Everyone Should Be a Little Bit Libertarian
(Bloomberg Opinion) -- The odds are you’re not a libertarian. Although some polls claim that as many as 1 in 5 U.S. adults so identify, most surveys find more modest numbers. In the 2020 presidential election, the Libertarian Party candidate scarcely managed 1% of the vote.
Nevertheless, I’d argue that all of us should be libertarians — not as a full-time ideological commitment, and certainly not as a matter of partisan preference, but for brief moments, whenever a new government initiative is proposed. We should resist undue regulatory haste. Particularly when legislation and rules are large and complex, we should oppose them until we learn every devious detail. Only then can we be sure what we’re supporting is what we think it is.
Call it “short-term” libertarianism.
A law school colleague of mine once suggested that the presumptive position of every senator on every judicial nomination should be “nay.” His theory was that judges and justices exercise so great an authority, for so long a tenure, that the case for confirmation should be strong and persuasive before anyone votes to approve it.
The short-term libertarian elevates that view to encompass not just judicial nominations but government action generally. The motivation is a straightforward balancing test. If a new legislative initiative is delayed while the public takes time for close scrutiny, the harm to society will likely be minuscule. If a new law passed too swiftly turns out to be a disaster, the harm will be enormous — and, in many cases, difficult to repair. (Laws are easier to pass than to repeal.)
Short-term libertarians needn’t be against government, large or small. They needn’t be anywhere near right of center. They need only value asking important questions. Questions such as: Is this regulation really necessary? Is it supported by clear evidence? Does trouble lurk in the details? Have we sufficiently weighed the consequences?
Clear evidence is especially important — evidence not only of the harm to be addressed but also of the likelihood that the new law will address it. Absent clear evidence, demands for stricter regulation of (say) trading in cryptocurrencies because of the possibility of tax fraud are little different than demands for stricter voting rules because of the possibility of electoral fraud. In both cases, one wants not cautions or fears but data. Without it, the short-term libertarian will remain skeptical of both.
Politicians are often mocked for trying years later to explain away a vote in favor of a bill that’s now unpopular. The short-term libertarian judges risk the other way around, willing to oppose even a popular bill until all the details are clear, and only then switching to support.
Consider two citizens, Lois and Clark. Lois, a big believer in gun control, hears about a bill to ban some particular form of handgun. The short-term libertarian would warn Lois not to support the legislation until she’s sure both that it would make an actual difference and that there’s nothing hidden in it that she as a supporter might later regret.
Clark, on the other hand, thinks environmental regulation has gone too far and would like to roll back restrictions on oil drilling. If a government agency proposes to do just that, the short-term libertarian would warn Clark to save his cheers until he learns what else the regulation might do.
In the post-George Floyd era, short-term libertarianism should be particularly attractive. After all, even the most innocuous laws may be enforced violently. Eric Garner, killed during his 2014 arrest by New York police, was stopped after complaints by local merchants over the selling of untaxed cigarettes. A 2013 lawsuit filed by the ACLU accused the police of slamming a 14-year-old girl into the wall of a bus shelter so hard that she suffered cranial injuries. Her alleged offense? Being out after curfew. (The suit was settled.) Floyd himself was accused of passing a counterfeit $20 bill.
Tip, meet iceberg. More than half of those killed by police in 2020 died after officers responded to reports of non-violent offenses. True, any confrontation with law enforcement can escalate, and sometimes suspects are at fault. But if there were fewer laws, there would be fewer deaths.
Many regulations imposed in the wake of the pandemic are undoubtedly necessary. But they have also created more opportunities for violent interactions between law enforcement and the communities they serve. A viral 2020 video of a brutal arrest in the East Village sparked outrage over New York City’s heavy-handed enforcement of social distancing rules. Even in the absence of violence, observers have reported rampant racial discrimination in the enforcement of Covid-19 regulations.
None of this is meant to suggest a fault in any particular law. No legislation is perfect. The best we can hope for is a reasonable balance of benefits and costs. This inevitable imperfection means we’d all benefit from slowing the process. Let’s wait to take sides until we’ve ascertained whether new laws do what they say they do, with relatively small downside risk.
That — and nothing more — is what short-term libertarianism is all about.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”
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