Notes From Babel

“Brothers Under the Skin”: Conservatism and Libertarianism

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Sandefur is right:  conservatives and libertarians are not “brothers under the skin” who occasionally tussle over trifles.  Their respective positions on topics like the propriety of restrictions on certain sexual activity, as in Lawrence v. Texas, indicate a major rather than a minor break in their ideologies. This is not to say, however, that moral regulation is somehow the sine qua non of conservatism.  I submit that most conservatives would cringe at the idea of defending such laws, promulgated by cretinous state officials possessed of some burning obligation to ensure that all romantic congress in the jurisdiction conform to some established “custom and tradition.”  I can only imagine the glee that libertarians must feel at prevailing upon some poor lunkhead to defend a law like the one in Lawrence, and watching as he gurgles out a string of unintelligibilities until he is restored to his senses.  The correct response, as I believe Justice Scalia has given more than once, is that the mere fact that a law is stupid is not enough to make it unconstitutional.  (Incidentally, I believe Sandefur’s Objectivist brand of libertarianism takes just the opposite position.)

While I have no doubt that Sandefur accurately cites Russell Kirk in describing conservatism as “adher[ing] to custom, convention, and continuity,” this description is misleading if it is meant to encapsulate conservative jurisprudence—i.e., the way conservatives think about the law.  Thus, I think Sandefur overreaches in his description of conservatism’s goal in adhering to custom and convention, etc. in its approach to the application of law.

The ideology of conservatism as a whole is, indeed, profoundly different from libertarianism.  Conservative jurisprudence, however, shares more similarities with libertarian jurisprudence than one might expect by looking at the respective ideology as a whole.

Both ideologies are committed to the rule of law, and thus would decline to thrust any cultural agenda through an appointed branch of government.  Thus, with respect to their approach to the courts, libertarians and conservatives can still be “brothers under the skin” even as to cases like Lawrence v. Texas.  The dispute among conservatives and libertarians over that case (striking down a Texas law outlawing homosexual sodomy) is not over whether the Court ought to impose its preferences over the consummated will of the people, but whether that particular preference of the people could ever be consummated in the law in the first event.

In other words, the debate between conservatives and libertarians here is over political theory, not jurisprudence.  Thus, it is unfair and incorrect to suggest that conservatives would insist on effectuating their entire worldview through the legal system.  Just as unfair and incorrect, in fact, as it would be to suggest libertarians would do this.

This, at least, means I will enjoy discussing political and legal theory with libertarians infinitely more than with liberals, who tend to insist on mincing every such discussion into sodding pleas for equality and social justice.

UPDATE: If it’s embarrassing for conservatives to attack Lawrence v. Texas, it is probably similarly embarrassing for libertarians to attack Shelley v. Kraemer.

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  1. […] liberals.  Libertarians and conservatives have sharp differences in their concepts of liberty, but they do believe in the central importance of liberty as an end in itself. Progressives, on the other hand, regard liberty as a means rather than and end, as something to be […]

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