for the other side's fears -- for an unshakable confidence in one's own rightness is nearly always misplaced. There is little to learn from those who agree with you, whereas much may be learned from those who disagree.

4. The Ongoing Political Problem.

Libertarianism is a philosophy. Conservatism is not. Strictly speaking, conservatism is a set of preferences, some of which are political in nature, about certain kinds of social phenomena and changes to them.

It's rather a pity that so much confusion should attend the matter. However, the fog can be dispelled by recurring to fundamentals.

A philosophy is a system of thought, usually intended to be applied to a particular domain, that proceeds from a small set of coherent principles. The philosophy's specific statements must be in harmony with those principles, or one has a disintegrated mess that can't be logically defended.

Needless to say, the soundness of the core principles will determine the accuracy and utility of the philosophy. Moreover, no matter how good it is within its domain of applicability, attempts to apply it outside that domain will produce unsatisfactory results. Section 1, "A Harmonization," explores some such cases, the ones that most often divide libertarians from "orthodox" conservatives.

The breaches between libertarian thought and conservative preferences arise from two sources:

1. Libertarian philosophical overreach: attempts to assert the primacy of the central libertarian principle, ethical individualism, where it doesn't apply, and:
2. Inconsistent conservative policy preferences: conservatives' arguments for some things directly contradict the premises and logic of their arguments for other things.

Each camp's faults are a perfect picture of its essential character. Libertarians, who are idea-oriented and have fixed on a very compelling idea as the heart of their belief system, tend to overuse that idea, thrusting it into domains where it does active harm. Conservatives, who possess a great affection for certain attributes of a time past when there was more agreement on what constitutes virtue or vice, strain toward both its good and bad features rather than attempt to separate out the bad ones and discard them.

There's also the matter of libertarian ideological "purity," a matter that's little understood. In the political realm, an insistence on "purity" is a self-defeating thing. There aren't two people anywhere in this country who agree 100% in their political positions, including any two conservatives one might name. (Let's call this the "axiom of disagreement.") However, philosophical discussion is entirely about achieving exactly such an accord. In that sense, it's unsuited to practical political combat. Yet, in another, it's the most important asset a political movement could have. Only the continuing articulation and refinement of one's principles can provide the logical tools by which one can defend one's concepts of right and wrong -- and concepts of right and wrong are the foundation of all political thought.

Now, a lot of people are impatient with this business of working out the "right and wrong" of things from principles. Some things appear to them to be obviously wrong, and they want to act against them. The impulse is a credit to them. The problem is that political action -- the use of legitimized force -- carries costs and secondary consequences that aren't always perceptible nor predictable before it's applied. To be honest about one's integrity, one must be humble in the face of results.

There are numerous examples of the above observation; drug prohibition is only the most prominent. But it's noteworthy that this "cleavage" issue is the one that most often divides libertarians and conservatives. Libertarians, guided by ethical individualism, insist on the right to control one's own body as one sees fit. Conservatives, horrified at the moral dissolution that accompanies drug abuse, want no truck with "principles," and strain to overlook the awful consequences of politicizing this particular question of personal behavior. Once again, the innate characters of the two camps are on gaudy display.

Just as there are bounds to the applicability of any abstract principle, there are bounds to the applicability of any "practical" tool such as political authority. We might not know where those limits lie before we set out, but the results we reap will tell us afterward -- if we deign to consider them soberly.

Regarding the matter of political party alignment, there is a huge misconception among Republican partisans about the preferences of libertarian-minded voters. In brief, that misconception is that all of us are obsessed with ideological purity.

The Libertarian Party, an organization I've distanced myself from, attempts to spread that misconception. Its loyalists probably conform to that pattern. But the LP's membership is about twenty thousand souls, whereas the count of generally liberty-minded private citizens, who will occasionally reach for the LP lever in the voting booth, is about twenty times that many.

The Ron Paul candidacy in 1988 is a good indicator of this distribution. The core LP partisans didn't like Dr. Paul; as a constitutionalist with traditional views on certain subjects such as abortion, he offended their "purity" test. However, the larger American electorate liked him much more; about 420,000 of them turned out to vote for him for President.

So: Did the LP do a good thing in nominating Dr. Paul, or a bad thing? For a libertarian to believe it was a good thing, he has to accept the axiom of disagreement and be willing to bend to accommodate the views of others, at least in the near term. For a conservative to believe it was a bad thing, he has to believe that the association between Dr. Paul, a notable conservative who garners immense respect from others, and the LP was to Dr. Paul's discredit, regardless of what practical effects it might have had.

Despite a few areas of disagreement with his views, I was pleased to be Dr. Paul's New York State campaign manager, and even more pleased that so many persons who called themselves conservatives found favor with his beliefs. I think the promotion his thought received far outweighed any of the negative aspects of his association with a minor party generally disparaged by mainstream politicians and pundits.

There are thinkers, including some quite brilliant ones such as Thomas Sowell, who deplore third party politics. They believe that political progress is possible only from a marshaling of all available resources behind one banner -- getting all the horses into one corral. The argument has some weight, but, ironically in Dr. Sowell's case, it overlooks the importance of the ongoing process by which political beliefs are formed, altered and swayed, and preponderance of political will moves from one pole to another.

There are important differences between libertarian thought and the practical postures and behavior of major figures in the Republican Party. Those differences might not be resolved in the foreseeable future, but they can never be resolved, in either direction, if the two sides play kissy-face and the issues are never raised. Whichever side is right, the argument must be played out, in public -- and the aspect of the argument that political office-seekers pay attention to is voting distributions.

Whichever side one agrees with, to say that one must suppress important differences of conviction and throw one's support to the other side to "have a chance of winning" is to say that those differences aren't that important after all. What if they are? And what if the politicos watching one's decisions conclude the wrong thing from what they see?

That's the political process. Along with its function in distributing authority, it's a learning and teaching process. That's what makes it dynamic and interesting -- and vital. There is no way to circumvent it, nor can one dismiss activity at its margins as merely people working out their pique and their character flaws, unless one is willing to forgo all prospect of changing one's mind on matters of divergence.

I hope to see a continuing refinement of libertarian-conservative or "fusionist" thought. I do what I can to advance it. Thomas Sowell, Walter Williams, Larry Elder, and others of greater stature than myself are also working on it, from their particular perspectives. It is the most important effort under way in political thought. Unless it succeeds, and allows us to build a single front -- united on critical matters and tolerant of divergence on lesser ones -- with which to oppose the statism and special-interest-propelled panderings of the Left, freedom in America is doomed. Libertarians will have to face an accelerating loss of the freedoms they cherish. Conservatives will have to face the ongoing reduction of their bastions, as the power hungry, ideologically propelled forces of the Left eat into their numbers via the schools, the media, and the awful power of their patented divide-to-seduce technique.

There's much to be said for humility. It's the ultimate asset for one determined to learn from his mistakes -- and really, does learning ever occur any other way?