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

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.


  1. David Kaib November 5, 2012 at 10:19 pm | #

    No matter how willing I am to grant libertarians their (bizarre and wrongheaded) view of liberty, I can’t wrap my mind around how ‘saving the country from fiscal ruin’ has anything to do with it.

    • Brian November 7, 2012 at 4:23 pm | #

      Really? Debasement of the currency is theft against savers.

  2. lberns1 November 5, 2012 at 10:27 pm | #

    He’s no libertarian – http://www.youtube.com/watch?v=fQgA8IfhJ9M

    • Truethough November 5, 2012 at 10:40 pm | #

      Libertarian means being in favor of stateless socialism.

    • Frank Moraes November 5, 2012 at 11:18 pm | #

      This is a good video, but this guy is a good example of what is wrong with libertarianism. It’s all theoretical: if you accept that governments can have power, governments will take more and more power until: Nazis!

      Also, I don’t buy the argument that Barnett is not a libertarian. This is a game. Rather than say that you don’t accept a libertarian’s views on a subject, you say he isn’t a libertarian. I don’t agree with Obama on a lot of issues, but I don’t deny that he is a liberal.

      • lberns1 November 6, 2012 at 6:03 am | #

        My life is not a game, and I don’t accept that governments are anything more than gangs of thugs protecting their turf at all costs. A truly principled individual would discontinue participating in your bizzare delusional rituals. Call me a heretic and burn me alive at the virtual stake for rejecting your religion, but I just don’t care anymore, and refuse to voluntarily be part of your fraudulent “system”.

        So I stand by my words. This guy is no libertarian. He’s just another statist like Obomber.

  3. JG November 5, 2012 at 10:42 pm | #

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

    Then he’s a cognitively dissonant idiot.

  4. akismet-161150adeb37422c7f5c82f944861ea0 November 5, 2012 at 10:44 pm | #

    PATHETIC! If you support today’s Republican party… and most especially Mitt Romney… you absolutely are NOT a true Libertarian. A libertarian would not try to impede a woman’s right to choice, for example. Supporting a woman’s right to control her own body is THE most basic freedom on Earth and any government that thinks they have a right to control that is exactly the OPPOSITE of Libertarian.

  5. Frank Moraes November 5, 2012 at 11:06 pm | #

    Is the Libertarian Party tag line still, “The party of principle”? My experience is that libertarians are (90% of them anyway) just Republicans who are easily embarrassed. When I considered myself a libertarian, I was struck by how much these people seemed to care exclusively about economic liberty. Anything else didn’t seem to matter to them. In particular, they all hated labor unions. I talk about this a bit on my site:

    Two Points About Libertarians

    In general, my thinking is that libertarians are blinded by theory. But this gets pretty ugly. Of course, what else would you expect when someone cares more about the theory of how all governments eventually lead to Nazism than they do about what actual workers suffer?

    For the best example of just how vile libertarians can be, you need to go to the source:

    Ayn Rand and Indians

    But really, if you want to understand libertarians, remember what I said: easily embarrassed Republicans. But clearly they are not so embarrassed that they will not write apologia for the WSJ.

  6. Sancho November 5, 2012 at 11:07 pm | #

    There’s only the obvious to state.

    The Republicans, led by Mitt Romney and staffed by nearly the entire cast of the Bush administration, will clamp down on contraception and abortion, ensure homosexuals are denied basic rights, continue to meddle in the affairs of other nations, prevent free movement of labour and individuals, and be generally hostile to any science, literature, or peaceful public protest which goes against the interests of the wealthy.

    Once someone begins to argue that economic freedom is the only freedom that matters, they cease to be a libertarian. By definition.

    Barnett, like most “libertarians”, is a garden variety neoconservative.

    • Donna Gratehouse (@DonnaDiva) November 6, 2012 at 7:52 am | #

      I encounter a surprising number of libertarian men who are anti-choice. I don’t have time right now but if I did I’d look up this guy’s writing on abortion and wouldn’t be surprised at all to find some blather about the human rights of zygotes and I can practically guarantee he comes down on the side of employers’ freedom to deny women contraception.

      • casino implosion November 6, 2012 at 8:45 am | #

        Corey’s book has a lot to say about this phenomenon.

      • Brian November 7, 2012 at 3:25 pm | #

        To come down on the side of employers does not mean one is “anti-choice.” That means one is evaluating the actors and determining which one is actually choosing. If an employer chooses – choice – to not offer contraception, he is not impairing HER ability to choose. Hers remains intact no matter what he does.

        To be clear, choice is choice. Choice doesn’t mean your particular kind of choice dominates and forecloses other people’s choice. That’s not choice. Your choice to use contraception does not engender an obligation on others to service that choice.

        So, let’s not corrupt the language here. The word choice has a meaning. It does not mean that certain “choices” have veto power over others.

      • batocchio November 10, 2012 at 12:12 am | #

        I might have to quote Brian’s comment on “choice” elsewhere, since it’s a textbook example of committing equivocation… while arguing against it.

        Also: Power dynamics. How do they work?

        When most conservatives (or libertarians) say “freedom,” they really mean privilege.

  7. Glenn November 5, 2012 at 11:31 pm | #

    Libertarians are always concerned that working people may become dependent on government. This is the worst condition of servitude imaginable by them.

    This interferes with their desire of having all working people totally dependent on libertarians. Single payer health care would remove one effective means of extorting the workers in their employ and would be, in effect, government competition with their prerogative and relief to workers by interference with their total domination in this one area of their worker’s lives.

    A boss I worked for came within seconds of dying when he explained to me that my wife would either have to get well or die because my attentions were being too diverted from the workplace during her illness–not based on performance, but solely on appearance.

    • Brian November 7, 2012 at 3:32 pm | #

      That’s an argument against employer-provided health care. That is CERTAINLY not an argument for putting health care in the hands of yet another gang able to exercise coercive power in another domain. Instead of the work boss, you have the political bosses. Why you think that’s better just because they put on a charade of choosing between two of them every now and then, I cannot imagine.

      By the way, libertarians are in no way supportive of concentrating power in a different group of flawed humans. We want it dissipated, distributed over so many points that no one center of power can effectively exert it.

      • Blinkenlights der Gutenberg November 8, 2012 at 8:02 am | #

        Talking about “putting health care in the hands” of anyone is deeply disingenuous. That’s not what the issue is at all. The issue is who has to pay for health care. It’s not whose “hands” health care is in.

        On a deeper level, the issue is whether the government sets up a system where people have to compete over access to healthcare, or whether the government sets up a system where people don’t have to compete over access to healthcare.

        It’s no mystery why some people think that’s better. It’s a simple class conflict.

        The people who have to compete for resources in the labor market want to limit the stakes of that competition, so that they’re not fighting for their lives.

        On the other hand, the people who have the resources, and get to make people compete over them, want those stakes to be as high as possible, so that they get the most out of their resources.

  8. Roquentin November 5, 2012 at 11:38 pm | #

    The French Marxist and sociologist Michel Clouscard had a saying about libertarian liberalism which succinctly sums up their position, “All is a allowed but nothing is possible.”

    • Corey Robin November 5, 2012 at 11:38 pm | #

      Very nice!

      • GiT November 6, 2012 at 4:18 am | #

        Seconded. I’ll have to hang on to that quote.

    • matt November 6, 2012 at 1:36 pm | #

      I’ve been meaning to read Clouscard, but can only find his work in French, which doesn’t do me any good. Anyone know where to pick it up? Maybe I should just learn French.

    • Edward Kazala November 6, 2012 at 2:56 pm | #

      Nothing is true, but everything is permitted?

      • matt November 6, 2012 at 8:49 pm | #

        that quote’s straight from one of Clouscard’s works:

        “Neofascism will be the ultimate expression of libertarian social liberalism, of the unit which starts in May 68. Its specificity holds in this formula: All is allowed, but nothing is possible. The permissiveness of abundance, growth, new models of consumption, leaves the place to the interdict of the crisis, the shortage, the absolute depauperation. These two historical components amalgamate in the head, in the spirit, thus creating the subjective conditions of the neofascism. From Cohn-Bendit (libertarian leftist) to Le Pen (French extreme nationalist), the loop is buckled: here comes the time of frustrated revanchists.” [2]

    • Brian November 7, 2012 at 3:33 pm | #

      Wow. Blown away by the profundity of that.

  9. Scott Lemieux November 5, 2012 at 11:59 pm | #

    Apparently, the freedoms to choose whether to bring a pregnancy to term, to marry a same-sex partner, and the 4th Amendment don’t count as “liberty” issues.

    • Both Sides Do It November 6, 2012 at 12:36 am | #

      I thought it was understood a Romney administration would move to make marriage a civil contract with such features as unlimited parties and a delineation of each party’s marital duties.

    • Mike S. November 6, 2012 at 3:40 am | #

      oh, snap is that Lemieux, ardent defender of Obama (NDAA’s indef. detention, telecom immunity for warrant-less wiretaps, move Gitmo to Joliet and called it ‘closed’, prosecution of whistle-blowers under the Espionage Act, executive privilege to assassinate citizens), crapping on Romney over the 4th amendment?

      get real, broski.

      sure, Matt Stoller is a chump, but Scott walks around like his own crap doesn’t stink.

  10. Burnspbesq November 6, 2012 at 1:03 am | #

    Randy Barnett is an useful idiot. Nothing more, nothing less.

    I wonder if he’s ever seriously thought about how he would survive in the Hobbesian dystopia he seems so eager to visit upon his fellow Americans.

    • Brian November 7, 2012 at 3:35 pm | #

      Only brutal savages fear a Hobbesian dystopia. Perhaps they know themselves only too well. Good people have no fear of that because they know they can ally with other good people.

  11. jameslivingston November 6, 2012 at 6:07 am | #

    I don’t see how this “libertarian” deserves anyone’s respect, least of all yours, Corey. His notion of freedom is more cramped than the most narrow utilitarian’s. He reminds me of my fraternity brothers arguing late at night about their rights.

    • Corey Robin November 6, 2012 at 1:17 pm | #

      Jim, you should read his scholarly stuff, particularly on originalism, if you haven’t already. You’d find it repellent but very interesting. He’s, to borrow a phrase from Harold Bloom, a strong writer (not a poet, but still). Very strong.

  12. dporpentine November 6, 2012 at 6:25 am | #

    Privatizing roads: the quickest route to true liberty! Keep voting Libertarian, you bravehearts!

  13. Benedict@Large November 6, 2012 at 6:57 am | #

    There was a “federal takeover of the health-care industry”? When the hell did that happen? What I saw was a bill that tosses MASSIVE subsidies at health INSURANCE industry, while pretty much leaving the health-care industry itself alone. Sort of like the GOP’s Medicare Part D, only a bit more veiled in how it was essentially a HUGE corporate welfare subsidy to favored established campaign finance sources.

    But of course libertarians have to ignore messy little details like this. These don’t fit their foregone conclusion that one party is less corrupt and statist than the other, so the fiction of a “federal takeover of the health-care industry” must be invented to set their little world back in place.

    • Brian November 7, 2012 at 3:37 pm | #

      A federal takeover of a fascist variety. It corporatizes the whole thing. The clever feature of fascism is that preserves the appearance of private ownership while being in reality anything but.

    • Sancho November 9, 2012 at 2:24 am | #

      Yes. I don’t know whether to laugh or cry when people earnestly mistake compulsory capitalism for outright socialism.

  14. Paul November 6, 2012 at 10:55 am | #

    From a Libertarian point of view he’s advocating for voting for the lessor of 2 evils and then gives examples why, where’s the brilliance? This a completely boilerplate, pedestrian opinion that any pol on the street could supply.

    • Corey Robin November 6, 2012 at 11:56 am | #

      I said he — not this article — is brilliant. This article is significant for other reasons.

      • Paul November 6, 2012 at 12:52 pm | #

        To belabor the point, you introduced Mr. Barnett calling him brilliant leaving the reader to think his ideas worth considering. Maybe you should have said the sometimes brilliant Mr. Barnett shows that a died in the wool libertarian can eschew dogmatism and succumb to a pragmatic impulse. Who’d a thunk it?

        • Corey Robin November 6, 2012 at 12:54 pm | #

          I could have said that, if that had been my point. It wasn’t, so I didn’t.

  15. troy grant November 6, 2012 at 11:10 am | #

    Libertarians have platform issues I wish Democrats would have. Their fatal flaw is in ignoring that concentrating wealth is centralizing power which is anathema to liberty and freedom.
    In moneyless nature no organism is able to hoard more than it can personally defend. This preserves natural selection while avoiding endless resource and power concentration that indiscriminately destroys their species and habitat.
    Direct democratic regulation is needed to halt the noxious economic and environmental influence of forever concentrating wealth and power.

    • Brian November 7, 2012 at 3:45 pm | #

      Money is not a resource. Where do you get that idea?

      Money is merely a placeholder, a claim ticket, for an unfinished exchange of goods. If someone has a lot of money, it means they’ve participated in a lot of unfinished exchanges, giving away things with the expectation that they would be able to claim the other side of the transaction at a later time.

      So. Wealth concentration in the form of claim tickets cannot happen without distribution of material wealth prior to that. And what happens if someone somehow manages to hoard all the claims tickets, leaving none for anyone else? What’s to stop people from using alternatives?

      If this “wealth” as you call it is in the form of Dollars, and a few at the top hoard them all, they why not use Yen to pay your debts?

      The problem you identify is not one of free exchange. It is one of having an imposed legal monopoly on currency.

      • Kevin November 7, 2012 at 10:07 pm | #

        It had not occurred to us to simply obtain tens of billions of yen. Thank you, Brian.

  16. Alex Sparrow November 6, 2012 at 1:56 pm | #

    It’s nice to see that Libertarians are adopting the same failed strategy of “lesser evil voting” that the left has with the Democrats. Now libertarians will be even more marginalized!

  17. Bart November 6, 2012 at 5:48 pm | #

    “…bring us closer to a Western European-style social democracy…”


  18. Joey Giraud November 6, 2012 at 7:27 pm | #

    Bah. Every “Libertarian” I’ve met is a Republican who’s too much a coward to admit it.

    • matt November 6, 2012 at 8:54 pm | #

      Agreed! Here’s a great piece on Gary Johnson, the Libertarian Party candidate. Just one more piece of evidence that many libertarians–especially ones with any kind of political power–are just right-wingers who know how to appeal to leftists due to the drug war.


      Hopefully I linked to it correctly….

    • Diana November 8, 2012 at 7:00 pm | #


  19. Dene Karaus November 7, 2012 at 8:04 am | #

    As soon as he demagogued “Obamacare” I realized this guy is a lightweight. The supposedly Libertarian “freedom to get sick and get screwed by your health insurer simultaneously” fails to pass any proper intellectual analysis. He writes as if he is paid by the word, not the properly expressed thought.

    • Ed scott November 7, 2012 at 10:45 am | #

      It seems reasonable to me, that our American society can choose to provide its citizens health protection, same as it protects Americans against foreign invasion. We are rich enough to do both.
      This enhances individual liberty by freeing the individual citizen from some of the cruel imperatives of nature, human and otherwise. These are things better undertaken collectively than subcontracted privately, just as national armies are better than mercenary armies.
      The vision Romney projected was of a Nation with a small government and a big army. Don’t you intuit some problem with this vision, regarding personal liberty for the many, to say nothing about other problems.
      On the issue of land use, allowing some to hold and extract the wealth in the name of liberty is obviously misleading. We all deserve equal access to God’s creation, as do those not born into this earthly inheritance yet.
      The same for economic opportunity.
      Throughout human history, people have lived in societies. Only recently have societies tried to engineer themselves to benefit the people. “For and by the people” is a recent idea. It may be flawed ideology, and ultimately proven wrong. The natural state of society, proven in the long run of human history is that the few rule the many.
      For those of us who still cherish the “by and for” principle of government, the problem to solve is not – big government verses small government – but – good government verses bad(corrupted) government. History seems to prove that solving this is beyond human nature.

      • Dene Karaus November 7, 2012 at 11:50 am | #

        You are spot on. You are critiquing oligopoly and feudalism. The rich and landed and powerful have been oattempting to get us as far back in those two directions as possible.

  20. eightyfifty May 12, 2013 at 1:58 am | #

    Corey Robin locates libertarians, along with all conservatives, in the aristocratic revolt against democratic change. This is a nice oversimplification and very flattering to the left, but it’s demonstrably false. Jonathan Haidt has studied the moral intuitions of different political groups; libertarians do no put a high emphasis on authority/hierarchy, quite the contrary, they put less emphasis on it then liberals or conservatives.

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