I have previously articulated what I call the paradox of politics (or the paradox of rulership)–we need the state to protect us from social predators but the state itself is the most dangerous social predator. The paradox can never be solved, merely managed more or less well.
The guardian delusion
The delusion that one can solve it manifests in two ways. One is the Platonic Guardian error–if state power is in the hands of the “right people”, there is no problem. This is the Jacobin delusion of the Reign of Virtue that Lenin imported into Marxist theory, a conception that became important to his self-identity (pdf). All the painful learning about the dangers of overweening state power could be discarded as remnants of bourgeois alienation, for he and his had the keys to history.
Clearly, as subsequent history and present realities show, a monstrous and brutally destructive delusion, but a very engaging one. The view that one is so epistemically and morally blessed that one has transcended past constraints has such obvious status and ego appeals that it is never likely to die out. Even without the attractions of being a gatekeeper of righteousness.
The dispersion delusion
The other way the delusion that the paradox of politics can be solved manifests is to treat the state as being “the” problem. That the problem of social predation is, in fact, relatively minor and it is easy to evolve mechanisms to deal with it effectively that work with a much better risk-benefit ratio than the state can. Abolishing private property will do it or, alternatively, relying far more on private property will do it–the anarcho-communist, anarcho-syndicalist and anarcho-capitalist ends of the no-state spectrum which also lead into minimal state versions (various forms of libertarianism).
The abolish-the-state approach approach also lacks support from historical experience, though if one hunts around hard enough and squints in just the right way, one can point to historical examples which sort-of, kind-of manifest the vague possibility of what one is advocating. Some more naive libertarians point to Somalia, but the bit of Somalia that actually works decently is the Republic of Somaliland, a state that no one is willing to recognise because that would involve admitting that Somalia was a bad idea in the first place and, as Africa is full of states which might be characterised in that way, the precedent is scary. The recent secession of the Republic of South Sudan, an act with overwhelming public support, only being acceded to when all other options had been patently, and bloodily, exhausted.
Freedom for, or freedom from, bullies?
But that one accepts some level of state action does not mean one has grasped the power of the paradox of politics. Economist Noah Smith, in his Noahpinion blog, has critiqued libertarianism as being about the liberty of local bullies, a notion that he recently returned to using the They Might Be Giants song Particle Man as a frame.
Under Smith’s critique, libertarianism becomes freedom for bullies–indeed, drives a significant level of support from folk who want to be the local bullies. Smith’s second post being prompted by an article by libertarian political consultant Stephen P. Gordon about the danger that clerics being “forced” to marry same-sex couples which is, as Smith correctly points out, a complete non-issue. Gordon’s response fails to evade Smith’s critique.
Applying some libertarian logic to Gordon’s fears, what couple in their right mind would want to be married by a cleric who opposed the very idea of marriage like theirs? Precisely the sort of appeal to human rationality that is the stock-in-trade of libertarian enthusiasm for private action would lead one to discount the problem as a non-problem.
Even if one operates on the principle that politics inherently tends towards the pathological, it would still require a presupposition of bizarre malice on the part of putative same-sex couples.
Which is why Gordon’s citing of the Patriot Act and property use cases are not sensible. The first is precisely a problem of state agents and the second is not constrained by the obvious problems with having one’s marriage celebrated by an opponent of your existence as a married couple, or even as a couple.
It is one thing to point out that such explicit protections make passing equal-protection laws easier, it is another to buy into it as a serious danger, precisely because it does presume bizarre malice on the part of same-sex couples. Given the essential role that postulating structural malignancy–that the excluded group is some inherent threat to the social and moral order without any specific transgression against the life, person or property of others–has in justifying moral exclusion–that is, the unilateral stripping of moral standing (and so effective, or actual, legal protection)–such implicit buying into the logic of structural malignancy is not reassuring.
After all, the reason why such legal protections are politically helpful is precisely because opponents of same-sex marriage do buy into the notion of the inherent malignancy of queer folk. No one, after all, thinks it necessary to legislate that Catholic priests cannot be forced to marry Jewish couples or that Protestant ministers cannot be forced to marry Muslim couples. It is precisely because homosexuals (and other queer folk) are not regarded as proper versions of the human–for, if they were, equal protection of the law would be utterly unproblematic–that it is regarded as an issue in the first place.
The civil part of civil rights
Conversely, the issue of property-use does raise some genuinely difficult questions. Prominent libertarian writer Julian Sanchez, for example, apparently agreed in tweet conversation with Smith that defending a restaurant owner’s right to discriminate was not opposition to civil rights. When, of course, except under the most bizarrely narrow conception of “civil rights”, that is exactly what it is. Not to mention providing an excellent example of Smith’s contention that much libertarianism is about defending the rights of local bullies. [UPDATE Julian Sanchez denies that Noah Smith accurately characterised their exchange; the notion that liberty and property rights properly includes the right to discriminate is, however, a view I have heard articulated by others.]
If people cannot go about their ordinary lives without exclusion, then their practical liberties and civil existence are seriously restricted. And the more market-based (i.e. transaction-based) the provision of goods and services are, the more that is true.
Especially in small local communities where various forms of social cartelisation are relatively easy to manage; coordinating a common interest in mutual ascription of higher status both positively (providing mutual encouragement) and negatively (ostracising those who do not play the exclusion game). Both of which can be expected to work much better given the dense interactions of local communities.
At which point, the inadequacy of “private mechanisms will deal with it” become obvious. There is no reason to suppose the private mechanisms of moral exclusion will only be used to defend life, liberty and property and many reasons to think that they will not. (Plenty of stateless societies practiced slavery.) Particularly where faith communities exist to coordinate and enforce moral exclusion, organised by clerics who gain and manifest their authority as gatekeepers of righteous by outcasting. Religion does not need the state to be oppressive, though such help will be accepted. There is a reason why Jewish emancipation, female emancipation and now queer emancipation have all been processes of de-Christianisation of law.
The reality of vulnerability
Remembering that the more vulnerable a group is, the greater the need to ascribe malignancy to them, for the greater the need to disguise picking on the highly vulnerable as the social bullying it is. And queers (homosexuals, bisexuals, transgenders, intersex), being born and and raised as isolated individuals in overwhelmingly straight families and social milieus, are the archetypal vulnerable group(s).
Which is also where the “consenting adult” conception of faith communities–exclusion is fine if restricted to believers–is deeply problematic. Because queer children are born into all sorts of families. Including those within faith communities who hold being queer–either inherently or acting as one is–as immoral. Much of such preaching is straight-out child abuse, with a long and dismal history of creating intense human misery. The US pioneering separation of church and state does not mean that it has been free of the oppressive impact of religion.
Yes, who will protect the children? is a standard excuse for state intrusion into family life. But it has power precisely because families can be intensely and intimately oppressive places. Especially when clerics buy in as outcasting gatekeepers of righteousness. And even decent families can fail to be havens in hostile social environments.
There is a pervasive blindness here to private predation, to entirely private social bullying. And to the appeal of such, of mutual ascription of higher status and excluding righteousness. A blindness which is related to the nonsense argument that the American Civil War was not about slavery because most Southerners were not slaveowners. No, they were not. But they gained from excluding blacks from economic competition, from political competition and from a sense of being a master race. Hence the (white) voter support for Jim Crow laws. The notion that such exclusions could only be imposed through state action is nonsense on stilts and shows a dramatic ignorance of oppression in stateless societies.
It also shows a poor awareness of the negative externalities inherent in buying into, or pandering to, the freedom to exclude (and the unfreedom of being excluded). Once the right to exclude is conceded, one has no control over upon whom it will be inflicted. Jews thought it was fine to murderously exclude pagans and queers in the name of God, to find that Christians agreed, and then excluded Jews in the name of God (periodically murderously). Christians then found that Muslims agreed, and then excluded Christians in the name of God (periodically murderously). Treat others as you would be treated has much more power than is being grasped here. Pointing out that there are bullies on the left, while true, does not lead quite where Gordon thinks it does.
The blindness involved is also similar to historical blindness that Clarence Thomas once called the Cato Institute on; the notion that there was some past golden age of liberty. As the not-yet-Mr-Justice Thomas pointed out, that is not how it appeared to black folk.
Conservatives going further
If Smith’s critique of actually-existing libertarianism has bite, what distinguishes libertarians from conservatives? Scalia J.’s argument that the US Constitution protects the right of ordinary Americans to display their disapproval “of homosexual conduct” is patently a license for social bullying of a highly vulnerable minority. Built, moreover, on a clear conception that being homosexual is not a proper version of the human–their vulnerability being either completely invisible, completely irrelevant or proper–who clearly have no constitutional right to live as full members of civil society. Scalia J. is, however, rather more explicit about licensing social bullying than prominent libertarians typically are.
Which is perhaps one difference between US conservatives and libertarians–the former are much more likely to advocate, or at least explicitly license, social bullying.
A much clearer difference is that US conservatives recurringly do not merely want to be social bullies, they want the state to endorse and aid their social bullying. Something which is a striking feature of contemporary Republican politics, though few are as egregious as the current Attorney-General of Virginia. Libertarians are hardly likely to go there.
The power of the paradox
Which does not mean that libertarians do not have some serious moral blindspots. Oppression is not remotely a state monopoly. Libertarians being blind to, or permissive of, private oppression do not have a solution to the paradox of politics, merely a disturbing tendency to not grasp its full power.