E-mail:
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Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Andrew
Koppelman has given us a polemical, lively, and smart take on the various
political traditions, ideologies, ideas, and irritable impulses captured by the
general category of “libertarianism” in the contemporary United States. The book’s greatest contribution is to break
up the static category of libertarian.
It’s a little too neat to separate libertarianism into two warring
camps, but the heuristic does offer a useful way into an ideological and
political space that could use more curious visitors and analytic legal
minds. Koppelman also makes a useful
intervention when he pulls libertarianism across the partisan divide, not only
by expressing his own appreciation of the creed from a leftist position, but in
his arguments for libertarian’s influence on American liberalism. In his telling, what was most valuable in the
libertarian tradition was absorbed into the political mainstream; Koppelman
denounces the leftover bits. Several
commentators are skeptical of this argument, but Koppelman’s narrative is
echoed by new interpretations of the late twentieth century like Gary Gerstle’s
Rise and Fall of the Neoliberal
Order and
Elizabeth Popp Berman’s Thinking Like an Economist.
Which
brings me to a central hole in Koppelman’s account… where is the discipline of
economics?Where is Milton
Friedman?Perhaps it’s inevitable that
having just finished writing an intellectual biography of Milton Friedman, I
see the world through that lens.Nonetheless, I do believe there is a case to be made that Friedman plays
a central role in Koppelman’s story.In many
ways he could be swapped in for Hayek – yet Friedman was far more
central than Hayek to modern economics and American political debate.As both a dominant force in economics from
the mid 1960s to the early 1970s, and one of the most visible public figures
advocating free markets in the following decades, Friedman played a central
role in articulating libertarian ideas and in tempering their excesses.
Contra
Koppleman’s account, Friedman wrestled with the very same divide he identifies:
whether or not to embrace what Friedman called “the capitalist ethic.”This was the basic set of ideas Koppelman
calls “tough luck constitutionalism” and links to Murray Rothbard and Ayn
Rand.Yet well before Rand and Rothbard
emerged as important figures of libertarianism, Friedman sensed this was a
basic moral dilemma of what he called “liberalism” – how to understand
inequality, whether to justify it or merely tolerate it, and whether or not
market and life outcomes reflected moral merit, luck, or some combination.
Further,
Friedman felt compelled to address this question in part because he clashed
with the Koch network of his day, who advanced tough luck, Rothbard-style
arguments: organizations like the Foundation for Economic Education, one of the
first business conservative groups.Moreover, Friedman was also motivated by disagreement with Hayek, specifically
his laissez faire response to the Great Depression.By the time they met in the late 1940s, Hayek
had recanted his “liquidationist” response, and become far more open to a
limited welfare state.Even so, many of
the ideas Koppelman attributes to him, like a social minimum, were advocated
far more strongly by Friedman, who first sketched out a universal basic
income concept in 1939.To the extent Hayek later embraced such
ideas, it was a process of persuasion in which the line ran from Friedman to
Hayek.While Koppleman needs a fairly
static Hayek to serve the purposes of his polemic, readers looking for more
nuance on Hayek and his evolution should take a look at the newly published Hayek: A Life, 1899-1950.
And
where did Friedman ultimately come out on the question of the “capitalist
ethic”?The answer is telegraphed in the
title of his popular book Capitalism and Freedom, co-written with his wife Rose.Freedom
became the way Friedman could avoid embracing or celebrating inequality.Instead he framed it as an unfortunate
byproduct of a greater social good – the freedom to choose an occupation, with
varied results in the marketplace.Yet
this did not mean inequality should not be addressed or ameliorated; hence his
vigorous advocacy for a negative income tax, the legacy of which persists today
in the earned income tax credit, the child tax credit, and other policy
programs.
Relatedly,
Koppelman overlooks how the habits of mind he decries were inculcated not
merely by popular libertarians, but by academic economics.Take his opening vignette about the Cranick
house fire.Many of the justifications for
the fire department’s inaction were couched in the language of incentives – that
saving the house would surely incentivize others to skip the tax bill.Koppelman concentrates his fire on
libertarianism’s flawed account of property.But a flawed account of incentives is also at work, and it tracks back
to the assumption of utility maximizing at the heart of economic thought. I don’t mean to imply all economists would passively
accept the house fire; in fact I’m sure most would not.Economic assumptions of rationality and
response to incentives are useful in economic analysis, and they’re useful when
considering aggregate behavior.That
doesn’t meant they should be expanded into a political philosophy without
modification, or made so rigid they can’t accommodate emergencies and
exigencies.But a large part of
libertarian’s power in public discourse comes from how it tracks the language
and logic of economics, which has become a lingua franca of the educated
classes and policymakers.The most
extreme arguments may come from Rand, Rothbard, and Nozick.But they find purchase in part because they
resonate with the more familiar logic of economics.
I must
add a few words about Ayn Rand before I go, given Koppelman’s strong views on
her philosophy.In some ways Rand is a
difficult fit for an analysis of political philosophy.But she did have a clear intellectual agenda:
she was trying to create a new standard of morality that was specifically
devoid of obligation. She believed too much emphasis had been placed upon doing
things for other people as a source of moral merit, and thus wanted to create a
system where the only moral act was one of self-concern, and acts traditionally
considered moral really did not have a moral charge or valence, and were simply
peripheral. The motivation for this
quest, Koppelman notes, was her experience of living in Soviet Russia.There is another element: an overt and
deliberate rejection of the gendered obligations of child rearing and caring
for dependents, along with the Jewish religious duty to bear children.Rand spelled little of this out, preferring
to recreate the core historical experience of living under communism in a fervid
dreamworld, set in the United States.It
could happen here, Rand insists, using her experience with Soviet
propaganda and her Hollywood background to create overdrawn symbolic characters
meant to carry an ideological message. Thus she is best understood both in relation
to political ideas and literary traditions like dystopia and science fiction.Nonetheless I’m glad Koppelman included Rand
in his analysis, despite his obvious distaste for her oeuvre, because Rand is
indispensable for understanding the historic development of
libertarianism.She reminds us that radical
political ideas advance by triggering the imagination as well as the rational mind.
Jennifer Burns is Associate Professor of History at Stanford University. You can reach her by e-mail at jenniferburns@stanford.edu.