One of my struggles with libertarianism involves the question of whether the civil rights we recognize and enjoy are protected only gainst government, or against other forms of power as well. Can an employer, for instance, be prohibited from sampling the urine of her employees or applicants? Can a homeowners’ association be restrained from fining me if I paint my house a non-approved color?
David Brin’s The Transparent Society repeatedly stresses that government is not the only center of power able to threaten individual liberties. Government is a necessary evil precisely because other centers of power rise to overwhelm the individual. Governments are instituted among men to secure the rights of the individual against other parties that naturally form among men, as well as against other governments. That governments pose the gravest threat to liberties is secondary, and though Brin agrees (I think) he cautions that government is not the only threat.
I had finished that book last week. This evening, in an article about libertarians’ frequent kind sentiments for the Confederacy, this struggle again caught my attention in a comparison of our Constitution’s Founders with the Chicago mob:
What is the difference between a group of men in Philadelphia in 1776 declaring themselves no longer subject to the laws of the English monarch, and a group of men in Chicago in 1920 declaring themselves no longer subject to the laws of the United States?
Timothy Sandefur, "Liberty and Union, Now and Forever," Liberty Magazine, July 2002, page 37. Inexplicably, not available online.
Put aside for the moment that the criminal underworld to whom the writer is referring was trafficking in substances and services that Libertarians would legalize, removing the artificial profits and allowing competition to occur peaceably in the sunlight. Timothy Sandefur instead points to the possibility, even the likelihood, that gangs, mobs, conspiracies and so forth tend to form, either with evil intent at the outset, or by later transformation from innocence to evil, and that the power of government must from time to time be used to oppose them.
The question then becomes: what role has government to play in limiting the power of these other entities? The classical response from libertarians has been the free market. If you object to pissing in the cup for your next job, keep looking---employers have rights
to hire and fire as they wish. If you want to paint your house flamingo pink, you should not have bought a house in the covenant-controlled community---government has no power to impair contracts. This is a far cry from Al Capone, of course.
I’ve always found such answers to be inadequate, but cannot yet successfully articulate that inadequacy. I can only offer examples of how it’s not adequate. Go ahead, try buying a house in the Denver metro suburbs without a covenant attached to it. Try getting a position of responsibility and challenge, with commensurate compensation, without having to submit bodily fluids for inspection.
Better yet: Your violent ex-husband knows where you work, what car you drive, your schedule, so forth. Try to carry an otherwise lawfully-concealed handgun on your employer’s premises. Try to carry it to the school to drop off and pick up your kid, or to church to celebrate Mass with the kid. Try to rent a video for the kid or buy her a new pair of tennies. You will encounter numerous other entities who don’t want your business, and who are using the force of law and their status as “private” to give you the bum’s rush. Entities that are not innately evil. Misguided, mistaken, but not Trying To Take Over The World.
You will quickly realize that you have rights that only government is bound to respect, and only very well-behaved government at that. But when the power of government is used to protect those rights, we often end up with laws that grant some entity the “rights” to the contents of your pocket.
You actually thought I’d try to make an argument of any kind without working in a blaster? I accept this about myself: this is the lens through which I view most topics.
I am slowly coming to agree with David Brin that transparency will bring accountability, which is more likely to protect rights without the nasty side effects of government regulation. But I don’t think transparency alone will suffice.