Whither Fusionism?

One of the victims of the Bush presidency, along with limited government and the Republican Party, has been “fusionism,” the idea that conservatives and libertarians ought to come together to oppose the forces of socialism (and The Left generally). Indeed, this Tuesday’s election probably saw the highest-ever percentage of libertarians — depending on how you count them – vote for the Democratic presidential candidate (at least in the modern era, with the possible exception of the Nixon years). This despite that Democratic candidate being commonly seen as the most statist major-party candidate in history.

Cato adjunct scholar Ilya Somin who blogs at the Volokh Conspiracy and in his day job is a law professor at George Mason (currently visiting at Penn) — Ilya being a popular name among libertarian legal community – today puts up a smart post on the state of the erstwhile libertarian-conservative. Here’s a snippet:

Obviously, a lot depends on what conservatives decide to do. If they choose the
pro-limited government position advocated by Representative Jeff Flake and some
other younger House Republicans, there will be lots of room for cooperation with
libertarians. I am happy to see that Flake has denounced “the ill-fitting and
unworkable big-government conservatism that defined the Bush administration.”
Conservatives could, however, adopt the combination of economic populism and
social conservatism advocated by Mike Huckabee and others. It is even
possible that the latter path will be more politically advantageous, at least in
the short term.

Indeed, if conservatives choose some version of the Huckabee-Palin route, fusionism is dead — and so, might I add presumptuously, is the Republican Party. That just ain’t where the majority of the nation is, or where it’s heading (though, as Ilya says, that direction may be politically advantageous in certain parts of the country under certain circumstances).

But this type of discussion may be beside the point; libertarian-conservative (in the sense of socially conservative, economically squishy) fusionism may have run its course, a relic of the Cold War. The new fusionism may well be fiscally conservative and socially tolerant (not necessarily liberal, just not wanting government to do anything about the way people live their private lives), including folks who might call themselves conservative cosmopolitans, crunchy cons, South Park conservatives, or indeed libertarians. Or they might eschew labels altogether but are sick of the rot coming from (or to) Washington. In other words: Purple America,

[Cross-posted at Cato's blog.]

Big Victory for Economic Liberty

Amid a financial crisis that has pundits playing the game of who can come up with the most nationalization and re-regulation—and a presidential campaign where neither candidate seems to have much coherent to say about the economy—one bright ray of light shone through.
And it came from San Francisco, no less.

On September 16, the U.S. Court of Appeals for the Ninth Circuit delivered a blow against unfair economic regulation in the case of Merrifield v. Lockyer. Pacific Legal Foundation lawyer and Cato adjunct scholar Tim Sandefur argued on behalf of Alan Merrifield, a businessman prevented from building structures to keep out pests by a bizarre licensing regulation. The California law in question required people who do not use pesticides to undergo years of training and take an examination testing their knowledge of chemicals and insects before they can use pest control techniques that involve neither chemicals nor insects.The law only applies to pigeons, rats, and mice, however, so putting spikes on a building to keep seagulls off it does not require a license. But the same activity aimed at deterring pigeons does. Moreover, the record showed that the rule was designed for the sole purpose of protecting people who have licenses from having to compete in the marketplace against upstart businesses like the one operated by Merrifield.

Circuit Judge Diarmuid O’Scannlain, writing for the panel majority, succinctly explained the problem with California’s rationale:

The possibility that non-pesticide-using pest controllers might interact with
pesticides or will need the skill to suggest pesticide use when it would be more
effective is the very rationale that government’s counsel proffered, and we
relied upon, in upholding the requirement that Merrifield obtain a license under
due process grounds. We cannot simultaneously uphold the licensing requirement
under due process based on one rationale and then uphold Merrifield’s exclusion
from the exemption based on a completely contradictory rationale. Needless to
say, while a government need not provide a perfectly logically solution to
regulatory problems, it cannot hope to survive rational basis review by
resorting to irrationality.” (Emphasis in original)

That is, “economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in the furtherance of a legitimate governmental interest.”

This decision is thus a tremendous blow against the various licensing advantages granted by legislatures to the few at the expense of the many. As Sandefur put it in PLF’s press release, “This is a victory for free enterprise and for the Constitution’s safeguards for entrepreneurship.”
The battle for economic rights remains an uphill struggle, however, because the invalidation of California’s pernicious legislation rested not on the basic right to earn an honest living but on the state’s “irrational singling out of three types of vertebrate pests” to the economic benefit of some exterminators as against others.The case necessarily turned on an “equal protection” violation, instead of constitutional protection of any substantive rights. Without that arbitrary listing of pigeons, rats, and mice, the pesticide/insect requirements would have withstood Merrifield’s challenge. Judge O’Scannlain implicitly recognized that reaching the correct result in this manner was intellectually unsatisfying, but that his hands were tied by the Supreme Court’s 1873 Slaughterhouse Cases (which eviscerated the Fourteenth Amendment’s Privileges or Immunities Clause). So long as the Supreme Court shies from revisiting the twisted logic of that precedent, the Constitution will offer precious little defense against legislation that restricts the ability of individuals to freely exchange goods and services.

Nevertheless, in establishing the legal principle that mere protectionism is not a legitimate state interest, the Merrifield case is a major victory for economic liberty—and the first time the Ninth Circuit has taken up this issue.

Congratulations to Tim and to Pacific Legal!

[Cross-posted at Cato's blog.]

American Patriotism = Choosing Liberty

I’ve always thought of long-time Cato ally Tim Sandefur as one of the most thoughtful libertarians in the blogosphere. This holiday weekend he did not disappoint, offering a stinging rebuke to Matt Yglesias’s blather about how America is “awesome” but would have been “even awesomer had English and American political leaders … been farsighted enough to find compromises that would have held the empire together.”

Sandefur correctly points out that the British, while now our closest friends (along with Canada, the part of British North America that did not join in revolt), in the 1770s left the colonists with no choice:

Abject submission is what you get when you try to “compromise” with those who would destroy your liberty and reduce you under absolute despotism.

He then goes on to excoriate Yglesias for elsewhere saying of the difference between liberal and conservative patriotism that “liberals do a better job of recognizing that much as we may love America there’s something arbitrary about it — we’re just so happen to be Americans whereas other people are Canadians or Mexicans or French or Russian or what have you.” Sandefur points out that these other nationalities “are based on ethnicity and chance, while American nationality is based on choice and the assent to certain basic principles that make up our nation.”

That’s exactly right: America is anything but ethnic (or other) happenstance, but instead stands for government by the principled consent of the governed, and the Founding generation’s choice of liberty over continued subjugation. Consequently, America’s patriotism (qua nationalism) is civic rather than ethnic:

What July 4th is about is to remind us that all those who stand up for freedom and refuse to “compromise” their rights to life, liberty, and the pursuit of happiness, are brothers and sisters and at heart Americans; that all who today try to move their countries toward a fuller recognition and implementation of these principles are working hand in hand with our founders; that American nationhood is the first ever founded on anything but an arbitrary ethnic or historical basis, but on the basis of certain shared principles, principles that can be grasped by “a candid world,” and that give hope to all men for all future time.

As they say, read the whole thing.

You could argue, of course, that other new world (or immigrant) countries like Canada and Australia (or Argentina) are also not based on ethnicity, but there, quite obviously, there is no “national idea” — focusing on liberty or otherwise. Canada is constantly having national conversations on “what it means to be Canadian,” which typically fails to produce any answers beyond “well, we’re not Americans” (at least for those outside of Quebec, which has never been fully assimilated into the Canadian “nation”). And of course, many other countries that are or were based on an idea (Communism, etc.) lack the consent of the governed. Having been born in then-Soviet Russia and raised in Canada, I have all too much experience with countries lacking either a civic basis or popular legitimacy.

For what I think of the American Idea, scroll/click through this.

[Cross-posted on Cato's blog.]