The following argument is unsound:
- Obama is president.
- Therefore, libertarianism is true.
By pointing out that the argument is unsound, I don’t thereby reveal that I’m secretly a fascist. I don’t thereby declare that libertarianism is false. I just explain that the argument doesn’t succeed in establishing its conclusion.
The following argument begs the question, if used against atheists.
- Everything the Bible says is true.
- The Bible says Jesus is the son of God.
- Therefore, Jesus is the son of God.
By pointing out the argument begs the question, I don’t thereby dispute the conclusion or reject Christ. Rather, I just mean to say that the argument assumes the thing being disputed.
Well, yeah, duh, that’s obvious. But even though everyone knows in the abstract that this is obvious, I frequently see exchanges among libertarians that go as follows:
Libertarian J: Hans Hermann-Hoppe’s “argumentation ethics” argument is among the silliest philosophy arguments I’ve ever seen, and when I say that, I mean to include essays I gave failing grades back when I was TAing for David Chalmers.
Libertarian S: Really? You think that? So, you must be a communist then.
Libertarian J: No, I just mean that I think it’s a terrible argument for its conclusion. I’m not disputing the conclusion. I’m just saying that that argument doesn’t come close to establishing its conclusion.
Libertarian S: Why do you want to aggress against innocent people!
The exchange above is of course fictional.
“Taxes are theft!” Maybe. But that’s a conclusion, not a premise.
Some people think it’s amazingly simple to argue for anarcho-capitalist libertarianism. They think anarcho-capitalist libertarianism follows straightforwardly and directly from a few unquestionable, obvious premises. They think they have a simple, knock-down argument for libertarianism. But they’re wrong, alas. (Too bad! I wish they weren’t!) Instead, what they think is a knock-down argument for libertarianism actually begs the question, and so isn’t a good argument at all.
Consider this argument:
The Aggression-Is-Bad Knock-Down Argument for Libertarianism:
- It is morally wrong to initiate an act of wrongful aggression against another innocent person.
- In order to maintain and fund a state, we must initiate acts of wrongful aggression against innocent people by stealing their property and using violence to force them to do various things.
- Therefore, only anarchist libertarianism is just.
I’m not inventing this argument as a strawman. I’ve seen it countless times, most recently yesterday, when a clan of mean-spirited cartoon libertarians (e.g., this dude) went on a vile attack spree against Matt Zwolinski for writing this. (Matt’s been called a fascist, a communist, evil, a criminal, a “confused f*cker”, and a person who wants to aggress against the innocent.)
I actually agree with the conclusion of the argument. In my view, justice requires anarchist capitalism. I agree with Jerry Cohen that Rawls’s theory of justice concedes too much to human depravity, and so isn’t a theory of justice at all, but rather at most a theory of how to respond to depravity.
But, regardless, the argument above doesn’t prove libertarianism is right. Instead, it presupposes it. Rather than being a knock-down argument for libertarianism, it begs the question. That’s why so many non-libertarians are unimpressed by it. Non-libertarians are unimpressed not because they are vile, stupid, or evil, but because the argument doesn’t do any work. Let me explain why.
Everyone in political philosophy agrees that the state needs to be justified. After all, states claim a monopoly on the use of (most) coercive violence over a particular geographic area and claim a right to create and enforce rules within a certain domain against certain people. This requires justification. After all, as libertarians rightly note and pretty much every non-libertarian political philosopher agrees, states do a lot of things that look suspicious on the surface. Unless we can explain why states should exist and have some of the powers they have, then states are presumed unjustified.
But, then thing is, most political philosophers think it’s relatively easy to supply that justification. It’s relatively easy to show that states are justified. They think that have a bunch of compelling arguments on behalf of statism.
Now, for the sake of understanding the dialectic here, consider what would follow if they were right. Suppose JR is typical statist philosopher. JR adduces some argument A for a theory, call it ToJ, that, as far as he can tells, justifies the modern nation-state, including giving it a wide range of powers and rights to tax, though not an unlimited range. If A were a sound argument for ToJ, then ToJ would be true. And if ToJ were true, then all this would follow:
- The state (of the right sort) should exist.
- The state has the right to collect taxes (within certain limits as implied by ToJ) in order to promote justice.
- When the state collects the taxes needed to promote justice, it isn’t stealing your goddamn money or aggressing against innocent people. Instead, the money rightfully belongs to the state, not to the taxpayer. When the state taxes you (so long as it does so in accordance with ToJ), it actually takes what is rightfully its, not what is rightfully yours. If you were to withhold your taxes or resist paying, that would be equivalent to theft.
In short, if ToJ justifies state taxation, then the state isn’t wrongfully aggressing against people by collecting taxes any more than I am wrongfully aggressing against my neighbors by locking my house doors. What counts as aggression depends upon what rights people have. According to ToJ, people don’t have a right to the money the state taxes; instead, the state has a right to that money.
So, for example, Rawls has a number of arguments for the state. One argument, in abbreviated form, goes as follows:
Rawls’s Argument, Shortened:
- Our institutions, including the institution of private property, are not legitimate or authoritative unless they A) protect a specified range of basic liberties, and b) achieve social justice.
- In order to do A and B, we need a liberal, social-democratic nation-state with taxing powers.
- Therefore, a liberal, social-democratic nation-state with taxing powers is justified.
The Aggression-Is-Bad Knock-Down Argument doesn’t refute Rawls’s argument. It’s powerless against it. Rather, to refute Rawls’s argument, you need to explain why premises 1 or 2 are false, or show that Rawls’s sub-arguments for premises 1 or 2 are unsound.
So, the Aggression-Is-Bad Knock-Down Argument fails. It doesn’t prove that any particular justification of the state and state taxation fails. Rather, it works only if all such justifications fail. The “it’s my money and the state is stealing it from me!” line works only if the state doesn’t have a right to that money, and to know whether the state does or does not have such a right, we need to know whether there is any independent justification of the state.
If you want to defend anarchist libertarianism, what you need to do is show that none of the arguments for the state work. You have to take them down one by one.
Importantly, one the most impressive arguments for the state holds that life without a state would be such a disastrous hell that we need to and should create states in order to escape that hell. (That’s the Hobbesian argument.) To refute that argument, you need to prove that anarchism would work, which means you need social scientific evidence, rather than a few simple moral axioms. To refute that argument, you need to do what Huemer does in part II of this book.
So, sorry to be the bearer of bad news, people. Many libertarians think they have powerful knock-down argument for anarchist libertarianism, but, on the contrary, that argument is completely impotent. A sophisticated non-libertarian can just shrug the argument off–it doesn’t even merit a response. Premise 2 of the Knock-Down argument isn’t really a premise in an argument for libertarianism. Rather, it’s at most a conclusion. It doesn’t prove libertarianism is true; it begs the question.
The essay has been taken by some people to be an unequivocal defense of the basic income on libertarian grounds. But I’m actually a little ambivalent about the issue. I’m probably not quite as enthusiastic about the idea as Jessica is, but perhaps mores than some of my other BHL bloggers.
In the essay, I set out several arguments that libertarians could or have endorsed for a basic income, the strongest of which (I think) is this:
Current federal social welfare programs in the United States are an expensive, complicated mess. According to Michael Tanner, the federal government spent more than $668 billion on over one hundred and twenty-six anti-poverty programs in 2012. When you add in the $284 billion spent by state and local governments, that amounts to $20,610 for every poor person in America.
Wouldn’t it be better just to write the poor a check?
Each one of those anti-poverty programs comes with its own bureaucracy and its own Byzantine set of rules. If you want to shrink the size and scope of government, eliminating those departments and replacing them with a program so simple it could virtually be administered by a computer seems like a good place to start. Eliminating bloated bureaucracies means more money in the hands of the poor and lower costs to the taxpayer. Win/Win.
But I also set out several objections to the policy, all of which seem to me quite powerful. Here’s a taste.
Effects on Migration - When most people think about helping the poor, they forget about two groups that are largely invisible – poor people in other countries, and poor people who haven’t been born yet (see this paper by Tyler Cowen for more). With respect to the first of those groups, I think (and have argued before) that there is a real worry that a Basic Income Guarantee in the United States would create pressures to restrict immigration even more than it already is. After all, when every new immigrant is one more person collecting a check from your tax dollars, it’s not entirely unreasonable to view those immigrants as a threat, and to be more willing to use the coercive power of the state to keep them out. That worries me, because I think the last thing anybody with a bleeding heart ought to want to do is to block the poorest of the poor from access to what has been one of the most effective anti-poverty programs ever devised – namely, a policy of relatively open immigration into the relatively free economy of the United States. Especially when one’s justification for doing so is merely to provide a bit of extra cash to people who are already citizens of one of the wealthiest countries on the face of the planet.
Today I read with some care the Pope’s pastoral letter. It is worse than I thought. Much has been said about the Pope’s ignorance of elementary economics (see here, here, and here.) But hidden in the letter is this other gem:
This imbalance [of income] is the result of ideologies which defend the absolute autonomy of the marketplace and financial speculation. Consequently, they reject the right of states, charged with vigilance for the common good, to exercise any form of control.
The Pope believes, then, that poverty is caused by international institutions, mostly controlled by rich countries.
The literature refuting this idea is so vast and conclusive that I do not wish to insult our readers’ intelligence by providing quotes. The verdict of (serious) development economists is blunt: world poverty and most other social ills are homegrown. They are caused in great part by bad governance, that is, the predatory behavior of local elites. (Yes, rich countries aggravate the problem –not by trading too much as the Pope thinks, but by placing unreasonable restrictions on trade and immigration.)
So, Your Holiness, what you call “states charged with the vigilance of the common good” are, for the most part, criminal enterprises. And their “rights” are no more than the prerogatives they claim to continue stealing from their people. If anything, the globalization you decry has moderated the nefarious influence of bad governance.
I had some hope for this Pope, in part on the irrational grounds of fellow citizenship. Unfortunately, it is not to be.
I recently had a discussion with another libertarian philosopher who thought “bleeding heart libertarianism” made no more sense then “stoney hearted libertarianism.” Needless to say, I’m not convinced. The issue is whether or not all libertarians are committed to the same thing; if they are, the modifiers are unimportant. Of course, no one thinks all libertarians must agree about everything. Even the regular contributors to BHL disagree amongst ourselves about a variety of issues. The question is this: is there some core belief of bleeding heart libertarianism that unites all BHLs and which other libertarians reject (but that does not undermine our being libertarians)? I frankly remain unsure but offer the following for your consideration. (Consider this an attempt to motivate BHL and a statement of gratitude that BHL is now a thing.)
There are different moral groundings of libertarianism. BHLs duplicate—and perhaps add to—the ways others defend libertarianism. There are natural rights libertarians, eudaimonist libertarians, consequentialist libertarians, public reason libertarians and more. If there is some core belief that unifies these, its likely about the way society should be set up. Indeed, I think BHLs agree with (all?) other libertarians about the basics of that. I think what unifies BHLs and distinguishes us from other libertarians is a view about the sorts of considerations—including facts on the ground, as it were—that are thought relevant when determining how a society should be set up.
A little autobiographical commentary might help here. As a philosophy grad student (way back when), I probably disagreed with as much said at libertarian conferences and seminars as I did in my home department (but appreciated the very different sorts of discussions that emerged). To make that a bit more concrete, I had the impression that most participants (faculty and students) at such gatherings were registered as, or voted for, Republicans (if they voted at all). By contrast, I grew up in what I thought of (and still think of) as a “middle-middle class” household of Democrats and while I never really identified as a Democrat, I certainly never identified as a Republican. (I vote; I enjoy voting; I may vote slightly more for Democrats than for Republicans, but I never vote party line, sometimes vote for third party candidates, never care if I vote for someone for every open office, and frequently vote strategically rather than for a candidate I actually like—not that there are many of those.) The world we live in always struck me as unfair and I never thought the U.S. was a society of equal opportunity (yes, I think equal opportunity, properly defined, is required for fairness and justice). I didn’t see Republicans even pretending to offer anything to make the world fairer; Democrats did (at least pretend to). The impression I got at libertarian gatherings when I was a graduate student was that many of the participants thought the world was fair and that there was equal opportunity in the U.S. There seemed to be little recognition, for example, that minorities and women were often treated unfairly and that they had fewer opportunities (this has since changed, but not completely).
So, here’s the thing. While I am not certain there is something distinctive to bleeding heart libertarianism (such that it is different from other versions of libertarianism), I think there is—because I think there is something distinctive of bleeding heart libertarians. All of us care about the plight of the less fortunate. As I put it a couple of years ago, BHL is “a family of libertarian (and hence liberal) views that also share a deep concern to prevent suffering.” This does not mean that we think socialism is a move forward or that more welfare policies are needed. It means only that we care about the less fortunate and think the world should be set up in a way that the least well off (whomever they would be) are as well off as possible. (Yes, that’s Rawls, but it’s at least as important that we all endorse the free market and are eager to consider what empirical economic science—as well as economic theory—has to teach us.)
Some further autobiography. It may be that I would have written in defense of libertarianism no matter how good the world was. But I also know this about myself: if our society was set up in such a way that the only government transfers were from those with much to those with little or nothing, I would not be nearly as motivated to oppose it. It’s not exactly that I think government transfer programs of any sort are good; it’s rather that some—those that help individuals in poverty or victims of abuse—simply do not bother me (unless they make things worse). What bothers me are government programs that help those already well off—like bailing out big banks, paying to build sports stadiums, starting wars so weapons can be bought from big companies and/or so big oil companies can continue to get their raw product, building roads to stores instead of letting them bare the costs, and the list goes on (see here). But I can’t get motivated to oppose (unless the intent is somehow malicious or the program demonstrably self-defeating) giving those in poverty food stamps to feed young children, setting up financial incentives for people to foster or adopt children that were previously abused by their birth parents, or having programs to help badly off people that have been harmed but can’t get compensation from the criminal that caused the harm. I’ve met many people who claim to be libertarians who do—or at least seem to—oppose such things. Indeed, people who claim to oppose them *as* libertarians. Perhaps that is changing (I think it is). If so, great; that would mean there are fewer stoney-hearted libertarians. But both because I think there are still SHLs out there and, perhaps as importantly, because I know there are lots of people that think all libertarians are SHLs, I think this blog—and others like it—have an important role to play. I think we are helping to change the conversation so that libertarians are coming to be seen as true heirs to classical liberals (and truly progressive).*
I should note—though I hope its obvious—that I would prefer a world where government programs of the sorts just mentioned (social welfare programs) were not necessary. A world where birth parents never abused children. A world where everyone could afford to pay for food for their children. But that isn’t this world. Indeed, I think there are systemic issues in our very non-libertarian world that make it such that those programs are needed. But the programs we have that help the well-off? Those are neither needed nor acceptable. Of course, they don’t appeal to any real libertarians, stoney hearted or otherwise.
*Note that I do not say “the true heirs.”
Despite Levatter’s lengthy reply, the issue here is really simple. All I’m asking is what role consequences play in our thinking about the justification of markets. Even though we know markets are good, we political philosophers–we people who ask what justifies various institutions–want to know just what it would mean if markets had different consequences than they in fact have. So, I’m just asking whether people would still support markets if the empirical claims of Marxist economics (or, if you’d like, more anti-market mainstream economics) were true. Henderson and Levatter are right that the issue is not actually about economics. I’m not disputing any economics with them. Instead, it’s about how the facts of economics bear on the moral justification of market institutions. And the way we determine that is to ask what would follow, from a moral point of view, if the facts were different from what they are.
As a matter of fact, central planning is not efficient. Not even close. But what if, thanks to newfangled alien technology, central planning could be made to work much better than market economies? If so, should we switch to central planning?
As a matter of fact, people feel pain and can die. What if they didn’t feel pain and couldn’t die? How would this affect our moral obligations to one another?
As a matter of fact, people do not choose their sexual orientation. What if they did? What if they could? (What if we invented a pill that switched you?) Would that change anything about the morality of sex?
As a matter of fact, free trade is good in the long run for most people. What if the protectionists’ arguments were right? What if those special, bizarre circumstances where protectionism works better than free trade (which we all covered in our advanced econ classes) were more widespread? Would we still favor free trade on purely deontological grounds?
As a matter of fact, Loki is wrong when he suggests, in the Avengers, that human beings would be better off subjugated and serving a god-like dictator. But what if Loki were right, and people were better off (happier, etc.) being subjugated rather than being free?
As a matter of fact, the best way to promote positive liberty is to protect negative liberty. But what if it turned out that positive liberty and negative liberty were in conflict, as many hard leftists believe?
As a matter of fact, there is no dark side of the Force. And there is no One Ring. Or Ring of Gyges. But if there were, would it ever be permissible to use them?
As a matter of fact, the empirical claims of Marxist economics are wrong, usually wildly wrong. And the empirical claims of mainstream economics are for the most part right, or close to true. But what if the opposite were true, as is logically possible*? How would that affect the justification of markets?
I have not been arguing that markets have bad consequences. I have not been disputing any mainstream econ. Rather, I’m just pointing out to a bunch of libertarians that they implicitly believe something that many of them explicitly deny: if libertarian institutions had terrible consequences, but social democracy had wonderful consequences, this would at the very least be a strong if not decisive count against libertarian institutions and in favor of social democracy, and it might even be decisive in favor of social democracy. But, of course, this needs spelling out, as we’d need to know more about just why libertarian institutions fail and social democracy works. But, here, we can spell that out quickly–just imagine that, say, Robert Frank’s or Jeffrey Sachs’s empirical claims about the economy were true, and that, say, my conflicting views about the economy were false.
I’m not saying that consequentialism is true. Consequentialism moral theories say that consequences are the only thing that matters. Instead, I’m just relying on the commonsense claim that consequences matter. The overwhelming majority of deontological moral theories, including Kantianism, Rossianism, eudaimonism, virtue theories, etc., hold that consequences matter.
Now, some libertarians think asking “What would say about markets if they tended to have disastrous consequences?” is like asking, “What would you say if 2+2=5?” But that’s a really silly comparison. 2+2=4 in all possible worlds. It’s logically impossible for 2+2 to equal anything other than 4. But economics–or, at least, economics used to defend actual, existing institutions–is empirical, and so relies upon contingent rather than necessary truths.**
*P.S., for the extreme apriorist Austrians: A priori ≠ necessary ≠ analytic truth. “X is an a priori truth” makes a claim about epistemology, not about metaphysics or about semantics. So, even if I grant you, as I of course don’t, that good economics is a priori, this doesn’t invalidate my claim here.
**N.B. Many economic models are developed a priori, as an exercise in mathematical deduction. An econ paper might start with some assumptions and then draw out the implications of those assumptions to construct a model M. But any claim of the sort “The behavior of this actual existing institution in the world is best explained by M” is an empirical claim. We can construct models a priori, but linking those models to actual stuff out there in the world is not a priori.
I work at a Jesuit institution. The Jesuits I’ve met have been, for the most part, awesome people. But, for whatever reasons, Jesuits tend to study Marxian pseudo-economics when they go through graduate school, rather than real economics. So, it’s not surprising that Pope Francis’s recent diatribe about markets has all the flaws you readers have no doubt already noted and discussed. (E.g., failing to distinguish cronyist rent-seeking from real capitalism, or treating highly regulated markets as if they were free markets, or ignoring problems of government failure.)
But I will use this to issue a teaser for a forthcoming book. Consider, Holy Father, the following question:
Imagine that we wave a magic wand. The magic wand makes everyone as morally perfect and virtuous as Jesus, but does not make them any smarter, longer lived, healthier, or stronger. Would the resulting people be socialist or capitalist (or something else)?
My answer, as I will defend in my forthcoming book Why Not Capitalism?, is that they would be anarcho-capitalists. If people were fully just and fully moral, they might have communes here or there, but their governing political philosophy would be anarchist bleeding heart libertarianism. (In contrast, the dominant political philosophies out there, such as Rawls’s, aren’t really in my view theories of justice, but theories of the best responses to human depravity.)
Given the minor firestorm set off by my Hobby Lobby post, I take it our readers are interested in the issues. If you’re interested in the legal issues background for the forthcoming Hobby Lobby SCOTUS case, check out Eugene Volokh’s awesome series of Hobby Lobby posts that he’s posting throughout the week. Here are the first seven:
I will link to the rest of the posts here as they’re posted. I’m not a constitutional law scholar on these issues, though I’ve done a limited amount of reading in the area. So my interest is primarily in the normative issues at stake in the Hobby Lobby case (not including the normativity involved in proper judicial reasoning). So if the posts or your own further reflections raise normative questions not covered in my last post, feel free to raise them here and I may be able to find time to address some of them.
I thought it might be useful for me to briefly summarize my normative view on these issues (which I defend at great length in my forthcoming book, Beyond Separation), I’m a public reason guy of the convergence-stripe: I think all intelligible reasons can count in favor or against the justification of laws, and I include religious reasons as intelligible reasons. This is emphatically not to say that religious reasons alone can justify coercion, as there will be secular defeaters for nearly all such laws. But religious reasons can amount to defeaters for laws rather easily, and in cases where a law is sufficiently broadly publicly justified, but defeated by a small few, I argue that an exemption should be assigned. I also argue that secular reasons amount to defeaters just as easily, and that religious and secular moral conscience should be placed on the same legal footing. Together they provide oodles of defeaters for laws. (This is one reason public reason liberals should lean libertarian.)
This is not to say that I’m prepared to second-guess the court about how to resolve the issues judicially, but rather that some legal body should assign the exemption if the law from which people are exempted is to respect persons as free and equal. So on public reason grounds I support an extensive legal regime of accommodations, both religious and secular, and in cases where excessive accommodations undermine laws, I argue that justice and respect for persons requires reforming or repealing those laws.
On this basis, I think the Greens have a defeater for the coercion involved in applying the law to them. That means either (a) respect for the Greens requires giving them an exemption or (b) respect for the Greens combined with considerations of feasibility of the accommodation, equality with secular objections, etc. should lead us to repeal the contraception mandate entirely. I much prefer (b). But respect for the Greens bars alternatives to (a) and (b) because their religious reasons are sufficient to show that they do not have reason to endorse the law. If giving the Greens an exemption from the contraception mandate imposed harms or coercion on Hobby Lobby’s employees that outweighed the harms or coercion involved in barring the exemption, some of the employees might have defeaters for the exemption.* But note that this would probably only defeat (a), leaving us with (b) as morally required. The employees’ complaint cannot justify burdening the conscience of the Greens by making them complicit (as they understand it at the right level of idealization) in acts they regard as immoral (at the right level of idealization).
In Chapter 5 of Beyond Separation, I defend an account of moderate idealization which shows why people like the Greens indeed have sufficient reason to object to coercion even if their comprehensive doctrines are false and even if they would abandon these views were they fully rational and fully informed.
My view, it should be noted, strikingly contrasts with the mainstream public reason view on which religious reasons fail to be justificatory reasons because they are neither shared nor mutually accessible to (most) other citizens. The shared and accessible reason restrictions ground the mainstream approach to religion in public life that is rightly derived as privileging the secular over the religious and burdening the integrity of religious believers. But I think the mainstream view is plainly wrong, and I have argued as much in half a dozen journal articles in addition to my book (see my CV for a list easily identifiable by their titles; I offer PDFs of some of those articles here).
*My friend Chad and I have been discussing whether saying that employees “have defeaters for the exemption” is the right way to put the matter. Perhaps it is better to say that they have defeaters for the law-that-contains-exemptions, but not for the base-law (the law that does not contain exemptions). So employees would have the following rational ranking (with 3 being the lowest): 1. base-law, 2. no-law, 3. law-containing-exemptions. But the Greens have the following rational ranking: 1. law-containing-exemptions, 2. no-law, 3. base-law. Or more likely: 1. no-law, 2. law-containing-exemptions, 3. base-law. So it looks like the only “eligible” option, the only one that can be justified to all, is getting rid of the contraception mandate entirely. So if the employees have a defeater, it is only for the law-containing-exemptions.
I did a Podcast with Cato, published today on this topic. The discussion is of course heavily indebted to John Simmons, David Hume, and Michael Huemer, as I’m using many of their arguments and thought experiments. Keep in mind the distinction between two questions: 1. Is it permissible (good/just) to have government? 2. Do you have a duty to obey the law? The answer to the second question is “no”, even if the answer to the first question is yes. (I am agnostic about 1 in this podcast.)
I’m busy finishing up my new book, Beyond Separation: Uniting Liberal Politics and Public Faith (Routledge, 2014), so I haven’t been blogging as much as usual. But a new Slate article drew me back to the blogosphere for a bit (note that I have blogged on the mandate before).
The article is based on the big news that the Supreme Court is going to assess Hobby Lobby’s request for a religious exemption from the HHS contraception mandate. The new case is called Sebelius v. Hobby Lobby Stores Inc. And the question is whether for-profit corporations have rights of religious conscience. Note that Hobby Lobby is “closely held,” as it is owned and operated by a single family, the Greens. They believe their Christian faith prohibits the company from facilitating contraception for their employers.
Micah Schwartzman (a legal philosopher whose work on public reason I think very highly of) and Nelson Tebbe have argued that Hobby Lobby’s legal reasoning is based on the controversial claim that if corporations have free speech rights, they have rights of religious conscience. If the SCOTUS endorses this argument, Schwartzman and Tebbe worry that it’d signal a significant, negative legal change.
I want to focus on their claim that exempting Hobby Lobby from the mandate would be bad because it allows Hobby Lobby to burden their female employees (or the wives and daughter of their male employers). In my view, this argument isn’t remotely plausible. But Micah is very smart, so I fear I’m missing something.
I. Hobby Lobby’s Burdens
Schwartzman and Tebbe:
Finally, and critically, there is an important difference of constitutional text and doctrine between free speech and free exercise claims: the Establishment Clause, which implements the separation of church and state. Simply put, there is no free speech analogue to the Establishment Clause. That is not just an arid intellectual point—it matters critically here. Why? Because exempting large, for-profit corporations from the contraception mandate would significantly burden female employees, along with all the wives and daughters covered by the policies of male employees. Thousands of women would lose all insurance coverage for contraception. That loss would be very real, and it would frustrate a central objective of Obamacare: namely to ensure that women have equal access to critical preventative care.
[E]xempting large, for-profit corporations from the contraception mandate would significantly burden female employees, along with all the wives and daughters covered by the policies of male employees.
[T]he Supreme Court has insisted that the Establishment Clause prohibits religious accommodations that impose burdens on third parties—which is exactly what is happening here. Exempting Hobby Lobby from the contraception mandate will seriously burden precisely those women who are its intended beneficiary.
If we were talking about cancer treatment, I’d be more moved by this argument. I still don’t think the need for cancer treatment would override the right of religious conscience, as religious freedom is a basic liberty and a human right. The government simply has to find another way to provide the care. But even if cancer treatment could justify burdening conscience, this is only because cancer treatment is critical to living. In almost every single case, contraception is not.
Yes, on occasion an abortifacent is needed to abort a fetus that resulted from a rape. Yes, on occasion contraception access is required to avoid, say, a predictable, dangerous health problem that would be raised by having a child. But again, these procedures can be paid for on another basis, and a legal exception could be made for them. The “burden” of not having contraception access is extremely light and can be provided for without using force against a religious family.
Notice that everyone accepts this reasoning when it applies to churches. You simply cannot force a pastor to pay for abortions for his secretary on the grounds cited. What’s more, most people agree that you simply cannot force a non-profit charity director of a Christian mission to pay for abortions for his secretary on the grounds cited.
So here’s the key question: why is Hobby Lobby any different? Yes, they’re trying to make money, but why does that mean their religious liberty can be justifiably restricted?! I cannot see that having the aim of making a profit is sufficient reason to restrict a basic human right.
II. Civil Rights and Conscience
I should address a final point they make:
Civil rights laws, including this health care provision, draw the right line when they exempt religious organizations and small companies but not large corporations that could significantly burden the freedom and equality of their employees.
I admit that most people (though not most readers of this blog) will find that dividing line fair, but I think it’s just status quo bias. Setting out to make money should not disqualify anyone from religious liberty, so long as it does not directly impose harms on others that cannot be easily avoided or ameliorated through some non-conscience violating means.
A publicly held corporation is different because ownership is so diffuse that it’s hard to make sense of forcing “the owner” to do something against his or her own conscience, because the “will” of the corporation is merely a legal artifact, in contrast to the wills of the Green family. There are reasons not to impose upon publicly held corporations, but respecting conscience generally isn’t one of them.
But here’s a reply: can closely held corporations discriminate on the basis of race or gender or sexual orientation, like churches and non-profits?
Before answering, I should stress the difference between racial discrimination and not buying contraception. Racial discrimination is far more degrading and encompassing than not buying contraception.
That said, my answer is yes, they can. We easily, if grudgingly, accept that we must respect racist or sexist conscience (if not mere racism or sexism) when it applies to non-profits and churches, and even small businesses. And the employees of these organizations may need their jobs just as much, and value their associations just as much, as people who work for Hobby Lobby. A church can burden its secretary just as much as Toledo’s Hobby Lobby can burden its cashier, if not more.
So once more: why is a closely held for-profit corporation any different than a small business, a religious non-profit or a church? Why is seeking a profit on a large scale sufficient to restrict rights of religious conscience in cases where no significant burden is present?
- A Bleeding Heart History of Libertarian Thought
- Academic Philosophy
- Blog Administration
- Book/Article Reviews
- Current Events
- Rights Theory
- Rothbard's Ethics of Liberty
- Social Justice
- Symposium on Free Market Fairness
- Symposium on Huemer's Problem of Political Authority
- Symposium on Left-Libertarianism
- Symposium on Libertarianism and Land
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- Economic Thought
- Rad Geek People's Daily
- Liberty Law Blog
- Skeptical Libertarian
- Coordination Problem
- New APPS
- Center for a Stateless Society
- Economics and Ethics
- Cato @ Liberty
- PEA Soup
- George H. Smith - Excursions
- Cato Unbound
- Knowledge Problem
- Public Reason
- Students for Liberty
- Crooked Timber
- Austro-Athenian Empire
- Economic Thought
Tagsacademic philosophy anarchism bleeding heart libertarianism Bryan Caplan charity coercion corporatism crooked timber economic liberty education eudaimonism exploitation feminism foreign policy free market fairness Friedrich Hayek Herbert Spencer history inequality John Locke John Rawls John Tomasi left-libertarianism liberalism libertarianism liberty living wage Murray Rothbard non-aggression principle Occupy Wall Street poverty price gouging property-owning democracy property rights public reason religion Robert Nozick Ron Paul self-ownership social justice Students for Liberty sweatshops Thick Libertarianism war work
- JP Martindale on Hoppe’s Argumentation Ethics Argument Refuted in Under 60 Seconds
- Libertymike on Speaking of Silliness
- sam on Hoppe’s Argumentation Ethics Argument Refuted in Under 60 Seconds
- sam on Hoppe’s Argumentation Ethics Argument Refuted in Under 60 Seconds
- Nick Flamel on The Dialectical Impotence of the Non-Aggression Principle, Redux
Follow me on TwitterMy Tweets