Nikolai G. Wenzel has a problem with conservatism. A libertarian, Wenzel is a Research Fellow at the University of Paris Law School’s Center for Law & Economics and the coauthor (with conservative Nathan W. Schlueter) of Selfish Libertarians and Socialist Conservatives? The Foundations of the Libertarian-Conservative Debate (Stanford Economic and Finance, 2017).
This book is the only “debate book” between a libertarian and a conservative regarding their political philosophies that I am aware of. After a co-authored introduction, each author presents the case for his viewpoint, followed by replies to each other, case studies on three issues, and conclusions. The book showcases the problem with conservatism.
According to Wenzel, “Conservatives would violate many of their own terms by implementing their program through the state.” Conservatism
— even the limited, principled conservatism espoused by Schlueter — is arbitrary in its claims because it seeks justification for the public imposition of private preferences.
is also arbitrary in the preferences it seeks to advance, as evinced by the multitude of different conservatisms and different immoral behaviors that different flavors of conservatism would ban.
is self-defeating, as it naively deploys the coercive apparatus of the state to advance private preferences through public means while disregarding human nature and the constraints of robust political economy.
Each of conservatism’s virtues “becomes a vice when it is imposed coercively and through central planning” because “the very notion that the coercive apparatus of the state can ‘support’ virtue without being coercive is odd and arbitrary, to say the least.” Wenzel avers that “it is no wonder that there are so many different and conflicting forms of conservatism because none is based on principle or coherence but rather on an arbitrary set of personal preferences that is imposed as the truth on everybody, through the political process.” In sum, “Conservatism has many strengths and many valuable lessons. But it is ultimately inimical to liberty — and to human flourishing.”
Those are some harsh words about a political philosophy that claims to believe in the Constitution, limited government, federalism, free enterprise, individual freedom, private property, and the free market — or at least those things are what conservatives regularly include in their mantra. But are Wenzel’s words an accurate assessment of conservatism?
Schlueter is Professor of Philosophy and Religion at Hillsdale College, a notably conservative institution. Like conservative godfather Russell Kirk (1918–1994), who wrote lengthy philosophical treatises on the “canons of conservative thought” and “conservative principles,” but could never give a coherent, consistent, and concise definition of conservatism, Schlueter has a hard time defining conservatism, since it “is not a specific philosophy of government but a generic term that can have a wide range of specific meanings.”
Schlueter sees modern American conservatism as a version of classical liberalism that he terms “natural law liberalism.” Like classical liberalism, natural law liberalism affirms “natural rights, the free market, limited government, the rule of law, and a commitment to public reason as the ground for law and public policy” and repudiates “religious intolerance, laws of entail and primogeniture, titles of nobility, and mercantilist economics.” But unlike some forms of classical liberalism, natural law liberalism affirms “the capacity of reason to discover natural principles of justice while also holding that reason depends on, grows from, and is limited by experience, history, and tradition.” It rests on “a conception of reason” that is “moderately realist, oriented toward truth, yet conditioned and limited by experience and tradition.”
Schlueter posits that “conservatism rests on a recognition of the mutual interdependence of liberty, tradition, and reason” — what he calls the “equilibrium of liberty.” Natural law liberalism “incorporates” all three of these principles. And the “three primary strains within the conservative intellectual ‘movement’” (libertarianism, traditionalist conservatism, and neoconservatism) each “represent” one of the principles. All three are “necessary for human flourishing,” and, although in some tension, are “interdependent.” Taken in isolation, “each of these principles not only fails to achieve its own end; it also tends toward monstrous consequences.” But “set in careful equilibrium,” each principle “not only prevents the perverse tendencies of the others but also provides best for their most wholesome influence and development.” This “equilibrium of liberty” is what “the principles of the American founding” rest on. American conservatism is “committed to conserving the principles of the American founding.” And “the principles of the American founding are a unique and valuable historical expression of natural law liberalism.”
The problem with this presentation of conservatism is that one can never take it from A to B. It has little to do with the real world. How does one gather from all of this whether conservatives believe —
- that medical marijuana should be legal or illegal?
- that refundable tax credits should be continued or eliminated?
- that the government should or shouldn’t tax the rich to provide the poor with Medicaid, housing subsidizes, or food stamps?
- that businesses should or shouldn’t be required to have handicapped parking spaces?
- that discrimination on the basis of race, religion, sexual orientation, or gender identity should or shouldn’t be permitted?
- that laws against price gouging and ticket scalping are legitimate or illegitimate?
- that pregnant women should have access to the WIC program or that it should be done away with?
- that foreign aid spending should be increased or eliminated?
- that the rich should receive more or fewer tax deductions and credits?
- that the government should or shouldn’t fund the education of children?
- that burning an American flag should be considered a criminal offense or freedom of expression?
- that pornographic movies should or shouldn’t be prohibited in hotel rooms?
- that restaurants should or shouldn’t be able to have a smoking area?
Thus far, the true nature of conservatism is not clear. Schlueter says he agrees with his libertarian coauthor that “no person may be mistreated, abused, or sacrificed for the good of others, whether according to the ‘greatest happiness of the greatest number,’ the ‘general utility,’ or any other consequentialist reason,” and that “economic freedom is a matter of basic justice and a necessary component of human flourishing.”
But does he really?
It is when Schlueter brings up the subject of moral harm that the true nature of conservatism is unmasked. He starts out on a good note:
There are some actions that directly damage intrinsic goods or indirectly undermine the conditions for the achievement of intrinsic goods. This is most obvious with respect to wrongful actions that harm the physical persons and property of others, such as assault, murder, rape, and theft.
That is something that every libertarian who holds to the nonaggression principle would certainly agree with.
But Schlueter doesn’t stop there. “Wrongful actions” also include “actions that cause moral harm to others.” He reasons,
It is unjust to present human beings (especially weaker beings like children) with powerful temptations to actions that undermine or corrupt basic goods. In the worst case, human beings seek to exploit such strong temptations in others for personal profit, as with drug pushers, prostitutes, pimps, and pornographers. Such activity is a source of moral harm to the character and integrity of other persons and to the social conditions that support good human choices and thus an injustice that may be prohibited by law.
Actions that are purely private and have no effect on public morality are beyond the scope of human law, but immoral actions that cause moral harm to others are a matter of justice and are rightly subject to proscription.
There are also nonphysical harms that are proper objects of government action. These include harms to reputation (for example, defamatory speech, libel, and slander), harms to social order (such as open borders), and harms to moral culture (including pimps, prostitutes, drug pushers, panders). Either such nonphysical harms exist, or they do not. If they do exist, they are a proper object of political authority. If they do not exist, they are not.
“Wrongful, noncoercive actions” that “directly harm basic goods that constitute human flourishing” and “also harm the moral character of the persons who engage in them” include “assisted suicide, prostitution, pornography, and the sale and consumption of addictive mind-altering drugs.”
For Schlueter to explain that the purpose of human law “is not simply or exclusively to prohibit immorality but to promote the conditions for human flourishing” and that the object of political authority “is not to direct human beings to particular ends of human flourishing but to protect and promote the conditions for human flourishing” does not lessen the severity of what he is saying: “It is not wrong in principle, and indeed it is sometimes a requirement of justice, to prohibit immoral actions by law.”
Schlueter appeals to the American Founders for support: “The founders also agreed that political authority has a legitimate, if secondary, role to play in preventing moral harm and promoting good character.” And the Founders “were simply reflecting the consensus of the Western legal tradition, which rests on three salient claims”:
First, there is a class of actions involving moral harm to oneself. That is, some actions are wrong and harmful to individuals even when those individuals engage in those actions voluntarily. Second, such actions, when engaged in by consenting individuals, can also harm nonconsenting, third-party individuals. Third, laws that prohibit such actions not only prevent particular moral harms to individual parties; they also reinforce and promote general norms of behavior.
Schlueter refers us to a statement in the first Pennsylvania constitution: “Laws for the encouragement of virtue, and prevention of vice and immorality, shall be made and constantly kept in force, and provision shall be made for their due execution.”
Schlueter insists that he “is not saying that the U.S. Constitution gives the national government power over morals legislation.” In our system of government, “These decisions are reserved to the state and local governments.” And “it was universally assumed, and never questioned, that state governments, unlike the national government, had the power to pass reasonable legislation to protect the health, safety, welfare, and morals of their citizens.” But he also maintains that not “every moral wrong must be legally prohibited” because
there are often good and even conclusive reasons to refrain from prohibiting behavior that violates moral norms that are consequential for the rest of society. These include the strong opposition of public opinion, the public expense of enforcement that could better be spent elsewhere, the danger of abuse of public authority, the incitement to crime, and a host of other prudential considerations.
The “legal prohibition” of “immoral actions that cause moral harm” must “not result in worse harms (public expense, corruption of authority, corruption of persons through black market, and the like) than toleration of the action.”
Recall that Wenzel, Schlueter’s libertarian coauthor, disdained conservatism because “it is internally inconsistent, it is arbitrary in its preferences, it involves an imposition of private preferences through public means, and it is ultimately inimical to liberty and human flourishing.” To this must be added that conservatism is authoritarian, coercive, unpredictable, unprincipled, hypocritical, repressive, and statist. It requires an army of bureaucrats and a police state to enforce its prohibitions on moral harm. Conservatism basically says this: Do something immoral — even if it is peaceful and nonaggressive and doesn’t violate the person or property of someone else — and the government has every right to lock you in a cage. And never mind that we don’t treat all immoral acts equally and that we overlook some altogether.
There are a number of interrelated issues here. First is the age-old question of whether the government should enforce morality. Then there is the phony conservative plea for states’ rights, the naive trust in government, the inconsistency and hypocrisy of conservatism, the confounding of vices with crimes, and the selective use of history. Let’s look at these in reverse order.
The fact that colonial Pennsylvania had morals legislation doesn’t mean that morality laws are good or right. In fact, it doesn’t mean anything, especially since Schlueter neglected to mention that the short-lived first Pennsylvania constitution (it was replaced in 1790 by a constitution patterned after the U.S. Constitution) also mandated a religious test for public office. According to section 10, each member of the legislature had to subscribe to the following declaration: “I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration.” Does Schlueter believe there should be religious tests for public office in 2017? But why appeal to the first Pennsylvania constitution? Why not William Penn’s Frame of Government (1682), which included a Quaker moral code that mirrored that of Puritan New England? Colonial officials prosecuted “all such offences against God, as swearing, cursing, lying, prophane talking, drunkenness, drinking of healths, obscene words, incest, sodomy, rapes, whoredom, fornication, and other uncleanness (not to be repeated).” Additionally, “all prizes, stage-plays, cards, dice, May-games, gamesters, masques, revels, bull-battings, cock-fightings, bear-battings, and the like, which excite the people to rudeness, cruelty, looseness, and irreligion, shall be respectively discouraged, and severely punished.”
Like most conservatives, Schlueter confounds vices with crimes. But what Lysander Spooner said in the nineteenth century is just as valid in the twenty-first century: “Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another. Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.” There are two particular “moral harms” that Schlueter mentions three times: prostitutes and drug pushers. Those two things are always cited by opponents of libertarianism to “prove” that libertarianism is immoral. Not because libertarians promote, defend, or practice them, but because they don’t believe the government should interfere with the voluntary, private, peaceful activity of consenting adults. Regarding prostitution, libertarians reason that it if it is legal for a woman to provide free sexual services as often as she wants and to as many people as she wants, then it shouldn’t be illegal for her to charge for performing the same services. Regarding drug use, libertarians reason that it makes no sense for the government to wage war on illegal drugs when legal drugs prescribed and administered by physicians kill far more people every year.
The inconsistency and hypocrisy of conservatism is legion. Every bad thing that conservatives say about drugs could be said about alcohol. Alcohol is one of the leading causes of premature deaths in the United States. It is also a factor in many fires, violent crimes, child-abuse cases, sex crimes, and accidents. Does Schlueter believe that alcohol pushers should be jailed? Does he think that alcohol should be prohibited? Of course he doesn’t.
Although Schlueter maintains that not “every moral wrong must be legally prohibited,” in the end conservatives always defer to the government to decide which moral wrongs should be prohibited and what punishment should be meted out to violators. Schlueter claims to agree with his libertarian coauthor that progressives have “an unreasonable trust in the capacity of government experts to solve complex social problems” and that “the modern administrative state” is both “unconstitutional and unjust.” When it comes to something like the war on drugs, conservatives have the same unreasonable trust in government and fully support the unconstitutional and unjust actions of the modern administrative state.
The conservative appeal to states’ rights is phony. Conservatives don’t want it left up to the states when it comes to abortion; they want federal laws against the practice. Conservatives don’t want it left up to the states when it comes to flag burning; they want a constitutional amendment to authorize laws against it. Conservatives don’t want it left up to the states when it comes to marriage; they want a federal defense of marriage act. And conservatives certainly don’t want it left up to the states when it comes to drugs; they never call for the repeal of all federal drug laws.
The question of whether the government should enforce morality is no different from the questions of whether the government should fund education or subsidize the arts. Of course it shouldn’t. It is simply not the proper role of government to do so. The only legitimate purpose of a limited government in a free society is to keep the peace, prosecute and punish those who initiate violence against the person or property of others, provide a forum for dispute resolution, and constrain those who would attempt to interfere with people’s peaceful actions.
In spite of all their talk about the Constitution, limited government, federalism, free enterprise, individual freedom, private property, natural law, classical liberalism, and the free market, conservatives are statists and conservatism is merely one of many varieties of statism. The very heart and soul of conservatism is not libertarianism, as Ronald Reagan foolishly said, but statism. Conservatism is utterly devoid of any fundamental and universal principles except authoritarianism. For the government to station a morality officer in every home, in every place of business, on every street corner, in every elevator, in every lobby, on every beach — anywhere and everywhere where a moral harm might take place or be contracted — would not violate conservatism in the least.
F.A. Hayek was right: “It is indeed probable that more harm and misery have been caused by men determined to use coercion to stamp out evil than by men intent on doing evil.” As was C.S. Lewis: “Of all tyrannies a tyranny sincerely exercised for the good of its victim may be the most oppressive. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated, but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”
Such is conservatism, an authoritarian philosophy that thinks people should be caged for engaging in peaceful behavior the government doesn’t approve of.
The is article was originally published in the December 2017 edition of Future of Freedom.