Why Libertarianism and Democracy Kind of Hate Each Other

Does morality have a place in law?

In a sense, we are all libertarians by default. As to issues that are morally neutral to us but repugnant to others, our response is to respect their right to feel righteous indignation, but to go work it out someplace else and leave me alone. The good Kantians among us have the wherewithal to apply that same response when the tables are turned. That is, to be a libertarian is not to be amoral, it is simply to be a restrained moralist, to work out morality in private relationships or institutions, anywhere but through law and politics.

But I would say two things about that. First, that libertarians are not as value-neutral as they would have us believe. And second, that there is no good reason that the majority should not be entitled to impose their moral views.

At some point, we arrive at the question of whether libertarianism and democracy can coexist. Under a pure libertarian theory, democracy would ultimately be replaced by an over-inflated substantive due process doctrine, a sort of hyper-pragmatic political empiricism. Law & economics, except law having been eaten by a carbo-loading economics who’s busier than a one legged man in an ass kicking contest scratching away at the blackboard to see if yours and my rights are borne out in the math. In the absence of evidence, no legislation is permissible. You and your scruples don’t have to go home, but they can’t stay here.

Libertarianism is to political theory as prog rock is to music. If you’ve got the flare for it, it can be fun to decipher how some atonal piece in 9/4 time that's too busy cramming in more and more notes to bother with things like “choruses” or “lyrics,” can still be recognizable to human beings as music. But the reality is that, by and large, people will always prefer a straightforward verse-chorus-verse-chorus that fades out in three minutes. Similarly, Americans will never give up their beloved and intuitive right to self government in favor of a convoluted system that only permits laws supported by pointyheaded rights theories or complex social utility balancing acts. Godspeed You Black Emperor! will never be ready for prime time, and neither will libertarianism.

This is the idea at stake in the gay marriage fight. The outcome--whether gays get the right to marry--is truly secondary. What is imperative is that we protect and respect the democratic process. And that is true even if the democratic process doesn't get us to a desired result as quickly as a theory like libertarianism. After all, there is no well-defined principle that would compel the legal endorsement of gay marriage (even as people find it more and more culturally acceptable) that would not at the same time also compel the legal endorsement of polygamy or incestuous marriage (which people still find culturally repugnant). (See here and here.) Thus, libertarian theory will not actually yield us a very desirable solution; the only theory that permits the coexistence of lawful gay marriage and unlawful polygamy and incestuous marriage is the democratic theory. Democracy is inelegant, but then again, so is human nature.