The Volokh Conspiracy

But it sure sounds like it. Here is University of Maryland Maryland Institute College of Art philosophy professor Firmin DeBrabander, writing in the New York Times Opinionator blog:

But why do we presume individual agency in the first place? Why do we insist on it stubbornly, irrationally, often recklessly?

.... To be human, according to Spinoza, is to be party to a confounding existential illusion — that human individuals are independent agents — which exacts a heavy emotional and political toll on us. It is the source of anxiety, envy, anger — all the passions that torment our psyche — and the violence that ensues. If we should come to see our nature as it truly is, if we should see that no “individuals” properly speaking exist at all, Spinoza maintained, it would greatly benefit humankind.

There is no such thing as a discrete individual, Spinoza points out. This is a fiction.

For some reason, the model of humans that posits we are and therefore should act like ants in an ant hill doesn’t appeal to me, and doesn’t strike me as consistent with long-term human flourishing.

UPDATE: Beyond the language I pointed out, Prof. Debrabander’s theory shorn of its philosophical digressions about the nature of individuality, seems to be that there are two alternatives: either believe in “rugged individualism” in which, counter to reality, everyone is totally the master of his own fate, or favor big, intrusive government. The fact that humans cooperate and coordinate not just through government but also through voluntary institutions and civil society is ignored.

I say “liberal” [UPDATE: judging from the comments, it looks like I need to clarify that I mean liberal in its broad philosophical sense of favoring freedom and tolerance, not in its narrow modern American political sense] because one can be a believer in a minimal state, but still, e.g., be a racist, not care for a culture that respects women, or not be especially inclined toward reason as opposed to superstition and conspiracy theory. So here it is, from Daniel Bier at the Skeptical Libertarian blog, via Walter Olson on Facebook. I think it’s fair to say that Bier’s views reflect the libertarian humanist spirit of most of the bloggers here. I’m not going to bother nitpicking details:

I believe there is a very real prospect of a world in which goods, services, people, and ideas flow freely within and between borders, across oceans and rivers, over deserts and mountains, through the sky and (someday) the stars.

I believe in a world where individuals are treated equally under the law, regardless of ethnic or national origin, religious or philosophical belief, gender or sexual preference.

I believe in a culture that respects women and protects children, that celebrates ideas and cherishes liberty, that not only tolerates but vigorously defends free expression.

I believe in a world where 10 billion people can be fed on less land than we currently use for 7, through new advances in fertilizer, irrigation, storage, and genetics.

I believe in a world where wildlife and natural habitat can be conserved and even expanded.

I believe in a world where emerging technologies can meet the challenges of climate change without halting economic growth.

I believe in a world where water is clean, healthy, and abundant.

I believe in a world where we can reduce or exterminate mankind’s worst enemies through the single greatest medical innovation in history: vaccination.

I believe in a world where scientific discovery and economic freedom can together eradicate hunger, poverty, and disease.

I believe in a world where war, cruelty, and violence are rare and reviled.

I believe in a world where superstitions cease to divide people, where traditions no longer provide excuse for murder, where veneration does not give cover to abuse, where legend does not trump history, where delusion does not defeat medicine, where faith does not overcome fact.

I believe in a world where people turn to conversation instead of violence, to one another instead of politicians, to reason and evidence instead of myth and dogmatism.

I believe in a truly global civilization, united by trade and connected by travel, buttressed by an open-ended dialogue, sustained by humanist ethics, founded on the principles of reason, liberty, and mutual respect.

I believe in an open society, a civil society, a free society.

I believe that these things are not only good for the world, are not only possible, but are already happening. I hope, in some small way, to contribute this new world order–an order defined by its spontaneous nature, created by individuals pursuing and expressing their separate interests, together. This order evolves from bottom-up processes, and cannot be replicated by top-down hierarchies.

I believe this world is eminently worth fighting for, even if it sometimes feels like a rearguard defense. Over the long-term, we are winning this battle. But while I am rationally optimistic about our chances, victory is not inevitable. It is still possible for things to go spectacularly wrong, for the light of reason to dim or even wink out altogether in places, for the better angels of our nature to fall to the inner demons of our primate minds.

It is always a treat to reread John Stuart Mill’s On Liberty.

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

As they say, read the whole thing.

Richard Epstein has two recent pieces discussing the Hollingsworth and Windsor cases.  One for Hoover’s Defining Ideas, the other for Ricochet.  In these pieces he notes some of his doubts about the libertarian case against DOMA and Proposition 8, but also suggests that Justice Kennedy — if he is to be consistent with his prior opinions — should not have such reservations.

I am still uncertain of how I would come down in these two cases . . . . But my equivocation on the case should not slow down Justice Anthony Kennedy. If he wants to maintain his own definition of liberty consistently, the author of the Lawrence opinion has to go the whole nine yards and come down in favor of gay marriage. . . .

Best line of the evening: “I don’t think you’re stoners... You’re nerds!”

It was interesting to see that both Marco Rubio in his official Republican response to President Obama’s State of the Union and libertarian-leaning Senator Rand Paul in the Tea Party response argued for a less restrictive immigration policy. This is an important development for a party whose conservative wing has long been known for its support of restrictionism.

Rubio restated his longstanding support for expanding legal immigration and at least some regularization of the status of the illegal immigrants already here. The notable development here is not that he said it, but that it was embodied in the GOP’s official response to the President.

Paul actually went further than Rubio, advocating a much broader pro-immigrant stance:

We are the party that embraces hard work and ingenuity, therefore we must be the party that embraces the immigrant who wants to come to America for a better future.

We must be the party who sees immigrants as assets, not liabilities.

We must be the party that says, “If you want to work, if you want to become an American, we welcome you.”

Taken literally, this suggests a policy of open borders for anyone who “want[s] to work” and “become an American.” Most likely, Paul did not intend to go that far. But it’s still a pretty strong statement, reminiscent of Ronald Reagan’s 1989 farewell address, where he called for an America “open to anyone with the will and the heart to get here.” And unlike both Rubio and President Obama in the State of the Union, Paul did not couple this call for increased immigration with a call for increased border enforcement.

It is significant that this sentiment was included in a speech billed as the official Tea Party response to the State of the Union. Although the Tea Party is often portrayed as a group of extreme social conservatives, it also has a large libertarian wing that includes about half of its supporters. Paul’s speech is an important sign that the libertarian wing of the Tea Party is gaining ground, at least on immigration. I discussed the distribution of Tea Party opinion in more detail in this article.

It is also noteworthy that both Rubio and Paul linked support for immigration with a more general pro-free market and pro-individual freedom stance. I elaborated on that idea in more detail here. Free migration is also an important element of political freedom.

Obviously, the immigration sections of Paul’s and Rubio’s speeches are very general. It remains to be seen whether and to what extent the GOP and the Tea Party movement will translate them into policy specifics. Moreover, the Republican Party still clearly contains a large restrictionist wing, some parts of which verge into nativism. They are not simply going to give up as a result of these two speeches.

The speeches also did not address standard conservative objections to immigration, such as the claim that it will lead to massive increases in welfare spending, which I challenged here. Like most political speeches, Rubio’s and Paul’s have little in the way of in-depth reasoning.

Despite these caveats, it is clear that the winds of change are blowing in the GOP on this issue, probably for a combination of both political and principled reasons. Combined with President Obama’s own apparent commitment to immigration reform, which he reiterated in the State of the Union, it’s even possible we will get some change we can believe in.

UPDATE: It’s worth noting that Rand Paul’s Senate website is much less pro-immigration. The page devoted to the issue mostly focuses on the supposed need to prevent illegal immigration, while only briefly mentioning his “support [for] legal immigration.” It’s theoretically possible to reconcile the website and the speech by noting that a policy that makes immigration legal for all those who “want to work” and become Americans would largely eliminate the issue of illegal immigration, because the vast majority of potential immigrants could then just get in legally. It’s more likely, however, that the speech represents either a change of position or at least a major change of emphasis. If immigrants really are “assets, not liabilities,” it makes no sense to make a big point of “securing the border” against them, as Paul does on the Senate website.

The Center for Global Development has a new ranking of think tanks, based on various objective measures of visibility and influence. For profile-per-dollars-spent, it is nice to see the excellent Cato Institute at the top of the list.

In her interesting new study of young libertarians, which I discussed in my last post, Liana Gamber Thompson notes “a significant deficit” in the libertarian movement – the lack of an organization for high school students interested in libertarian ideas:

Of the five participants [in her study] under age 18, four reported participating in the Liberty Movement in a majority online capacity, as did one of the 18-year-old participants with whom I spoke. While access was an issue for these young people, they still considered their political interests and aspirations to be a very important aspect of their lives. Even though they did not participate in local libertarian organizations, they described feeling very much a part of a tangible movement.

This finding also highlights what can be viewed as a significant deficit within the movement: a general lack of high school groups and clubs in which young libertarians can participate....

It is unclear why there is a lack of “in person” spaces for high school libertarians. Young Democrats of America (YDA) clubs are common in high schools, with over 1,500 chapters nationwide. The Young Republican National Federation (better known as Young Republicans), with limited control over its state federations, does not publish statistics on the number of local chapters; but it is the oldest political youth organization in the United States, and thus has a well-organized leadership structure and resources to hold national meetings and events for members. Libertarians have no analogous organization.

This is a significant problem. Many people who are strongly interested in politics first develop that interest in high school, or earlier. And it is easier to influence the political views of younger people than older ones. As people get older, they become more set in their views and less open to new ideas – especially ones that diverge from the political mainstream. I first became interested in libertarianism when I was in high school. The same is true of many other libertarian scholars and activists. People active in other political movements often first became interested in them in high school as well.

Only a small minority of high school students are going to be actively involved in political groups. But those few are disproportionately likely to grow up to be influential political activists, conmmentators, or scholars. Libertarians should strive to reach a higher percentage of them while they are still young.

As Thompson points out, the Democratic and Republican parties both have numerous organizations for high school students. The same is true of many other liberal and conservative organizations. For example, my high school had a fairly active chapter of Amnesty International. Libertarians should learn from these examples. A libertarian organization for high school students could play a valuable role similar to that of Students for Liberty in the college setting. Maybe we could even call it High School Students for Liberty.

One obstacle to forming libertarian high school groups is that the number of libertarian-inclined students at any one school will often be very small. But the internet makes it much easier for students at different schools to connect. Even if there is only a handful of people potentially interested in libertarianism at High School X, that handful can use the internet to locate like-minded people at nearby schools Y and Z. Some of this can be done by individual students acting entirely on their own. But a nation-wide organizational structure can make it easier for like-minded people to find each other and develop closer ties.

UPDATE: Some commenters claim that is there were a need for a libertarian high school student organization, the market would have already provided for it; or perhaps they mean that libertarian defenders of the free market must be committed to the idea that it would. Either way, it’s a weak claim.

By the same logic, you can argue that every new idea or product is unneeded. Before the first car was built, the market failed to provide automobiles too. Ditto for the first light bulb. Markets are dynamic institutions that regularly provide new products and organizations that didn’t exist before, in some cases because no one had seriously considered the idea behind them. I think this is a new idea that few if any libertarians have seriously considered previously. Before SFL was created just a few years ago, there was no significant libertarian organization for college students. SFL’s tremendous success since then shows there clearly was an unmet need. The same may well be true in the high school context.

Libertarians don’t claim that “the market” automatically and instantaneously fulfills all needs. Rather, they argue that it meets more and more needs over time thanks to ongoing processes of innovation and competition.

Liana Gamber Thompson of the USC Annenberg School for Communication & Journalism has an interesting new paper on the politics of young libertarians, focusing especially on members of Students for Liberty, the rapidly growing student libertarian organization. Here is the summary:

In the past decade, young libertarians in the U.S., or members of the Liberty Movement as it is called, have utilized new media and technology along with more traditional modes of organizing to grow their movement, capitalizing on the participatory nature of the internet in particularly savvy and creative ways. Still, the Liberty Movement is quite unlike more progressive, grassroots movements, with its organizations and participants sometimes relying on established institutions for various forms of support.

As this report highlights, the Liberty Movement represents a hybrid model, one that embraces participatory practices and interfaces with formal political organizations and other elite institutions....

In a letter to Richard Rush dated October 20, 1820, Thomas Jefferson wrote, “The boisterous sea of liberty is never without a wave.”1 This report suggests that participants in the Liberty Movement would concur with respect to the challenges they encounter; largely ignored by mainstream media and pushed to the margins of the electoral process, libertarians have it tougher than many groups when it comes to the task of gaining voice and visibility in the mainstream political debate. This report examines how young libertarians confront such obstacles and presents readers with a detailed account of young libertarians and their relationship to the contemporary political landscape.

Not surprisingly, the study concludes that young libertarians make extensive use of the internet, that they are very skeptical about the political process, and that most have doubts about the effectiveness of voting as a strategy for promoting political change.

Thompson notes increasing racial and gender diversity among younger libertarians, but also suggests that this is still a disproportionately white male movement. She quotes one female libertarian student as saying that ““There’s pretty big gender discrepancy, and it’s largely male. I would say 60% [men] to 40% [women] on a good day. Sometimes, it’s like 70-30…”

At the Bleeding Heart Libertarian blog, Matt Zwolinski comments:

I had to chuckle at this. Not to sound like an old fogie or anything, but back in my day we would have killed to have 30% women in the libertarian movement! If we wanted to find a woman libertarian, we had to walk eight miles, in the snow, uphill, both ways!

There is some truth in both the frustrated student’s point and Zwolinski’s response. As I pointed out in this post about SFL, today’s student libertarians have a much higher percentage of women than in the past, a reality that reflects the broadening of the libertarian movement, and its greater acceptance within the mainstream. Given that women are, on average, less likely to be interested in politics, and less willing to embrace non-mainstream ideas and ideologies than men, the 30 to 40 percent figure quoted by the student is actually pretty good. It’s not much less than we would expect from the “average” relatively non-mainstream student political movement.

It’s worth noting that the 30 to 40% percentage of women was similar to what I saw when I gave two talks at the 2011 SFL national conference. Perhaps more importantly, the student libertarians I met at this and other events were, on average, more socially normal than were young libertarians of my own generation. On average, they have better social skills than we did, and come across as friendlier and more charismatic. That’s a good sign that the movement is broadening its appeal. That said, libertarians still have a lot of work to do in appealing to women, racial minorities, and other groups not traditionally well-represented in the movement.

Among the 30 young libertarians studied by Thompson, only 7 of the 24 willing to identify their gender in a survey were women. Interestingly, 9 of the 27 willing to give a racial identification were not white. The latter is actually a slightly higher figure than the percentage of nonwhites in the general population (about 22%). However, we shouldn’t make too much of either figure, given the small sample size.

The small sample is the biggest weakness of Thompson’s study as a whole. Since she relies primarily on what she learned from these thirty people, it’s difficult to say how representative her findings are of young libertarians overall. That said, many of her findings strike me as plausible, and similar to what I have seen in my own fairly extensive dealings with younger libertarians.

I should say at the outset that I approach this delicate subject sheepishly, but this development bears noting. In a rare example of a Western country taking steps to restrict previously recognized sexual liberties, Germany is seeking to ban bestiality. (Its supporters call it zoophilia – are opponents zoophobes?) This will presumably put out to pasture Germany’s erotic zoos, where visitors go beyond heavy petting.

Germany legalized bestiality in 1969, together with sodomy. When Justice Scalia analogized from the decriminalization of the latter to the former in his Lawrence dissent, he was widely denounced, but apparently the liberal Germans agreed with him, at least until now.

I suspect the motives behind the ban are entirely moralistic. Yet the government cannot come out and say so. Thus effort is made to distinguish the matter from Germany’s libertarian approach to sexual matters by suggesting the animals do not consent in the way consenting humans do. Yes, but they don’t consent to being bought or sold, or butchered, either, and they are not human, so consent is a red herring. This would not pass intermediate scrutiny in the U.S.

It is an invariable aspect of sexual morality regulation that those who regard a practice as amoral, or vile, also believe it has negative practical effects. The latter allows one regard one’s own knee-jerk preferences as sound social policy rather than moralizing. In today’s post-morality world, vestigal aversions to prostitution, polygamy and incest have to be justified with strained public policy arguments.

If erotic zoos are bad, it is not because, as critics contend, it is “animal rape,” any more than prohibitions on intercourse with human remains can be justified by the “non-consent” of the corpse. Requiring two-sided consent in zoophilia situations privileges the person/person intercourse model in a way which is neither neutral nor value-free.

Usually it is harder to roll back new social rights than to extend them – the “non-retrogression principle.” I’d be interested to see if the zoophiles mount a challenge based on European human rights law, and how it fares. Berlin may find it is closing the barn door after the animals have escaped.

In this recent article, James Rainey of the LA Times argues that public opinion has moved in a “center-libertarian” direction:

Many debates have broken out about the meaning of last week’s election, including over whether conservatives should still push their claim that America is a “center-right nation....”

A survey of last Tuesday’s electoral landscape suggests the truth may be somewhere in the middle. The results cut heavily against the notion of a center-right dominance, at least when it comes to social issues.

After 32 straight losses for same-sex wedding laws, four states approved marriage-equality proposals last week. Two other states legalized marijuana for recreational purposes. Wisconsin elected the first openly homosexual U.S. senator in history, Tammy Baldwin. An Iowa Supreme Court justice targeted for removal because he voted in 2007 to approve gay marriage, David Wiggins, defeated an effort to oust him. And, crucially, Obama won with 60% of voters telling exit pollsters they supported the president’s call for higher taxes on the rich.

But Americans appear to remain more receptive to conservative viewpoints on spending, debt and the size of government. A bare majority, 51%, of voters last Tuesday told exit pollsters that government should do less, with 43% saying it should do more....

A more precise verdict would be that the majority of the country remains slightly right of center when it comes to supporting lower spending, decreased debt and smaller government. But America appears to have shifted left of center in allowing more liberal policies on drugs and the institution of marriage. So, left on social issues and right on economics. If you eliminated the desire to tax the rich, it would sound like we had a center-libertarian nation.

Rainey’s conclusion is reinforced by the fact that a plurality of Americans remain opposed to Obamacare, the most important expansion of government in recent years, even after the GOP’s attack on the law was hobbled during the election by virtue of the fact that the party nominated a candidate who could not criticize the law’s most unpopular component, the individual health insurance mandate.

As I have pointed out previously, there is a big difference between the kind of “center-libertarianism” that much of the public subscribes to, and actual full-blown libertarianism of the sort committed libertarians would embrace. But these survey and referendum results do suggest that public opinion could be mobilized to oppose further expansions of government and possibly to support significant reductions in regulation and spending from today’s extremely high levels. It is too early to say whether “center-libertarianism” is the political wave of the future. But it at least seems to be a potentially viable political strategy. At the very least, the evidence suggests that the public is not sold on either the liberal or conservative versions of activist government.

Although we don’t yet have absolutely final totals, it looks like Libertarian Party candidate Gary Johnson, the former Republican Governor of New Mexico, got just under 1% of the popular vote. This is the best total for a libertarian candidate since 1980, when the party’s nominee got only slightly more than Johnson. I was wrong to predict that he would do only a little better than Bob Barr in 2008. In fact, Johnson more than doubled Barr’s percentage of the vote. That’s a testament to Johnson’s public appeal. That said, I still think I was right in my broader critique of Johnson’s candidacy and the Libertarian Party in general: that it isn’t an effective way to promote the libertarian cause.

Although Johnson did much better than any other LP nominee in decades, there’s no evidence that it converted any significant number of people to libertarianism or attracted substantial new public attention to libertarian ideas. I watched four or five hours of election coverage on several different networks on election night (mostly CNN, Fox, and NBC). I didn’t hear Johnson’s name or the Libertarian Party’s mentioned even once. I’m sure if you scour the transcripts of all the network coverage that day, you can probably find a few references to Johnson somewhere. But, as far as the media was concerned, his campaign barely existed. You can blame this on media bias, ideological prejudice, manipulation by the major parties, and other nefarious forces. But the hard reality is that the media pays little or no attention to third party candidates unless the nominee is a famous celebrity (Ralph Nader), or can spend gargantuan amounts of his own money (Ross Perot), or was a big-time major party politician to an even greater extent than Johnson (e.g. – George Wallace in 1968). And that’s just one of many obstacles to developing an effective third party in the US political system, which is structurally tilted in favor of the two biggest parties. I describe some others in my postmortem on the LP’s 2008 campaign.

Given these realities and the failure of the LP to have an effective impact throughout its forty-year history, libertarians would be better advised to advance our cause by other means. Johnson himself might have done better if he had run for New Mexico’s open senate seat as a Republican. I can understand his and other libertarians’ frustration with the Democrats and the GOP, including with regard to the shabby treatment that Johnson got when he ran for the Republican nomination. But the misdeeds of the major parties don’t change the reality that the LP is a poor vehicle for promoting libertarianism. Working to make the major parties more libertarian from within is a much better strategy. Such groups as the Religious Right, labor unionists, gun rights advocates, civil rights activists, and feminists all considered third parties at various times, but ultimately realized they would do better to work within the major ones. The lessons of their experience apply to us.

Nick Gillespie argues otherwise in this post. Much of what he says about the shortcomings of the major parties is true. But notice that he doesn’t provide any evidence that the LP has been effective in the past, or is likely to become so in the future.

This is not to say that all libertarians should drop everything and become Democratic or GOP activists. Party politics is far from the only way to promote libertarianism. As I have emphasized in earlier posts on this subject (e.g. here and here), libertarians have also sometimes had success in working to change public and elite opinion in other ways. If you don’t like partisan politics, you can still promote liberty by doing scholarship, blogging, policy analysis, public interest litigation, engaging in activism on specific issues such as drug legalization, or just simply working to persuade your friends and relatives that the nation would be better off with a smaller government. And that’s far from an exhaustive list. The point is not that major party politics is the only way to be effective, but that third party politics is usually ineffective. It’s long past time that libertarians fully internalized that lesson. Most in fact already have. But the LP does still include some capable libertarian leaders, activists, and donors. These people are well-intentioned and in many ways admirable. But their efforts would have a bigger payoff if directed elsewhere. Compared with our liberal and conservative rivals, we have only very limited resources. We can’t afford to squander them on political dead ends.

All of the major networks have called the election for Obama, and it’s pretty obvious that he’s going to win, even though the Romney campaign has not yet officially conceded. It’s an impressive political achievement for the president and his supporters, especially if (as now seems likely), he does better in the popular vote than most national polls predicted. The Democrats also scored an important success in retaining control of the Senate in a year where the GOP hoped to make significant gains.

For me and most other libertarians, this election was always a choice of evils and I shed few tears for Mitt Romney. But I do think he was the lesser of the two evils on offer this year. Obama’s reelection will likely have at least two major negative consequences from my point of view. First, Obamacare is likely to stay in place. Although it remains somewhat unpopular – as shown the by the president’s reluctance to bring it up in the campaign – he is going to hold onto it successfully. Second, Obama will get to replace any Supreme Court justices who retire or pass away during the next four years. With four justices in their mid to late seventies right now, there’s a real chance he will get at least one or two more nominations. All conservatives and libertarians can do is hope that Justices Anthony Kennedy (76 years old) and Antonin Scalia (also 76) will remain healthy and uninterested in retiring. But even if Obama gets to replace one of the liberal justices, such as Ruth Bader Ginsburg (79), there’s a big difference between a justice who probably has only a few years left to serve, and a much younger one who could stay on the Court for 25-30 years or even longer.

On the other hand, the GOP did retain control of the House of Representatives, so divided government will continue. Other things equal, divided government helps restrain the growth of the state. And exit polls show that a strong majority of Americans believe that government is “doing too much.” Whatever mandate Obama may have, it is not a mandate for increasing the size of government, or perhaps even one for keeping it at its current bloated size. In considering Obama’s victory, it’s important to remember that a close win akin to the GOP victory in 2004 was roughly in line with projections from standard electoral models based on the state of the economy. Although the state of the economy was poor, it was on just enough of an upward trend relative to 2008 to give Obama a better than even chance of winning. When the final vote results are tallied, it may turn out that Obama has outperformed historical expectations; but probably not by a large margin.

Thus, it’s not out of the question that Obama’s second term will result in a “grand bargain” with the congressional GOP under which spending is cut substantially, while revenue is increased primarily by eliminating deductions rather than by raising tax rates: the famous proposal put forward by the Simpson-Bowles Commission. Obama will, I am sure, insist on raising tax rates “on the rich,” and probably get his way on that, at least to some substantial degree. But that might be a tradeoff worth making if it’s accompanied by major spending cuts. On that front, it’s worth noting that Obama and the Democrats are more willing than the GOP to cut defense spending, which even relatively hawkish libertarians like myself believe is necessary. That said, Obama’s victory probably will preclude – at least for some time – the kinds of major constraints on entitlement spending that Republicans such as Paul Ryan have been advocating, which is a big negative.

I also hope that the president turns out to be right in his prediction that the election results will lead the GOP to agree to a deal on immigration reform.

In addition to immigration reform (which seems surprisingly popular according to exit poll results I saw on CNN tonight), such libertarian causes as property rights and drug legalization also gained ground tonight, according to referendum results. Colorado and Washington just voted to legalize marijuana.

On balance, Obama’s reelection involves far more negative consequences for the cause of limited government than positive ones. If I thought otherwise, I wouldn’t have opposed it in the first place. But the political struggle over the role of government in our society is far from over.

UPDATE: I should emphasize that I’m not making any confident political predictions here. I think it’s possible there will be a fiscal “grand bargain” that is an improvement on the status quo from a libertarian point of view. I also think there’s a reasonable chance that we will get bipartisan immigration reform. But either or both could well go the other way. I have somewhat greater confidence in my negative predictions: that Obamacare will survive and, of course, that Obama will get to fill any Supreme Court vacancies that might arise between now and 2016. But both of these points are pretty obvious.

From the little information available out there, it looks like Libertarian presidential candidate Gary Johnson is getting about 1% of the vote, and doing so pretty consistently nationwide. This constitutes the Libertarians’ best showing since 1980, when they had a well-funded campaign (unlike this year) thanks to self-funded VP candidate David Koch, and also received 1% of the vote. Ron Paul, when he ran as the Libertarian candidate in 1988, only managed to pull in about .5% of the vote.

What this shows, I think, is that Johnson is a talented politician–something that should have already been apparent from his two terms as a Republican governor in blue-state New Mexico. Instead of ignoring him, scheming to ban him from the debates, and so on, the GOP should have embraced Johnson and used his energy and talents to their advantage once he was inevitably eliminated from the GOP primaries. Instead, they drove him to the LP. It’s too bad on both accounts. For the GOP, I could see Johnson being a Rand Paul type figure, but more popular among the secular, urban types that normally get turned off by the GOP. Meanwhile, Johnson ha doomed himself to marginality by hitching his star to the LP.

Like Ilya and Randy, I wish the LP would close up shop, and its activists devote themselves to libertarian causes in other ways. Unfortunately, Johnson’s reasonably good showing is likely to delay that day.

Well-known libertarian scholars Richard Epstein and Glen Whitman have recently weighed in on a question that has been much-debated in the blogosphere: Who, if anyone, should libertarians support in the presidential election. Epstein argues that we should support Romney as the lesser of the two available evils:

In the final countdown to what promises to be a close election, the libertarian finds himself without a comfortable home in either political party. Political parties and their presidential candidates offer market baskets of policy prescriptions on a large array of different issues. We do not have the option of picking out from each basket the policies that we like and rejecting the rest. Politics do not come served a la carte in our two-party system....

Though no libertarian can take comfort in the blurry Romney campaign, the scorecard does tip in his balance. The state of play nationwide on social issues is decidedly mixed, with too much intolerance on both sides. But on economic issues, the one confident point is that in an age of bloated government, the correct vote goes to the party, when the campaigning is mercifully done, that is more likely to limit the rate of government growth, if not shrink the size of government altogether. This election cycle, that party is the GOP. It is time for a change from Blue to Red, from Obama to Romney.

Epstein’s analysis of the Romney vs. Obama tradeoff is in many respects similar to mine, though I am less convinced about Romney’s superiority than he is. Epstein also makes an important point about social issues. While conservative Republicans are very bad in this area from a libertarian point of view, liberal Democrats also favor many types of social regulation, some of which are just as intrusive as those favored by Republicans. He mentions the HHS contraception mandate as an example. He might also have mentioned the much larger example of the Obama Administration’s expansion of the War on Drugs (which I noted in my own Romney vs. Obama post). If the Democratic Party really were there party of laissez-faire on social issues, it would be much more appealing to libertarians. But much of the time, it simply isn’t.

Glen Whitman argues that libertarians in swing states perhaps should support the lesser of the two major-party evils. But in the other 35 or so states, they should vote for Libertarian candidate Gary Johnson:

[I]f I were in a swing state where conceivably a group of libertarian-minded voters could affect the outcome if they all voted together, I would hold my nose and vote for one of the two major party candidates.

According to the New York Times electoral map, only 7 states are considered “toss-ups”: CO, FL, IA, NH, OH, VA, WI. To these, you might add the 8 “leaning” states: ME, MI, MN, NM, NV, PA (for Obama), AZ and NC (for Romney). If you’re a libertarian voter in one of these 15 states, then I have nothing useful to tell you.

But that leaves 35 states that are solidly in the Democratic or Republican camp, with a combined eligible-voter population of over 136 million (about half that number voted in 2008). None of these states would by any stretch of the imagination get tipped by your vote-of-exaggerated-size. In these states, there is no good reason to vote for Obama or Romney. You can vote your conscience with no fear that your conscience will have doomed our country to the greater of two evils.

And fortunately, there is an excellent vote-of-conscience choice available this year: Gary Johnson. Imagine if everyone like us (that is, libertarians in non-swing states) voted for Johnson. If even 1% of voters were in this category, Johnson would get over a million votes — which might actually be enough to get some attention, and maybe establish a beachhead for another run in 2016.

Whitman’s position is very reasonable. Although I disagree with Johnson on some issues (such as the Fair Tax and foreign policy), I think he’s much better than either Romney or Obama. In my view, the real problem with supporting Johnson, even in a non-swing state, is that third party politics is a poor strategy for promoting libertarianism. I worry that a relatively strong showing by Johnson would lead libertarians to invest additional resources in the Libertarian Party instead of in other efforts to promote liberty that are likely to be more effective. Obviously, this calculation would change if the LP does well enough that they have a serious chance of displacing one of the two major parties in the foreseeable future. But I see little if any chance of that happening.

Finally, it’s worth noting that, even if you live in a non-swing state, there is a very small chance that your vote will make a decisive difference in a presidential election. In this interesting article, Andrew Gelman, Nate Silver, and Aaron Edlin estimated that the chance of casting a decisive vote in 2008 was about 1 in 10 million for voters in several swing states, and an average of 1 in 60 million for the nation as a whole. In some non-swing states, it could be 1 in 100 million or 1 in 200 million. Those are extremely low odds. But, as I explained here, even those low probabilities might make it rational to vote for the lesser of evils if you think the difference between the two is great enough. Moreover, if the odds of affecting the outcome between the two major parties are extremely low, the odds of casting a decisive vote for Johnson in terms of “sending a message” are even lower. While there are situations where one additional vote might make the difference between victory and defeat for Obama or Romney, there probably isn’t any situation where adding one additional vote to Johnson’s count makes the difference between sending an effective libertarian message and not sending one. The only possible exception is that, if Johnson gets 5% of the national vote, the Libertarian Party would qualify for federal matching funds in the next presidential election.

UPDATE: I originally misidentified Glen Whitman as a legal scholar. In reality, he’s an economist. I have now corrected the mistake.