Caryn Ann Harlos: Libertarian Rights and Discrimination

Bake the CakeThis is a position paper Caryn Ann wrote last year as a result of numerous debates with the late Dr. Feldman. She reports that for various reasons, including time constraints, and involvement with other issues, she had delayed publishing it. Due to recent “bake the cake” controversies, she asked that I review and publish it on her behalf.

She writes: “I do so with hesitation as Dr. Feldman is no longer with us to defend his positions. I feel I treat his views with respect and that what follows serves, in part, to honor and memorialize his tremendous heart and caring for people, and in that, we each have a very, very heavy heart at his passing.”

Liberty can be killed with the best of intentions. The desire to oppose bigotry and irrational prejudice is, in my mind, absolutely one of the noblest impulses we can have. However, as with many noble impulses, it is one that must be pursued with the concurrent possibility that it may not be chosen freely by others—and we cannot force them.

Liberty can be killed with the best of intentions. The desire to oppose bigotry and irrational prejudice is, in my mind, absolutely one of the noblest impulses we can have. However, as with many noble impulses, it is one that must be pursued with the concurrent possibility that it may not be chosen freely by others—and we cannot force them.

I find myself having to address this topic due to several problematic statements made by 2016 Libertarian Party Presidential candidate Dr. Marc Allen Feldman.[1] The first of these is as follows:

“Prejudicial discrimination, when it has the force to decrease perceived personal value, can be seen as an unacceptable aggression under the NAP [non-aggression principle].” [2]

And:

“[D]iscrimination based on prejudice is an aggression, unacceptable under the NAP.”

When addressing unacceptable aggression, a libertarian will generally ask if the rights being asserted are negative rights or positive rights.[3] Simply put, a negative right is something a person inherently possesses with others having no obligation to “fulfill” that right, only to refrain from using the initiation of force or fraud against it. These negative rights are generally stated to be life, liberty, and property. Conversely, a positive right creates an obligation to actively do something or refrain from doing something that someone otherwise would have a right to do in order to “fulfill” this right of another.[4] A consistent application of libertarian principles results in a denial of inherent positive rights and resolves that such obligations can only be consensually and voluntarily assumed.[5]

With this in mind, what kind of rights is Feldman asserting? On one hand, in the first example, it appears that negative rights are being expanded to include a person’s internal abstract self-value with the concurrent broadening of the definition of aggression to include an entirely subjective experience of diminishment by the exercise of the autonomy of another. These both fail on logical and libertarian grounds and thus are a de facto argument for a positive right. If one contends that the right to unblemished self-esteem is in fact included in life, liberty, and property, then wouldn’t any negative criticisms of a person (such as say… a negative Yelp review) be acts of unacceptable aggression? Are they not considered such solely because we have determined that prejudice is not based on truth and those actions might be?[6] Is it now the libertarian enterprise to determine a priori what mental opinions and beliefs (including religious beliefs) we will allow people to have and express lest they be committing aggression? Additionally, why is diminishment of self-esteem an aggression only when it is based on prejudicial discrimination? Is not my self-esteem just as harmed if someone belittles me because they are an anti-social jerk? Does my self-esteem only count when it is part of some group that shares the same experiences? What happened to the supremacy of the individual? Isn’t this just “hate crime” under another label? If this expansion is unwarranted, and I submit that it is, Feldman is creating a positive right by claiming that one person has the obligation to maintain or refrain from doing anything to diminish another person’s subjective personal perception of value or be guilty of aggression. In the second example above, a positive right is clearly being asserted as he implicitly claims a right to be served and to benefit from the labour of another person (or to be given something, such as a job) regardless of their lack of voluntary assent and consent.

This has implications far beyond the distasteful right of a bigot to deny service or refuse to hire. What about the right to speech that might be offensive to another person but is not a credible threat against an actual negative right? Is this now aggression? Isn’t this precisely the progressive motivation for censoring all manner of speech under the banner of “micro-aggressions”?

Feldman has further stated that the refusal to bake a cake is unacceptable aggression (he also says true and valuable things in this statement as well which is why I included to in the interest of full fairness—emphasis added again to show the connection made between the obstinate Christian bakers and unacceptable aggression):

“I believe that racism has an important role in the disproportionate affect on the black community of police brutality, mass incarceration, unemployment, poor education, poor healthcare, drug addiction, abortion, crime and violence. And every act of prejudicial discrimination, including refusing to bake a cake or serve food at a lunch counter, adds in a small way to the irrational prejudice endemic in our culture. It is not a role for government intervention, not because the aggression is acceptable, but because government only makes the situation worse. The solution is to recognize prejudice and fight it though interaction, mutual understanding, and economic cooperation.”

To address the objectionable portion first, I ask: Is it now mandatory under libertarian principles for a person to serve another person against their rights of association and self-ownership or be guilty of aggression because…culture? Including custom luxury items such as cakes?[7] What negative right is the baker violating? What ownership claim do we have over other people to state that they are aggressors when they peacefully refuse to allow their bodies and labour to be used in the service of another?[8][9] This isn’t getting deep into the libertarian weeds; this is Liberty 101.

It is also worth noting that unless Feldman is going to state that no one, at any time, has the right to refuse to serve another person, he is also creating a category of thought crime in which our rights to associate/disassociate and use our bodies depend entirely upon our personal reasons in making those choices, leading to the idea that some preferences and choices cause us to forfeit the non-violent exercise of those rights. I can decide to refuse to bake a cake if I arbitrarily decide that I will reject the tenth customer that week and be innocent of any aggression, but I cannot perform precisely that same physical act of refusal if my internal reason is that I don’t like the ethnic background of the customer. The only difference is my state of mind, and potentially… words.[10] I would also note that in the context of a business, the customer is asking the businessman to do something for him in return for something else of value. If we say that the businessman has no right to refuse, we have torpedoed any meaningful concept of voluntary exchange. Why should this change simply because we are talking about a business arrangement rather than say, a relationship? Is a potential love interest committing aggression when she tells her suitor he isn’t [insert whatever] enough? Or she doesn’t date a particular race? Or is only interested in men? Does this change if the subject is paid sex work? Many rejected would-be partners can attest that this can lead to an existential crisis of self-value… murders are committed over such slights.

I stand together with Feldman in stating that racism and bigotry is often the motivation for actual aggressive acts (such as police brutality and violence against gay persons and black persons), but it is not the bigotry that is the aggression but the additional forceful/aggressive/brutal/fraudulent act against an actual negative right. Libertarians can have every reason to oppose bigotry because it is ignorant, not conducive to human flourishing, and a catalyst for inspiring actual aggression and crimes—as well as believing it is personally immoral, as I do—pyrotechnically so.[11] We, however, have no right to deny that other people have the natural right to peacefully use their own wills, bodies, and property to refuse service or not hire another—we can simply choose to avoid and shun them from our personal and economic lives and do so in a mass organized fashion.[12] We do not get to deny individual rights on the basis of the potential collective. Feldman has asserted positive rights, illegitimately expanded a negative right, and redefined aggression to also include contributing to negative cultural attitudes and diminishment of self-esteem. This, if taken to its logical conclusions, is fatal to individualistic libertarian freedom.

In addition to the idea that prejudice can and does motivate actual aggression, I do not deny that even simple discriminatory acts can cause actual harm. I do deny that these harms violate actual negative rights. For instance, if I seek a job and the employer is a hardcore Republican who irrationally hates Libertarians, particularly pinked-haired female ones who write on political blogs, I am harmed by not getting a job I needed. I would feel persecuted and hurt but my negative rights would not be violated. My confidence might be shot in trying for the next job. If he then makes a Coulterian gesture and drowns me because I am a Libertarian, then that aggression is the rights/NAP violation, not the thought crime of hatred of non-conformist outspoken women.

An additional point of strong agreement with Feldman arises when he states that peaceful means is the strategy to combat bigotry. However, I submit that his position regarding its violation of the NAP is incoherent with a libertarian conception of initiatory aggression.[13] If discrimination is aggression, its victims deserve justice against the aggressor or they are victimized again. While it may be impracticable to insist that the government/state assume that role due to the fact that there is no consensus on this act, there is no logical reason why this would not be the case in the future if there were consensus, or presuming an anarchistic scenario, why persons should not be able to seek private justice using defensive force. Would the only reciprocal remedy be to decrease the bigot’s perceived personal value? How could one do that? Their perceived personal value might be increased by such attentions. Why wouldn’t the victim be able to claim monetary damages?

The actual motivation for Feldman’s reasoning comes through in this statement about his admirable desire to reach a great diversity of people with the message of freedom:

“I do not think they can be reached by those who think there is a right to discriminate on the basis of prejudice.”

It is impossible to reach people with a genuine message of libertarian rights unless those rights are coherently and consistently taught.[14] If there is a positive right to service, jobs, an affirming culture, and self-esteem, it is not a great jump to believe there is a positive right to medical care, education, roads, etc. nor to simply redefine things such as medical care as within the umbrella of negative rights. Surely food and medicine are much more essential to life and flourishing than self-esteem. If my newfound negative rights to self-esteem and an affirming culture can be violated by someone’s refusal to respect me as their equal (really, why limit it to businesses), then surely aggression occurs when I need food or medicine, and they refuse to provide it.

People know when they are being sold a bill of goods, and they generally resent it once they figure it out. Soft-selling libertarian ideology will always backfire—in the face of libertarianism.[15]

No doubt this is the third rail of American politics. But then again I agree with other Libertarian commenters that we must expect up-ticket Libertarian candidates to be willing to step on them.[16] Does this mean we must “celebrate” and wave the flag for bigotry? No. Ten million times NO. We do not celebrate prejudice any more than we celebrate the right to engage to willingly self-destruct through narcotics or when people coldly refuse to help others through charitable voluntary means. To bastardize an aphorism: I do not agree with what you are doing and think you are a terrible person, but I will defend to the death your right to do it.

If anyone has read this piece and has come to the conclusion that I approve of discrimination or bigotry, or that I am stating that Libertarians should not use every peaceful means at their disposal to combat it, then let me set that straight. I loathe bigotry with every fiber of my being. But the freedom of others to peacefully use their bodies, wills, property, and labour in a way that isn’t violative of anyone’s negative rights doesn’t require my approval. I do not own other people, bigoted or otherwise. Neither does anyone else.


[1]These comments were made in various public Facebook discussions. The second one was in the form of an official candidate Platform statement.

[2]I am operating from the definition of the NAP as described here as being one that most libertarians would agree on: https://wiki.mises.org/wiki/Principle_of_non-aggression

[3]I realize that there is a population of libertarians within the Libertarian Party who ground their philosophy differently, such as in preference utilitarianism. As a deontologist, I reject those groundings, but it is moot here, since Feldman is appealing to the NAP as an absolute standard without regard to how that belief/preference is grounded. There are Libertarians who would make different pragmatic arguments in favour of denying the right of private actors to discriminate. I sympathize with those arguments due to the stain of the national crime of institutionalized racist bigotry. My intention here is to argue pure philosophy. I realize that life isn’t always quite so “pure.”

[4]I am not stating anything particularly controversial here. The current Platform of the Liberty Party (2014) states (emphasis added):

3.5 Rights and Discrimination

Libertarians embrace the concept that all people are born with certain inherent rights. We reject the idea that a natural right can ever impose an obligation upon others to fulfill that “right.” We condemn bigotry as irrational and repugnant. Government should neither deny nor abridge any individual’s human right based upon sex, wealth, ethnicity, creed, age, national origin, personal habits, political preference or sexual orientation. Members of private organizations retain their rights to set whatever standards of association they deem appropriate, and individuals are free to respond with ostracism, boycotts and other free market solutions.

And I particularly want to highlight the portion that says we condemn bigotry as irrational and repugnant. It is perfectly coherent in a libertarian sense to acknowledge a right and still condemn the way some will use it.

[5]An excellent primer on the differences between negative and positive rights can be found here: http://www.learnliberty.org/videos/positive-rights-vs-negative-rights/

[6]It is tempting to compare these items with slander or defamation claims. It is far from certain to me that all such claims are automatically an aggression under libertarian principles. But even if we take slander and defamation to be aggressions for the sake of argument, truth and subjective sincere opinion are strong defenses. Prejudice and bigotry are often metaphysical opinions about relative worth and not susceptible to the kind of falsification that one would apply to a slanderous/defamatory claim such as “X was arrested for rape” with some kind of provable direct damages to an actual negative right.

[7]While I do not think it passes a strict libertarian test, one would have to be pretty cold not to have human sympathy for the idea that life necessities must not be refused. Despite my bleeding heart, I still cannot reconcile forcing people to surrender their self-ownership for a positive right. I have no problem with then showing such people a good organized dose of community disassociation to the point where Siberia might look attractive to them.

[8]There is an argument to be made that in common commerce there is an implied contract when one advertises/offers their non-personalized services/products for sale (such as a restaurant with a set menu or a convenience store, but not a custom cake baker or lawyer), and if they refuse when the offer is accepted on these public terms, then a breach of contract occurs—with whatever damages are appropriate. However, implied contracts can be made more specific by explicit actions on the part of the merchant OR the customer, and despite arguments to the contrary, one cannot force one side or the other into an implied contract without allowing them the freedom to make the terms explicitly limited, at least not in a libertarian sense. These terms would then be known to the community who could respond with market and social forces.

I do though reject this line of argument due to the fact that it is not reciprocal. A potential customer who announces they have $10 to spend on ten cans of Campbell soup is under no obligation of implied contract to buy from the first supermarket that that they walk into that is willing to trade with them and are free to walk out and go to another, even if their only reason is that they don’t like the ethnicity or lifestyle choices of the proprietor.

[9]This article also avoids the situations where there is arguably government collusion and illegitimate uses of political power to disproportionately target certain groups such as “redlining” or tightly regulated industries (that benefit and promote said regulation) with business practices of prejudicial treatment and yet are responsible for preventing dissidents of such policies from freely competing to provide these services. I avoid them as it was not the context of the quotes provided here, and because I agree there is aggression in using the force of the government to prevent competition and that this cannot always be so neatly parsed in an unfree world.

[10]I will anticipate an objection that Feldman has made before. He has asked if slapping someone’s face is always aggression since a doctor can do such an act to help a patient come out of some stupors. To claim that it is illegitimate to determine rights and aggression based solely on the state of mind of the actor is not in contradiction to affirming that context matters. If a random doctor found someone on the street suffering from some attack and slapped them with the intent of helping them, if they did not have that person’s consent (either through social custom, an authorized guardian, or explicit affirmation), then yes, there was a boundary-crossing against that other person who could choose to defend themselves or seek justice. It seems apparent in such a matter that any damages would be little to none. In a medical setting, such consent is subsumed in the relationship.

[11]Must a libertarian qua libertarian take that stance? No, it comes from values outside mere libertarianism. But this particular Libertarian does.

[12]See LP Platform 3.5 referenced above. This is also standard fare common from the “libertarian wing of the Libertarian Party” such as Mary Ruwart and Harry Browne.

[13]I have seen people try to finesse this position by underscoring the opposition to state intervention. That does not cure the assertion that this is aggression as defined by the NAP or the principle of self-ownership. Logically then, if a consumer refused to frequent a particular business due to prejudicial animus, they also would be committing aggression. This rabbit hole is bottomless.

[14]I would note that Feldman has indicated a desire to reach the Latino communities. The idea that persons can refuse to perform services that violate their religious beliefs is strong amongst many members of those communities. Further, those who would be turned away by a belief in a right to discriminate would not be thrilled with the idea that there is no right to do so but that the state should provide no succor. This is an irrational hope.

[15]Gary Johnson is even more off the libertarian farm with his undefended position in favour of forcefully preventing discrimination (Reason characterizes this solely in the context of gay persons, but Johnson’s actual comments are far broader.) See Reason Magazine, “Gary Johnson Supports Private Anti-Discrimination Laws Protecting Gays,” http://reason.com/blog/2014/11/21/gary-johnson-supports-private-anti-discr

[16]See Marc Montoni, “Why Hold Back if You’re Not Going to Win?” https://independentpoliticalreport.com/2015/05/marc-montoni-why-hold-back-if-youre-not-going-to-win/ and L. Neil Smith, “How Many Americans Does it Take to Change a Dim Light Bulb?”
http://www.lneilsmith.org/freedomsummit2.html

14 thoughts on “Caryn Ann Harlos: Libertarian Rights and Discrimination

  1. Joseph Buchman Post author

    I defend the rights of others to be jerks. I trust democracy in that sense — people voting with their dollars and feet regarding who to do business with. Government has no legitimate power to impact that – excepting those elected officials using the legitimate powers of persuasion and education (for those willing to listen) from their elected pulpits.

    I do wish Dr. Feldman was alive to engage in debate here or elsewhere on this. My daughter and I stood on our chairs cheering him on in Orlando. He was in THAT debate.

  2. Caryn Ann Harlos

    Rex, That was the impetus for me deciding to publish this despite Dr. Feldman’s passing. Dr. Feldman presented a reasoned argument.

  3. T Rex

    Since Johnson believes discrimination is a criminal offense, why not beef up affirmative action laws (which I believe he says he opposes)?

  4. Marc Montoni

    Well technically the LP platform “condemns” bigotry, but does not oppose it. It can’t oppose it because those who are bigots still retain their right to free speech regardless of what you happen to think of what they’re saying.

    The platform *does* call upon governments to treat all individuals without bias.

    ——————————————————-

    3.5 Rights and Discrimination

    Libertarians embrace the concept that all people are born with certain inherent rights. We reject the idea that a natural right can ever impose an obligation upon others to fulfill that “right.” We condemn bigotry as irrational and repugnant. Government should neither deny nor abridge any individual’s human right based upon sex, wealth, ethnicity, creed, age, national origin, personal habits, political preference or sexual orientation. Members of private organizations retain their rights to set whatever standards of association they deem appropriate, and individuals are free to respond with ostracism, boycotts and other free-market solutions.

  5. George Dance

    “We reject the idea that a natural right can ever impose an obligation upon others to fulfill that “right.” Ooh, I hate that. It looks like they’re trying to address the positive rights /negative rights distinction here, but this language does not capture that at all. In fact, every right imposes an obligation on others: if A has a (negative) right to life against B, eg, then B has an (negative) obligation: to not kill A.

  6. Shivany Lane

    Joseph Buchman, I tried to post a reply to this post. It would not take it my reply. Is it because you were “republishing ” the post?

    I miss Dr. Marc, I am not sure what the purpose of this post was given that it was a one sided article basically, however the person whose opinion was being presented, was not presenting the opinion. Also, was this in response to something in particular?

  7. Jill Pyeatt

    It doesn’t feel right that this was posted either, so soon after losing the very special Dr. Feldman.

    He certainly did have a different take on being Libertarian. I wish we still had time to watch him evolve, as I’m sure he would have continued to surprise us.

    I hope his family is coping. For some reason, that worries me a lot. I know they had another terrible loss I think last summer.

  8. langa

    I think one of my comments is getting caught in the famous IPR spam filter. Someone please check.

  9. Caryn Ann Harlos

    The article treated Dr. Feldman with respect. It was published because of current religious freedom controversies that are not being defended and Dr. Feldman presented a rationale… So in order to defend what I believe to be the libertarian position I interacted with someone who thoughtfully defended the position. This is about the position, and it is my intention to honour Dr. Feldman as someone who presented a reason.

  10. Caryn Ann Harlos

    And interacting with arguments IMHO shows someone has a legacy – that their arguments and words still matter after they are gone. I have such fond memories of Marc from convention and regret deeply that I didn’t get to serve with him these coming two years. Interacting with someone’s words go ours them as a thinker. I can only hope I’m still worth interacting with when I’m gone.

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