Roundtable: “The Importance of the History of Libertarianism” – Andrew Koppelman’s Response to Burgin and Arcenas

Thanks to Claire Rydell Arcenas and Angus Burgin for their smart responses to my book, Burning Down the House.[1]  Burgin wonders why I focus on radical libertarianism, which “seem[s] increasingly marginal to present-day American political conversation.”  Arcenas asks what academic historians should take away from my work.  Burgin – and, elsewhere, Jennifer Burns[2] – press me to explain why I don’t say more about neoliberalism, or about Milton Friedman.

Historians have produced a huge literature on the origins of neoliberalism.  Its less respectable sibling, libertarianism, has received far less attention. This is weird.  Today neoliberalism is in retreat, but, pace Burgin, libertarianism remains a powerful political force. As I’ll shortly explain, it undergirded the legal assault on Obamacare.  Recently, the House leadership was refusing to fund support for Israel unless President Biden would agree to crippling cuts in the budget of the Internal Revenue Service.  The fantasy of a world without taxation appears to be doing some work here.  Neoliberalism does not entail a tax agency that cannot keep records efficiently, detect cheating, or answer its phone calls.  And of course the Republicans are also in the grip of climate change denial, whose persistence becomes increasingly astonishing as weather becomes more extreme and the polar icecaps melt.  Neoliberals don’t object to regulation whose benefits outweigh their costs, but the Republicans remain eager to gut the federal bureaucracy, and the Supreme Court may deliver that to them.[3]

Philosophies of limited government come in flavors, some more bitter than others.  Neoliberalism, which developed in response to the collapse of the Austro-Hungarian Empire after World War I, aims to constrain state interference with markets in order to promote economic growth.  Noneconomic questions, such as paternalistic legislation or antidiscrimination law, don’t much concern it.  It wants a small but efficient state, one that reliably pays its bills and addresses issues such as pollution that the market cannot deal with.  Welfarist redistribution is fine, but it must be done efficiently.  Today neoliberalism is in retreat among both Democrats and Republicans, discredited by the 2008 crash, the disappearance of high-paying working-class jobs, and the election of Trump.

But ideas of limited government persist.  Just not in a neoliberal way.  Libertarianism is far more restrictive, holding that “Government, if it has any purpose at all (and many libertarians doubt that it does), should be restricted to the protection of its citizens’ persons and property against direct violence and theft.”[4]

I’m a law professor, not a historian.  I was drawn to this subject when I tried to make sense of the early constitutional objections to Obamacare, objections that rested on startling departures from what were then settled aspects of American constitutional law.  It is a familiar aspect of legal interpretation that we read laws in light of their apparent purposes: “no vehicles in the park” is not sensibly construed to prohibit baby carriages or wheelchairs.  When we investigate the purpose of the Constitution, however, we inevitably become entangled in issues of political philosophy.  One of the Constitution’s purposes is to prevent the abuse of power, and so constitutional interpretation will inevitably be affected by the interpreter’s view of what counts as an abuse.

A few of the Republicans who opposed Obamacare did so on the basis of wonky quarrels about policy design.  They thought that more market-oriented solutions would work better. [5]  That was neoliberal: both Hayek and Friedman advocated the provision of services through vouchers.

But the opposition was far more categorical.  It rested on a weird understanding of liberty, which conjured up a previously unheard of right not to be compelled to pay for an unwanted service.  That would be bad news for sources of economic security that most Americans depend on, notably Social Security and Medicare.  Yet judge after judge – uniformly, Republican appointees – took it seriously, including a near-majority of the Supreme Court.  In a revealing moment during the March 2012 argument, Solicitor General Donald Verrilli argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick.

Justice Antonin Scalia responded:  “Well, don’t obligate yourself to that.”[6]

As I learned more about the origins of this litigation – a story I eventually told in my earlier book, The Tough Luck Constitution and the Assault on Health Care Reform[7] – it became clear to me that its deepest source was a philosophy that categorically condemned regulation and redistribution.  People were so entranced by it that they convinced themselves that it must be in the Constitution somehow.

The libertarian opposition persists.  Trump had promised not to take away anyone’s health care, and to replace Obamacare with something more generous and cheaper.  His voters, many of whom depended on the law, believed him.[8]  As I noted, market-oriented, neoliberal proposals were on offer.  But the House Republican leadership was compelled by its libertarian wing, whose votes were indispensable, to embrace far harsher alternatives.  All of them would have taken insurance away from between 22 and 32 million people, and most would have used the money saved for massive tax breaks for the rich.[9]  The shift was largely brought about by Charles Koch’s opposition to any reform that preserved subsidies for those who could not pay for health insurance.[10]  Sen. Rand Paul and House Freedom Caucus chair Mark Meadows explained why they were blocking any such reform:   “Leadership wants to keep Obamacare-like subsidies to buy insurance but rename them refundable tax credits (families will be given up to $14,000 dollars of other people’s money).”[11]  The bill the House passed was too draconian for the Senate to stomach, Obamacare remained in place, and the issue helped the Democrats retake the House in 2018.  As this is written, Trump is preparing another assault on the program.[12]

As I was writing my earlier book, I found it unexpectedly hard to find a sophisticated scholarly account of the libertarianism that was driving all this.  Quite a few general works on that topic were available.[13]  But all were written by enthusiasts.[14]  There was no good critical history.  So I decided to go investigate where this accursed thing was created.  Burning Down the House is a journey to Mordor.

I trace libertarianism’s development from Hayek to the fantasy worlds of Murray Rothbard, Robert Nozick, and Ayn Rand, and the political activities of Charles Koch.  That movement has its own autobiographical narrative, which the books just mentioned all supported.  One of my ambitions was to challenge it.  It claims to trace its ancestry back to John Locke.  I challenge the alleged paternity.  Contemporary antistatism is a deep betrayal of Locke’s most fundamental commitments.

When one studies the history with a critical eye, there are lots of surprises.  The modern movement began with the right wing reaction against the New Deal.  That reaction found an articulate basis only with the American publication of The Road to Serfdom (1944), by London School of Economics Prof. Friedrich Hayek.  Hayek’s goal was to show that centralized control of the economy, which was then being advocated by the British Labor Party, would inevitably be wasteful and tyrannical.  He was right.  But his argument was always a poor fit in the United States, where Roosevelt soon abandoned his early flirtation with corporatism and embraced welfare state capitalism.  Ever since then, the American right has been reckless in its use of the “socialism” label.

Rothbard is not much read by scholars, because he is such a bad philosopher, but his influence is immense.  Nozick, far more prominent, was Rothbard’s protégé and builds on his work in Anarchy, State and Utopia (1974), reproducing some of his errors.  Rothbard’s approach to pollution remarkably mirrors that of another of his associates, Koch, who did more than anyone else to stymie climate change legislation.  Another young person who began in Rothbard’s circle was Randy Barnett, later the mastermind of the Obamacare litigation.

I focus on Hayek, Rothbard, Nozick, and Rand, because each of them produced a new framework for opposing big government, and many people naively accept their frameworks.  I devote only a few paragraphs to Friedman, despite his enormous influence, because he wasn’t philosophically innovative or interesting.  His philosophy is essentially Hayek’s, juiced up with an optimism about unregulated markets that went beyond anything in Hayek.

Burgin worries about my “efforts to find a middle ground that pursues redistributive politics in ways that prioritize market efficiencies.”  He points to the pathologies of neoliberalism that Wendy Brown has anatomized.  I agree:  “The triumph of Hayekian free market ideology has generated a discourse in which all political ends—democracy, equality, liberty, inclusion, constitutionalism, an educated citizenry—are understood as means to economic growth.”[15]  Hayek was better than that.  He wrote, in a passage I quote:  “Strictly speaking, no final ends are economic, and the so-called economic goals which we pursue are at most intermediate goals which tell us how to serve others for ends which are ultimately non-economic.”[16]  Hayek had his blind spots, but unlike many other neoliberals and libertarians, he did not have that one.

The neoliberals were right that one ought to take account of what Burgin calls “market imperatives and market efficiencies.”  He cites Elizabeth Popp Berman’s Thinking Like an Economist.  Berman makes a powerful case that the tendency to frame policy questions in market terms has sometimes constricted the left’s political vision.  But it is foolish for anyone who is concerned with poverty to ignore markets.  Most of the progress that has been made against that evil has come from economic growth, not redistribution.[17]  The resources for the left’s projects have to come from somewhere.  One can appreciate the value of efficiency without making a fetish of it.

Arcenas is right that this is a work of political philosophy. The disciplines of history and political philosophy overlap.  People do things for reasons, and historians seeking to understand what people have done must attend to their reasons.  Political philosophy is among the reasons.  And looking back we must sometimes ask whether the reasons were sound ones.

That brings me to the pedagogical value of this work, which I can’t resist pointing out to teachers of American intellectual history and political philosophy.  Tens of thousands of undergraduates read Locke or Jefferson each year and come away thinking they’ve read Nozick – that they have acquired a basis for believing in minimal government and absolute property rights.  It is (as Arcenas notes) a mistake, but they will not have read anything that can disabuse them of this notion.  It certainly won’t come from spending a week with Rawls.  An introductory course in political philosophy ought to cover libertarianism: what it is, what arguments have been offered on its behalf, whether those arguments are sound.  A basic education in history should immunize students from familiar forms of confusion and deceit, and empower them to understand the world they’ve inherited.

Andrew Koppelman is John Paul Stevens Professor of Law, Professor (by courtesy) of Political Science, and Philosophy Department Affiliated Faculty at Northwestern University.  He received the Walder Award for Research Excellence from Northwestern, the Hart-Dworkin award in legal philosophy from the Association of American Law Schools, and the Edward S. Corwin Prize from the American Political Science Association.  His scholarship focuses on issues at the intersection of law and political philosophy.  He has written more than 100 scholarly articles and eight books.  His column appears regularly at The Hill.  You can find his recent work at andrewkoppelman.com.