The Liberty Pool

By skepticlawyer

Well, if it isn’t an atheist bunfight, it’s a libertarian bunfight. 

Last week — in an excellent piece for Reason Magazine — David Boaz argued that libertarians ought to stop looking backwards for some ‘golden age of lost liberty’, because no such age has ever existed. More to the point, no such age ever will exist

Has there ever been a golden age of liberty? No, and there never will be. There will always be people who want to live their lives in peace, and there will always be people who want to exploit them or impose their own ideas on others. If we look at the long term—from a past that includes despotism, feudalism, absolutism, fascism, and communism—we’re clearly better off. 


[I]n 1776 black Americans were held in chattel slavery, and married women had no legal existence except as agents of their husbands. In 1910 and even 1950, blacks still suffered under the legal bonds of Jim Crow—and we all faced confiscatory tax rates throughout the postwar period.

This rather obvious point set off a veritable orgy of argument, invective and soul searching among libertarians of all stripes. Some of it was not pretty, for the simple reason that libertarians are socially progressive. Boaz’s point — that we don’t emphasize our socially progressive credentials enough — still holds, however. It especially holds when US libertarians engage in what some of my American friends describe as ‘Founder Worship’. This ‘Founder Worship’ reveals a tendency to wallow in what astronomer and libertarian David Brin calls the ‘look back’ view:

Was there a past golden age when humans knew more and lived more natural lives, from which we fell because of unwise choices? This is the Look-Back View.

Or is wisdom cumulative? The Look-Forward View holds that anything resembling a human utopia can only be achieved in the future, through incremental improvements in knowledge or merit.

As an example of classic Look-Back-ism, Boaz cited an essay by Jacob Hornberger, which ran as follows:

First of all, let’s talk about the economic system that existed in the United States from the inception of the nation to the latter part of the 19th century. The principles are simple to enumerate: No income taxation (except during the Civil War), Social Security, Medicare, Medicaid, welfare, economic regulations, licensure laws, drug laws, immigration controls, or coercive transfer programs, such as farm subsidies and education grants.

There was no federal department of labor, agriculture, commerce, education, energy, health and human services, or homeland security.


Why did early Americans consider themselves free? The answer is rooted in the principles enunciated in the Declaration of Independence. As Thomas Jefferson observed in that document, people have been endowed by their Creator with certain fundamental and inherent rights. These include, but are certainly not limited to, the rights to life, liberty, and the pursuit of happiness.

If there is such a thing as the definition of ‘Founder Worship’, this is it. As Boaz points out, ‘too many of us who extol the Founders and deplore the growth of the American state forget that that state held millions of people in chains.’ Will Wilkinson, like David Brin, is explicit about libertarian ideals as ‘Look-Forward’ ideals:

It’s just plain wrongheaded to cast the libertarian project as the project of restoring lost liberties. Most people never had the liberties backward-looking libertarians would like to restore. I know the rhetoric of restoration can be very seductive, especially in a country unusually full (for a wealthy liberal democracy) of patriotic traditionalists. But restoration is a conservative project and liberty is a fundamentally progressive cause.

As Lorenzo points out at his place, the Boaz piece generated a lot of remarkably grumpy comments in part because it forced libertarians to engage with progressives in ways that make people on both sides uncomfortable:

[G]rumpy because people were obviously quite enamoured of positive views of American history, were tired of being beaten with the stick of slavery and very much of the view that liberty had been steadily declining. 

There is something in this. I am one of those people who happens to think it is not possible to apologise for wrongs and harms for which one is not responsible. I also reject the concept of collective guilt or collective responsibility, for the simple reason that seeing people as appendages of their groups opens the door not just to treating them well (as a group) but also — more frequently, especially in the light of history — to treating them like shit, enslaving them, even killing them. I have got into innumerable arguments over it, but I still maintain that notions of ‘group rights’ come from the same intellectual tradition that leads to ‘group harms’. And so I want no part of either notion.

What justified slavery and Jim Crow and the coverture laws that deprived married women of property rights is this tendency to treat people as an undifferentiated mass, as indicia only of their group, not as individuals. Slowly, however — over time — those group disabilities and impositions were peeled away, and the basket of negative rights for which John Stuart Mill and Harriet Taylor argued in 1859 were finally extended to all, but — as Boaz points out — not without a terrific struggle:

For the past 70 years or so conservatives have opposed the demands for equal respect and equal rights by Jews, blacks, women, and gay people. Libertarians have not opposed those appeals for freedom, but too often we (or our forebears) paid too little attention to them. And one of the ways we do that is by saying “Americans used to be free, but now we’re not”—which is a historical argument that doesn’t ring true to an awful lot of Jewish, black, female, and gay Americans.

I should point out here that Boaz isn’t talking about positive liberty, the ‘freedom to’ that Isaiah Berlin suspected could manifest in deeply totalitarian ways. He’s talking about the removal of impediments, about the state getting the Hell out of the way of the individual. Make no mistake: a law that tells a woman she is her husband’s instrument is an impediment in a way that earning a low wage is not. The existence of the first is fatal to a society’s conception of itself as free, while denial of the second is only denial of a society’s conception of itself as equal. There is a difference.

However (all that conceded) Boaz is also aware of encroachments on our liberty: the ASBO, the Patriot Act, CCTV on every street corner, identity cards, regulations that throttle business, taxes that strangle enterprise. These threats are real. Their reality is why libertarians spend so much time talking about economics and war, which in some respects is a shame. There really is a lot more to us.

That said, while ‘liberty’ has been extended to more of us, I can’t help thinking that the conception of liberty has become ‘thinner’ over time. ‘Thinness’ is a philosopher’s term of art that suggests a concept is being stretched, like butter spread over a piece of dry bread. If it is stretched too far, it is at risk of becoming meaningless.

The best analogy I can think of is the one I’ve alluded to in this post’s title: the liberty pool.

Imagine — if you will — that ‘liberty’ is a swimming pool on a hot summer’s day. In 1880, it’s a very deep swimming pool. The white, heterosexual men who have use of it are soaking in liberty up to their necks. No-one else is allowed use of the pool, however. Jews, blacks, women and gays are all forced to stand around the edge and watch while a minority of the population gets to frolic in the cooling water. Over time, more and more of the watchers are allowed to get into the pool. First Jews, then black men, then white women, then black women, finally gays.

However, as they step into the water, something weird starts to happen. Instead of accommodating the new arrivals, the liberty pool starts to get shallower. By the time everyone is included, liberty barely comes up to the swimmers’ waists. Some of the shallowness is really nasty, too. Lots of the black men, for example, are tossed out of the water and forced to return to the edge thanks to something called ‘the War on Drugs’. The result is that everyone has a bit of liberty, but that no-one can swim. And on a hot day, that’s pretty pissy.

Libertarians want the liberty pool to come back up to everyone’s necks. That is all.


  1. Jarrah
    Posted April 14, 2010 at 9:15 am | Permalink

    Excellent final two paragraphs. Permission to appropriate and disseminate?

  2. Posted April 14, 2010 at 11:53 am | Permalink

    Be my guest, Jarrah. And while this is something of an unpleasant little conversation to be having, perhaps it’s a necessary one.

  3. Slim
    Posted April 14, 2010 at 6:56 pm | Permalink

    I agree – libertarians need to promote their progessive values, because here in Australia they resemble hard-core right-wing neo-liberals.

    The good libertarians at Catallaxy, for example, apart from exhibiting a complete lack of civility and hostile bullying behaviour, support/ed, indeed appluaded, the invasion of Iraq, mandatory detention for illegal immigrants, the detention of David Hicks without charge, the appalling anti-terror legislation, the culture wars, anti environment – pretty much the entire Howard agenda.

    Their liberlaism seems only to extend to matters economical, perhaps thinly disguising a desire for the liberty to financially exploit the weak and vulnerable and to profit at the expense of others..

  4. Posted April 14, 2010 at 7:52 pm | Permalink

    Nice post and thanks for the plug. I would be careful with the Jews as a example, as there was (by European standards) fairly mild social discrimination in the US, but little legal discrimination. That is why the US was a destination for so many Jewish migrants. The fight for Jews was more about respect in public discourse: a very real issue, but simply not of the same scale that they faced in much of Europe.

  5. Posted April 14, 2010 at 9:02 pm | Permalink

    You’re right, of course, Lorenzo; I suspect the confusion comes of attempting to comment on both US and European phenomena. In Europe, (to take another example) it is very clear that black male rights came before white female rights, whereas in the US that claim is equivocal at best and would largely depend on state.

  6. Posted April 15, 2010 at 12:35 am | Permalink

    Interesting. Guess the swimmers must be wearing those old toweling cozzies, to be soaking up all that liberty.

  7. Posted April 16, 2010 at 5:00 am | Permalink

    SL With women and blacks, it is even more complicated than that, since black male legal rights regressed sharply after 1880 when the ‘Jim Crow’ laws started to be enacted in the South.

  8. Posted April 16, 2010 at 5:05 am | Permalink

    SL Like Will Wilkinson, I liked your comments at his place on coverture marriage. This is all a bit serendipity for me, since I am having that argument with David Ellerman over employment contracts, and he has linked coverture marriage and employment contracts, a linkage I hold fairly clearly does not stand.

    PS Can you work out what is wrong with Nozick’s famous thought experiment on slavery?

  9. Posted April 16, 2010 at 4:04 pm | Permalink

    Lorenzo, I’ll revisit Nozick once I submit (yes, I’m in the final throes, and just got the latest batch of edits from my supervisor, which I’m now incorporating into my thesis). I put that backgrounder up on contract marriage in order to show that legal cultures matter. Hayek (of all libertarian thinkers) understood this implicitly but a lot of people tend to forget it.

  10. Peter Patton
    Posted April 16, 2010 at 4:10 pm | Permalink

    Another irony is that as early as the 1860s, Aboriginal males had the right to vote in the Australian colonies, but upper class white women did not.

  11. Posted April 17, 2010 at 12:32 pm | Permalink

    PP Yes, though it depended on which colony.

  12. Peter Patton
    Posted April 17, 2010 at 1:45 pm | Permalink

    Yes that’s right. But even in those colonies with less liberal voting rights for Aboriginal males – such as NSW – the reason was often not based on race. For example, there was a general restriction on all males who were ‘dependent on charity.’ Now, given that so many Aborigines were being shifted onto reserves at that time – and thus becoming ‘dependent on charity’ – of course their voting rights were affected.

  13. Posted April 17, 2010 at 3:22 pm | Permalink

    Peter and Lorenzo: my former partner (that rarest of creatures, an upper-middle class Aborigine) used to say that many Aborigines became ‘dependent on charity’ when Aboriginal jackeroos and jilleroos had to be paid the same wages as white farmhands/stockworkers. He said that most of them were gainfully employed, but up until then, they were paid less.

    The ‘trade-off’ was that they were allowed to live for free on the property while the whites lived elsewhere where they had to pay mortgages/rent. He maintained that most ‘cockies’ couldn’t afford to pay the equal wages and provide free accommodation, so Aboriginal staff were just ‘let go’ (often with real regret). This happened to both sets of his grandparents.

    He didn’t have any data (just lots of family stories), so I was wondering if this was widespread or not.

  14. Peter Patton
    Posted April 17, 2010 at 4:16 pm | Permalink

    SL, there is something in that. However, the equal pay legislation did not happen until the late 1960s, after the famous 6/7 year strike by Aboriginal stockmen at the Vestey’s Wave Hill cattle station in the NT.

    What I was discussing was the period before federation, when Aboriginal males generally had the vote. Now, I am no expert of the chronology of pastoralism, so I’m not sure how many Aborigines would have been tied to the pastoral economy in the late 19th century. I know Wave Hill wasn’t established until the 1880s.

    I think that even those employed as stockmen or domestics [the women] might still have been classed as ‘dependent on charity’ but I’ll have to check.

    Of course, by the 1890s, many had been corralled within the various states ‘protectorates’ and Christian missions, so obviously they would not have been able to vote.

  15. Peter Patton
    Posted April 17, 2010 at 4:35 pm | Permalink


    Are upper middle class Aborigines as rare as folklore would suggest? I was recently shown the data of what can quite legitimately be described as the ‘explosive’ growth in Aboriginal university students and graduates. This must surely cause a form of ’embourgeoisification.’

    Given that the Aboriginal population is only a little over 2 % of the total population, and spread right across the country, this new middle class would not stand out, so perhaps we might all need to adjust our old preconceptions a bit. Again, the data will be key.

  16. Posted April 17, 2010 at 4:40 pm | Permalink

    He’d made his money in trades, not by going to university (although he had excellent HSC results). A lot of university courses (unless they’re in something real, like engineering or law) strike me as a bit fluffy these days. He was certainly the first upper-middle class Aborigine I’d ever met (several houses, a boat, nice cars, expensive shooting and fishing equipment etc, all paid for).

  17. Posted April 17, 2010 at 9:00 pm | Permalink

    SL @13 The 1966 Aboriginal stockmen case imposed a form of employment — full-time permanent employment — on an industry in place of the arrangements that had evolved between pastoralists and local Aborigines. The effect was to devastate outback Aboriginal employment. The case is discussed here.

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