Libertarianism Doesn’t Need an ‘Update’

Randy Barnett is probably the nation’s most prominent libertarian legal thinker, and certainly among the most influential of the past quarter century. I also consider him a friend. Now 72, and dividing his time between Florida and Washington, D.C.—where he teaches at Georgetown University Law Center—he’s just published a memoir, and he continues to offer thought-provoking ideas both for the public at large and also within the classical liberal community. Recently, he did just that, arguing on the blog “Law & Liberty” that libertarian political philosophy needs an “update” in light of modern circumstances. But while his post makes some important points, much of his criticism is strikingly misguided. Indeed, his proposed “update” would represent not an improvement in libertarian thought, but an abandonment of some of its core principles.

Tell Them That It’s Human Nature

To start with the good, Barnett contends that libertarianism’s political propositions about natural rights—that is, the idea each of us has a morally justified claim to a realm of autonomy, which includes an infinite number of actions, each of which we’re presumptively entitled to do as long as we respect the autonomy of others—are insufficient to create the peaceful, consensual, prosperous society that’s always been the libertarian dream. Instead, he argues that the political idea of natural rights also needs a firm foundation in morality. Such rights, he says, must “be supplemented with a more Aristotelian-Thomist conception of natural law and the good for humans.” 

That’s certainly true. Prominent libertarians—including Douglas Rasmussen and Douglas Den Uyl, whom Barnett mentions, and Ayn Rand, whom he does not—have said so for decades.  Without a fundamental footing in an objective, universal human good, the idea of rights will appear arbitrary—will look like “nonsense upon stilts,” in Jeremy Bentham’s famous phrase—because anyone defending such rights will be unable to answer questions like: Why should we care about them? What good do they do? Why these rights, and not others?

Since the days of John Locke, classical liberals have successfully answered these questions by grounding their arguments about rights in deeper philosophical claims. To summarize the centuries-old moral case for freedom: Living creatures, unlike inanimate matter, can be created or destroyed, which means it’s sensible (as in nonarbitrary) to speak of things being objectively “good” or “bad” for them. Some things will cause them to flourish, and other things will not. Just as a physician would say that healthy diet and exercise is objectively good for a patient’s physical fitness, so certain moral practices—and, consequently, certain political institutions—are objectively necessary for humans to thrive in society. (Revealingly, both Aristotle and Locke were physicians; they naturally built their arguments for morality and politics on the same pattern as a doctor bases an argument about proper nutrition.) 

Thriving, or “eudaimonia,” is the only sensible definition of the term “good” in the context of human life; it’s good for us to thrive, not because we arbitrarily prefer it, but because flourishing is a real phenomenon, and “good” can mean nothing else for us. How we thrive, however, depends on our nature. Just as a bird thrives by flying, and a spider by spinning webs, so human beings thrive by using their reason—and reason cannot operate under compulsion. Rather, flourishing requires that we be free from the use of force—robbery, rape, murder, enslavement, etc. In Rand’s memorable phrase, “man’s survival requires that those who think be free of the interference of those who don’t.” 

That’s where rights come in. They aren’t guides to the good life, but rules of the game within which we can pursue the good life: They shield us from force so we can make our own choices. Government operates that shield by preventing and punishing aggression through rules (laws) that ensure that people are free from aggression, not only from one another, but also from the government itself, which—being operated by fallible humans—is dangerously liable to being perverted to improper ends. 

We Should Be Together

That’s a quick sketch of the “natural law” argument encapsulated by the Declaration of Independence’s ringing phrases about all men being created equal, with inalienable rights which government must respect. Note how the argument critically depends on the initial propositions about human flourishing. If the political half of the argument is severed from those, it becomes arbitrary—a mere statement of sentiment or tradition: “our” rights—rights of “members of our club”—instead of human rights. 

In fact, the “rights of members of our club” aren’t actually rights at all, but just privileges, habits or permissions, because it’s built into the very concept of rights that if they exist, they always exist for everyone, not just within one culture or another. That point was made clear by the 19th-century abolitionists, whom Barnett rightly considers the grandfathers of today’s libertarianism. They never separated political claims about rights from universal claims about human flourishing, or grounded their arguments on moral or cultural relativism, because they saw that it’s impossible to condemn anti-liberty institutions such as chattel slavery on such grounds. On the contrary, it was their enemies, such as John C. Calhoun and Stephen Douglas, who based their arguments on these things—precisely because that enabled them to assert that whites had rights, but Blacks did not. When Calhoun (who said there was “not a word of truth” in the Declaration) argued that liberty is “a reward to be earned, not a blessing to be gratuitously lavished on all alike”—and when Douglas (who said the Declaration’s authors “did not mean negro, nor the savage Indians, nor the Fejee Islanders”) advanced his cause of “popular sovereignty,” whereby whites could vote on whether to enslave Blacks—they were arguing that propositions about human rights aren’t really true, but just traditional habits or cultural preferences.

Abraham Lincoln summed up the consequences of such arguments with apt sarcasm when he characterized Douglas as saying “that if any one man choose to enslave another, no third man shall be allowed to object.” A libertarianism that omits basic principles regarding universal human goods, and appeals to traditionalism or relativism instead, will indeed collapse—like a man on decayed stilts, or a house divided against itself—into an argument about “rights for us” versus “rights for them.” That’s not only unlibertarian, but logically untenable, because it’s impossible to neatly separate one culture from another, and because, again, the whole point of “rights” is that they apply to everybody, always and aren’t just permissions given to some rather than others. 

You Can Be a Winner, But You Got To Keep the Faith

Barnett is therefore right that libertarianism needs an objective account of human welfare, if it is to accomplish its goal of setting humanity free. Yet after making this appeal for a sound foundation for classical liberalism, he suddenly reverses course, contending that libertarianism’s natural rights’ program is actually too principled—that it’s an “ideal theory,” overly reliant on optimistic philosophical abstractions, and consequently blinded to messy realities, including the fact that “the size and scope of private corporations can pose as great, if not a greater, threat to liberty than government power.” He offers a hypothetical example: “Imagine ... if the current handful of cell phone providers began electronically screening our calls for subversive communications, canceling those who were found to transgress some alleged moral norm. Would the fact they are ‘nongovernmental’ make them any less a threat to individual liberty?”

But Barnett’s claim simply isn’t true. Libertarianism is not an “ideal theory” in the sense he means, and while its approach to the problem of private power differs markedly from those offered by other political philosophies, its distinctive answers to the questions he poses are a sign of its strength, not its weakness.

Philosophers use the term “ideal theory” to describe an argument that posits an optimal society based on abstract, idealized assumptions about people’s behavior. Libertarianism is the opposite of this. It doesn’t assert that people are inherently good, or that they would accomplish great things if government merely got out of the way (although that’s often true). Instead, it recognizes that people are fallible—often ignorant, foolish and malevolent—and concludes that for this very reason, their ability to use government’s coercive powers should be minimized. Thomas Jefferson put the point succinctly when he said: “Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him?”

In other words, libertarianism is skeptical, even pessimistic, about human capacities—especially those of the humans who wield government power, and are as fallible as the rest of us, if not more so. Precisely because libertarianism does not make idealized assumptions about people’s behavior—and holds that utopia is impossible—it concludes that the least bad alternative is to leave people free to make their own choices (subject to legal accountability if they harm others). After all, they have a stronger incentive to avoid bad decisions in their own lives than any outsider could possibly have.

What You Don’t Know

That word “incentives” is important, because intertwined with libertarianism’s moral case for liberty are two pragmatic arguments which together form what Richard Epstein has called “the libertarian synthesis.” These points are attuned to the incentives faced by both individuals and government officials. They’re called the knowledge problem and the problem of public choice. 

The knowledge problem refers to the observation—commonly associated with Friedrich Hayek—that nobody can possibly know all the factors necessary to plan an economy, or even all the factors that go into producing such a simple item as a pencil. Our inescapable ignorance about the future, and about the needs or priorities of others, means that even aside from the injustice involved in dictating to others how to live, we cannot accomplish it as a practical matter. 

The public choice problem (typically associated with James Buchanan, Gordon Tullock and Mancur Olson) refers to the incentives that result when the state intervenes to redistribute wealth or opportunities from one group to another. Because that power is itself worth a great deal of money, people will invest time and resources in trying to gain control over that power—to “capture” it, in economic terminology. As a consequence, government intervention in private decisions tends to reward those who are most politically skilled, not who are most morally deserving. It benefits effective lobbyists, rather than the truly worthy.

These three strands of the libertarian synthesis—the moral argument, the knowledge problem and the public choice problem—can be summarized simply: You have no right to run my life; you don’t know how; and if you try, you’ll mess it up. And these ideas are not the fruit of any abstract “ideal theory,” but represent the hard-learned lessons of centuries of oppression and inefficiency at the hands of bullies, busybodies and bureaucrats, who continuously claim they can fix our problems, if only we obey. To again quote Lincoln, kings and dictators have “always bestrode the necks of the people, not that they wanted to do it, but because the people were better off for being ridden.” Libertarianism, the ultimate anti-ideal theory, answers: Get real.

Just Leave Us Alone

Barnett’s mischaracterization of libertarianism as an “ideal theory” leads him to conclude that it lacks “a theory of the second best”—by which he means that it cannot answer the threat of “corporate state fascism”—that is, agreements by private entities to ostracize or “cancel” people, as in his cellphone company example. But as we’ve seen, libertarianism is “a theory of the second best,” because it holds that government is run by fallible humans instead of omniscient, dispassionate angels, and consequently that the “second best” alternative is to leave people alone, instead of subjecting them to bureaucratic control on the naive assumption that the latter will make wiser choices. 

One reason for preferring the libertarian route is that when people are left free, they can devise new and better solutions to the sort of problems Barnett describes. That’s why the answer to his rhetorical question is actually yes—it certainly would make it less of a threat to liberty that the hypothetical cellphone carriers are nongovernmental entities, because that means they’re answerable to competitors, customers and shareholders. That makes them far less dangerous than the government, against which it is illegal to compete, which “consumers” cannot refuse to pay and which is not meaningfully accountable to the public.

In a free or even semifree society, a cellphone company that tried such a screening scheme would face pressure from competitors offering alternatives, and the risk that customers would cancel their subscriptions. If, by contrast, the government were to engage in such a scheme, no such opportunity for competition would be possible. That would be plain censorship—and certainly would be a greater threat to liberty. As for government intervention intended to somehow force these companies to operate more “fairly,” it’s far more likely that this would be perverted to illegitimate uses, or to fail due to knowledge problems, than to accomplish the “fair” outcome (whatever that might mean).

True, one can imagine a “Gattaca”-style dystopia in which private companies connive to excommunicate people to such a degree as to effectively curtail their freedom. But the libertarian answer to that is simple: freedom of competition. Let people bothered by such connivance start their own businesses to offer alternatives. True, this isn’t a perfect solution, but since libertarianism isn’t an “ideal theory,” it eschews utopianism and seeks the second-best solution—competition. 

And competition has, in fact, worked quite well. In recent years, for example, conservatives bothered by what they view as “censorship” by X and Facebook have had plenty of other options. When X (formerly Twitter) cancelled President Donald Trump’s account, he started TruthSocial. Others started Parler. There’s also GETTR, Gab, MeWe, CloutHub, FrankSocial, Bluesky, Threads, Mastodon, Reddit, Discord, Tumblr, TikTok, SproutSocial—not to mention YouTube, Twitch, Vevo, Rumble, PeerTube, Joystream, DTube, Crackle, LBRY, or Substack, Typepad, WordPress, Squarespace, BlueHost ... .

And There’s the Choice That We Make

Competition is a far preferable—and more realistic—way to address concerns about collusion than to expect bureaucrats to somehow thwart that collusion without themselves falling prey to the knowledge and public choice problems. Such an expectation really would represent an “ideal theory”—a utopian assumption that ignores both history and libertarian principles. Yet Barnett appears to embrace just that assumption.

Take his suggestion that cellphone companies or other communications businesses be declared “common carriers,” or “creatures of the state,” so that government can compel them to carry messages they would prefer not to. That’s hardly a new idea—it’s just another name for the antediluvian “fairness” and “equal time” doctrines, mid-20th-century policies whereby government forced broadcasters to carry messages they disagreed with in order to achieve what politicians considered adequate “balance” in political debate. The results were predictable: Public discourse was stifled; bureaucrats favored messages they preferred at the expense of those they didn’t; planners failed to anticipate market demand—and the constitutional rights of broadcasters were violated for decades. The abandonment of these doctrines in the 1980s led to a blossoming of broadcasting options, giving rise to Rush Limbaugh and Al Franken, Fox News and MSNBC, One America News and CNN.

Libertarianism, by contrast, is concerned with the rights of the owners and customers of communications companies. Some people, after all, might prefer to do business with a cellular company that bars expressions they find offensive. There are already myriad communications businesses serving niche communities, often by filtering out certain types of messages; Bitmoji, for example, doesn’t permit users to employ racial slurs. Presumably, its users are fine with that—and that’s as much their right as it is the right of a devout Christian baker to refuse to decorate a wedding cake for a gay couple. By what principle would the Federal Communications Commission forbid cell companies from blocking certain words—while allowing, say, the Textkiller, ReThink and NotiEDA apps to do the same?

There are also the rights of the hypothetical cellphone companies’ owners. They, too, have property and speech rights that deserve respect, and if they refuse to do business with someone whose views they despise, it’s hard to see what’s wrong with that. In fact, it would be an injustice for government to effectively confiscate their property by forcing them to convey messages they find repulsive—just as it would be wrong to force a homeowner to put up a yard sign supporting a political candidate he despises. 

Barnett answers this by suggesting a parallel between his hypothetical cellphone cartel and the race- and sex-discrimination prohibited by civil rights laws. “Free citizenship,” he writes, “may carry with it the privilege of accessing public spaces and services ... like places of public accommodation and common carriers ... without being subject to arbitrary discrimination”—and, he says, “publicly-traded corporations” such as cellular companies should be treated the same way.

But there’s an obvious difference between these two things: Messages and ideas are not immutable characteristics inherited at birth, as race is. It’s legitimate, sometimes even imperative, to discriminate against people based on their ideas—even to hate them and refuse to do business with them—which isn’t true with regard to race. Discriminating based on ideas even serves a valuable role in democracy, by conveying messages about which ideas are socially acceptable and which are beyond the pale. Libertarian freedoms of choice, including free speech and property rights, preserve everybody’s capacity to make such judgments, and thus contribute to the formation of the (ever-evolving) social consensus—or to defy that consensus if one wishes.

To neutralize that right by government fiat—to forbid people from “discriminating” based on ideas or speech—would deprive them of their own expressive rights and disrupt society’s capacity to formulate social norms. It would replace that “spontaneous order” process with a one-size-fits-all mandate imposed by politicians entrusted with the power to decide what types of messages others must convey, and what sorts of “discrimination” against ideas are permissible or not. Only one wedded to an “ideal theory,” however, would assume that politicians wielding that authority would use it with disinterested even-handedness, instead of favoring ideas they consider valuable over those they don’t. This shows that it isn’t libertarianism, but Barnett himself whose argument prioritizes abstract “ideal” assumptions over the complex and dynamic interactions of real life. That’s not updating libertarianism; that’s abandoning it.

I’m Starting With the Man in the Mirror

None of this is to suggest that private companies always make wise and benevolent decisions; to reiterate, libertarianism makes no such “ideal” assumption. Believers in freedom have plenty of reasons to be skeptical toward private businesses, which often participate in undertakings inimical to liberty. Henry Ford gave 25,000 tractors to Joseph Stalin’s Soviet Union. Coca-Cola and General Motors lent support to the Nazis. Disney and Nike do business with the People’s Republic of China today. Libertarians should be as outraged by such things as anyone else—perhaps more so.

And here’s where the importance of deeper philosophical commitments comes in again. By calling for more political freedom—that is, tightly constraining the government’s realm—the libertarian is necessarily also calling for greater personal responsibility in the private realm: the responsibility to be involved as a member of civil society. As Hayek put it, a libertarian society “probably demands more than any other that people be guided in their action by a sense of responsibility which extends beyond the duties exacted by the law and that general opinion approve of the individuals’ being held responsible for both the success and the failure of their endeavors.” A robust appreciation of the human good is an important part of libertarianism, not only because it grounds the political idea of individual rights, but also because it informs how we use those rights—including decisions about who we do business with, and when to speak out in the marketplace.

By respecting the boundaries of individual choice, the libertarian isn’t denigrating the significance (and potential danger) of those choices. Quite the opposite: It makes it more important to exercise critical judgment; to praise virtue and achievement; to express disgust over discourtesy, bigotry, ignorance, self-harm and other behaviors that corrode the social fabric of freedom. Liberty makes it all the more crucial to exercise our power as individuals by speaking out against, say, foolish policies by private organizations that do have the right to block speech by those they disagree with—but shouldn’t do so. If Barnett’s hypothetical cellphone cartel ever materialized, libertarians should be first to picket their offices—but they shouldn’t call for a government takeover.

Armed with a deeper philosophical understanding of the human good, libertarians are better equipped to speak out in civil society than those who naively think the state can make us good. They don’t deny that “threats to human freedom that come from private as well as public power—from nongovernmental as well as governmental actors.” But it’s precisely because they see that government is typically too blunt an instrument to address such private decisions that they recognize their obligation to participate in civil society, in part by approving or disapproving of the actions that their fellow citizens and businesses take that affect the culture of liberty. This is not, as Barnett implies, a weakness in libertarianism, but a strength. Thanks to their understanding of both eudaimonia and individual rights, libertarians can see that others have a right to make bad decisions—and that each of us has the right, perhaps even an obligation, to speak out against those bad decisions. This may be slow, even frustrating, piecemeal work—but libertarians know there are no shortcuts. The idea that government can save us instead is an “ideal theory” delusion.

Libertarians understand that the problems caused by bad choices that individuals and businesses have the right to make are usually too complicated to be resolved except in the messy, complicated world of civil society—and that this requires us to roll up our sleeves and get involved: to join clubs and volunteer organizations; to contribute to organizations that help the poor, or educate children or preserve historical treasures; to protest businesses that pollute the environment, or treat workers badly or that try to screen our calls. Libertarianism doesn’t promise to solve our problems, as “ideal theory” political creeds do; instead, it charges us with the responsibility to find solutions freely.