Debate: To Preserve Individual Liberty, Government Must Affirmatively Intervene in the Culture War

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You May Not Be Interested in the Culture War, But the Culture War Is Interested in You

Affirmative: Todd Zywicki

Joanna Andreasson

To paraphrase the aphorism attributed to Leon Trotsky: You may not be interested in the culture war, but the culture war is interested in you. Just as ignoring the reality of war won’t keep your house from being bombed, ignoring the culture war isn’t going to obviate the threat it poses to individual liberty. As society and daily life become increasingly politicized, it is time for libertarians to accept that to preserve individual liberty, the government must affirmatively intervene in the culture war.

The use of government power can be liberty-enhancing—most obviously by restraining the exercise of government action through the rule of law and constitutional limits, but also by restraining private actors by protecting property rights against theft or vandalism, enforcing contracts, protecting against assault or other bodily harm, and other exercises of government power that restrict some people’s freedom of action in order to enhance others’.

Libertarians, including myself, have traditionally navigated these competing rights claims through a simple and highly effective dichotomy oriented around property rights: The primary threat to freedom is the exercise of government (public) power, whereas the exercise of private power to exclude via property rights and freedom of contract is generally considered not only untroubling but actually freedom-enhancing. Moreover, asking government to do more (such as by limiting the power to exclude or freedom of contract) is fraught with the risk of unintended consequences of unleashing Leviathan.

In an ideal world—the world of the “first-best”—this public-private binary has much to commend it. The arbitrary exercise of private power will be checked by market forces and freedom of choice. Employers or restaurants that discriminate will find themselves bankrupted in competition with those that do not. Adapt or die.

But in the “second-best” world where we live today, grasping at this idealized vision may be counterproductive to the long-term preservation of liberty. There is a culture war, and virtually every public and private institution in society has enlisted itself on the anti-liberty side, even those historically thought of as largely nonpolitical actors: media, social media, K-12 schooling, employers, universities, the permanent government bureaucracy, mainline Protestant churches, and even the last holdouts, corporations and the military. The left has shown repeatedly it’s not shy about using coercion to force compliance. No longer a buffer against social hyperpoliticization, commercial and civil-society institutions have now become the tip of the spear for woke conformity.

State action remains the largest potential threat to individual liberty. But state action is subject to constitutional constraints that place some limits on oppressive actions. Today, many of the restrictions on individual liberty that affect people most are imposed by private actors, such as banks, employers, and social media companies. For example, financial institutions increasingly are “debanking” certain individuals, nonprofit organizations, and industries based on disapproval of their political views. Employers are requiring employees to attend racial sensitivity training seminars that bear minimal, if any, relationship to their job duties, and are disciplining employees for opinions expressed in their private time on social media. Social media companies have engaged in widespread censorship and suppression of speech. In many of these instances, government has played a vague role in the background, “encouraging” these private businesses to engage in these activities. But not always.

These actions are not merely economic in their effect. They have social spillover actions beyond mere economic considerations. When an individual risks economic or social suicide—loss of a bank account, termination of employment, or banishment from social media platforms—for running afoul of the speech police, their ability to speak as citizens in the democratic debate will be chilled. Libertarians have long appreciated that an abstract right to freedom of speech is meaningless when the government controls all the printing presses and airwaves. It is not obvious why allowing JPMorgan Chase or Google to effectively control one’s ability to speak is any more inherently benign when individuals lack ready access to alternative providers of those services.

In such instances, it is reasonable to consider government as a countervailing force to liberty-infringing private power. There are several worthwhile and practical legislative and regulatory proposals that could address some of the greatest abuses of private power. For example, during the waning days of the Trump administration, the Office of the Comptroller of the Currency issued the Fair Access to Financial Services rule, which would address the growing problem of individuals losing access to bank accounts and other financial services as a result of their political beliefs. Some states and municipalities are considering adding political beliefs to the list of classes that are protected from discrimination. Employers and private universities could be restricted from disciplining or discharging employees except for violations of rules that bear some bona fide relationship to their employment, thereby enabling employees to speak freely in the political sphere on their own time. Social media companies that desire the liability protection of platforms could be subjected to limited common carrier–style regulation that would prohibit content discrimination.

All of these actions could enlarge the liberty of individuals to speak and participate in the democratic process by restraining the power of banks, employers, and universities from punishing them for expressing their beliefs, all without materially infringing on the legitimate property rights of those private parties. All of them would have to be carefully and pragmatically designed and calibrated to provide a reasonable balance between competing values.

Yes, empowering the state to protect liberty by restraining the actions of nongovernmental employers, social media companies, and financial institutions raises the potential that these powers will be used as a weapon by the left as well.

Leftists are already using government power to commandeer private institutions into the culture wars. As the Twitter Files reveal, government officials have been leaning on social media companies to censor so-called misinformation about COVID-19 and political stories such as Hunter Biden’s laptop. As Operation Choke Point revealed during the Obama administration, bank regulators were using their power to shut off financial services to disfavored industries. The Community Reinvestment Act is already being used to direct financial services in alignment with political goals. The current administration is trying to reinterpret various nondiscrimination laws in ways that infringe on religious liberty, restrict free speech, and promote racial discrimination. The federal government is investigating everything from local schools that wouldn’t mandate masks during the pandemic to parents speaking at school board meetings.

The left is not waiting for legal authority to do all of this. Simply pleading for them to stop punching isn’t going to work. Pacifism simply emboldens, not restrains, these aggressions against individual liberty. For those who care about the rule of law, by contrast, empowering individuals with legal protections against abuses of private power can level the playing field.

Moral Enforcement by Government Is Antithetical to Liberty

Negative: Kent Lassman

War destroys. It does not create, build, or beautify. Among the four horsemen of the apocalypse, it rides through our imagination along three decidedly nonlibertarian scourges: conquest, famine, and death. In contemporary political warfare, libertarians can do better than government as a means to elevate our vision of a good society.

We can and must take steps to limit the problems addressed by government. This will preserve liberal values like individual liberty, dynamism, property rights, and pluralism. From these precepts, not the diktats of government bureaus and agencies, we can expand the realm of private action.

We must not confuse means with ends. Libertarians can identify a role for government to protect, or even enhance, individual liberty. This baseline is found, among other places, in the preamble of the Constitution. Government is initiated to secure the blessings of liberty. But we must avoid the easy embrace of the progressive illusion that government can either create or provide our liberties.

The how of individual liberty is rooted in an allotment of dignity granted to us all. Property rights flow naturally from this birthright and include rights in our self, labor, and ideas.

Government plays an important, limited, and clearly defined role in the preservation of liberty, and property rights are central to that role. But that is all. To invite it to do more is to invite powerful institutions to work against the interests of a liberty-oriented society. In reality, unlike in fiction, government functionaries are not the heroes for whom we are waiting.

Instead, government institutions tend to accrete power at the expense of individual liberty. Time and again, governments abuse power, violate the liberty of individuals, and marginalize minorities. The same thing will happen if we ask it to guarantee educational outcomes, equitable lending portfolios, or intervene in the workplace with minimum wage laws or restrictions on how to contract for work.

For the past century, government institutions have been captured by centralized, identitarian ideas that have systematically enhanced collectivism at the expense of individual choice. Time and again, when public action has increased, it has diminished private action.

Examples abound. Social insurance and welfare programs practically eliminated mutual aid societies. Myriad private education alternatives have been trumped by state schools or subsequently co-opted by federal loan guarantees and research grants.

The choice is not between a libertarian nirvana and an Orwellian uber-state. Among the prudential questions is to what degree should government advance libertarian values within our culture and a mixed economy. An explicit expansion of negative rights could have a pro-liberty effect in the near term. Consider a law such as, “The Treasury Department, or any other regulatory agency it supervises, shall not take climate change into account when conducting business or implementing a law.” It is directionally sound and it keeps the government from oversteering financial institutions. But it is culture war by another name and the instrument of that warfare is government action. Far better to keep government agencies out altogether.

Government action cannot be an appropriate means of collective action if we are to retain a strong attachment to cultural pluralism. By its nature, government action in the culture war enforces a singular worldview either through disadvantaging competing visions or outlawing them altogether. Once established, its direction is difficult to change due to institutional barriers and the emergence of reliant interests. Further, government institutions are in a position to advantage their own prerogatives at the expense of private alternatives.

In a democracy, libertarians should never support new government power, even a weapon in the culture war, that we would not readily grant to the anti-liberty zealots among us. Engaging government to advance liberal values is to deploy a powerful and dangerous weapon that is ill-suited to the moment and ill-suited to long-term liberal values. We do better for individual liberty by demonstrating alternatives to the tired culture war positions of various partisans.

In the face of powerful, culture-shaping institutions like social media, financial institutions, and universities colluding with government regulators, it is tempting to reach for the strongest tool in the toolbox—and nothing carries more immediate force than government policy.

We might wish that America’s moral intuitions were more thoroughly libertarian, but they are not. Therefore, our government institutions are not fit for the purpose of advancing liberty through culture. Private, voluntary institutions can develop and spread the moral intuitions behind individual liberty better than any federal program. We can advance libertarian values such as pluralism, dynamism, and experimentation by consistently expanding the areas of life dominated by private institutions while precluding government intervention. This is true whether we are talking about speech, the development of widgets, or a society’s moral tastes. We can lean into a presumption in favor of liberty and self governance. For all its flaws, the NCAA is a better and more responsive regulator of college athletics than anyone at the Department of Education. Likewise, UL (formerly Underwriters Laboratories) creates tremendous consumer value with high levels of public trust. I’d compare it favorably to the Consumer Product Safety Commission.

Major questions of faith and morality regularly make their way into government policy and, therefore, national debate. This is because culture warriors of one stripe or another see each question as an either-or proposition: Either my tribe’s views prevail, vanquishing all others from the field, or the other tribe’s views dominate.

That zero-sum mentality is fine for a voluntary association where everyone has the opportunity to use their voice to persuade others to align, or else presents an avenue for exit. But in a pluralistic society, we need to elevate individuals’ opportunities to use their voices, engage in reasoned debate, and organize. Any form of action, especially government action, that precludes exit is detrimental to individual liberty. It is choice foreclosed.

Libertarians should stand for the examination of ideas, even bad ideas that we find repugnant, through public debate. Bringing government into the scene as an enforcer of one set of ideas, even the right ideas, is contrary to the ideal of a tolerant society built on a foundation of individual liberty.

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