Saturday, November 23, 2013

Libertarianism As Process

November 23, 2013, 9:20 p.m.

In the Excellent Society

"An excellent plumber is infinitely more admirable than an incompetent philosopher. The Society which scorns excellence in plumbing because plumbing is a humble activity and tolerates shoddiness in philosophy because it is an exalted activity will have neither good plumbing nor good philosophy. Neither its pipes nor its theories will hold water. . . . The tone and fiber of our society depend upon a pervasive and almost universal striving for good performance."

-- John W. Gardner, Excellence (1961), pp. 86, 132

The Goal
When Libertarians assert that the government should not forbid the sale of large sugar drinks, or foods with trans fats, or riding motorcycles without helmets -- because it interferes with what our Declaration of Independence refers to as individuals' "liberty and the pursuit of happiness" -- is there something wrong with their position? If so, what is it, and how would you articulate their error?

Is there some way that the values they hold -- indeed, all of us hold to some lesser or greater degree -- can be more deliberately incorporated into our public policy process, without necessarily adopting their position, or proposal hook, line and sinker on every given issue? These are the questions to which this blog essay attempts to find, if not the answer, at least some progress towards one.

Like many Americans, I find myself in agreement with a number of Libertarian positions -- especially their opposition to TIFs and other forms of corporatism (i.e., government transferring taxpayers' money to for profit, private businesses). It's that latter position, often seen in these blog essays, that causes some to believe I must be a Libertarian.

I'm not (in the sense of a formal, voting member of today's Libertarian Party), but I have often struggled with the questions with which this blog essay begins.

Now, thanks in part to one of my exploratory policy conversations with Jim Leach, my thinking has advanced a bit.

Here's the story.

Nouns, Verbs and Process

Buckminster Fuller (1895-1983) was a popular icon of the 1960s and '70s, whom his numerous followers referred to as "Bucky." He was, among a great many things, an architect (geodesic dome popularizer), author (30 books), and creative thinker on many topics. We occasionally shared the platform as speakers at the same gatherings.

Among his books was one with the title I Seem To Be a Verb (1970). As he explained it, "I don't know what I am. I know that I am not a category. I am not a thing — a noun. I seem to be a verb, an evolutionary process — an integral function of the universe."

I mention this because, like Bucky Fuller deciding he was a verb, I have finally come to the view that Libertarianism can most usefully be thought of as a process, or rather as having a legitimate and significant role in the policy formulation process, rather than a set of platform planks and "positions" on issues.

What's "Libertarian"?

"Libertarian" has become, in most common usage, a reference to a political party, now boasting the third largest membership after the Republicans and Democrats. By that definition it is relatively new, formed in 1971 and with its first presidential candidate in 1972. It is also, of course, a political philosophy with an American history prior to today's political party, origins around the late 1700s, and some claiming threads going back to the Greeks and even Lao-Tzu, in the 6th Century B.C.

Most Americans would find at least something with which they agree in the beliefs and positions of those who identify themselves as Libertarians. You can find Libertarians who are almost as anti-war as the Quakers, yet as strong for gun rights as the National Rifle Association; more conservative than most Republicans on fiscal matters, and yet more liberal than most Democrats when it comes to personal freedoms, such as gay rights and use of drugs.

But it was a recent column from the Heritage Foundation attacking the regulation of trans fats that got me struggling once again with the intellectual challenge of how to either utilize or respond to the Libertarian position on such issues. (Daren Bakst, "FDA's Proposed Trans Fat Ban is a Power Grab to Control Lives," The Heritage Foundation, Nov. 18, 2013; in The Gazette as, Daren Bakst, "FDA's Trans-Fat Power Grab," The Gazette, Nov. 21, 2013, p. A5.) What is the answer to those who refer to government regulation of personal life choices as the creation of a "nanny state"?

The Motorcycle Helmet Dilemma:
Wherein I Argue With Myself and Discover That
"I Can't Win, I Can't Break Even, and I Can't Get Out of the Game"

The motorcycle helmet dilemma has been the example most often used when thinking about the question, or discussing it with others.

There is probably as much diversity among libertarians' views on various subjects as there are for those of conservatives, or liberals. But it's a reasonable guess than a great many Libertarians would put the motorcycle helmet issue this way: "If someone wants to ride with no helmet, it is no business of the state. As long as they are doing no harm to anyone else, are fully informed, and know the risks, it's their life to live as they choose."

Previously, I have imagined myself being backed into an analytical corner.

First, I would say to myself -- or whomever else might be within earshot -- "they are doing harm to others, economic harm. If they are ever in an accident without a helmet, unless they have health insurance, or are independently wealthy, the rest of us -- hospitals' patients (and shareholders of for-profit hospitals), health insurance premium payers, taxpayers -- are going to be picking up some share of their initial medical bills. And if they are brain injured, or paralyzed for life, hundreds of thousands beyond that. The response: OK, but to get to the core of this,let's assume, hypothetically, that the motorcyclist posts a bond adequate to cover all costs.

Second, "Now what is your objection?" comes the real or imagined next question. I respond with something about the way the law permits plaintiffs to calculate damages in wrongful death cases -- namely, what they might have expected to receive from the decedent over the course of his or her lifetime had he or she not been killed as a result of actions by the defendant. To this the response is similar: "OK, so hypothetically assume the motorcyclist must take out a life insurance policy, too, with an initial value equal to the plaintiff's share of the decedent's future earnings." (Its value might decline over time, so long as the insured lives and the future plaintiff has received ongoing economic benefit from him or her. At any given point in time its value would roughly equal the anticipated economic benefits from then until the actuarially determined estimated year of death.)

This simply produces the same response: "OK, so now what is your objection?"

This process could probably continue, but at some point you've run out of potential economic losses, all of which have been covered in advance (at least hypothetically). You're in a corner. You're back where you started: "If someone wants to ride with no helmet, it is no business of the state. As long as they are doing no harm to anyone else, are fully informed, and know the risks, it's their life to live as they choose."

Continuing to travel further on down the wrong road doesn't make it the right road. So let's start over.

Of all the people who would not respond well to demands that they follow a particular procedure for making policy decisions, I can imagine that Libertarians might be at the top of that list.

This is Not About Libertarians; It's About the Rest of Us:
Libertarianism as Process in the Balancing of Values

So I'm not talking to or about Libertarians. I'm talking to the rest of us. And I'm suggesting that we do not need to approach Libertarianism as a body of predetermined platform planks and specific policy positions, binary yes-or-no decisions as a result of which Libertarians either "win" or "lose."

What if we viewed Libertarianism as part of a process, as a set of values that, though not decisive, not only can be, but should be, a legitimate part of the policy formulation process?

Are there analogies, or precedents, for this approach? Try the U.S. Constitution's Bill of Rights.

The Fourth Amendment is currently in the news as we receive revelation after revelation regarding the NSA's "searches" of Americans. The Amendment recognizes "The right of the people to be secure in their persons, houses, papers, and effects." But it also recognizes that some government searches may be justified. It expressly limits its prohibition to "unreasonable searches and seizures." Thus, "privacy" is identified as a value to be constitutionally protected, certainly to be considered as a part of the decision making process, but only up to the point where a governmental search may be "reasonable."

Similarly, the Eighth Amendment is unqualified in its prohibition of "cruel and unusual punishments." But when it addresses bail and fines it, like the Fourth, once again calls for a balancing: "Excessive bail shall not be required, nor excessive fines imposed . . .."

In the case of the First Amendment, the language is absolute: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . .." Indeed, Justice Hugo Black read it as such, asking his colleagues the equivalent in his day of the current line, "What part of 'No' don't you understand?"

But in the case of the First Amendment, notwithstanding the "no," a majority of the Supreme Court justices has interpreted the language to require a balancing of the values associated with free speech (e.g., as a prerequisite for a self-governing democracy, a force to check abuses of power in and out of government, a process more likely to produce "truth," among others). Congress has been upheld by the Court in numerous cases in which Congress has made a law "abridging the freedom of speech."

Companies are legally required to reveal to potential customers the ingredients in their food products (labeling laws), and to potential shareholders the truth about their company (their stock prospectus). You are prohibited by law from telling jokes around an airport security checkpoint. The Copyright Law limits what you can do with others' writing. Courts can punish for speech found to be defamatory, obscene, or inciting to "imminent lawless action."

What I am suggesting is that we approach the principles and values of Libertarianism -- not the "positions" and fixed positions of Libertarians, or the platform of the Libertarian Party and its candidates, but their principles and values -- into our decision, and policy making, processes.

The fact is that my hypotheticals, in which the citizen who takes risks pays up front for the potential economic costs of doing so, are just that: hypothetical. There is a negative impact on our nation's economy from our risky behavior, the accidents and illnesses we bring on ourselves -- driving drunk or without seat belts, excessive use of alcohol and what I call the lesser drugs, tobacco, overweight and poor nutrition, failure to exercise, and, yes, riding motorcycles when not wearing helmets (and comparably risky activities).

Citizens' and Government's Legitimate Interests Beyond Economic Costs

But even if all those economic costs were nonexistent, whether hypothetically or actually, there is another value of legitimate interest to the American people and their democratically elected government. As I quoted John W. Gardner as saying, at the beginning of this blog essay, "The tone and fiber of our society depend upon a pervasive and almost universal striving for good performance."

America's greatest potential asset is performance at levels of excellence by each of its 227 million citizens (over 21) 365 days each year. It is in the best interest of each of us, interests that go beyond mere cost saving, that the government do all it can to ensure that all 227 million come as close to that ideal as possible -- for the good of all, as well as for the good of those individuals. That is why, even after the costs are covered, there is yet one more reason why it is appropriate for the government to concern itself with our self-destructive behavior -- because an excellent society requires a striving for excellence, as John Gardner reminds us, by its plumbers as well as its philosophers.

The point of "Libertarianism as Process" is that it is equally important to weigh heavily the benefits of incorporating into our public policy decisions the values of individuals' freedom, personal choices, and individuality. (To some extent this is, today, the product of the warring lobbyists, with their generous campaign contributions, fighting each other for the votes of House and Senate members. The difference is that I would like to substitute rational analysis, fairness, and incorporation of Libertarian values -- to whatever extent possible -- for raw political and economic power.)

The Radical and the Reasonable

And how might that be done? The way we often do it -- which requires, however, that we recognize the difference between the radical and the reasonable.

The radical positions regarding motorcycle helmets are, on the one hand, simply banning any manufacture or sale of motorcycles, and, on the other, imposing no safety regulations whatsoever. Permitting motorcycles, while requiring the riders wear helmets is, in reality, a middle position, a compromise, a balancing of values. That's not, alone, enough to say it should be the policy. That's not my point. Positioning oneself along this continuum from banning to no government involvement involves personal judgment. People will differ. It is only an example of how one might incorporate Libertarian values along with the state's legitimate interest in maintaining the productivity of its citizens who are motorcyclists.

Another example would be the policy regarding cigarette consumption. Again, the radical extremes would be, on the one hand, to simply ban the sale of any tobacco products, and, on the other, to make no efforts of any kind to limit the adverse health effects of tobacco use (including the 400,000 tobacco-related deaths a year). We have done neither. Cigarettes can be manufactured and sold. Smokers can continue to buy them. Some examples of the compromises have been to limit where they can smoke (as, in part, a response to evidence of harm to non-smokers from second hand smoke), to forbid tobacco sales to minors, the creation of smoking cessation programs, and the imposition of price increases to discourage young people from starting down the path to nicotine addiction.

A more local and recent example would be the Iowa City City Council's approach to the consequences of alcohol abuse by those legally forbidden to buy, possess, or consume alcohol (those under 21). The extremes would be to forbid their entry at any time into businesses whose sole purpose is to profit from the sale of alcohol, on the one hand, or, on the other, to permit their entry 24/7. The Council's balancing of values is a compromise that permits underage individuals to be in bars 20 out of every 24 hours a day, but requires they leave the bars between 10:00 p.m. and 2:00 a.m. See, "Underage Drinking As Human Right? I Don't Think So; Why Bar Owners, Students, Should Embrace Iowa City's 21 Law," Oct. 16, 2013.

And that's what I mean by "Libertarianism As Process."

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Nick said...

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