Monday, June 01, 2015

Surveillance and the Libertarian Right's Embrace of Civil Liberties

by Michael Dorf

The intra-Republican disagreement, indeed, intra-Kentucky-Republican disagreement, about how much government surveillance to authorize, provides a useful moment to reflect on American libertarianism more broadly. Although Senator Rand Paul's one man quasi-filibuster may seem to place him outside the mainstream of Republicans, in fact he has a non-trivial level of support. He is almost certainly too libertarian to win the Republican presidential nomination, but the emergence of his niche strikes me as a potentially important, and largely positive, development in American politics.

Political parties in America have almost always been uneasy coalitions. There are multiple groups with multiple divergent interests, but Duverger's law means that the thousands of different possible combinations of positions on issues have had to cram themselves into just two parties. The resulting ideological orientations of the parties are thus usually an uneasy compromise. Still, in the modern era, we can see broad ideological coherence within each party.

How so? Let's vastly over-simplify by assuming that there are only five sets of issues, and on each issue one can take one of only two positions, as follows:

Civil rights: Liberal or conservative
Civil liberties: Liberal or conservative
Redistribution: Pro or Anti
Regulation: Pro or Anti
Foreign Policy: Dove or Hawk

The modern Democratic Party tends to be liberal on civil rights and civil liberties, pro-redistribution, pro-regulation, and dovish on foreign policy. The modern Republican Party tends to be conservative on civil rights and civil liberties, anti-redistribution, anti-regulation, and hawkish on foreign policy.

Those generalizations are intended only comparatively. Judged by the standards of European politics, the U.S. Democratic Party is center-right on redistribution and regulation, and hawkish on foreign policy. But the labels are mostly accurate in comparative terms. The Democrats under Clinton moved right on most domestic policy issues (remember Reinventing Government, welfare reform, AEDPA, etc.) and particular Republicans have been foreign policy realists, which made them doves by comparison with the rest of their party. But these are examples of one party, or one wing of one party, moving to the center. Rarely has a wing of either party crossed over past the other party.

Against this backdrop, it is tempting to see Rand Paul as a one-off figure, futilely attempting to revive the isolationism of the pre-Cold War Republican Party. That wing of the party probably never disappeared in the electorate but it was largely invisible among politicians in modern times. Pat Buchanan and Ron Paul were notable exceptions.

Paul fils could be seen as simply the latest iteration of this throwback tradition but I think that would be a mistake. To my mind, he is something new: A right-wing foreign-policy dove who is a civil liberties liberal.

Paul's opposition to government surveillance outflanks nearly all Democrats on the liberal side. One suspects that were Paul a Senator from a less conservative state than Kentucky, he would be more liberal on more issues. The fact that he extends the familiar right-wing "get government off our backs" notion even as far as he does on civil liberties issues shows that there is a real constituency for civil liberties on the right--even in Kentucky.

That's something fairly new in American politics. During the Cold War, the right saw civil rights and civil liberties as either a communist plot or, at best, an opening for communists. The modern libertarian right still resists civil rights (as illustrated by Senator Paul's opposition to laws banning discrimination by private actors) but the libertarian right has made its peace with, indeed has embraced, civil liberties. In this respect, Senator Paul is hardly an outlier.

To be sure, Senator Paul's "victory" last night was largely a product of the power the Senate rules give to each individual Senator to delay action. But we should not lose sight of the fact that the discontinuation of bulk phone data collection by the government came out of a Republican-controlled House. The embrace of civil liberties by a large chunk of the libertarian right is a notable development that at least holds out the hope for future cooperation by civil libertarians on the right and the left.


RationalOutlook said...

It's really great and laudable that the "modern libertarian right" does not embrace what you call "civil rights" ie the right to be served by private actors. They are essentially positive rights that infringe upon others' negative liberties, so in usual terms, it's just misleading to call them "rights."

There is no need to find a "balance" either. We don't balance the negative right to free speech with the positive right to, for example, not be "offended." Besides, why should the government get to decide what criteria are ok to discriminate based upon and which are not? (which it currently does. Eg wrong to discriminate based on religion, but ok based on political beliefs).

Joe said...

The public sector is not "private" ground -- is the "public" sector even if confusingly there is still some private control involved. So, when you run a "public" accommodation, especially if you are a corporation which gets special privileges, it is not just a "private" actor involved. The "public interest" involved here was flagged back in the Gilded Age.

There needs to be some balance. There is no broad right not to be "offended," but we do have positive rights in this country. For instance, the positive right of education or some basic safety net. As to discrimination, the term here means wrongful discrimination. We differentiate all the time. Certain things are rightly seen as particularly wrongly. But, political beliefs are protected too, particularly if the government is doing the hiring. Refusal to serve a Republican at the store very well can get you in trouble too unless it is a political job for which a right to association arises.

As to Rand Paul, his father is Ron Paul. His certain breed of libertarianism (e.g., not very supportive of abortion rights and at least sketchy on same sex marriage) arises from his background in some fashion, I gather. There are Kentucky Democrats out there. There are also Republicans from more liberal states though maybe that would influence his actions in some fashion.

Anyway, as someone who leans left, I have seen Rand Paul show promise though he isn't quite as good as he seems. But, I appreciate his efforts on certain things. Plus, there are some other Republicans (if not enough these days) who join him on this and other non-economic rights issues including the law cutting off funding of enforcement of prosecution of medicinal marijuana in states that allow it.

RationalOutlook said...

Yeah, I know someone would just come forward and make issue with the private/public terminology. Just replace wherever I used the word "private" with "non-government-owned." (Besides, in philosophical literature, private is abundantly used to mean that. Even Dorf did so because I knew. No more semantics fighting now.

Also, I'm not a big fan of corporations getting special privileges so let's say I concede your point. But even then small businesses which are not in corporate form. I see no way it can be ok for government to infringe on their negative liberty and their negative rights by forcing them to serve someone they don't want to. Sorry. (You might make a utilitarian case for it, but I'm not interested in that (although it can be very probable that providing everyone negative liberty is best for maximizing utility, but I am not making that case).

Shag from Brookline said...

"non-government-owned" small businesses, whether in corporate or non-corporate form, may be government-licensed, which may be a form of and beneficiary of public subsidy.

Joe said...

It's not really "semantics" -- use of "governmental owned" misleads and we are not merely writing in "philosophical" literature here. These discussions are made for people at large. I'm "making issue" with your questioning of basic commonly understood principle here. Dissenting views should expect pushback.

There is a public sphere -- and public accommodations are included here -- in which we are not merely talking about "private actors." As noted back in the 19th Century and before, we are talking about things "clothed in the public interest," which makes warrants more governmental involvement to regulate a "public area" (I'm using the term in a loose way -- need not flag "philosophical literature" defining it somewhat differently).

Also, it is not "misleading" to call positive rights "rights" even in "usual" terms unless you are using the word in a narrow fashion. The right of businesses to use civil courts to settle disputes is only in place because the government provides the means including obligating citizens to be jurors in various cases. A "right" is not just a matter of "negative liberty." If you want to use arguments with hidden philosophical assumptions that clash with "rights" found in many constitutions (and are so labeled), you are going to get pushback.

Small businesses repeatedly get benefits from the government. But, even beyond that, I duly note your argument it is wrong to require stores to serve black people, which clashes from other views of liberty going back to the 19th Century (and beyond in some locations). People join a society and open businesses in public places, they have a duty to serve all comers. It's part of what "public" entails. I summarize here.

Shag from Brookline said...

There are many varieties of libertarians. Some claim that they have pulled themselves up by their own bootstraps, which is a tad difficult physically; otherwise this brand of libertarians, who claim to do it all on their own, would be brandishing facial injuries. But they do take liberties with other persons' liberties, doing no harm - to themselves. Of course, there are some pure libertarians.

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