My argument last week about why freedom is advanced by preventing private racial discrimination created a bit of a stir in some libertarian circles. That is no surprise. Many libertarians are firm adherents of the non-aggression principle. From that perspective, marshaling the government to combat discrimination is naked aggression. It entails employing force to tell me with whom I must associate. It is, many libertarians believe, flatly immoral no matter how well-intentioned or worthwhile the consequences might be. Ends do not justify means.
I’m skeptical, however, that there are really that many people who judge the merits of public policy based solely on its adherence to otherwise compelling ethical rules. How many of us would really embrace a social order, no matter how intellectually compelling, regardless of how much suffering or deprivation that social order produced? In short, I suspect—if pressed—we would all agree with John Rawls: “All ethical doctrines worth our attention take consequences into account when judging rightness. One that did not would be irrational, crazy.”
So let’s think hard about the consequences that follow from ignoring social freedom. This week, economics professor Miles Kimball of the University of Michigan did exactly that. He leads with an arresting quote from Dr. Bhimrao Ramji Ambedkar, a campaigner against the truly horrific social discrimination against the Untouchables in India. “So long as you do not achieve social liberty, whatever freedom is provided by the law is of no avail to you.”
Prof. Kimball reminds us that Ambedkar’s observation was powerfully argued 157 years ago by none other than John Stuart Mill, one of the great patron saints of libertarianism. In Chapter 1 of On Liberty, Mill wrote:
Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.
Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.
Many conservatives argue as a basic tenet of their political thought that individual liberty thrives when the state is limited and weak. “As government expands, liberty contracts,” explained President Ronald Reagan in his farewell address, calling the principle “as neat and predictable as a law of physics.” This view is especially pronounced among libertarians, and for libertarians of an anarchist perspective, the opposition between the individual and the state is fundamental and irreconcilable.
I believe this view is significantly mistaken. From the perspective of comparative law and legal history, it represents a dangerous illusion characteristic of citizens who already enjoy the benefits of modern liberal government. Although the state can be an instrument of tyranny, robust government capable of vindicating the public interest is vital for individual autonomy.
As I argue in my recent book The Rule of the Clan, among its important benefits, a strong central state provides the most effective means to ensure that persons are treated as individuals, not merely as cousins. In its absence, people are forced to look to other institutions to address their social and legal problems, and the most enduring such organization in human history is the extended family, the clan—for which group loyalty trumps individual rights.
Because the rule of the clan provides many vital goods that liberal societies deliver less effectively, and because it is based on the natural fact of genetic affinity, it represents an ever-present gravitational force in human affairs.
One of the objects of modern liberal government is to resist this gravitational pull.
If the goal of the liberal, critical tradition that grew from the Enlightenment is not the limitation of government power per se, but rather the fostering of individual autonomy, libertarians should seek to elaborate what Arnold Kling, sympathetically yet critically assessing my work elsewhere, has called “a libertarian case for a strong central state.” Moreover, they should join people across the political spectrum who are dedicated to liberal ideals in the shared project of building effective government institutions in the name of the individual.
Just how strong that “strong central state” should be is open to debate. Regardless, there is little doubt that individual autonomy is, on the whole, far greater today than it was in the past, when racial minorities and women lacked legal protection against what was—let’s not kid ourselves—rampant and crippling social and economic discrimination.
Should freedom of association, then, be consigned to the dustbin of history? Of course not. First, there is a limit to where anti-discrimination law can or should take us. You cannot keep African Americans out of your restaurant, but no one is going to make you invite them home for dinner. Second, the harms delivered by discrimination should be significant enough to justify the state’s intrusion. We should not unleash the force of government lightly.
Those considerations are put in stark relief today in the debate about discrimination against gays and lesbians in the wake of the legalization of same-sex marriage. I’m inclined to think that my former Cato colleague, Julian Sanchez, has it right, as does William & Mary law professor Nathan Oman in a paper published last week at NBER. Oman concludes:
Markets [should be left to] manage social pluralism but only so long as they are largely disconnected from deeper moral or political struggles. Under this theory, the outcome of the debate over religious businesses and same-sex marriage should be empirically contingent. Aggressive antidiscrimination laws may be necessary to insure meaningful access to the market, but where instances of religious discrimination are rare, there is no compelling justification for punishing idiosyncratic religious behavior.
Social justice is about more than discrimination, and not every social injustice can or should be remedied by the state. But this issue well illustrates why freedom is about more than minimizing government power. Securing freedom sometimes requires the exercise of government power. And if I have to choose between restraining government and advancing freedom, I will choose freedom.