Libertarianism: The Ideology of Subservience
REVIEW ESSAY
Burning Down the House:
How Libertarian Philosophy Was Corrupted by Delusion and Greed
by Andrew Koppelman
St. Martin’s Press, 2022, 320 pages
As ideologies go, libertarianism is a borderline personality. One moment it is prophesying doom; the next it is hailing social and economic progress. One moment it is pining for destruction; the next it is rationalizing the status quo. One moment it is racist and reactionary; the next it is cloyingly politically correct. One moment it is rejecting common ground; the next it is making strange bedfellows. In all its moods, libertarianism, like the borderline, craves acceptance.
In his recent book, Burning Down the House, law professor Andrew Koppelman largely provides it. “What was valid in libertarianism,” he announces, “has been assimilated into the mainstream,” so that even self‑described socialist Bernie Sanders would leave wealth creation to the private sector. The hero of Koppelman’s book is Friedrich Hayek, perhaps the most venerated libertarian of the twentieth century. Hayek, writes Koppelman, correctly argued that market prices transmit more information than any central planner can know and that inequalities are necessary to bring prosperity to the worst off. Despite his publisher’s truculent choice of title, Koppelman unironically advises that “you ought to be a libertarian,” albeit of a certain kind.
A Sociological Type
That said, as Koppelman acknowledges, he has embraced an unstable philosophy that seeks drama for its own sake. Take, for example, one rather obscure libertarian argument, which Koppelman never mentions, useful as it may be in his polemics against libertarian corruption. In his essay, “On Free Immigration and Forced Integration,” the infamous Austrian economist Hans-Hermann Hoppe observes that if all property were privately owned, then there would perforce be no public roads. Without access to government transportation infrastructure (and assuming that private roads go unregulated), individuals could not move from one place to another without permission of the owners of private roads. Private parties would have absolute power over others’ license to travel.
In reality, the vast majority of the world’s roads are owned and maintained by governments. As a matter of policy, except at political borders, governments typically allow pretty much any adult to use them. Hence, compared to a system of private ownership, the state has imposed a regime of forced integration, at least within national boundaries. Governments effectively compel their subjects to live and interact with others who offend them. The result, in Hoppe’s view, is a nightmarish assault on freedom of association.
Hoppe’s critique of forced integration has much in common with other, better known libertarian arguments, such as Robert Nozick’s contention that taxation is akin to slavery or Murray Rothbard’s claim that the initiation of force against another human being is always wrong. First, it is coherent (or least appears so at first glance). One may not agree with Hoppe, but he does have a point. Government roads, sidewalks, and other passageways do facilitate the movement of people and goods. To the extent that movement is not blocked, a government’s subjects are forced to interact with others whom they might rather avoid. More broadly, the state often does use its powers in order to integrate those under its jurisdiction.
Second, the argument appeals to a commonsense intuition. Some ability to exclude others is essential to a happy life. Few care to live in a commune with no expectation of privacy (and even communes bar outsiders). To have a home at all is to have a place where others outside the household normally cannot intrude without permission. Hoppe generalizes the freedom to exclude until it culminates in the condemnation of all “forced integration.”
Third, the argument is radical. For as long as governments have existed, they have established and maintained roads and other arteries for travel. If Hoppe is correct, then that traditional activity of the state is illegitimate. Indeed, without the means to readily disperse its own agents, it is difficult to imagine how government would have a physical presence at all. Hoppe’s premises lead to the conclusion that even the most well-entrenched functions of government violate individual rights. The state must be smashed.
Fourth, Hoppe’s argument has an almost irresistible perversity. In principle, anyone unsatisfied with his lot can, thanks to public roads, move and establish a life elsewhere. The open road has long served as a synecdoche for freedom more generally. Thus, the poet George Herbert, rebelling against Christian discipline, raged that he was “free as the road.” Yet for Hoppe, all that supposed freedom is an illusion. The freedom to move infringes on others’ freedom to exclude.
At once coherent, intuitive, radical, and perverse, libertarianism could not fail to find adherents. Indeed, the libertarian is a sociological type. A querulous, ectomorphic, high-IQ youth struggles to fit in with his family and peers. He then discovers Ayn Rand as surely as the dog finds its bone. After Atlas Shrugged, he devours the libertarian canon, from Ludwig von Mises to David Friedman. As a mature adult, he pursues a career as an economist (Bryan Caplan), venture capitalist (Peter Thiel), lawyer (Randy Barnett), or politician (Paul Ryan). But he never loses his youthful enthusiasm for abstract ideas and contrarian thinking. In America, his type perhaps still dominates the intellectual Right.
The Narcissism of Small Differences
Koppelman patiently explains where the libertarian youth, fired by arguments such as Hoppe’s, goes wrong. As an historical matter, property rights cannot even be conceived, much less exercised, without a social technology having evolved to create them. As Koppelman writes, “Political life did not begin after I was already sitting in the state of nature with my brokerage account.” To take another example, the right, say, of a shareholder to a corporation’s residual earnings is a recent invention unknown to nomads, hydraulic despots, and feudal lords. The libertarian hopes to isolate some rights as “natural,” thus giving them moral priority over other social constructions, such as a system of taxing citizens for the maintenance of public roads. In reality, the rights that libertarians favor have developed alongside the obligations that they denounce.
Nor can absolute property rights be deduced from first principles. To establish an absolute right to private property, libertarians by necessity appeal to some purportedly foundational precept or other. A common one, for example, is that every individual has a right to self-preservation. It follows, goes the argument, that all must be allowed to “mix” their labor with and possess material things in order to survive. But the equal right of all to self-preservation implies limits on the use of those very things. For example, as Locke argued, those with possessions have a duty to provide for the subsistence of those who lack them. Similarly, no individual may hoard material resources without leaving enough in common for others. The absolute right to property, in short, is not absolute after all, at least if it is derived from a natural right of self-preservation. The only question is just how much inequality is morally justified.
Finally, absolute property rights are not coherent. They founder, for example, on the problem of pollution. Everyone pollutes: merely slamming one’s door sends soundwaves into neighbors’ homes, through their ears, and into their skulls. Yet even the most obstinate libertarian concedes that property owners may not compel absolute silence from those who surround them. The law forces owners to endure minor and reciprocal harms. Why? Because ultimately we are better off putting up with a little pollution. Utilitarian considerations define any system of rights. Once those considerations are introduced, however, the case for absolute property rights dissolves. If a purported right (such as to be free from unwanted pollution) turns out be deleterious, then it should be curtailed or abandoned.
Ironically, libertarianism could no more exist outside of evolved rules and norms than the property rights that the libertarian favors. Hoppe’s deontological libertarianism is a highly abstracted version of the English common law rules of property, tort, and contract. As Koppelman points out, libertarians’ grasp of those rules is tenuous. Under English common law, for example, even a bare titleholder effectively has a duty to maintain his property. Nevertheless, despite its errors, without centuries of legal tradition to precede it, libertarianism could never have arisen to denounce all laws other than those that have made the rules of property and exchange familiar.
Responsible libertarians, concludes Koppelman, recognize that private property can only exist within a broader system of obligations that are justified, if at all, by the common good (if not, as Hayek allowed, the needs of the worst off). Indeed, he reports that “self-identified libertarians . . . who work at intellectually serious policy wonk institutions such as George Mason University and the Cato Institute” urged him not even to write about radical libertarian theory. Like adults embarrassed by their memories of an awkward adolescence, movement libertarians are embarrassed by Hoppe and his reactionary monarchism, Ayn Rand and her genocidal fantasies, and Murray Rothbard and his proto-alt-right embrace of white racial politics. The only legitimate form of libertarianism that remains is the Hayekian one, which justifies inequality and markets only insofar as they can empirically be shown to improve human welfare.
As Koppelman points out, however, Hayekian liberalism is hardly distinguishable from, say, the centrist liberalism of Barack Obama. Both rely on free enterprise to create wealth, tolerate the inequalities that functioning markets produce, and support forms of social insurance. The only differences are ones of emphasis. Left-liberals wish to expand the social safety net and increase regulation, while right-liberals look for market-based solutions and stress the benefits of the free allocation of capital. The vast mid-twentieth-century gulf that once separated, say, Ludwig von Mises from John Kenneth Galbraith should be narrowed, in Koppelman’s view, to the size of a faculty lunch table separating Cass Sunstein from Tyler Cowen.
Yet for all his theoretical pains to show that Hayekian liberalism is incompatible with the uncompromising visions of Rand and Rothbard, Koppelman never explains why the two in practice have worked in tandem. He rues that in the early 2010s, decades after Hayek defended the necessity of social insurance and Nozick’s arguments for the minimal state were demolished, libertarians still fervently condemned, on moral and constitutional grounds, the Affordable Care Act’s individual mandate. But perhaps he should not have been surprised. Libertarians cannot play their role as the enfants terribles of liberalism unless liberals pay attention to them in the first place. Hence, depending on the occasion, the libertarian can either threaten to uproot the system that liberals created or else celebrate it and suggest modest reforms. The individual mandate was an example of both. Originally devised in the 1980s as a market-based means of providing universal health care, it became, for libertarians in the 2010s, a statist betrayal of the U.S. Constitution and the limited government that it ordained.
Soft Despotism
Koppelman hopes to remonstrate with and ultimately domesticate libertarianism. Yet oddly, the more he presses his case, the less compelling what remains of libertarianism becomes. Koppelman’s liberal Hayekian framework turns out to support an impressive edifice of illiberal laws. In Burning Down the House, Koppelman cheerfully reprises his scholarly defense of what can fairly be described as soft totalitarianism. Divisive as that epithet may be, Koppelman earns it with his own words:
Antidiscrimination law is generally understood to be part of a larger project of cultural transformation, aiming to eradicate or marginalize prejudiced attitudes such as racism. . . . Pervasive prejudice has to be combatted with equally strong cultural forces. This takes us into the realm of pollution and taboo. Liberal theorists are uncomfortable with the invocation of such primitive impulses, but they appear to be an ineradicable part of humanity’s moral vocabulary. So racism itself has come to be stigmatized as contaminating. . . . [T]he aim is to induce citizens to regard the relevant prejudice as itself ritually unclean.
A more candid defense of “cancel culture” has never been put to print. Americans may live in fear of saying the wrong thing, lest an irate mob, empowered by ubiquitous human resources and diversity, equity, and inclusion bureaucracies, permanently destroys not just their reputations but their ability even to make a living. But for Koppelman, not only is that a good thing, but it is the very point of an entire body of law. The government has a responsibility not only to suppress unwelcome statements and attitudes but to do so by provoking frenzies of religious hate.
Koppelman acknowledges that antidiscrimination law is “in some tension with liberal ideals, notably free speech.” Yet freedom of speech must sometimes yield, he argues, because the “maintenance of a free society depends on the ideas in citizens’ heads.” If racist attitudes are permitted, then the racially marginalized are less free. Antidiscrimination law, therefore, is a necessary form of thought control.
The victims of Koppelman’s “larger project of cultural transformation” naturally go unacknowledged. As Koppelman perhaps is aware, the religious frenzies emanating from “antiracist” movements have effectively suppressed some of the very knowledge that is most pertinent to public policy. An insistence that disparities in incarceration must be attributable solely to racial prejudice, for example, has led—often with the support of movement libertarians such as the Koch network, not to mention former president Trump—to de-incarceration, the abolition of bail, and under-policing. Predictably, Americans have literally been dying as a result, and cities and urban neighborhoods of incalculable economic value remain wastelands. (Incredibly, as this book review is written, the Western world is anathematizing a billion years of sexual dimorphism, with dire consequences for children’s mental and physical health, while “DEI” pieties have so corrupted the universities as to place them at this point beyond reform. Need one go on?)
Few writers have achieved Koppelman’s Olympian detachment. Merely to name a taboo, as Koppelman does, is to attenuate its force. By praising civil rights law for enforcing irrational taboos, Koppelman has perhaps even revealed himself to be a careful practitioner of ketman, or the art of paying lip service to the regime. One suspects that he has himself entertained heretical thoughts that, ironically, could get him canceled. Regardless, he has a gift for sympathetically understanding his opponents’ views. For that reason, Burning Down the House could very well be the best one-volume introduction to libertarian thought available.
In his recent scholarship, Koppelman has even urged a sort of dhimma of protection for his defeated enemies. He argues, for example, that opponents of same-sex marriage have been so thoroughly disgraced that the few remaining dissenters should be left alone, provided, he says, that they publicly advertise their dissident, minority status. To hound them further strikes Koppelman as needlessly cruel.
The vulgar ideologue, in contrast to Koppelman, will not so carefully and self-consciously perpend his own opinions. Koppelman may say to himself, “I am a Hayekian liberal who supports a thought control regime.” But others who invoke Hayek’s name will fall short of such consistency. They will instead say to themselves, “I am a Hayekian liberal,” while never noticing their acquiescence to the soft totalitarianism that Koppelman champions.
Hence, Koppelman’s analysis explains why libertarianism or “classical liberalism” has become the favored intellectual garb of the right-wing penitent. As a matter of historical accuracy, one might suppose that a “classical” liberal is one who fears democracy and warns that liberty, to survive, must be husbanded by a select few. But in today’s world, the soi‑disant “classical liberal” is one who distances himself from any thought of challenging the regime. Columnist George F. Will, for example, once a scourge of Hayekian liberalism, proclaims himself a “classical liberal” at the same time as he takes to denouncing ethno-nationalism and the creeping authoritarianism of Viktor Orbán. The Cato Institute refuses to defend Ilya Shapiro, the winsome constitutional lawyer it had employed for fifteen years, against a cancel mob stirred by one honest, if insensitive, tweet. Avik Roy, the founder of a neoliberal think tank, condemns the Grand Old Party to oblivion for having once, well over fifty years ago, nominated an opponent of the Civil Rights Act. (Of course, the columnist David French calls himself a “classical liberal.”) In casual political conversation, the apologetic Republican voter, before he even takes a breath, reassures his audience that he is liberal on cultural issues even if economically conservative.
Yet contrary to the libertarian submissive, freedom today lives or dies on so-called cultural issues. In asserting that the maintenance of a free society depends on the ideas in citizens’ heads, Koppelman is partially correct. More precisely, it depends on the ideas that citizens are willing to express. Koppelman would see to it that the ideas and habits necessary to preserve free institutions will go unsaid, unsayable, unthought, and eventually unthinkable. In his appeal to libertarians, he can expect to find many willing, if unconscious, allies.