Is libertarian skepticism about democracy a major cause of our current ills – or a part of the cure? (Volokh Conspiracy)

Is libertarian skepticism about democracy a major cause of our current ills – or a part of the cure?

http://wapo.st/2zfqYLa

In an interesting recent essay for the Niskanen Center, Will Wilkinson argues that libertarian skepticism about democracy is a major cause of the current pathologies of the political right in the United States. More specifically, he contends that, as a result of embracing an absolutist conception of property rights, libertarians have become hostile to democracy to the point of seeking a total “escape from politics.” While earlier “classical liberals” sought only to put constitutional “trigger locks” on democracy, today’s libertarians seek to eliminate it entirely.

These ideas, Wilkinson argues, have infected the mainstream Republican right, and become a major factor in the latter’s undermining of various key norms of liberal democracy. If true, Wilkinson’s thesis would be an important contribution to our understanding of the history of both libertarianism and American politics more generally. But, unfortunately, every step in his story is either greatly exaggerated or simply wrong. Libertarian skepticism about democracy is not primarily the result of the factors Wilkinson cites, and it is not a significant contributor to the pathologies of the conservative right. Far from being a key cause of our current problems, it can be a useful part of the solution.

I. Libertarianism and Democracy.

Let’s start with Wilkinson’s argument that libertarian criticism of democracy is caused by a devotion to absolute property rights, which democracy imperils. At the beginning of his essay, he cites books by Jason Brennan, Bryan Caplan, and myself as exemplifying recent libertarian critiques of democracy. It is striking that all three of us are on record as rejecting the idea of absolutely inviolable property rights (see here, here, and here; Caplan’s rejection is more ambiguous than Brennan’s and mine, but he clearly indicates that he’s willing to override liberty or property rights in cases where doing so is needed to avoid “terrible” consequences). The same thing is true of Richard Epstein, probably the most influential libertarian analyst of property rights of the last several decades years. For example, he supports the use of eminent domain when needed to overcome collective action problems.

In modern times, the two most significant libertarian critics of majoritarian democracy were economists F.A. Hayek and James Buchanan (one of the founders of public choice theory). Neither of them favored absolute property rights either. Buchanan even advocated a 100% inheritance tax. Wilkinson tries sidestep this by classifying Hayek and Buchanan as “classical liberals” rather than “libertarians.” But whatever terminology we use, it is pretty obvious that Hayek and Buchanan’s ideas (combined with more recent works flowing from the same traditions) are the most influential bases for most modern libertarian skepticism about democracy. And these theories are not based on any notion of absolute property rights.

The real bases of for libertarian concern about democracy are a combination of the knowledge limitations of government planners (Hayek), the susceptibility of democracy to “capture” by special interests and overbearing majorities (Buchanan and other early public choice theorists), and the perverse incentives democracy creates for widespread voter ignorance and bias (Brennan, Caplan, and my own work, among others). As I have explained more fully here, there is a great deal of overlap between these libertarian concerns about democracy and standard left-liberal rationales for limiting the power of political majorities. The key difference is that libertarians extend them to cover the “economic” powers of government as well as “noneconomic” ones. But it’s hard to explain why the former should be any less subject to these pathologies than the latter.

Undoubtedly, there have been some notable libertarian thinkers who do support virtually absolute property rights. Wilkinson mentions Ayn Rand and Murray Rothbard, who are indeed notable examples. But libertarian concerns about democracy long predate their emergence, and are not primarily the result of their ideas (which differ on key points from the most influential libertarian thinkers who have focused on the flaws of the democratic process).

Wilkinson also cites the important libertarian philosopher Robert Nozick as a property rights absolutist. Nozick did indeed favor stronger property rights than Hayek or Buchanan. But an absolutist he was not. He was actually willing to allow redistribution in cases where the system of private property rights leads to severe deprivation (which he thought would rarely happen), or where current property holdings are the result of significant historical injustices (a state of affairs that he knew to be quite common).

Wilkinson’s accusation that libertarian critiques of democracy collapse into a utopian desire to “escape” politics entirely by reducing it to “almost nothing” is also overblown, except perhaps in the case of anarchists. Consider even the “minimal state” advocated by the most hard-cover non-anarchist libertarians. That state would still carry out such functions as national defense, law enforcement, curbing torts and infringements on property rights, operating a judicial system, and so on. That leaves a good deal of room for politics, which would still operate armies, police forces, courts, and so on. That is even more true for the somewhat more powerful state advocated by more moderate libertarians, even if such a government would have far less power than current states do.

Perhaps Wilkinson means to suggest that any effort to impose substantial limits on government power is ultimately illusory, because it requires a degree of political support for success, and therefore cannot truly “escape” politics. But such fatalism would contradict his own apparent endorsement of what he calls “trigger lock” constraints on democracy. Such institutions as judicial review, separation of powers, supermajority voting rules, and federalism cannot provide absolute guarantees against the ills of democracy. But they can potentially reduce the danger.

I suspect Wilkinson supports the use of such mechanisms in many contexts. If so, he cannot preemptively dismiss the possibility of using them to put strict limits on the economic powers of government, as advocated by libertarian thinkers. The latter may be wrong or unrealistic for various reasons. But not because it is somehow a utopian avoidance of politics.

In sum, even if you do not support absolute property rights and do not wish to “escape” politics entirely, you have good reason to take libertarian concerns about democracy seriously, and to consider whether they might justify substantial limitations on the power of democratic majorities.

II. Is Libertarianism to Blame for the Dysfunctions of the Republican Right?

The connection Wilkinson draws between libertarian democracy-skepticism and the current flaws of the Republican right is even more dubious than his analysis of libertarianism itself. Today’s GOP has many flaws. But hard-core opposition to redistribution motivated by property-rights absolutism is not among them. This is the party that has essentially given up on trying to cut federal spending, and elected a president who categorically opposes even modest cuts to Medicare and Social Security, the two biggest redistributive programs. On top of that, the Trump-era GOP increasingly embraces sweeping protectionism and harsh immigration restrictions, often defending them on the grounds that these forms of government intervention in the economy can help redistribute wealth to the party’s favored constituencies.

The GOP does still contain some elements who want to cut welfare state spending, or are otherwise influenced by libertarian ideas. But it is obvious that these groups are far from the dominant faction in the party. And even most of them are far from being property rights absolutists.

Wilkinson points to House Speaker Paul Ryan, who does indeed want to cut entitlement spending. But even if Ryan’s ideas were fully implemented, we would still have an extensive welfare state, and he is happy to accept that, his occasional praise of Ayn Rand (noted by Wilkinson) notwithstanding. Ryan has even said he “completely rejects” Rand philosophy. Perhaps he’s lying about that, and is secretly a thoroughgoing Randian Objectivist at heart. But if so, it’s notable that he has to pretend otherwise in order to remain a viable GOP leader.

The biggest flaw of the current GOP is not their supposed hostility to majoritarian democracy, but almost the exact opposite: their embrace of a populism that appeals to some of the worst instincts of the less knowledgeable part of their constituency. Donald Trump’s 2016 campaign strategy was in many ways a textbook example of the exploitation of the very sort of political ignorance that libertarians have long warned us against.

As evidence of anti-democratic tendencies in the GOP, Wilkinson cites their use of gerrymandering and voter ID laws for electoral advantage. I am no fan of either of these tactics. But they have little if any connection to either libertarianism or any other principled critique of democracy. They simply reflect standard tactics both parties routinely use to “rig” the system in their favor when they have the chance to do so. In states where they control the legislature, the Democrats gerrymander just as shamelessly as the GOP. The bad behavior of both parties is accentuated by growing partisan hatred and polarization, and the associated unwillingness to abjure any tactic that might help the reviled enemy.

It is not even clear that conservative Republicans, on the whole, seek to constrain democracy more than liberal Democrats do. The latter are advocates of aggressive judicial review on a wide range of issues (often with good reason), and (for more dubious reasons) seek to concentrate great power in the hands of bureaucratic experts over whom voters exercise little control.

Overcoming our current political pathologies will not be easy. But libertarian critiques of democracy can be a useful part of the solution. For example, limiting and decentralizing government power can help reduce the harm caused by voter ignorance and prejudice – including the xenophobic populist nationalism that Wilkinson rightly fears. When people “vote with their feet” in the private sector or in a federal system, they tend to make better-informed and less prejudiced decisions than at the ballot box.There is much we can do to expand opportunities for foot voting, particularly for the poor.

Political decentralization of the sort championed by libertarians can also help defuse the fear and partisan hatred that make ignorance and bias an especially grave menace today. One need not be a full-blown libertarian to recognize that libertarian concerns about democracy have some merit, and that limiting and decentralizing government power can help defuse these problems – even if we ultimately cannot or should not move as far in these directions as libertarians want.

Wilkinson is right to worry about the dysfunctions of both the Republican right specifically, and our political system more generally. But he is wrong to heap blame on libertarian critiques of democracy. To the contrary, those critiques can both help us understand how we got into our current predicament, and how we can get out of it.

Law

via Volokh Conspiracy http://wapo.st/2mIfJXZ

November 5, 2017 at 08:40AM