As I’ve been saying, glibertarians are really bad news. They are bad news because they give principled libertarians a bad name, and because they fuck up politics, and because they fuck up libertarianism. For a less impressionistic, more systematic account of why glibertarians are such bad news, consider two very broad ways of thinking about rights† and liberties (hereafter, just ‘rights’):

(1) Rights†† are distinct and independent components of a polity. Any possible right is like an electric switch — it can be on or off. And each such switch functions separately from all the others. So any permutation of the on-off values of each right is possible, and what’s more, a polity can flip some right on or off without affecting the status of other rights. The overall measure of liberty in a polity is the one-dimensional measure of the number of on-switches. Country A is freer than country B at a time t if and only if it has more switches turned on at t than B does, otherwise it’s less free at t. Notice that any country can be compared in terms of its overall liberty to any other, and to itself at any other time.

(2) Rights are like pieces of an interconnected lattice-work, such that each right is at least indirectly connected to all the others. Every polity has its own such lattice-work; the rights incorporated into the lattice work of some polity are the rights that exist within that polity. Rights can either be added to or taken away from a polity, or shifted in their overall position in the lattice-work, but never independently of the other rights in the lattice-work. Adding rights will usually increase liberty, taking away rights will usually decrease liberty, and alterations to the lattice that conserve its constituents can go either way. Consequently, the measure of liberty is more than one dimensional — say, given by the three dimensions of the structural strength of lattice work, its size (i.e., its volume), and the elegance/simplicity of the shape. So measuring the overall liberty of a polity takes a little more math than in (1); it will be given by something like a function from an ordered triple〈x,y,z〉of the magnitudes of each dimension, to some dimensionless number. And some cases may have no measure, or else their measure might not be comparable to another measure (either another country’s measure or the same country’s measure at another time).

Let’s say that people who take the first view are One-ists, and people who take the second view are Two-ists. Now, One-ists and Two-ists are both able (and likely) to take more refined positions than those above. One-ists are likely to assign specific weights to each switch, so that the overall measure of liberty is the sum of the weights of each on-switch. And if their view is to be plausible, they are going to have to find some way to collapse distinctions among rights that are too closely related to really be distinct (so, e.g., they might say all the 1st Amendment rights are really one right, i.e., one switch, albeit one that has a great deal of weight). And they may be willing to admit exceptions where some rights share wires, so to speak, so that they can’t be turned on and off independently. If they want to get fancy, One-ists can say the switches are really dimmers, whose positions correspond to the strength of a particular right in a particular polity.

Two-ists are also likely to need some way of assigning weights to each individual right in the lattice, although the magnitudes of the structural strength of the lattice, its size, and elegeance/simplicity/whatever of its shape might take care of that (the extra math up front has its benefits). More challenging to the view, some Two-ists might admit that there are exceptional cases of rights that exist outside the lattice but still belong to a society (or worse, a (presumably small) lattice of independent rights).

Let’s leave One-ism and Two-ism at that. If I’ve done a good enough job explaining them, it should be clear that libertarians are going to want to adopt some form of Two-ism. Why? Because it should be (and I think, is) a defining characteristic of libertarianism that rights cannot be turned on and off independently, that turning off (or dimming) an on-switch affects other rights and weakens or decreases liberty to a greater extent than the measure of the loss of liberty of some dimming or canceling of a right. That is, turning off some right, even if it seems to be a negligible right, or dimming even a large right but to a negligible degree, can lead to decidedly non-negligible losses of liberty. There may be exceptions, but for libertarians, the exceptions prove the rule. Two-ism captures this idea nicely: remove a right from the lattice, and you affect every right to which it is connected (i.e. all of them); even a seemingly unimportant right can occupy an important structural position in the lattice, such that removing it greatly reduces the strength of the lattice. That weakening the strength of the overall structure is itself a decrease in liberty becomes evident once additional pressure, that the lattice would have previously withstood, does further damage and knocks out more rights.††† Again, there are exceptions, but libertarians will stress that those exceptions are rare and serve to illustrate the general rule.

By contrast, self-described liberals and conservatives are very likely to be One-ists — at least to the extent that the overall measure of liberty in a polity is significant to them in the first place. That is, so-called liberals and so-called conservatives take a cafeteria approach to rights that One-ism licenses, but to which Two-ism would raise serious objections. The difference between liberals and conservatives, by libertarian lights, is which rights each camp puts on its tray, which they leave off, and why. Of course, liberals and conservatives have their respective rationales for defending and expanding some rights, and restricting and nullifying others. In some cases, they may deny that a putative right really is a right. But in at least some cases, they’ll admit, if pressed, that what they support is an abridgement of a right. They justify it by saying something to the effect that a) the payoff of abridging some particular right is worth the cost to liberty, and b) the right in question is one that can be abridged while leaving other rights essentially intact.‡‡

Now, it could well be that someone who is by large One-ist nevertheless believes strongly enough in defending the whole array of rights that her practical positions are indistinguishable from most Two-ists’ positions. (A libertarian could be a One-ist, for example, even if it cuts against libertarianism’s plausibility.) Likewise, a Two-ist could restrict the domain of rights so sharply that her practical positions are vastly more hostile to freedom than most One-ists’ views. (One could make a case that communism follows such a model.)

But those are hypotheticals. The concrete reality is that liberals and conservatives cash out One-ism by divvying up rights to support, if not in perfectly even proportions, then close enough to even to defy any attempt to say after a cursory glance which side takes the bigger share. Looking just at a handful of recent SCOTUS decisions that libertarians cared about a lot, so-called liberals on the court were far more likely than so-called conservatives to take a restrictive view of the 2nd Amendment and an expansive view of the Interstate Commerce Clause, the Eminent Domain Clause, and similar constitutional provisions. On the other hand, so-called conservatives were far more likely than so-called liberals to take a restrictive view of the 4th, 5th, 6th, 8th, 9th, and 14th Amendments, and an expansive view of Article II. And each side has been willing to alternate taking restrictive views of the 1st Amendment, as it suited their pre-existing biases.

In other words, any claim that one of the two main camps in judicial politics is just obviously more congenial to liberty than the other is full of shit. In Kelo, Raich, and Heller, the “liberal” position was decidedly unfriendly to liberty. In two of the three, the “conservative” position was more friendly — though in the exception, Raich, conservatives (like Antonin Scalia, naturally) were happy to sign on to a ludicrous reading of the Interstate Commerce Clause in order to crack down on the freedom of pot-smoking pain-sufferers. The same goes for liberals’ support for campaign finance laws, affirmative action, all manner of regulation, and any number of other policies that arguably curtail or jeopardize freedom. By the same token, in Hamdan and Boumediene, the “liberal” position was that due process cannot be abridged by executive claims of quasi-dictatorial inherent authority, while the “conservative” position was simply supine — respective positions that extend to each side’s views of criminal justice in general. Similarly, in Lawrence, and for that matter, in all the cases descended from Griswold, the “liberal” position has been strongly for individual freedom, and the “conservative” position has been strongly opposed to it.

How is a libertarian to decide which camp is better, on the whole, for liberty? (It’s not just an academic question; the answer ought to inform libertarians’ voting decisions, for one thing, because one of the clear distinctions between the parties is that one is overwhelmingly likely to appoint judicial liberals, and the other is overwhelmingly likely to appoint judicial conservatives.) That will depend on how one weights each of the rights liberals tend to support, how one weights the rights that conservatives tend to support, and further — because libertarians are Two-ists — how strong an overall lattice-work each side’s favored rights can form.

Now, I happen to come to the conclusion that judicial liberals are generally more congenial to liberty than judicial conservatives, however unwittingly. Partly that’s because I cannot conceive of a more fundamental bulwark of liberty than the rights at stake in Boumediene, partly it’s because conservatives have turned out often enough to be rotten on the questions on which they ought to be good (see Scalia in Raich), and partly it’s because the nature of Republican politics in 2008 virtually guarantees that any so-called conservative judicial appointment will be deeply hostile to an array of reproductive and sexual freedoms on which I place a lot of weight. (By contrast, it will be a self-described liberal who appoints another Sandra Day O’Connor, given present political circumstances, if anyone does.) But that’s a conclusion I come to after considerable reflection, and which I readily concede may be wrong — or even if it’s correct at the moment, might require re-evaluation if liberals take power.

The point is that these are difficult questions that make nonsense of casual certainty about them, let alone insta-punditry. If someone were trying to make a mockery of libertarianism, she could scarcely outdo the triumphal victory celebration for gun rights that shows no signs of abating in quarters where an equally (at least!) momentous victory for habeas corpus and separation of powers was met with the full gamut of reactions from indifference to hostility.

†These two ways of thinking are orthogonal to the different metatheories of rights I wrote about here. (They are not metatheories, but rather different possible structures of the theory of rights itself.) This post follows most naturally in a conventionalist framework, but could be translated into an ontological/platonist framework without too much trouble. Someone who understands rights ontologically will say that rights exist eternally, so the One-ist’s on-off switch metaphor isn’t about whether rights exist in a polity, but whether they are recognized; likewise, on the ontological view, the lattice-work is the structural arrangement of recognitions of rights, not the rights themselves. However, someone who takes the ontological view of rights but then denies that rights exist should probably try on the conventionalist view, at least for the purposes of this discussion. If she insists, she can say that what conventionalists call “rights” are something else, rights*. She can then add a ‘*’ to every mention of ‘right’ above.

†† Let’s put definitional problems with ‘rights’ to one side, and assume that issues like whether there are positive rights, and if so, their comparability to negative rights, are settled.

††† These considerations — Two-ism, generally — can point a way to getting around the limitations of slippery slope arguments. Show how a particular infringement on liberty has broader ramifications for the overall structure and strength of liberty, and you’re no longer in the neighborhood of arguing that everything is like everything else.

‡‡ Granted, some people on the left will deny that some rights are rights. Let them have their denials. In other cases — like gun rights — it’s really pretty tough to deny that gun bans and restrictions infringe on a right. The justification/excuse will be that gun rights aren’t important and that they can be infringed without society becoming appreciably less free.

Tags: glibertarian, libertarianism, liberty