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Government Can’t Censor Content — Even If It’s ‘For Your Own Good’ by Evan Bernick

Will a recent Supreme Court decision unleash more speech than Americans can handle?

In a recent New York Times article, reporter Adam Liptak (rightly) refers to Reed v. Town of Gilbert as “the sleeper case of the last Supreme Court term.” Liptak spoke with Robert Post, First Amendment scholar and dean of Yale Law School, and Floyd Abrams, constitutional lawyer and free-speech advocate.

In Reed, the Court invalidated a town sign code that treated signs promoting church services more harshly than signs promoting other messages, and made plain that such content-based restrictions on speech must undergo strict judicial scrutiny.

Abrams praised the decision; Dean Post, according to Liptak, predicted that it will “endanger[] all sorts of laws,” “roll consumer protection back to the 19th century,” and “destabilize First Amendment law.”

Those, like Abrams, who believe that “the First Amendment is about liberty” and that “we all lose by reading it narrowly” should welcome the ruling in Reed and pay no heed to Post’s parade of horribles.

Reed resolved an ambiguity that had confused lower courts for decades and rendered many Americans’ freedom to speak uncertain in important areas. In so doing, Reed honored the broad mandate of the First Amendment, which prohibits any law “abridging the freedom of speech,” making no exception for certain messages, ideas, or subject matters — regardless of whether the government promises that curbing speech is for our own good.

How did we get to Reed? The first major case to focus on content-based speech restrictions was Police Department of Chicago v. Mosley (1972), which concerned a Chicago ordinance that barred picketing within 150 feet of schools during the school day — except for picketing related to labor disputes.

The Court invalidated the ordinance because the government provided no credible evidence that labor picketing was less likely to be disruptive than other forms of picketing.

To selectively proscribe speech on the basis of its subject matter, said the Court, is to “completely undercut the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.’”

Subsequent cases would make clear that intent to censor is not essential to a determination that a restriction on speech is content-based; if the government had to inspect the content of speech to determine how it could be regulated, that was sufficient to trigger strict scrutiny.

But the nature of the Court’s content-based jurisprudence became muddled as it began to review First Amendment challenges to local zoning rules concerning adult businesses. These zoning rules clearly regulated speech based on its subject matter — they only applied to businesses whose expression was sexually explicit.

However, in City of Renton v. Playtime Theaters, Inc. (1986), the Court concluded that an ordinance targeting theaters that specialize in sexually explicit films was content-neutral and, thus, not subject to strict scrutiny, because it was “justified without reference to the content of the regulated speech” — specifically, because “the Renton ordinance is aimed not at the content of the films… but rather at the secondary effects of such theaters on the surrounding community.”

Renton was hotly debated by First Amendment scholars at the time, and scholar Laurence Tribe expressed concern that the newly-minted secondary effects doctrine would “undermine the very foundation of the content-based/content neutral distinction.”

In Ward v. Rock Against Racism (1989), Tribe’s concern was validated. Ward involved a content-neutral rule that required the use of city-provided sound equipment at concerts in Central Park, regardless of what was being performed.

Drawing upon Renton, the Court stated that the “[t]he principal inquiry in determining content neutrality… is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”

Some lower courts understood Ward to stand for the proposition that facially discriminatory laws — that is, laws that identify regulated speech based on its content — could be treated as content-neutral for purposes of the First Amendment, so long as the courts believed that those laws were enacted for public-spirited reasons.

But since government officials always profess benign intentions, proving censorial intent proved difficult. The result: the proliferation of speech restrictions, including licensing schemes restricting occupational speech (such as that of tour guides, interior designers, and veterinarians), panhandling bans, and noise ordinances that exempt certain noises from regulation depending on either their message or who is speaking.

Reed v. Town of Gilbert was a perfect example of this trend. In the decision below in Reed, the Ninth Circuit Court of Appeals determined that Gilbert’s sign code was “content-neutral” because of the town’s assurances that it had no intention to discriminate.

To combat this censorial trend, when the Supreme Court granted certiorari inReed, the Institute for Justice filed an amicus brief urging the Court to clarify that strict scrutiny applies:

  1. If a law expressly requires the government to look at the content of speech in determining whether or not it is subject to regulation, or
  2. When a law’s purpose is to censor messages with certain subject matters or viewpoints.

And thankfully, to the benefit of speakers across the country, the Supreme Court did exactly that.

Writing for the Court, Justice Thomas explained,

A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus’ toward the ideas contained in the regulated speech.

The Court easily concluded that the sign code at issue classified signs on the basis of their content because whether or not the restrictions applied to any given sign “depend[ed] entirely on the communicative content of the sign.”

Having done so, the Court went on to perform the kind of truth-seeking judicial engagement that is required to ensure that the government does not act as a censor, insisting that the government demonstrate, with reliable evidence, that it was pursuing a compelling interest through means narrowly tailored to that end.

The town failed to carry its burden. Although the town claimed that the sign code “preserv[ed] the Town’s aesthetic appeal” and protected “traffic safety,” the town “allow[ed] unlimited numbers of other types of signs that create the same problem[s]” and did not demonstrate that “directional signs pose a greater threat to safety than do ideological or political signs.”

Even assuming that the town’s stated interests were compelling, the Court concluded that the sign code was insufficiently narrowly tailored to pass constitutional muster.

Which brings us to the present where, as Liptak observes, Reed is already having an impact.

In the wake of Reed, the Seventh Circuit Court of Appeals revisited an ordinance barring panhandling in the “downtown historic district” of Springfield, Illinois.

Last year, the Seventh Circuit had upheld the ordinance as content-neutral, even though an officer enforcing the ordinance would have to listen to the content of the speaker’s message in order to determine whether the ordinance had been violated. (A request for a charitable donation might be impermissible, but a request for a commercial transaction would not.)

Following Reed, the Seventh Circuit accepted a petition for rehearing and a unanimous panel invalidated the Springfield ordinance. Judge Easterbrook, writing for the panel, recognized the broad scope of Reed’s holding: “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.”

Although Reed reaffirmed the Court’s historical (and highly critical) view of content-based regulation, not everyone sees the ruling as cause for celebration. But Dean Post’s specific criticisms are unwarranted.

Although Post argues that the decision could undermine restrictions on misleading advertising and professional malpractice, such laws have coexisted with the First Amendment for over 200 years, and there is no reason to believe that the Court’s decision will change that. Nor will Reed destabilize our First Amendment law; it stabilizes that law by providing much-needed guidance to lower courts.

Dean Post’s real complaint is that, for over a quarter century, the Court has gradually shifted away from his preferred theory of the First Amendment — one that would allow the government to privilege certain favored categories of speech — towards a more libertarian view, which leaves such judgments about the value of speech to the free choices of Americans. Reed v. Town of Gilbert is simply the most recent step in that evolution, and it is nothing to be afraid of.

In Reed, the Court affirmed that the government is not free to pick and choose what topics it would prefer Americans speak about or what information they can be trusted with, even if the government earnestly professes that it has our best interests at heart. Reed will help to ensure that speech remains uninhibited, robust, and wide open.

A version of this article first appeared at the Huffington Post.

Evan Bernick
Evan Bernick

Evan is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, a libertarian public interest law firm.

When Judges Quit Protecting Liberty by David S. D’Amato

How do we decide if a government action is legitimate?

When courts are asked to determine whether a government action has violated an individual’s rights, they apply one of several different “standards of review” or “levels of scrutiny,” ranging from “strict scrutiny” (reserved for a very narrow category of cases) to “rational basis scrutiny.”

Rational basis tests erect the lowest possible legal hurdles for the government, yet they are applied in cases that implicate some of our most important liberties, such as the right to earn a living, simply because they were not listed by name in the Bill of Rights.

For example, a law requiring an expensive permit to arrange flowers will only merit a rational basis review. And while rational basis review is a test for constitutionality, it doesn’t have anything to do with the Constitution or its history.

As Timothy Sandefur pointed out in the Cato Unbound issue on judicial activism, such rational basis tests have “no foundation whatsoever in the Constitution of the United States.” Rather, they were simply made up, fashioned by judges out of whole cloth during a period when courts were increasingly willing to defer to legislators and bureaucrats and their arbitrary and needless interference with private enterprise.

Rational basis review amounts to carte blanche for petty tyrants in legislatures, city councils, and regulatory agencies. Since the New Deal, courts have refused to give any real constitutional protection to the basic right to choose your profession and earn an honest living.

The 1934 Supreme Court decision in Nebbia v. New York is an important episode in the creeping evolution of rational basis. Leo Nebbia, a grocer, was convicted of the heinous crime of selling milk at a price that was too low, according to the bullies at New York’s “Milk Control Board.”

Writing for the Court, Justice Owen Roberts declared that as long as a law has “a reasonable relation to a proper legislative purpose,” the courts have no authority to strike it down.

Though he admitted that “the reasonableness of each regulation depends upon the relevant facts,” Roberts still maintained that, once a law is enacted, “every possible presumption is in favor of its validity.” If a “policy may reasonably be deemed to promote public welfare,” judicial review is basically over.

As a practical matter, this strange, circular reasoning means that a legislative body determines for itself whether its bills are constitutional. Merely by passing the law, the legislature settles the question and obliges the courts to accept any explanation offered for it. Such a theory eviscerates meaningful judicial review and leaves the individual defenseless, without any legal recourse against the nearly omnipotent modern state. And, since the Nebbia decision, the courts have only become more deferential.

Conservatives mistakenly associate judicial “activism” with the progressive left, but the New Deal-era progressive judges were actually the architects of the judicial “deference” that reigns today. Traditional common law protections were discarded in favor of expedience: the desire to get out of government’s way as it systematically planned, monitored, and regulated society as it saw fit.

The liberalism of the previous century was likewise treated with an arrogant and imperious contempt. Quaint notions of individual liberty and inviolable natural rights gave way to the irresistible march of modernity and “scientific” progress, shepherded by their natural steward, the state.

Rational basis tests invert legitimate due process. The burden of proof should be on the government to prove that a law or regulation serves the general welfare. The government should have to factually demonstrate the connection between the law and public health and safety, not merely assert that one mightexist.

But, instead, judges have decided that person challenging a law must confront and rebut every possible argument and hypothetical that the government (or judge) might conjure up in support of its law.

The rational basis test demands that a victim of government overreach prove the impossible, refuting an infinite universe of possible scenarios and rationales that could justify the law. Forget the actual empirical facts — rational basis has no time for such distractions.

On the contrary, the test requires judges to help the government by inventing counterfactual stories that could have justified the law. Even if the law has nothing to do with community health or safety, even if it is openly protectionist, it must be upheld if any flight of fancy could justify it.

Thus, the rational basis “test” is no test at all. It is a hollow, perfunctory gesture as the court abandons its duty of judicial review and leaves the hapless individual at the mercy of capricious government officials and special interests.

The right to choose your occupation is as fundamental a liberty as the right to speak, an indispensable aspect of self-ownership and self-determination. The freedom to make important, personal decisions about your career and your property is the bedrock of peaceful cooperation and civil society. In any society even moderately committed to freedom and legitimate due process, the rational basis test would be inconceivable. The presumption of liberty, like the presumption of innocence, would be the individual’s default position under the law.

Sadly, judges have abandoned their posts, doing the bidding of arbitrary governments and politically powerful economic interests who use the law to prevent competition. To fulfill the Constitution’s guarantee of due process, and to restore our lost liberties, we must scrap the rational basis excuse.

David S.  D'Amato

David S. D’Amato

David S. D’Amato is an attorney and independent scholar whose writing has appeared at the Institute of Economic Affairs, the Future of Freedom Foundation, the Centre for Policy Studies, and the Institute for Ethics and Emerging Technologies.

What Should Libertarians Think about the Civil War? by Phillip Magness

The current national debate over the display and meaning of the Confederate battle flag has reopened a number of longstanding arguments about the meaning of the American Civil War, including within libertarian and classical liberal circles.

Because of its emotional subject matter, lasting political legacies of race and slavery, transformative effects upon American constitutionalism, and sheer magnitude as the most destructive military episode ever to occur on American soil, the Civil War exhibits strong tendencies toward politicization in the modern era.

Unfortunately, bad history often accompanies this politicization, and libertarians are by no means immune from this tendency.

Two common interpretations of the Civil War stand out as particularly problematic:

  1. libertarian support for the Confederacy; and
  2. libertarian support for the Union.

The Problem with Pro-Confederate Libertarianism

The first and perhaps best known “libertarian” approach to the Civil War attempts to find sympathy with the defeated Confederacy because of its resistance to the federal government and northern military authority or its professed cause of free trade and political self-determination.

Some aspects of this position have intuitive appeal that produces sympathy for the Confederate cause: it professes outrage against a Union that is said to have conquered by force, trampled on the rights of states and individuals, unleashed a military invasion, suspended civil liberties, denied government by consent, elevated Lincoln to a “dictator,” and effected a lasting centralization of federal power. In this view, the Union cause and victory is the foundational work for the modern state and all that is anathema to political libertarianism.

This interpretation falters in what it neglects: slavery.

This is no small irony, either, as the anti-slavery cause was arguably the preeminent political occupation of libertarianism’s classical liberal antecedents. A continuum of classical liberal thinkers from Adam Smith to John Stuart Mill and J.E. Cairnes forged the main intellectual case against the slave system.

Abolitionism was also always a preeminent political cause of liberalism, extending from 18th-century statesman Charles James Fox to the 19th century’s Richard Cobden in Great Britain and strongly influencing such figures as William Lloyd Garrison, Lysander Spooner, and Frederick Douglass in the United States.

This is no small matter for the libertarian intellectual tradition either, for in sidestepping the slave question’s intimate connection to the Confederacy, pro-Confederate libertarians also inadvertently abandon what is perhaps the single most important and beneficial contribution that classical liberalism has made to the human condition: the abolition of slavery.

This is not to suggest that libertarian defenders of the Confederacy share its historical affinity for chattel slavery or the plantation system. Rather, they are guilty of turning a tin ear to the one unequivocally beneficial outcome of the war in the permanent destruction of American slavery.

The Problem with Libertarian Unionism

A smaller set of libertarians gravitate to a second common interpretation of the Civil War, defined primarily by its consequential outcome.

Unlike the pro-Confederate position, these libertarian defenders of the North are keenly aware of both the centrality of slavery to the conflict as well as the importance of the abolitionist cause to the liberal intellectual tradition. Standing as a direct antithesis to the pro-Confederate arguments, these faute de mieux Unionists recognize the inherent and fundamental contradiction between slavery and human liberty.

Their position embraces the Union victory on a consequentialist acceptance of the resulting emancipation of the slaves, and disavows any conceivable association between libertarian thought and a brutish Southern slavocracy, born of no other motive or purpose but to entrench and expand that pernicious institution — and deserving of nothing short of a violent and warring elimination by any means or justification.

The argument is both morally appealing and marked by its clarity, but it also suffers from its Manichean simplicity and a tendency to read an inevitable “irrepressible conflict” into the hindsight of the Civil War’s destruction.

This view recognizes slavery and celebrates its abolition, but it tends to neglect or even rationalize the war’s uglier features and consequences: a dramatic weakening of the constitutional federalism laid out in 1787, a rapid acceleration of the scope and power of the federal government, a precedent-setting assault on habeas corpus and expansion of presidential war powers that persists to the present day — and the horrendous destruction itself.

Measured by deaths alone, current estimates place the war’s military toll at 750,000 soldiers. Civilian deaths are more difficult to estimate, though the most common number given is 50,000. And perhaps most telling of all, between 60,000 and 200,000 slaves likely perished as a result of disease and displacement caused by the war.

Why a New Interpretation Is Necessary

Where then does this leave the conscientious libertarian in assessing the Civil War’s legacy?

To address the faults of both the pro-Confederate and pro-Union positions, I’ll offer two propositions for libertarians to consider:

  1. One needn’t be for the Union to be against slavery.
  2. One needn’t be for the Confederacy to object to the North’s prosecution of the war.

Stated differently, a morally consistent libertarian view of the war should strive to dissociate itself from the political actors that waged it, while also seeking to recognize its consequences, both positive and negative.

This much may be seen in the faults of the two views described above. Libertarians who embrace the Confederacy are more often than not reasonably aware of both the evils of slavery and the distinction between the abolitionist cause and the Union.

But they neglect the second rule; because of their distaste for the Union’s wartime policies, they stake their claim to a Confederate cause that, whether they admit it or not, thoroughly attached itself to the moral abomination of slavery.

And libertarians who embrace the Union are also usually aware of the objections one might lodge against its indulgences in unrestricted warfare, suspension of civil liberties, centralization of power, or any of the other charges often made against the Union’s wartime cause or its outcome.

But they thoroughly subordinate these objections to the greater moral purpose of emancipation — a focus that obscures all but the most simplistic reading of the war’s other political and constitutional consequences.

In each argument, the problem is not its primary emphasis, but the complexities it obscures or leaves out.

In place of both views, and in recognition of their deficiencies, libertarians might develop a better appreciation for the Civil War’s complexity by turning their analysis to the nature of the ruinous agency of the conflict itself.

War, whether waged to hold human beings in bondage or subjugate a political rebellion, is a consciously coercive action of the political state in its most expansive and direct form. And armed warfare, as both the Union and Confederacy came to discover across four destructive years, is horrifically messy, unpredictable, and destructive of human life and human liberty.

Military goals and political motives also matter, as they define the objectives of the armies and prioritize their execution. Thus, a military maneuver to capture an opposing political capital will take a very different form from one that eschews political objectives and seeks to maximize the liberation of slaves or the protection of civilians.

There may also be small glimpses of just action amongst individual participants in a far more ambiguous conflict. When the abolitionist Thomas Wentworth Higginson raised the 1st South Carolina Volunteers, an all-black unit composed of escaped slaves, there is little doubt that they were fighting for emancipation, even as larger Union war goals moved far more slowly on this objective.

There is similarly little doubt about the motive of some Southerners who fought for their homes and families as hostile armies marched through their states; even a handful of Confederates — Patrick Cleburne, Duncan Kenner — pressed their government (in vain) to consider emancipation as a means of securing independence.

These graces on the periphery tell us more about the conflict’s moral complexity than anything that may be found in its political objectives. History is not a Manichean struggle between pure good and evil; we are not served by filtering its conflicts through a dualistic moral lens.

Instead of looking for a “side” to champion, we are better served by recognizing that even amid the unbridled horrors of slavery and the devastation of war, there may still be a few who are fighting for something better than their country’s cause.

Phillip Magness

Phil Magness is a policy historian and academic program director at the Institute for Humane Studies.

What Is “Libertarian Parenting”? Laissez-Faire Is Wrong for Families by Steven Horwitz

One of the dangers of modern libertarianism is that some people want to apply the ethical rules and insights that make complete sense in the market to micro-orders such as the family and the firm. Because our day-to-day life is made up of these micro-orders, it would seem to many libertarians that any consistent philosophy should go all the way down.

But as Hayek argued in The Fatal Conceit, the macro order and its rules — which he called the “extended order” — are distinct from the norms and rules that make up these more localized levels of description. When we fail to make this distinction, we wrongly apply the ethics of the extended order to the intimate orders of families and firms, which risks crushing those micro-orders.

This problematic tendency is most pronounced in the ways some libertarians discuss parenting.

They often begin by asking what “libertarian parenting” would look like. Naturally, they then imagine parents being analogous to government and children being analogous to citizens. Unsurprisingly, they conclude that, on libertarian grounds, parents should interfere as little as possible in the lives of their children. Some even propose organizing the household on market principles.

For example, advocates of libertarian parenting might argue that children should always get paid for chores and that parents should never say, “Because I said so!” to their kids. With the best of intentions, they believe that what we might call “laissez-faire” parenting will create children who will be more likely to support a laissez-faire society.

I think they are deeply mistaken for several reasons.

First, there is the empirical evidence from psychology. Psychologists distinguish among a number of parenting styles, but the major ones fall on a spectrum from most involved to least:

  • authoritarian
  • authoritative
  • permissive
  • neglectful

The advocates of libertarian parenting clearly reject the “authoritarian” style and presumably would reject “neglectful.” What they seem to want is perhaps something like permissive parenting:

Permissive parents … allow children to make their own decisions, giving them advice as a friend would. This type of parenting is very lax, with few punishments or rules. Permissive parents also tend to give their children whatever they want and hope that they are appreciated for their accommodating style. Other permissive parents compensate for what they missed as children, and as a result give their children both the freedom and materials that they lacked in their childhood.

As it turns out, permissive parenting doesn’t work very well. The psychological research indicates that children of permissive parents suffer from a variety of problems as they mature.

By contrast, authoritative parenting provides the best results:

Authoritative parents encourage children to be independent but still place limits on their actions. Extensive verbal give-and-take is not refused, and parents try to be warm and nurturing toward the child. Authoritative parents are not usually as controlling as authoritarian parents, allowing the child to explore more freely, thus having them make their own decisions based upon their own reasoning. Often, authoritative parents produce children who are more independent and self-reliant. An authoritative parenting style mainly results when there is high parental responsiveness and high parental demands. Authoritative parents will set clear standards for their children, monitor the limits that they set, and also allow children to develop autonomy.

In other words, it’s perfectly appropriate to place limits on your children’s actions and to insist on only such freedom as is age appropriate. Authoritative parents have high expectations and are not hesitant to say no to their kids. The evidence is clear that this style produces the best psychological outcomes for children.

This style of parenting is not just the best for individual outcomes, but also for promoting a liberal social order.

Many things that might seem to be “anti-liberty” that happen within healthy families are, in fact, preparing children for life in a free society. What children need to become responsible adults is not freedom but structure. For example, they need to learn the importance of following rules, as a free society is a rule-governed society. Political and economic freedom are enhanced by rule-following, and parenting can model that.

It’s perfectly fine as a libertarian parent occasionally to say, “Because I said so.” Obedience to legitimate authority, which includes following rules, is not anti-libertarian. It’s a necessary skill in a world where some people and institutions actually do have authority. And small children in particular do not need everything explained to them. That’s how you end up putting them in the center of your familial universe, which is the mistake that permissive parents make. Parents should be leaders, and they should lead by example.

Encouraging and even forcing your kids to share their possessions is not socialism and it’s not bad parenting. It is not a bad thing to demonstrate to kids that sharing with other individuals they know, even when they might not wish to share, is often an effective way to prevent conflict and establish trust. You can also help them to understand the difference between the expectation to share with known others versus anonymous others. Sharing is what families do, after all. Would children rather their parents didn’t share the income they earn and the food they prepare?

And requiring chores without compensation is an excellent idea and it’s not anti-liberty. The institutions of civil society, such as families and religious organizations, are not bound together by the cash nexus. (There’s a reason that cash gifts among close friends are often considered tacky.) The world does not divide into either state or market. Outside state and market, we often do things out of obligation to others, whether it’s some form of expected sharing or providing help without monetary compensation. Learning that this is often the appropriate way to behave helps to ensure that the institutions of civil society survive and thrive. They are just as important to liberty as are the institutions of the market.

One area where the “libertarian parenting” advocates are correct is in the importance of allowing children to play on their own, without constant parental supervision. The psychological literature is clear about the benefits of unsupervised play for helping children develop the capacity to create, follow, and enforce rules; think about issues of fairness; and learn empathy. Most important, from a libertarian perspective, such play requires the continuing consent of the players. Behaving in ways that upset other children will bring play to an end. Unsupervised play teaches children how to negotiate and compromise to ensure that playing relationships are consensual. Consent is at the core of both markets and civil society, and parents who let their children play without parental supervision are helping those children to develop skills and abilities central to a free society.

When libertarians think about parenting, we should not be asking, “What sort of parenting appears to be implied by our ethical and political views?” Instead, we should be studying what psychologists know about child development and seeing how that aligns with the aptitudes and attitudes we know are necessary for a free society. We shouldn’t want parenting to be libertarian; we should want to parent in ways that produce children who have the skills they need to value and sustain liberty.

Steven Horwitz

Steven Horwitz is the Charles A. Dana Professor of Economics at St. Lawrence University and the author of Microfoundations and Macroeconomics: An Austrian Perspective, now in paperback.

Neoliberalism: Making a Boogeyman Out of a Buzzword by Max Borders

After Salon.com stopped being interesting, they needed a way to drive traffic. Competition for eyeballs is tough, after all. In the dog-eat-dog world of attracting eyeballs, you’ve got to find clever ways to pull in new readers.

One way to drive traffic is to poke people you know disagree with you. And by poking, I mean turning them into a Voodoo Doll.

This variation on beating up a Straw Man has the benefit of the Internet’s sharing magic. That is, if you pick on some group they will feel it. Then they will turn around and express their outrage by sharing your stuff! Voila: instant Internet gold.

In making Voodoo Dolls, you don’t always have to pick on a specific person. You can go for a worldview. Salon has given libertarianism a lot of flak, of course. But now they’re going for an even bigger boogeyman, because the idea is to paint as many people as you can with the same tarbrush.

What better place to go for a big, sweeping label than the academy?

Here’s UC-Berkeley political science professor Wendy Brown talking “neoliberalism” in a Salon interview.

And how do you define neoliberalism? It’s not uncommon for me to experience people I’d consider neoliberals telling me the term is meaningless.

I think most Salon readers would know neoliberalism as that radical free-marketeering that comes to us in the ‘70s and ‘80s, with the Reagan-Thatcher revolution being the real marker of that turn in Euro-Atlantic world. It means the dismantling of publicly owned industry and deregulation of capital, especially finance capital; the elimination of public provisions and the idea of public goods; and the most basic submission of everything to markets and to unregulated markets.

So free enterprise is its clarion call, and even though it requires a lot of state intervention and state support, the idea that goes with it is usually also minimal state intervention in markets. Even if states are needed to prop or support or sometimes bail out markets, they shouldn’t get into the middle of them and redistribute [wealth]. That’s all true. That’s certainly part of what neoliberalism is.

Okay, let’s see if we can make heads or tails of this magician’s patter.

Start with Professor Brown’s concern that people have criticized the term neoliberalism as being meaningless. This doctrine, Brown says, “requires a lot of state intervention and state support, the idea that goes with it is usually also minimal state intervention in markets.”

Huh? If neoliberalism isn’t exactly libertarianism or anarcho-capitalism — because these doctrines certainly do not include or require state intervention and support of markets — then we might say she’s talking about cronyism. And certainly if someone were to build a doctrine around cronyism, that would not be meaningless.

It turns out such a doctrine does exist. But it’s not neoliberalism; it’s corporatism — and it’s a progressivist ideology.

According to Nobel laureate Edmund S. Phelps, quoted in the Freeman:

The managerial state has assumed responsibility for looking after everything from the incomes of the middle class to the profitability of large corporations to industrial advancement. This system . . . is . . . an economic order that harks back to Bismarck in the late nineteenth century and Mussolini in the twentieth: corporatism.

Phelps says,

In various ways, corporatism chokes off the dynamism that makes for engaging work, faster economic growth, and greater opportunity and inclusiveness. It maintains lethargic, wasteful, unproductive, and well-connected firms at the expense of dynamic newcomers and outsiders, and favors declared goals such as industrialization, economic development, and national greatness over individuals’ economic freedom and responsibility.

Today, airlines, auto manufacturers, agricultural companies, media, investment banks, hedge funds, and much more has [sic] at some point been deemed too important to weather the free market on its own, receiving a helping hand from government in the name of the “public good.”

But where does this idea come from? Contra Brown, it’s not from the “free marketeers”. Economist Thayer Watkins says:

In the last half of the 19th century people of the working class in Europe were beginning to show interest in the ideas of socialism and syndicalism. Some members of the intelligentsia, particularly the Catholic intelligentsia, decided to formulate an alternative to socialism which would emphasize social justice without the radical solution of the abolition of private property.

The result was called Corporatism. The name had nothing to do with the notion of a business corporation except that both words are derived from the Latin word for body, corpus.

To be fair, Brown might protest, arguing that she would subsidize, cartelize, and manage the right industries, such as finance. At least she laments the liberalization of these industries, citing Thatcher as an example of neoliberal excess, despite what a basket case Britain had been under prior governments.

So which industries would she leave private and which “require a lot of state intervention”? And what sort of magic makes any such scheme immune to rent-seeking and capture?

It appears state support of business originated among certain less-communist advocates of social justice. But surely this is not something the more moderate progressives had in mind.

After all, says Brown, “What’s more, if those of us who oppose neoliberalism misinterpret it as simply another word for capitalism, we make the job of fighting it even more difficult. Franklin Delano Roosevelt was a capitalist, after all. But a neoliberal, he most certainly was not.”

Libertarian philosopher Jason Brennan says it’s time to point fingers and name names. In a rare polemic called “Dear Left: Corporatism is Your Fault” he writes,

America is suffering from rampant, run-away corporatism and crony capitalism. We are increasingly a plutocracy in which government serves the interests of elite financiers and CEOs at the expense of everyone else.

You know this and you complain loudly about it. But the problem is your fault. You caused this state of affairs. Stop it.

But the moderate left didn’t want radical socialism. They just wanted regulatory agencies to rein in the excesses of the market. They wanted the government to subsidize or own areas that ought to be considered public goods, like healthcare, transportation, education, and the environment. But good intentions are not enough, writes Brennan.

We told you this would happen, but you wouldn’t listen. You complain, rightly, that regulatory agencies are controlled by the very corporations they are supposed to constrain. Well, yeah, we told you that would happen. When you create power—and you people love to create power—the unscrupulous seek to capture that power for their personal benefit. Time and time again, they succeed. We told you that would happen, and we gave you an accurate account of how it would happen.

You complain, perhaps rightly, that corporations are just too big. Well, yeah, we told you that would happen. When you create complicated tax codes, complicated regulatory regimes, and complicated licensing rules, these regulations naturally select for larger and larger corporations. We told you that would happen. Of course, these increasingly large corporations then capture these rules, codes, and regulations to disadvantage their competitors and exploit the rest of us. We told you that would happen.

Brennan was probably a little upset when he wrote this, but fairly so. People like Wendy Brown have been trying to emblazon corporatism on the tunics of free marketeers and liberalizers for a while now. And they’re generally pontificating from the academy, rather than from the brothels of K St. in Washington, or Venezuela’s Ministry of Planning and Finance.

No one who calls herself a political science professor should have earned her letters without having read public choice theory. No, it’s time to admit that all progressive attempts to stitch together old scraps of socialism with markets will create perverse effects and corruption of one form or another.

Maybe Prof. Brown is okay with “corporatizing” some industries while leaving others in private hands, a la FDR. Hers seems to be an attempt to synthesize the heart of Marx with the will of the people. She says:

“Demos kratia” — “people rule” — is really the term that, however differently it’s been interpreted over different variations of democracy and different centuries, is one that we all cherish on some level. Demos is important because it’s the body, it’s the people, that we imagine are in control of the basic conditions and laws that govern our lives.

Ah, yes “the body,” the corpus. Haven’t we heard that one before? We’re supposed to cherish democracy, because, well, it’s as American as apple pie. Any more reflection would require admitting that the “demos” disagrees about stuff. And that’s a slippery slope to individualism and recognizing the need for tolerance and personal autonomy. This is the fact of pluralism that even the liberal philosopher John Rawls starts with.

Whenever you hear the world neoliberalism, be wary. It could be completely meaningless filler, but it’s always as squishy as silly putty. It’s a label that’s designed to demonize those who would never support it — a word to be accompanied by a sneer. It is a means of defining oneself as against something — preferably a nice soft Straw Man — rather than doing the hard business of coming out ideologically and defending your ideas.

When you realize that accepting degrees of state intervention is a problem of degree and not of kind, it becomes clear the Wendy Browns have nowhere to run but to nebulous concepts like “demos.” That is because between corporatism and communism there is no magical third way, only shades of state coercion, justified by a flimsy majoritarian facade. The choice between nationalized or regulated industries is binary, so the ideological choice set is really only between communism and corporatism. But communism screwed things up. Corporatism screws things up. All the variations screw things up because each permutation involves power and business forming unholy alliances.

People like Wendy Brown and her Salon interviewer Elias Isquith aren’t stupid. And like most people, they have good intentions. They are committed to a particular theory of angels. Demos, that golden calf, is the tired old notion that if we could just blur the peculiarities, individuality, and desires of 300 million people into a single prayer and send it up through the voting booth, what will come out the other side — in Washington, D.C. — is a kind of secular salvation. But this sort of thinking turns on hypostatization, that timeless fallacy of ambiguity that seduces people into collectivism.

We have to look them squarely in the face and say: “You caused this state of affairs. Stop it.”


Max Borders

Max Borders is the editor of the Freeman and director of content for FEE. He is also co-founder of the event experience Voice & Exit and author of Superwealth: Why we should stop worrying about the gap between rich and poor.

The New Republic: The Dumb Libertarian Era Is Here by Max Borders

As civilized human beings, we are the inheritors, neither of an inquiry about ourselves and the world, nor of an accumulating body of information, but of a conversation, begun in the primeval forests and extended and made more articulate in the course of centuries. It is a conversation which goes on both in public and within each of ourselves. – Michael Oakeshott

What do academics see when they stare down upon the rest of America? Columbia’s Mark Lilla, at least, thinks he sees a “libertarian age.”

Writing in the New Republic, Lilla wraps his punchline in a shroud of obscurity, concluding,

The libertarian age is an illegible age. It has given birth to a new kind of hubris unlike that of the old master thinkers.

Our hubris is to think that we no longer have to think hard or pay attention or look for connections, that all we have to do is stick to our “democratic values” and economic models and faith in the individual and all will be well.

Having witnessed unpleasant scenes of intellectual drunkenness, we have become self-satisfied abstainers removed from history and unprepared for the challenges it is already bringing.

Lilla suggests the old master thinkers knew better how to understand the great arc of history because they had an ideology. But we don’t.

“Our libertarianism operates differently,” writes Lilla, “it is supremely dogmatic, and like every dogma it sanctions ignorance about the world, and therefore blinds adherents to its effects in that world. It begins with basic liberal principles — the sanctity of the individual, the priority of freedom, distrust of public authority, tolerance — and advances no further.”

Now that’s strange. The normal line is that libertarians are too ideological. Of course it’s true that a form of libertarianism that advances no further than a few platitudes or axioms would be an anemic sort of libertarianism.

But the point of libertarianism is not to fill our lives with specific virtues and values; rather, it is to provide a superstructure for various moral communities to coexist peacefully.

A Libertarian Age?

Even if one agrees a libertarian age is upon us, the cock has only just crowed. According to Lilla, though, because this age is not rooted in an ideology, it is marked by an errant attitude that somehow washed over us after the fall of communism in place of all ideology. If that’s the case, why call it “libertarian”?

To describe this age as Lilla does is to fundamentally misunderstand the wordlibertarian, or at least to use it haphazardly as a convenient, if denigrating label. To misunderstand the word is also a failure to appreciate a living tradition that is only now beginning to flower in the digital era.

When I think about that rich, expanding tradition, I think of economic historian Deirdre McCloskey. She offers the kinds of connections Lilla might like to see, especially in her excellent The Bourgeois Virtues. I doubt, however, those connections are the ones Lilla would like us to draw.

Here’s McCloskey choosing not to abstain:

The master narrative of High Liberalism [modern, left-liberalism] is mistaken factually.

Externalities do not imply that a government can do better. Publicity does better than inspectors in restraining the alleged desire of businesspeople to poison their customers. Efficiency is not the chief merit of a market economy: innovation is. Rules arose in merchant courts and Quakers fixed prices long before governments started enforcing them.

I know such replies will be met with indignation. But think it possible you may be mistaken, and that merely because an historical or economic premise is embedded in front page stories in the New York Times [or The New Republic] does not make them sound as social science.

It seems to me that a political philosophy based on fairy tales about what happened in history or what humans are like is going to be less than useless. It is going to be mischievous.

It’s true. There is no ideology here, just the sum of facts.

A Narrative, an Ideology

But Lilla thinks he has a different and better narrative about history — one that is not so devoid of ideology. It’s difficult to say what that narrative is, because Lilla is so vague in his critique — so much so that one wonders if he’s simply dissatisfied with the want of ideology and hopes to put a sticker on it. He reaches for a sticker. “Libertarian” will do.

The closest we get to any proposed counternarrative comes in who Lilla would award for attempting to fix the Middle East: “The next Nobel Peace Prize should not go to a human rights activist or an NGO founder. It should go to the thinker or leader who develops a model of constitutional theocracy giving Muslim countries a coherent way of recognizing yet limiting the authority of religious law and making it compatible with good governance.”

Notice he did not say a working model, nor a successfully implemented model. Just a model. Despite the nod to a people’s history and culture, he wants to see more intellectuals with models.

Political philosopher Michael Oakeshott once said, “Like Midas, the Rationalist is always in the unfortunate position of not being able to touch anything, without transforming it into an abstraction; he can never get a square meal of experience.”

But that’s just the problem with models and planning, says Deirdre McCloskey:

How do I know that my narrative is better than yours? The experiments of the 20th century told me so. It would have been hard to know the wisdom of Friedrich Hayek or Milton Friedman or Matt Ridley or Deirdre McCloskey in August of 1914, before the experiments in large government were well begun.

But anyone who after the 20th century still thinks that thoroughgoing socialism, nationalism, imperialism, mobilization, central planning, regulation, zoning, price controls, tax policy, labor unions, business cartels, government spending, intrusive policing, adventurism in foreign policy, faith in entangling religion and politics, or most of the other thoroughgoing 19th-century proposals for governmental action are still neat, harmless ideas for improving our lives is not paying attention.

Or perhaps they’re failing to “look for connections.”

No Good Reason

But there’s more. Lilla writes:

Libertarianism’s dogmatic simplicity explains why people who otherwise share little can subscribe to it: small-government fundamentalists on the American right, anarchists on the European and Latin American left, democratization prophets, civil liberties absolutists, human rights crusaders, neoliberal growth evangelists, rogue hackers, gun fanatics, porn manufacturers, and Chicago School economists the world over.

The dogma that unites them is implicit and does not require explication; it is a mentality, a mood, a presumption — what used to be called, non-pejoratively, a prejudice.

Got that? A mood. A dogma. A prejudice.

Let’s assume that we all agree about what the words dogma and prejudice mean. A dogma is not an ideology because it offers no reasons for anyone’s commitments. A prejudice is simply a disposition to believe something, perhaps also for no good reason at all.

That means libertarians have no good reason to be suspicious of power (such as police power excesses in Baltimore or Ferguson), no good reason to commit to smaller government (like bank bailouts or military adventurism), no reason to believe that open trade helps the world develop (despite all the evidence), no reason to protect expression, no reason to acknowledge the social benefits of emergent order, and no reason to create a digital currency (Argentine inflation is fine).

Voluntary cooperation or the free flow of ideas, people, capital, and goods? These are all just byproducts of our dumb post-ideological age. Why? Because, according to Lilla, libertarianism is just a dogma.

To understand history through the lens of people with power screwing things up more than helping is not an abstention, and it is not illegible. The relationship between people with coercive power and the rest is our historical-ideological filter, and that’s just for starters.

Rational Irrationality

Lilla’s mischief does not just extend to history. That failure to understand libertarianism hangs about his thesis, too.

For example, a libertarian does not admire “democratic values,” as Lilla suggests. These are the values of those who would trade in the one-headed master with the many-headed one. Libertarians don’t find much value in masters at all.

Majoritarian elections don’t harness the wisdom of crowds, as Bryan Caplan reminds us in The Myth of the Rational VoterSuch wisdom can only be gained by people who are more directly accountable for their actions, who have more skin in the game, or who feel the invisible threads of community animating them in common missions. That’s not electoral politics, though.

Voters, as such, are hopelessly biased, because they don’t pay directly for what they pray for in the voting booth. So yeah, democracy is overrated. It’s certainly not something most libertarians wish to export or impose on people with twelfth-century cultures and mores. Nor is it is a twenty-first century social operating system for a free people.

Libertarians prefer organizations, markets, and community groups that compete for mindshare and marketshare. But organizations, markets, and community groups only emerge in the fertile soil of free institutions. That’s why libertarians like voluntary systems with rule of law, porous borders, and rights of exit.

Individuals coordinate either in support of organizational goals, or they participate in an order no individual could have planned. Both forms of order are beautiful — at least to the libertarian. But we certainly don’t expect to find such orders everywhere.

The Problem of Power

What about acquiescence to “public authority”? Yes, we are skeptical. And it’s true we are more interested in shedding authority, because power interferes with people’s life projects and communities. We don’t have this skepticism due to habit or breeding. We have it because we want to live the kind of happy and fulfilled lives that comes in a decentralized discovery process, which doesn’t figure into any planner’s plans. Yet planners are constantly trying to plan despite those life projects. You might say we’re not living in a “libertarian age,” but in a regulated age.

But Lilla insists our libertarian age is one marked by people failing to “think hard, or pay attention, or look for connections.” This is the sort of thing that might make progressives in the New York salon nod in vigorous assent, but it’s the nodding of those who have no idea what they’re talking about, the affectations and social signals of the salon.

The libertarian worldview is not based on technocratic dreams, government largess, or “communitarian” fancies in which elites concoct statutory schemes to blanket the land with unitary control. If this were really in a libertarian age, we would not be arguing over whether or not we are “self-satisfied abstainers.”

We would have a lot more opt-in systems — not everywhere, but in enough places, including the U.S. We would be a nation of joiners again. We could, as Paul Emile de Puydt suggested, “move from republic to monarchy, from representative government to autocracy, from oligarchy to democracy, or even to Mr. Proudhon’s anarchy — without even the necessity of removing [our] dressing gown or slippers.”

But this is not the age we live in.

The Coming Libertarian Age

The coming libertarian age will be marked not by a failure to think about the meaning of history. It will be marked by people participating in the creation of new communities, governance structures, businesses, and networks — building them up like coral reefs.

“Everyday forms of resistance make no headlines,” says James C. Scott in Two Cheers for Anarchism.

Just as millions of anthozoan polyps create, willy-nilly, a coral reef, so do thousands upon thousands of individual acts of insubordination and evasion create a political or economic barrier reef of their own. There is rarely any dramatic confrontation, any moment that is particularly newsworthy.

And whenever, to pursue the simile, the ship of state runs aground on such a reef, attention is typically directed to the shipwreck itself and not to the vast aggregation of petty acts which made it possible

If there is anything to terrify Lilla and the New Republic, it is that libertarian age. Technocracy runs aground on the coral reefs of genuine connection and decentralized market participation.

So in order to critique this “new kind of hubris,” Lilla should really tell us more about the hubris of the old master thinkers. I recall the organized-perfection society of Plato, whose order would be planned based on some, well, Platonic ideal about the virtuous person who would rule. Perhaps Lilla is referring to master thinkers like Bentham, who reduced humanity to an aggregate of hedonic calculation machines, which has given rise to an entire field of mathematical macroeconomics that lobotomizes the individual and ignores real people. Then there is of course Karl Marx, whose ideology left scores of millions destitute or dead.

Lilla cautions us not to ignore Marx’s concerns, even though the Marxists themselves left scorched earth. We still need ideology, he thinks:

The end of the cold war destroyed whatever confidence in ideology still remained in the West. But it also seems to have destroyed our will to understand. We have abdicated. The libertarian dogma of our time is turning our polities, economies, and cultures upside down—and blinding us to this by making us even more self-absorbed and incurious than we naturally are. The world we are making with our hands is as remote from our minds as the farthest black hole. Once we had a nostalgia for the future. Today we have an amnesia for the present.

Destroyed our will to understand? Libertarian dogma means “turning our polities upside down”? Making us self-absorbed? What in the world is he talking about?

Is he referring to those self-absorbed and benighted souls who brought down the Berlin Wall? Or is he simply disturbed that all they could find to do after communism’s fall was start shops and buy heavy metal albums? Maybe it’s their children — the millennials with their texting and their selfies.

He doesn’t really say. He only seems to suggest we need more Isaiah Berlins. Fair enough. At least give us something we can sink our teeth into. In conflating democracy with libertarianism, perhaps Lilla thinks voters are in fact too dumb to rule and that a wise, though considerably less hubristic, elite could show us the way if we weren’t so distracted by modern amusements.

But apart from evoking the bugbear of “neoliberalism” and praying for a theocratic modeler for the Middle East he’s scant on details. Instead, all he can offer is that we have “amnesia for the present.”

Sounds deep: chicken soup for the progressive soul. To show that we’re in a vapid libertarian age, Mr. Lilla needs to cite evidence and name names. Otherwise, it’s just the same innuendo and intimation we’ve come to expect from those prepared to spin out caricatures or just-so stories to slap the L-word on them.

In the Mood

So, Dear Reader, take with you your dogmas and your prejudices and make this world freer one act of defiance at a time. Why not? Because it’s fun — just a mood — and we have the excuse of living in that insipid age.

Your dream community, your world-changing innovation, or your preferred causes have no relevance there in the Department of History at Columbia University. Participate then in the creation of your self-absorbed fantasies with a thousand acts of permissionless kindness, a thousand dollars of investment in a small business, or a thousand lines of code.

What will flow from your dogmas and your prejudices is a great coral reef — one that is created by you and others locking arms in solidarity around a thousand different causes. And may the ship of state run aground on it.

Max Borders

Max Borders is the editor of the Freeman and director of content for FEE. He is also cofounder of the event experience Voice & Exit and author of Superwealth: Why we should stop worrying about the gap between rich and poor.

Is the “Austrian School” a Lie?

Is Austrian economics an American invention? by STEVEN HORWITZ and B.K. MARCUS.

Do those of us who use the word Austrian in its modern libertarian context misrepresent an intellectual tradition?

We trace our roots back through the 20th century’s F.A. Hayek and Ludwig von Mises (both served as advisors to FEE) to Carl Menger in late 19th-century Vienna, and even further back to such “proto-Austrians” as Frédéric Bastiat and Jean-Baptiste Say in the earlier 19th century and Richard Cantillon in the 18th. Sometimes we trace our heritage all the way back to the late-Scholastic School of Salamanca.

Nonsense, says Janek Wasserman in his article “Austrian Economics: Made in the USA”:

“Austrian Economics, as it is commonly understood today,” Wasserman claims, “was born seventy years ago this month.”

As his title implies, Wasserman is not talking about the publication of Principles of Economics by Carl Menger, the founder of the Austrian school. That occurred 144 years ago in Vienna. What happened 70 years ago in the United States was the publication of F.A. Hayek‘s Road to Serfdom.

What about everything that took place — most of it in Austria — in the 74 years before Hayek’s most famous book? According to Wasserman, the Austrian period of “Austrian Economics” produced a “robust intellectual heritage,” but the largely American period that followed was merely a “dogmatic political program,” one that “does a disservice to the eclectic intellectual history” of the true Austrian school.

Where modern Austrianism is “associated with laissez-faire economics and libertarianism,” the real representatives of the more politically diverse tradition — economists from the University of Vienna, such as Fritz Machlup, Joseph Schumpeter, and Oskar Morgenstern — were embarrassed by their association with Hayek’s bestseller and its capitalistic supporters.

These “native-born Austrians ceased to be ‘Austrian,'” writes Wasserman, “when Mises and a simplified Hayek captured the imagination of a small group of businessmen and radicals in the US.”

Wasserman describes the popular reception of the as “the birth of a movement — and the reduction of a tradition.”

Are we guilty of Wasserman’s charges? Do modern Austrians misunderstand our own tradition, or worse yet, misrepresent our history?

In fact, Wasserman himself is guilty of a profound misunderstanding of the Austrian label, as well as the tradition it refers to.

The “Austrian school” is not a name our school of thought took for itself. Rather it was an insult hurled against Carl Menger and his followers by the adherents of the dominant German Historical School.

The Methodenstreit was a more-than-decade-long debate in the late 19th century among German-speaking social scientists about the status of economic laws. The Germans advocated methodological collectivism, espoused the efficacy of government intervention to improve the economy, and, according Jörg Guido Hülsmann, “rejected economic ‘theory’ altogether.”

The Mengerians, in contrast, argued for methodological individualism and the scientific validity of economic law. The collectivist Germans labeled their opponents the “Austrian school” as a put-down. It was like calling Menger and company the “backwater school” of economic thought.

“Austrian,” in our context, is a reclaimed word.

But more important, modern Austrian economics is not the dogmatic ideology that Wasserman describes. In his blog post, he provides no actual information about the work being done by the dozens of active Austrian economists in academia, with tenured positions at colleges and universities whose names are recognizable.

He tells his readers nothing about the  books they have produced that have been published by top university presses. He does not mention that they have published in top peer-reviewed journals in the economics discipline, as well as in philosophy and political science, or that the Society for the Development of Austrian Economics consistently packs meeting rooms at the Southern Economic Association meetings.

Have all of these university presses, top journals, and long-standing professional societies, not to mention tenure committees at dozens of universities, simply lost their collective minds and allowed themselves to be snookered by an ideological sleeper cell?

Or perhaps in his zeal to score ideological points of his own, Wasserman chose to take his understanding of Austrian economics from those who consume it on the Internet and elsewhere rather than doing the hard work of finding out what professional economists associated with the school are producing. Full of confirmation bias, he found what he “knew” was out there, and he ends up offering a caricature of the robust intellectual movement that is the contemporary version of the school.

The modern Austrian school, which has now returned to the Continent and spread across the globe after decades in America, is not the dogmatic monolith Wasserman contends. The school is alive with both internal debates about its methodology and theoretical propositions and debates about its relationship to the rest of the economics discipline, not to mention the size of the state.

Modern Austrian economists are constantly finding new ideas to mix in with the work of Menger, Böhm-Bawerk, Mises, and Hayek. The most interesting work done by Austrians right now is bringing in insights from Nobelists like James Buchanan, Elinor Ostrom, and Vernon Smith, and letting those marinate with their long-standing intellectual tradition. That is hardly the behavior of a “dogmatic political program,” but is rather a sign of precisely the robust intellectual tradition that has been at the core of Austrian economics from Menger onward.

That said, Wasserman is right to suggest that economic science is not the same thing as political philosophy — and it’s true that many self-described Austrians aren’t always careful to communicate the distinction. Again, Wasserman could have seen this point made by more thoughtful Austrians if he had gone to a basic academic source like the Concise Encyclopedia of Economics and read the entry on the Austrian school of economics.

Even a little bit of actual research motivated by actual curiosity about what contemporary professional economists working in the Austrian tradition are doing would have given Wasserman a very different picture of modern Austrian economics. That more accurate picture is one very much consistent with our Viennese predecessors.

To suggest that we do a disservice to our tradition — or worse, that we have appropriated a history that doesn’t belong to us — is to malign not just modern Austrians but also the Austrian-born antecedents within our tradition.

Steven Horwitz

Steven Horwitz is the Charles A. Dana Professor of Economics at St. Lawrence University and the author of Microfoundations and Macroeconomics: An Austrian Perspective, now in paperback.

B.K. Marcus

B.K. Marcus is managing editor of the Freeman.

By the Power Vested in Us: Confessions of a freedom bride by ALYSON HUDNALL

My fiancé is white. I’m not. We plan to jump the broom this summer, to honor my heritage and the hardships of couples like us. The tradition was born under anti-miscegenation laws that forbade blacks from marrying. And signing an official state marriage license feels inappropriate, considering the racist history behind it.

Anti-miscegenation laws had been a part of US history since colonial America. In the late 1700s, states began increasing their control over marriage by requiring a license. By the 1920s, 30 states had enacted laws that further prevented interracial marriage, including my home state, Virginia, with the Racial Integrity Act of 1924. It wasn’t until 1968 that banning interracial marriage was declared unconstitutional in the Supreme Court case Loving v. Virginia.

Had my partner and I been engaged only 50 years ago, our application for a marriage license would have been rejected. Our only choice would’ve been to jump the broom. Theoretically, our marriage license still could be rejected, because it’s an application process, and all it takes is one bigoted judge to turn it down. And it isn’t just blacks or interracial couples who have been targeted by these invasive institutions.

Opening briefs for same-sex marriage arguments have already been filed with the Supreme Court. For gay rights supporters, the hope is that bans on same-sex marriage will be declared unconstitutional. If this hope is realized, then every state will be forced to recognize heterosexual and homosexual couples equally. However, I’m not convinced this is a step in the right direction.

As it stands, a marriage license is the most effective way for a couple to legally protect themselves. A license comes with over a thousand legal rights, including those relevant to medical emergencies, child custody, and inheritance. It’s important that those rights be respected by every state, but they should also be freely given to consenting adults without constraint. Marriage falls within our right of association, and the state should not be able hold it hostage while ordering you to submit to a blood test or pay a fee. No government agency should be able to reject you unless your marriage falls outside of two simple parameters: consensualand adult. The only “permission” to marry I should need is my partner’s. And now we’re left with an extremely difficult decision.

Do we reject the notion of state-regulated marriage and live as an unrecognized couple, or sign the license and perpetuate conventions we find wholly abhorrent? If we don’t sign the marriage license, we could end up paying lawyers hundreds of dollars to draw up contracts in an attempt to get some of the same rights and recognition as a legally married couple (“some” being the key word here). I don’t like to think about how it will feel to jump the broom in honor of my predecessors and then sign a piece of paper with a legacy of keeping couples like us apart.

ABOUT ALYSON HUDNALL

Alyson Hudnall is a Young Voices Advocate and the founder of Liberty in Color.