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Election Thoughts:

This is the most depressing presidential election for a libertarian since 1972. Maybe it's worse than 1972, because that year one could, with good conscience, vote for Libertarian candidate John Hospers. This year, the Libertarian candidate is embarassing. And Ralph Nader has become a parody of the man who once supported some forms of deregulation because it benefitted consumers. I find virtually nothing to admire about John Kerry. W. deserves credit for a certain steadfastness in the War on Terror, but his administration is suffused with the sort of hubris, sense of entitlement to power, and belief in the ameliorative powers of government action (in both the foreign and domestic realms) that one normally associates with the worst types of statists. And let's not forget the Administration's blatant lies about the cost of the Medicare law, and Karl Rove's apparent plan to drive all well-educated, secular folks out of the party in exchange for the votes of the most ignorant elements of the fundamentalist community, a traditional Democratic stronghold. I am concerned about the future of the Supreme Court, but I expect that Bush would most likely appoint a "moderate" and easily confirmable Latino who could help woo voters to the GOP side than appoint a principled believer in the American constitution.

The Republican Congress, meanwhile, has proven worse than a disappointment; it's a disaster of monumental proportions. Congressional Republicans, as a group, have but one goal, and that's to wield power. The current Congress makes the corrupt Democrats of the O'Neil-Wright era look like great statesmen. Unfortunately, I don't see any evidence that the Democrats would be better (whatever happened to the "reform" wing of the Democratic Party? Did it die its final death when Robert Reich was expelled from the Clinton Administration for talking too much about corporate tax breaks and other special interest giveaways? Can you believe that every single House Democrat voted for the obscene farm bill, which redistributes income upwards?), and can easily imagine them being worse, by, for example, turning the entire health care industry into a nationalized playground for Democratic interest groups. Congress has become a wholly owned subsidiary of special interests, and that suits its Members just fine.

So forgive me if I haven't been able to drum up enthusiasm for blogging about this election. As has been the case for years, I'm much more concerned with the general intellectual climate than the results of this election, as this climate dictates the range of politically feasible government action. And with neither party even giving lip service to limited government in any given sphere (with the exception of Democrats and abortion), the climate is bad indeed.

Bernstein for President:

This morning, I was still unhappily contemplating whether to vote for Bush or Badnarik (the Libertarian) when my wife (who has Democratic tendencies), told me that she was so disgusted with the candidate selection that she was going to write in my name, and that I would make a better president than any of them (thanks, honey!). At that point, I decided that if my wife had such faith in me, I should at least acknowledge it by writing myself in for president as well. And, to reciprocate, I wrote her name (Sigal Bernstein) in for vice-president (she did so as well, but, being a newlywed, forgot that her legal name is now Bernstein. Oops.). So, Virginians, I would announce an unofficial, last-minute write-in campaign, but that might violate federal election law. But remember, the Republicans, Democrats, Libertarians, and Constitutionalists are not your only options!

UPDATE: Several readers have written in to point out that it would be unconstitutional to have a president and vice-president from the same state (though apparently husband and wife is O.K.) [Correction: It's unconstitutional for electors to vote for a president and vice-president who are both from their stat.] Damn!

It's a Question of the Separation of Everything and State:

The Volokh Conspiracy and I are featured prominently in this post-election column in the Newark Star-Ledger. Money quote:

That idea [that the Federal Government should embrace "traditional values"] is anathema to those who take the Constitution seriously. It's not simply a question of separation of church and state, said Bernstein, but "a separation of everything and state." The conservative idea of limited government has been all but abandoned by Bush, Bernstein said.

Barry Goldwater, Annoying Libertarian?:

Steve Bainbridge manages to write Barry Goldwater out of the conservative movement. Only "annoying libertarians," you see, think the federal government has no business dictating morality to the public, or thinks it's beyond the government's constitutional power to do so. I still remember back around 1981, when Goldwater was told that Jerry Falwell said that "all good Christians" should oppose some vote or other of Goldwater's. Goldwater responded along the lines of "I think all good Christians ought to kick Jerry Falwell in the ass." We could use more of such sentiment these days. Unfortunately, many Christian "conservatives" only support limited government when they are out of power, as is amply indicated by this William Bennett column calling for federal legislation to "promote a more decent society." I actually do see plausible a reason to sympathize more with right-wing Christian statists than with left-wing secular statists--the moral issues Christian activists want to regulate tend to have more externalities attached to them than the economic activities left-wingers tend to get agitated over (though gay marriage is a huge exception). But statism, especially when it manifests itself in a lust for federal power, is against the American conservative tradition, and you don't have to be an annoying libertarian to see that.

Autobiographical Note: Steve Bainbridge's post, discussed below, cites Russell Kirk's famous insult of libertarians as "chirping sectaries." This reminded me of my college days, when I was testing out various political philosophies. I decided to spend Spring Break (yes, it was a wild college life for me!) reading the three books National Review consistently referred as the foundational works of modern conservatism: Kirk's almost unreadable and unedifying The Conservative Mind from Burke to Eliot; James Burnham's racist and imperialist Suicide of the West; and Whittaker Chambers' meandering and hallucinatory Witness. I was, not surprisingly, sorely disappointed. Around the same time, I received my first Laissez-faire Books catalogue, and started reading Hayek, Nozick, Rothbard, and, especially, Milton Friedman (unlike many libertarians who get their first inspiration from Ayn Rand, I didn't read her until much later). I started calling myself a "libertarian-conservative," and the rest is history.
Dissing Your Partners: Ordinarily I would rise to the bait provided by Professor Bainbridge in his post Those Annoying Libertarians. But I have learned that blogging requires not only the time it takes to compose a post. It also involves the time it takes to read email responses, responses by other bloggers, and then to reply. Because I am spending the weekend preparing for my first moot court on Ashcroft v. Raich next week at Georgetown (which is closed to the public), I cannot take the time to start something here that I cannot finish. I look forward to returning to blogging in December.

But let me offer a brief word of advice to social conservatives AND libertarians. In a 2-party, winner-take-all, first-past-the-post electoral system, a winning "major" party represents a coalition of voters needed to get past 50%. The marginal voters needed for that goal are important, as are the inframarginal voters. (In proportionate representation, parliamentary systems, winning coalitions are formed among factionalized parties rather than among voters in the electorate.)

Social conservatives are most certainly a part of the winning Republican majority and their interests and concerns must be respected and operationalized consistently with preserving the coalition. So are libertarians. The very fact that the Libertarian Party drew so few votes is evidence that libertarians who vote largely voted for the major party candidates.

I believe that libertarians were in both camps this time around. Of those who did not vote Libertarian, anti-war libertarians who believed that divided government was better to control federal power and spending supported Kerry. They also may have preferred Kerry as better for protecting civil liberties. Those libertarians who support the administration's strategy for fighting the war against radical islamicists, including the battle for Iraq, and perhaps also its proposals for private social security accounts, Medical savings accounts voted Bush. They may also prefer Bush's prospective judicial nominations to Kerry's (or not). Be this as it may, many thousands, if not millions of libertarian-leaning voters supported the President as part of his winning coalition.

It ill-behooves one constituent of a winning coalition to gratuitously insult another member. Disagree with, even passionately, yes. Belittle and ridicule, no. Doing so is a recipe from reducing a winning coalition into a losing one. All coalitions are subjected to this internal tension. Successful ones find ways to resist it by stressing what all coalition members have in common, as compared with their political opponents.

My advice goes to libertarians (a misquotation of one of whom provoked Professor Bainbridge) who want to be a part of this coalition, as well as conservatives, social or otherwise. The Federalist Society, which is itself a coalition of conservatives and libertarians understands this strategy well.

My own view on how to maintain the winning coalition is Grover Norquist's: the "leave-us-alone" strategy, which happens to fit our original Constitution (as amended). This entails leaving gay marriage (which I support) to the states, and the substance of public school curriculum (including moments of silence and pledges of allegiance) to locally-elected school boards. (My only exception would be for when the liberty of adults is at stake as in Lawrence v. Texas, but we have debated this before and I won't be drawn into another debate over this issue right now. I am just identifying this area of disagreement I have with some conservatives.)

With that, I have already spent more time composing this post than I intended and said more than I can back up in the next few days. I leave further comments on this issue in the capable hands of my fellow bloggers here and elsewhere.

PS: AUTOBIOGRAPHICAL NOTE: As a seventh grader, I debated on behalf of Barry Goldwater in front of my entire junior high school student body in the heavily Democratic town of Calumet City. And, like David, I came to libertarianism first through Rothbard, not Rand.

Update: I am happy to post this email from the reporter who wrote the story in which David was quoted:

You seem to be accusing me of misquoting David Bernstein.

That would be news to him. In his recent e-mail to me he affirmed the quote about the separation of everything and state and in fact seemed justifiably proud of it.

As for the paraphrase that follows, that was an accurate summation of his phone discussion with me about the abandonment by the Bush administraion of the limited-government reforms embodied in the Contract with America.

The paraphrase preceding the quote was not attibuted and was my own view.

Paul Mulshine
Correction noted. Another reader writes:

Yes, leave gay marriage to the states. But what about the notion that getting married in one state transfers the full rights, benefits, etc. to another state when the newlyweds decide to move? Isn't that the legal reason for a federal marriage amendment?
I agree which is why I would support a constitutional amendment that upholds the Defense of Marriage Act that leaves the decisions to the states, while opposing a constitutional amendment that adopts a national constitutional definition of marriage.

PS: The time-consuming nature of this sort of healthy and constructive exchange is exactly why I have not been blogging lately and probably should not have blogged today.

Update: Excellent post by Infidel Cowboy on This Whole Reaching Out Business.

Advice to Republicans: From John Tabin in the American Spectator:
As John Fund has noted, the dark spot on the GOP's election came in the state legislatures, where increasing polarization flipped the balance in the Democrats' very narrow favor. "Republicans shouldn't forget that their new dominance is tenuous and is unlikely to last if the party remains uncompetitive on both coasts," writes Fund, and he's right. Governors like Arnold Schwarzenegger in California, Linda Lingle in Hawaii, and Bob Ehrlich in Maryland are successful at sticking to Republican principles on economic issues even as they sit across the divide on cultural issues, but they all face solidly Democratic legislatures -- which this election has made even more solidly Democratic in the former two cases (Maryland did not elect state legislators last week). State Republican parties, it seems, are having trouble striking the balance necessary to win in Blue territory, particularly during a presidential election year.

Federalism lights the way out of this conundrum. The recognition of gay unions should be entirely a matter for the states, and state parties should be free to differ as to the proper political approach; if a constitutional amendment is necessary, it is to restrain the courts rather than to define marriage for the nation. (Senator Orrin Hatch was toying earlier this year with introducing an amendment that would be ideal.) Likewise, the overturning of Roe vs. Wade ought to be the end-point of the pro-life movement on the federal level; abortion after Roe should become -- as it was before Roe -- a state matter.

I'd better admit that I'll be on the opposite side of many conservatives in these state-level battles: I favor gay marriage, and though I'd love to see a judiciary that would overturn Roe, a proxy for so much judicial mischief, I'd prefer to see early-term abortion stay legal. But we'll remain bound on foreign policy and economic issues in a strong Republican coalition despite our differences. And that's the point, isn't it?