We get some substantive and excellent comments at IGF, but Tom's essay in response to Steve's post on Rand Paul stands out. Tom's essential point is this: It is all well and good for a libertarian (or anyone else) to stand on principle. But once others have compromised your principle, what do you do?
Specifically in the case of same-sex marriage, Paul The Younger has said that he doesn't think the government should be in the marriage business at all. I'm not sure, myself, and can see the arguments on both sides. But he's acting on this principle only to protect same-sex couples from this governmental intrusion into liberty, while resting comfortably in the reality that opposite-sex couples are suffering daily with no end in sight. He has a similar position on the Civil Rights Act of 1964, which he doesn't think was good libertarian policy to begin with; but apparently he can live with it now. However, I'm sure he'd continue to protect the privilege of lesbians and gay men to be free of this overbearing encroachment on their rights.
The greatness of libertarianism, in my view, is that it has the proper respect for the constitution, which after all is a limitation on government. One of its principal limitations is that, when the government acts, it must do so equally with respect to all groups, and may not pick and choose among them without very good reason. Perhaps the constitution really does prohibit the government from entering into the marriage business. Or perhaps that's just a better understanding of government's proper role, irrespective of the constitution. But no court has ever ruled that this is an illegitimate function of our government, and I'm not expecting one to any time soon.
As long as that is true, then, a libertarian -- if he or she is truly principled -- must take one of two positions: either take a stand to challenge the entire misbegotten exercise of unauthorized and/or immoral authority for everyone, or else make sure that this power, as it is being exercised, is exercised without illegitimate discrimination among groups.
That constitutional libertarianism is how we should measure Rand Paul's brand. So far, his principles seem a bit more politically convenient than constitutionally defensible. Or principled.
10 Comments for “Constitutional Libertarianism”
posted by jpeckjr on
Does Mr. Paul’s principled stance for no government role in the any aspect of marriage include the abolition of all legal benefits related to marriage — property, inheritance, adoption and child-rearing, taxation, medical agency, discounts to national parks? Does his stance insist that each marriage relationship be a private contract between the parties without statutory limit on who may enter into the contract, or how many may be party to the contract?
Has anyone asked him?
I bet if someone did he would be as truly principled as he was about Medicare reimbursements to doctors needing to be increased.
posted by Tom on
Well, sure, if Rand Paul is, at this stage in his political career, a Libertarian.
Paul, though, is running as a Republican candidate. He cannot, as a Republican candidate, support marriage equality without betraying the Republican Party platform:
Because our childrenâs future is best preserved within the traditional understanding of marriage, we call for a constitutional amendment that fully protects marriage as a union of a man and a woman, so that judges cannot make other arrangements equivalent to it. In the absence of a national amendment, we support the right of the people of the various states to affirm traditional marriage through state initiatives.
As you suggest, it does seem a bit convenient for Rand to pin his opposition to same-sex marriage on one principle in the Libertarian Party platform (“Government does not have the authority to define, license or restrict personal relationships.“) while entirely ignoring another principle in the platform (“Sexual orientation, preference, gender, or gender identity should have no impact on the rights of individuals by government, such as in current marriage, child custody, adoption, immigration or military service laws.“), all the while failing to address the social conservative arguments in favor of reserving marriage for straights.
I can see that it makes sense politically. Kentucky is a social conservative state, and Paul cannot come out and support same-sex marriage without inciting fury from Republicans. I cannot imagine that Paul is interested in committing political suicide, Libertarian principles or no Libertarian principles. So he has to oppose same-sex marriage. But hanging his opposition to same-sex marriage on a Libertarian principle rather than on social conservative principles distances him from social conservatives, allowing him to pick up, perhaps, some independent and Libertarian votes that a social conservative would have to write off.
It sounds a bit too much like a case of Paul’s trying to have his cake and eat it, too, for me to put much faith in his devotion to principle. Like you, David, I am a bit skeptical.
posted by Tom on
Rand Paul aside, you raise a very interesting question about the Libertarian response to same-sex marriage.
Government regulation of marriage (which I have no doubt at all is constitutional) has expanded in the last few decades and operated to give the government tremendous power over individuals (which I believe unwise), and, through the panoply of economic and tax benefits and incentives granted to married couples, created a form of âmarriage dependencyâ on the government (which I also believe to be unwise).
The anti-marriage debate raging over same-sex marriage in the last decade added a religious dimension â the âsanctity of marriageâ and all of that â to civil marriage and government regulation of marriage. At the same time, the government has refused to recognize valid religious marriages sanctioned by Reform Jews and other religious bodies as valid civil marriages. Compounding matters, efforts have been made to federalize marriage regulation, at least to the extent of federal laws and a constitutional amendment banning recognition of same-sex civil marriages, further eroding the âreserved powersâ clause, and the most radical social conservatives have worked to use (misuse in my view) Article III, Section 2 to remove the jurisdiction of the federal courts over constitutional questions raised by same-sex marriage.
Whatever reasons there may have been for government regulation of marriage years ago, civil marriage has become a government boondoggle in recent years, and the Libertarians have a point â a strong argument can be made that it is time to dismantle the mess by getting the government out of the business of defining and regulating marriage.
But, as you point out, David, the government isn’t going to get out of the marriage business. Civil marriage has become like social security, tax deductions for home mortgages and other entrenched government entitlements â any effort to remove government from defining and regulating marriage will be a third rail for any politician foolish enough to seriously propose it, and the government is going to keep defining and regulating marriage whether or not it is a good idea.
It seems to me, given that reality, that Libertarians have to look to the first sentence of their platform (“Sexual orientation, preference, gender, or gender identity should have no impact on the rights of individuals by government, such as in current marriage, child custody, adoption, immigration or military service laws.“) as an overarching principle, and live with the fact that this principle means, for the foreseeable future, that the last sentence of their platform (“Government does not have the authority to define, license or restrict personal relationships.“) is an ideal that cannot now be realized.
It seems to me, based on what I know about the Libertarian movement, that most Libertarians understand this and endorse same-sex marriage for the near term, hoping, I guess, to rectify the marriage mess by getting the government out of the marriage business in the distant future.
Rand Paul seems to me to have it exactly backwards and seems to be at odds with most Libertarians.
posted by Jimmy on
Philosophers should stick to that schtick, and not run for office.
Democracy is messy, something a philosophy can not tolerate.
(Rand Paul scratching his head and wondering, “What to do?”)
posted by avee on
Paul, though, is running as a Republican candidate. He cannot, as a Republican candidate, support marriage equality without betraying the Republican Party platform:
What ignorant nonsense. Party platforms are not binding, and politicians running note their disagreements with their party’s platform all the time (esp. liberal Republicans and conservative Democrats). Try again, Tom.
posted by Tom on
Sure, Republican candidates take positions different from the party platform from time to time, on this issue or that … but it doesn’t change the truth of the statement.
On a more practical level, my guess is that any Republican candidate in Kentucky who took an “I support same-sex marriage for Kentucky …” position this election cycle or any election cycle in the near future would get his ass handed to him on a platter.
Well, we won’t have the chance to find out, because Paul is already on record.
posted by BobN on
First of all, if you want to see how “libertarian” Rand Paul is, just contrast his opinions on race and those on sexual orientation. On the one hand, he would prefer government allow private discrimination but believes the government itself cannot discriminate. So, down with some aspects of the CRA and up with private choice (a position he moves away from day by day but one he stated last week).
But, when it comes to gay people, not only is private discrimination AOK, the government should make no attempt to broaden anti-discrimination law — no ENDA — and it should continue its own discrimination in DADT. It should go further, too, and ban civil unions and SSM and gay adoptions. I suspect he really backs a federal ban on SSM but gets out of saying it by claiming that marriage shouldn’t be a government marriage (despite 200+ years of it being so).
Specifically in the case of same-sex marriage, Paul The Younger has said that he doesn’t think the government should be in the marriage business at all.
It’s a damned convenient approach, no? Views on the Iraq war? Well, we shouldn’t go nation-building/foreign-adventuring, so no opinion on how it’s actually going or how it should end needed.
How about monetary policy? Well, we shouldn’t have dropped the gold standard. No further comment necessary.
Very convenient approach…
posted by Debrah on
Obama’s Facebook feed
Superprimary Tuesday, Elena Kagan, and Rand Paul’s new friends.
Ha!
posted by Bobby on
I like Rand Paul, the gold standard was better, at least back then our money was real instead of the government printing it like it was toilet paper, at this rate someday it might be worth less than toilet paper.
I recommend daily readings of reason.com, then libertarian principles will start to make sense.
posted by John D on
I cannot take seriously a claim that marriage ought to be privatized from a married person.
Rand Paul thinks that government should be out of the marriage business? Then why is he married? Why is he perpetuating this improper intrusion of the government into his life? This doesn’t sound at all consistent to me.
Paul is, of course, deflecting concerns about his unjust position. He doesn’t really want the government to get out of the marriage business, just to deny this to same-sex couples.
Historical note: While people usually assume that marriage was originally religious and then became a governmental function, they have history backwards.
The Jewish marriage contract is a legal document, spelling out the obligations the couple has to each other. There’s no reference to God; it’s not a religious document.
The Catholic Church first created a blessing for marriage in the 8th century and didn’t insist on church weddings until the 11th century. (Okay, that’s a long time ago, but it does mean that until the High Middle Ages, marriages were secular.)
More recently, in the Massachusetts Bay Colony, clergy were prohibited from officiating at weddings. All weddings were civil. It was noted in Goodridge that the tradition of civil marriage in Massachusetts dates back the the foundation of the colony.
The religious officials forced their way into marriage and did it so well that many people assume that they were always there. Conservatives claim that marriage is a creation of the church. It just isn’t so.