Tag Archives: Randy Barnett

Libertarianism, the Confederacy, and Historical Memory

19 Jul

In the last few days libertarians have been debating the neo-Confederate sympathies of some in their movement. I don’t to wade into the discussion. Several voices in that tribe—including Jacob Levy, Jonathan Adler, and Ilya Somin—have been doing an excellent job. (This John Stuart Mill essay, which Somin cites, was an especially welcome reminder to me.)

But this post by Randy Barnett caught my eye.

I should preface this by saying that I think Barnett is one of the most interesting and thoughtful libertarians around. I’d happily read him on just about anything. He’s a forceful writer, who eschews jargon and actually seems to care about his readers. He’s also the architect of the nearly successful legal challenge to Obamacare, so we’re not talking about some academic outlier who gets trotted out, Potemkin-style, to serve as the kinder, gentler face of the movement.

What’s fascinating about his post is this:

I wish to add a few additional considerations that I have become aware of over the past several years as I have researched and written about “abolitionist constitutionalism” and the career of Salmon P. Chase.

What follows is a series of observations about the centrality of slavery and abolition to the origins of the Republican Party and the Confederacy and to the Civil War. Barnett, for example, says:

The Republican party was formed as the anti-slavery successor to the Liberty and Free Soil Parties.  It was the election of the presidential candidate of this party with its anti-slavery platform that precipitated the South’s initiation of force against federal troops and facilities — not a dispute over tariffs.  Slavery was deeply involved in both the formation of the Republican party, which supplanted the Whigs due to this issue, its election of a President on its second try, and the Southern reaction to this election, which directly precipitated the Civil War.

What’s striking about this set of observations is that with some minor exceptions it has been pretty much the historiographical consensus for decades. Indeed, I learned much of it in high school and in my sophomore year at college.  Yet Barnett, by his own admission, has only discovered it in recent years.

Let me be clear: I have no desire to impugn Barnett’s intelligence or learning, or to do that annoying academic thing of mocking someone for coming so late to the party. To the contrary: it’s because I have respect for Barnett that I am surprised. We’re not talking here about libertarianism’s Praetorian Guard. Barnett is a major scholar, who’s actually been thinking and writing about abolitionism and its constitutional vision for some time.

That a libertarian of such acuity and learning, of such range and appetite, would have come to these truths only recently and after intensive personal research tells you something about the sauce in which he and his brethren have been marinating all these years. In which the most delectable ingredient (don’t even try the rancid stuff) tastes something like this: “It is difficult to escape the conclusion that the Civil War was an unjust war on both sides.”

Never mind the formal and informal declarations of sympathy for the Confederacy that libertarians are currently debating. Barnett is grappling with a deeper kind of knowledge, or anti-knowledge, on the free-market right: the kind that Renan spoke of when he said that every nation is founded upon a forgetting. That forgetting—that deep historical error which held that the Civil War was a fight over tariffs or some other nonsense—lay for many years at the core of not only southern but also northern identity. It was not just the furniture of Jim Crow; it was the archive of American nationalism, the common sense of a country that was all too willing to deny basic rights, including voting rights, to African Americans. It was that forgetting that revisionist historians like Kenneth Stampp and C. Vann Woodward, with the Civil Rights Movement at their back, felt it necessary to take aim at. More than a half-century ago.

That Barnett—who’s been prodding libertarians on this issue for some time—has only recently gotten the news tells you much about his movement’s morning prayer, the sense of reality it brings to the table. The problem here isn’t merely that some, perhaps many, libertarians are overt fans of the Confederacy; it’s what the movement’s been reading in its afterglow, long after the light went out.

Update (5:15 pm)

So Randy Barnett and I have been emailing throughout the day, and it turns out there’s some misunderstanding here on my part, though as Barnett concedes in his clarifying post today, it’s not completely unwarranted. The misunderstanding, I mean.

Like Robin, I have been well aware of the consensus on these views since high school and college.  The point of my opening sentence, however, was to note that I have been studying this period seriously over the past several years as part of my research on the “constitutional abolitionists” and the career of Salmon P. Chase, and what followed was informed by that study and was not just repeating the conventional wisdom off the top of my head.  And, although my interest in abolitionist constitutionalism dates back to a lecture on Lysander Spooner’s theory of constitutional interpretation that I gave at McGeorge in 1996, my appreciation of these issues and their subtleties has been greatly enriched by my intensive reading of both secondary and primary sources in recent years as I broadened my focus well beyond Spooner.

The sentence that misled Robin was badly enough written to be misconstrued by him because it was written before the 6 bullet points that followed, which touched upon more than the role abolitionist constitutionalism played in the formation of the Republican party and the fear it engendered in the South, and because the misreading I now see is possible simply did not occur to me.

So that makes perfect sense. My apologies for the misreading.

Let me add two points. First, to Jacob Levy’s comments over at Crooked Timber. I haven’t read everything by Barnett, but I’ve read a fair amount (hence my admiration!) So I was fairly familiar with his background and interest in Spooner. I tried to telegraph that, however unsuccessfully, in two places in my post: “who’s actually been thinking and writing about abolitionism and its constitutional vision for some time” and “who’s been prodding libertarians on this issue for some time.” That said, Brad DeLong is right to point out in the CT comments that that anarcho-abolitionist view doesn’t necessarily take us very far from some of the underlying historical assumptions of the neo-Confederate position. To wit: the “it is difficult to escape the conclusion that the Civil War was an unjust war on both sides” claim, and all the associated historical baggage around it, that I cited in the OP.

Which leads to my second point. Whether or not I got Barnett wrong on the meaning of that sentence—and clearly I did—the larger question his post raised for me was about the historical common sense of the libertarian movement and its organic intellectuals. My impression—and it is just a impression, so take it for what it’s worth—is that the historical view of the Civil War (not the normative position in favor or against, but the analysis of the two sides) that I was challenging is not that marginal in the libertarian firmament. Part of why Levy et al’s posts are so important is not simply that they argue against a pro-Confederacy reading of US history but that they actually supply badly needed historical facts and awareness to the movement. Facts alone seldom change minds, but they are important. To the extent that I got Barnett’s back story wrong, my post adds nothing to what Jacob and others have written. But to the extent that the historical common sense I’m pointing to is held by more in the libertarian movement than the overt or covert sympathizers with the Confederacy—which was my real concern here—I think the post still stands.

By way of comparison: The left has its own version of this historical common sense: the dismissive wave of the Republicans as simply the party of Northern capitalism, and the Civil War as the radiating wave of that motive force, as if that were the beginning and end of the story. (This is not to say, of course, that the Republicans were not the party of Northern capitalism; it’s just to point out that that claim, like the party itself, contains multitudes, including radical abolition, and that those multitudes would eventually come to blows over just what that promise of abolition actually meant.) The difference on the left, I think, is that we have scholars like Eric Foner who’ve long parried that simplistic view and that the revisionism that began in the fifties has become as much a part of the historical common sense of the left as the older alternative view. If not more so.

But, again, this is impressionistic. I live in Brooklyn, after all.

I’m a libertarian. Which is why I’m voting for Mitt Romney.

5 Nov

Randy Barnett is one of the most brilliant legal theorists on the right today. He’s also a libertarian. Ever since I came across his work in the course of my research on Justice Scalia, I’ve been fascinated by him. No matter what you think of his politics, he’s always worth reading.

“I am as libertarian today as I was” in 1975, writes Barnett in today’s Wall Street Journal [pdf of entire article here], when he attended his first Libertarian Party convention. And that is why he’s voting tomorrow for Mitt Romney. And urging other libertarians to do the same. Because a vote for Libertarian Party candidate Gary Johnson is, well, I’ll just let Barnett explain it in his own words.

The Libertarian Party’s effort will, if effective, attract more libertarian voters away from the candidate who is marginally less hostile to liberty [Romney], and help hand the election to the candidate who is more hostile to liberty [Obama].

We often hear that libertarians care about much more than the rights of property and freedom of contract. They loathe the drug war, imperialism, and social conservatism, and are as far away from the Republicans as they are from the Democrats. They stand for a government of limited, federated, and separated powers because that is how personal liberty is best secured. Here’s how one of their most influential and important advocates thinks about these things.

Some libertarians continue to insist that, because the Republican and Democrats are equally bad for liberty, it makes no difference who gets elected. However true this once was, in recent years Republicans have been better for liberty and Democrats have been worse.

It was a Democratic Congress and president who gave us the federal takeover of the health-care industry that will bring us closer to a Western European-style social democracy. All four Democratic-appointed Supreme Court justices voted to uphold ObamaCare as constitutional, with four Republican-appointed dissenters.

Are Democrats better than Republicans on personal liberty? Neither has been great on that score, but Democrats have been the bigger disappointment. When I took the medical-marijuana case to the Supreme Court in 2004, I got zero votes from the left side of the court while garnering the votes of Chief Justice William Rehnquist and Justices Clarence Thomas and Sandra Day O’Connor. And President Obama’s Justice Department has reneged on his campaign promise to refrain from going after medical-marijuana dispensaries.

Neither party wants to question the futile and destructive “war on drugs.” But Republicans have been much better on free speech in recent years. With respect to economic liberty, the Environmental Protection Agency has restricted land use throughout the nation and would do more if not stopped. Dodd-Frank has amped up restrictions on financial services.

Libertarians need to adjust their tactics to the current context. This year, their highest priority should be saving the country from fiscal ruin, arresting and reversing the enormous growth in federal power—beginning with repealing ObamaCare—and pursuing a judiciary who will actually enforce the Constitution. Which party is most likely to do these things in 2013?

Citing the Republican Congress under George W. Bush, some libertarians contend that divided government is best for liberty. Yes, divided government is good for stopping things (until some grand deal is made). But divided government won’t repeal ObamaCare and Dodd-Frank or give us better judges.

h/t Alex Gourevitch

Update (November 6, 7:45 am)

Mike Konczal writes on my FB page:

It’s hidden in the Barnett piece, but I read it as there’s been so much organizational effort and success in getting the GOP to adhere to far-right Supreme Court justices, that the best libertarian play is to try and Lochner-ize the Court (which it could do with two more votes). I think he’s right that that is their best play.


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