Are Libertarians the New Communists?

by Dr. Gerard Emershaw

Orange is the new black. Tropes are the new memes. And libertarianism is the new communism. What? Statists Nick Hanauer and Eric Liu have recently published a Bloomberg piece entitled “Libertarians Are the New Communists.” Hanauer is a venture capitalist and Liu is a former speechwriter in the Clinton White House. Given that both these individuals depend upon big government and corporatism to make their bones, it is no surprise that they would decry freedom.

Hanauer and Liu rightly claim that wherever communism was adopted, it has led to “misery, poverty and tyranny.” They then argue that if “extremist libertarians” ever came to power, the results would be the same. They refer to these “extremist libertarians” as “nihilist anti-state libertarians” who are allegedly aiming to shut down the state. They identify the Koch brothers, Grover Norquist, Ted Cruz, Ron Paul, and Rand Paul as such libertarian nihilists.

Creating a straw man by relying upon a tortured interpretation of Ayn Rand’s objectivism and applying it to all libertarians, they claim that radical libertarianism “assumes that humans are wired only to be selfish.” They also argue that radical libertarianism “assumes that societies are efficient mechanisms requiring no rules or enforcers, when, in fact, they are fragile ecosystems prone to collapse and easily overwhelmed by free-riders.”

They further contend that not only would radical libertarianism be a disaster if it ever became the philosophy of the leaders of the federal government, but that radical libertarianism would in fact be impossible to apply to a functioning society. In their fevered imaginations, they see: “A President Paul [who] would rule by tantrum, shutting down the government in order to repeal laws already passed by Congress.” Of course, these unoriginal thinkers could not possibly write a hit piece on libertarianism without playing the Somalia card: “It is in failed states such as Somalia that libertarianism finds its fullest actual expression.”

Hanauer and Liu’s solution is uninspiring and unoriginally communitarian:

The alternative to this extremism is an evolving blend of freedom and cooperation. The relationship between social happiness and economic success can be plotted on a bell curve, and the sweet spot is away from the extremes of either pure liberty or pure communitarianism. That is where true citizenship and healthy capitalism are found.

True citizenship enables a society to thrive for precisely the reasons that communism and radical libertarianism cannot. It is based on a realistic conception of human nature that recognizes we must cooperate to be able compete at higher levels. True citizenship means changing policy to adapt to changes in circumstance. Sometimes government isn’t the answer. Other times it is.

Hanauer and Liu do say something correct about libertarianism. It is “the ideology that holds that individual liberty trumps all other values.” This is undeniably true because all other values are dependent on freedom. Unless one is an autonomous and has the ability to exercise natural rights to life, liberty, and property, then no other values can take root, let alone be enjoyed. Natural rights are possessed by human beings in virtue of their humanity. The government does not grant natural rights and may not take them away. To deny the existence and paramount nature of natural rights is to deny humanity itself.

Is it impossible for “extreme libertarianism” to be the governing philosophy of the nation? It certainly was not impossible for the first century of the existence of the Republic when by and large the federal government was a minarchist state—particularly when compared with the bloated warfare/welfare “communitarian” state so loved by corporatist statists like Hanauer and Liu. With minimal federal regulations, no welfare state, and no income tax, the United States grew from a weak agrarian former British colony into the world’s greatest economic power. How had libertarians such as Jefferson, Madison, and Monroe managed not to turn the United States into a failed state? There was hardly “misery, poverty, and tyranny.”

The radical libertarianism of the individuals named by the authors is a form of Constitutional minarchism. Those such as Ron Paul seek to shut down only the parts of government that are unconstitutional. This is akin to an oncologist treating a patient with cancer. Such a physician is anti-cancer cells, not anti-healthy cells. Not all libertarians are objectivists and most do not hold that psychological egoism is true. Statists such as Hanauer and Liu believe that the only kind of cooperation that is possible is collectivist “cooperation” at the barrel of a gun. Coerced cooperation is not cooperation at all. Coerced altruism is not altruism at all. The idea that libertarians do not believe in cooperation is the most disingenuous variety of straw man argument. Libertarians believe in the freedom to cooperate with those whom one chooses to associate. This is the very backbone of civil society. Libertarians accomplish things by forming businesses, PACs, nonprofit organizations, and all manner of informal cooperative and voluntary associations. Libertarians are anything but solitary dog-eat-dog Hobbesians or Social Darwinists. The kind of cooperation that Hanauer and Liu have in mind is no doubt phony forced cooperation—draconian taxation and regulation, corporatist wealth redistribution, Nanny State “nudging,” etc.

The notion of President Paul (whether Ron or Rand) ruling by tantrum is ridiculous. Unless, of course, “ruling by tantrum” is what the cool kids are calling ruling by the Constitution these days. President Paul would likely veto many unconstitutional or wasteful bills. It is also likely that President Paul would refuse to enforce some legislation passed by Congress. However, the President takes an oath to defend the Constitution. This oath is violated if he or she enforces unconstitutional legislation. Would Hanauer and Liu wish the President to enforce laws that brought back slavery or segregation? Laws that made homosexuality into a capital federal offense? Hopefully not, but perhaps if these racist and homophobic laws were for “the greater good.”

The old Somalia canard hardly deserves addressing. However, here goes. Somalia is anything but a libertarian state. The organization Freedom House ranks the Somali government as among the most repressive in the world. While perhaps it is a weak despotic government, it is despotic nevertheless. A minarchist libertarian government would be a limited government that safeguarded the natural rights to life, liberty, and property. It would be far closer to the early American government minus the racist scourge of statist slavery than it would to the government of Somalia.

What Hanauer and Liu fail to understand is that the communitarian “sweet spot” of which they fantasize is a pipe dream. If government is given an inch, it takes a million miles. The government they worship is the one which supported slavery, herded Japanese-Americans into concentration camps, experimented on African American men without their consent, and spies on each and every American citizen as if they are traitors and criminals. Ultimately, freedom wanes unless centralized government is chained down by the people using the Constitution. But the truth is that such statists do not fear the government. What they fear are the people. This is indicated by their disdain for the concept that “societies are efficient mechanisms requiring no rules or enforcers, when, in fact, they are fragile ecosystems prone to collapse and easily overwhelmed by free-riders.” They clearly must believe that human beings are evil and require a police state to rule them when in fact all evidence is to the contrary. They view others as “free riders” when it is the progressive corporatists and courtiers who are the true “free riders.” What they are suggesting is an Americanized version of fascism. 

Hobby Lobby and the Perpetuation of Obamacare

by Dr. Gerard Emershaw

In Burwell v. Hobby Lobby, the Supreme Court ruled that the contraceptive mandate of the Patient Protection and Affordable Care Act (PPACA) violates the First Amendment religious rights of closely held for-profit corporations by violating the Religious Freedom Restoration Act (RFRA). The RFRA states: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” By a 5–4 margin along traditional ideological lines, the Court struck down the contraceptive mandate of the PPACA in the case of closely held for-profit corporations which have religious objections. The owners of Hobby Lobby claimed that being required to cover certain forms of contraceptives such as Plan B and IUDs violated their religious rights because they consider these particular contraceptives to be akin to abortion.

Justice Alito stressed that the ruling was very narrow and only applied to closely held for-profit corporations objecting to a law on religious grounds. He claimed that few situations would arise which would be relevant under the holding. While the First Amendment religious freedom aspect is the one which most commentators have focused upon, there is a far more important aspect that has been overlooked. It does bear noting, however, that granting a corporation—even a closely held one—religious rights is dubious. A corporation is not identical with its shareholders. If business owners wish to have their company as their alter ego, then they are perfectly free to establish their business as a sole proprietorship or a partnership. By forming a corporation and gaining the benefit of limited liability, shareholders in a closely held corporation give up the right to use their business as their alter ego. A corporation is a fictional person which has a fiduciary duty to produce profits for its shareholders. It is simply not the kind of entity which has religious values. While the personhood that is granted to corporations is a legal fiction aimed at defending the Constitutional rights of shareholders, granting freedom of religion to a corporation seems to be taking things at least one step too far.

The more important feature about the case is what it demonstrates about the future of Obamacare. Hobby Lobby is not going to derail Obamacare. Employees of corporations such as Hobby Lobby will either do without one benefit of the PPACA or the Obama administration will find some other way to accomplish the same end as the contraceptive mandate—most likely allowing such corporations to pass the buck and force taxpayers as a whole to somehow foot the bill. Justice Alito—a supposedly conservative Justice—suggested as much in his opinion. The manner in which socially conservative Republicans have celebrated this holding foreshadows an ugly truth. Obamacare is here to stay. Any talk among Republicans about getting rid of the PPACA appears to be nothing but lip service. Given that neoconservatives do not care about deficits or about domestic policy in general and given that RINOs were in favor of corporatist health care back when it was viewed as a more free market alternative to a socialistic single payer system, this should come as no surprise. Republicans have a nasty habit of eventually acquiescing to new progressive Nanny State programs. While the GOP once opposed the programs of the New Deal and the Great Society, it has long since resigned itself to making minor tweaks to these socialistic programs. These so-called conservatives are content to save taxpayers pennies on the dollar by making welfare, unemployment insurance, Medicare, etc. a little more efficient. Even Ronald Reagan for all his huffing and puffing about eliminating the Department of Education ultimately did nothing about it. It is alive and well. Bigger and better than ever. Well, bigger at any rate.

Obamacare is patently unconstitutional. However, it appears to be here to stay. The GOP is likely to use it as a scapegoat when it needs to toss red meat to its base, but like the New Deal, the Great Society, and the Department of Education, the PPACA is going nowhere. In addition to using it as a symbol of the progressive bogeyman, the GOP will now apparently use Obamacare to fascistically pick winners and losers in a crony capitalist fashion. This First Amendment loophole created in Hobby Lobby is likely the first of many. Exemptions to particular mandates in Obamacare will be used by both Democrats and Republicans as a way of granting favors to partisan supporters.

Justice Roberts should take no solace in the fact that he defended the Constitution in the Hobby Lobby case. Two years prior he ignored the Constitution so egregiously that he destroyed his reputation beyond redemption.

California Democrats Wish to Police College Bedrooms

by Dr. Gerard Emershaw

Democrats often criticize Republicans for attempting to put government in American bedrooms. With the preoccupation that social conservatives on the right have with homosexuality, contraception, and marriage, Democrats often have a point. However, big government Progressive Democrats are no less willing to police the bedroom when it fits their agenda. Democrat Party lawmakers in California are advancing S.B. 967, a bill which requires California college students to provide “affirmative consent” before engaging in sexual activity. S.B. 967 has passed the California Senate by a vote of 27–9 and is now in the Assembly awaiting a vote. The bill is a reaction to a report that listed 55 schools which are under investigation by the United States Department of Education for allegedly mishandling sexual assault and harassment complaints by students. Four California schools were on this list.

S.B. 967 would require any post-secondary educational institute receiving states funds to adopt policies concerning “sexual assault, domestic violence, dating violence, and stalking” that include “an affirmative consent standard in the determination of whether consent was given by a complainant.” The key section of the bill concerning this “affirmative consent standard” reads as follows:

An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Another key element is that on a California college campus, the standard for establishing a sexual assault complaint is reduced by the bill to a preponderance of the evidence standard.

The first issue concerns what precisely constitutes “affirmative consent.” This issue involves the metaphysical question of what it is, the epistemological question of how the sexual actors know, and the practical question of how evidence is established. Alas, these questions will always be problematic for criminal charges of sexual assault. However, they become even more problematic here where the standard is merely that of preponderance of the evidence. The party who is a more convincing speaker, has a better advocate, or is simply more charismatic could win the day. When the education and reputation of college students is at stake, this makes it seem dubious whether due process is actually being satisfied.

If this bill becomes law, it could lead to the necessity of schools adopting official policies that are similar to Antioch College’s much lampooned 1991 policy. The basics of the failed Antioch College policy can be summarized as follows:

·         Consent is required each and every time there is sexual activity.

·         All parties must have a clear and accurate understanding of the sexual activity.

·         The person(s) who initiate(s) the sexual activity is responsible for asking for consent.

·         The person(s) who are asked are responsible for verbally responding.

·         Each new level of sexual activity requires consent.

·         Use of agreed upon forms of communication such as gestures or safe words is acceptable, but must be discussed and verbally agreed to by all parties before sexual activity occurs.

·         Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity).

Sex is a private and intimate activity. It is not facetious to believe that S.B. 967 could lead to ridiculous contracts that must be signed by California college students who wish to engage in sexual activity. Why should the government be so involved in this sphere in the first place? Should the government be doing something that so demoralizes and degrades that which is so private and potentially so emotional? Is such a policy likely to prevent sexual assaults or is it more likely to create more false accusations which are difficult to defend against?

In the context of a college, a charge of sexual assault or the like is far more akin to a criminal charge than a civil matter. Despite the fact that criminal sanctions are not in play, a college is like a microcosm of society. And being labeled with such a charge is like being branded with a scarlet letter. Laws against sexual assault—whether criminal or institutional—must balance defending potential victims with defending the rights of the accused. It is part of the very social and legal fabric of the United States that it has chosen to err on the side of the rights of the accused. This in no way diminishes the importance of defending individuals against sexual assault, harassment, stalking, etc. It is precisely because these matters are so important that safeguards must be in place to defend the rights of the accused. American society is rightly more concerned with assuring the rights of the accused are completely safeguarded in the case of serious offenses such as murder, treason, rape, terrorism, etc. than in the case of minor offenses like jaywalking, shoplifting, or vandalism.

The key is to ensure that colleges respect those who file complaints for sexual assault, domestic violence, dating violence, and stalking. When such complaints are made, the school in question should treat the person making the complaint with dignity and fully investigate the complaint in a professional manner. It may very well be that colleges should simply steward victims through the process of  making criminal complaints in such matters and avoid becoming involved. Colleges may be well-advised to stick to handling cheating, plagiarism, and other academic dishonesty matters and leave such serious criminal matters to law enforcement and the courts.

This does not require and should not involve the state moving into the bedrooms of college students. When the state begins to so collectivize people that it turns their most intimate expressions of humanity and selfhood into legalistic algorithms, then it is in the process of dehumanizing individuals and turning them into mere drones. If blowhard progressives and socially conservative moralists ever decide to compromise and develop bipartisan laws which satisfy both political correctness and the Christian fundamentalism, one day the government may literally have Orwellian telescreens in everyone’s bedroom, and government creeps may be voyeuristically watching us all.