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Dr. Anthony Fauci: ‘Close the Bars and Keep the Schools Open’

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Dr. Anthony Fauci, an infectious diseases expert and top advisor to the White House on the COVID-19 pandemic, said that he was for closing bars and restaurants but reopening schools in an interview on Sunday.

“The default position should be to try as best as possible, within reason, to keep the children in school, to get them back to school,” Fauci told ABC News reporter Martha Raddatz, who noted that New York City public schools had recently closed down again due to rising coronavirus rates in the community.

While some on Twitter reacted as if Fauci had finally admitted some truth that he had previously denied, this is not really a new opinion: In May, when Sen. Rand Paul (R–Ky.) questioned the doctor about pandemic mitigation efforts, the two appeared to largely agree that a one-size-fits-all policy was the wrong approach, and that some school schools should open on a district-by-district basis. Still, with public schools not even attempting to reopen in many large city districts—including Washington D.C. and Los Angeles—it’s useful to hear Fauci state so clearly and unequivocally that this is misguided.

“If you look at the data, the spread among children and from children is not very big at all, not like one would have suspected,” said Fauci. “So let’s try to get the kids back and try to mitigate the things that maintain and push the kind of community spread we are trying to avoid.”

Public officials giving in to the increasingly unreasonable demands of teachers union leaders—many of whom expect schools to remain closed for at least another year—are not following the science. They are ignoring what’s best for the kids. And they certainly aren’t listening to Dr. Fauci.

 

 

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Dr. Anthony Fauci: ‘Close the Bars and Keep the Schools Open’

polspphotos739728

Dr. Anthony Fauci, an infectious diseases expert and top advisor to the White House on the COVID-19 pandemic, said that he was for closing bars and restaurants but reopening schools in an interview on Sunday.

“The default position should be to try as best as possible, within reason, to keep the children in school, to get them back to school,” Fauci told ABC News reporter Martha Raddatz, who noted that New York City public schools had recently closed down again due to rising coronavirus rates in the community.

While some on Twitter reacted as if Fauci had finally admitted some truth that he had previously denied, this is not really a new opinion: In May, when Sen. Rand Paul (R–Ky.) questioned the doctor about pandemic mitigation efforts, the two appeared to largely agree that a one-size-fits-all policy was the wrong approach, and that some school schools should open on a district-by-district basis. Still, with public schools not even attempting to reopen in many large city districts—including Washington D.C. and Los Angeles—it’s useful to hear Fauci state so clearly and unequivocally that this is misguided.

“If you look at the data, the spread among children and from children is not very big at all, not like one would have suspected,” said Fauci. “So let’s try to get the kids back and try to mitigate the things that maintain and push the kind of community spread we are trying to avoid.”

Public officials giving in to the increasingly unreasonable demands of teachers union leaders—many of whom expect schools to remain closed for at least another year—are not following the science. They are ignoring what’s best for the kids. And they certainly aren’t listening to Dr. Fauci.

 

 

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A Trump Judicial Appointee’s Blistering Opinion Is a Reality Check for Republicans Who Still Think Biden Stole the Election

Stephanos-Bibas-hearing-SJC

In a blistering opinion by a Donald Trump appointee, the U.S. Court of Appeals for the 3rd Circuit on Friday rejected the president’s challenge to Pennsylvania’s election results, saying his campaign had failed even to allege a cognizable constitutional claim. “Free, fair elections are the lifeblood of our democracy,” writes Stephanos Bibas, whom Trump picked for the appeals court in 2017. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

Appealing another scathing decision by U.S. District Judge Matthew Brann, the Trump campaign asked the 3rd Circuit to override Brann’s refusal to allow a second amended complaint. The appeals court says Brann did not abuse his discretion when he dismissed the case with prejudice, given the looming certification of Pennsylvania’s vote (which happened last Tuesday), the campaign’s “delays and repetitive litigation,” and the likelihood that the proposed complaint would be “futile.”

The Trump campaign argued that Pennsylvania’s election procedures violated the 14th Amendment’s guarantee of equal protection in two ways. First, Secretary of the Commonwealth Kathy Boockvar urged counties to let voters “cure” mistakes on their absentee ballots that otherwise would have been rejected. Some counties followed that suggestion, while others did not. Second, the campaign alleges that election officials in some counties kept poll watchers too far away from the vote counting to see what was happening.

The 3rd Circuit notes that neither of those practices violated state or federal law. Nor does the variation between counties amount to unconstitutional discrimination under the 14th Amendment, it says. “The Campaign tries to repackage these state-law claims as unconstitutional discrimination,” Bibas writes. “Yet its allegations are vague and conclusory. It never alleges that anyone treated the Trump campaign or Trump votes worse than it treated the Biden campaign or Biden votes….A violation of the Equal Protection Clause requires more than variation from county to county. It requires unequal treatment of similarly situated parties.”

The president and his personal lawyer, Rudy Giuliani, have insisted for weeks that Joe Biden stole the election through systematic voting fraud. Giuliani began a November 17 hearing before Brann by claiming “widespread nationwide voter fraud.” But he later conceded “this is not a fraud case,” noting that the campaign’s complaint “doesn’t allege fraud.”

Despite the campaign’s failure to even claim illegal voting, the appeals court notes, “the Second Amended Complaint seeks breathtaking relief: barring the Commonwealth from certifying its results or else declaring the election results defective and ordering the Pennsylvania General Assembly, not the voters, to choose Pennsylvania’s presidential electors. It cites no authority for this drastic remedy.”

Bibas pulls no punches in describing the arguments that the campaign wanted to make. “The Campaign’s claims have no merit,” he writes. “The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised.”

Although the campaign “suspects that many of the 1.5 million mail-in ballots in the challenged counties were improperly counted,” the 3rd Circuit says, “it challenges no specific ballots,” and “it never alleges that anyone except a lawful voter cast a vote.” Of the seven counties that were named as defendants because they allowed voters to cure their absentee ballots, “four (including the three most populous) represented that they gave notice to only about 6,500 voters who sent in defective ballot packages. The Campaign never disputed these numbers or alleged its own. Even if 10,000 voters got notice and cured their defective ballots, and every single one then voted for Biden, that is less than an eighth of the margin of victory.”

In short, the appeals court says, “The Campaign cannot win this lawsuit. It conceded that it is not alleging election fraud. It has already raised and lost most of these state-law issues, and it cannot relitigate them here. It cites no federal authority regulating poll watchers or notice and cure. It alleges no specific discrimination. And it does not contest that it lacks standing under the Elections and Electors Clauses. These claims cannot succeed.”

A Morning Consult poll conducted from November 6 through November 9 found that 70 percent of Republicans thought the 2020 presidential election was not “free and fair.” The results were similar in a Ipsos survey conducted a week later, which also found that 52 percent of Republicans believed Trump “rightfully won” the election.

To continue believing that, Trump supporters have to accept something like the following story. Democratic election officials in multiple battleground states conspired with the Biden campaign to deny Trump his rightful victory, assisted by Dominion Voting Systems, George Soros, the Clinton Foundation, and the Venezuelan, Cuban, and Chinese governments. That vast international conspiracy evidently also includes Bibas, appointed by Trump himself, plus the two other judges on the unanimous 3rd Circuit panel, D. Brooks Smith and Michael Chagares, both of whom were nominated by George W. Bush.

For no obvious reason, that scheme has been aided and abetted by Brann, described by Sen. Pat Toomey (R–Pa.) as “a longtime conservative Republican whom I know to be a fair and unbiased jurist”; all of the other judges who have been unimpressed by the Trump campaign’s legal claims; Republican election officials across the country; Republican members of Congress; and heretofore Trump-friendly news outlets such as the New York Post and Fox News. To believe this story, you would also have to accept that Giuliani, who says the conspiracy is “easily provable,” has solid evidence to back up his wild claims but for some reason has not managed to produce it in court.

The alternative to buying all of that is to conclude that Trump has refused to admit defeat, either for personal or political reasons, and has resorted to increasingly baroque explanations for Biden’s soon-to-be-official victory. That hypothesis is consistent with everything we know about Trump from his decades in public life, including his disdain for the truth, his enormous yet fragile ego, and his allergy to accepting responsibility. It is also consistent with the yawning gap between Trump’s public assertions and the claims his campaign has made in its lawsuits, which the 3rd Circuit’s decision highlights once again.

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A Trump Judicial Appointee’s Blistering Opinion Is a Reality Check for Republicans Who Still Think Biden Stole the Election

Stephanos-Bibas-hearing-SJC

In a blistering opinion by a Donald Trump appointee, the U.S. Court of Appeals for the 3rd Circuit on Friday rejected the president’s challenge to Pennsylvania’s election results, saying his campaign had failed even to allege a cognizable constitutional claim. “Free, fair elections are the lifeblood of our democracy,” writes Stephanos Bibas, whom Trump picked for the appeals court in 2017. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

Appealing another scathing decision by U.S. District Judge Matthew Brann, the Trump campaign asked the 3rd Circuit to override Brann’s refusal to allow a second amended complaint. The appeals court says Brann did not abuse his discretion when he dismissed the case with prejudice, given the looming certification of Pennsylvania’s vote (which happened last Tuesday), the campaign’s “delays and repetitive litigation,” and the likelihood that the proposed complaint would be “futile.”

The Trump campaign argued that Pennsylvania’s election procedures violated the 14th Amendment’s guarantee of equal protection in two ways. First, Secretary of the Commonwealth Kathy Boockvar urged counties to let voters “cure” mistakes on their absentee ballots that otherwise would have been rejected. Some counties followed that suggestion, while others did not. Second, the campaign alleges that election officials in some counties kept poll watchers too far away from the vote counting to see what was happening.

The 3rd Circuit notes that neither of those practices violated state or federal law. Nor does the variation between counties amount to unconstitutional discrimination under the 14th Amendment, it says. “The Campaign tries to repackage these state-law claims as unconstitutional discrimination,” Bibas writes. “Yet its allegations are vague and conclusory. It never alleges that anyone treated the Trump campaign or Trump votes worse than it treated the Biden campaign or Biden votes….A violation of the Equal Protection Clause requires more than variation from county to county. It requires unequal treatment of similarly situated parties.”

The president and his personal lawyer, Rudy Giuliani, have insisted for weeks that Joe Biden stole the election through systematic voting fraud. Giuliani began a November 17 hearing before Brann by claiming “widespread nationwide voter fraud.” But he later conceded “this is not a fraud case,” noting that the campaign’s complaint “doesn’t allege fraud.”

Despite the campaign’s failure to even claim illegal voting, the appeals court notes, “the Second Amended Complaint seeks breathtaking relief: barring the Commonwealth from certifying its results or else declaring the election results defective and ordering the Pennsylvania General Assembly, not the voters, to choose Pennsylvania’s presidential electors. It cites no authority for this drastic remedy.”

Bibas pulls no punches in describing the arguments that the campaign wanted to make. “The Campaign’s claims have no merit,” he writes. “The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised.”

Although the campaign “suspects that many of the 1.5 million mail-in ballots in the challenged counties were improperly counted,” the 3rd Circuit says, “it challenges no specific ballots,” and “it never alleges that anyone except a lawful voter cast a vote.” Of the seven counties that were named as defendants because they allowed voters to cure their absentee ballots, “four (including the three most populous) represented that they gave notice to only about 6,500 voters who sent in defective ballot packages. The Campaign never disputed these numbers or alleged its own. Even if 10,000 voters got notice and cured their defective ballots, and every single one then voted for Biden, that is less than an eighth of the margin of victory.”

In short, the appeals court says, “The Campaign cannot win this lawsuit. It conceded that it is not alleging election fraud. It has already raised and lost most of these state-law issues, and it cannot relitigate them here. It cites no federal authority regulating poll watchers or notice and cure. It alleges no specific discrimination. And it does not contest that it lacks standing under the Elections and Electors Clauses. These claims cannot succeed.”

A Morning Consult poll conducted from November 6 through November 9 found that 70 percent of Republicans thought the 2020 presidential election was not “free and fair.” The results were similar in a Ipsos survey conducted a week later, which also found that 52 percent of Republicans believed Trump “rightfully won” the election.

To continue believing that, Trump supporters have to accept something like the following story. Democratic election officials in multiple battleground states conspired with the Biden campaign to deny Trump his rightful victory, assisted by Dominion Voting Systems, George Soros, the Clinton Foundation, and the Venezuelan, Cuban, and Chinese governments. That vast international conspiracy evidently also includes Bibas, appointed by Trump himself, plus the two other judges on the unanimous 3rd Circuit panel, D. Brooks Smith and Michael Chagares, both of whom were nominated by George W. Bush.

For no obvious reason, that scheme has been aided and abetted by Brann, described by Sen. Pat Toomey (R–Pa.) as “a longtime conservative Republican whom I know to be a fair and unbiased jurist”; all of the other judges who have been unimpressed by the Trump campaign’s legal claims; Republican election officials across the country; and Republican members of Congress. To believe this story, you would also have to accept that Giuliani, who says the conspiracy is “easily provable,” has solid evidence to back up his wild claims but for some reason has not managed to produce it in court.

The alternative to buying all of that is to conclude that Trump has refused to admit defeat, either for personal or political reasons, and has resorted to increasingly baroque explanations for Biden’s soon-to-be-official victory. That hypothesis is consistent with everything we know about Trump from his decades in public life, including his disdain for the truth, his enormous yet fragile ego, and his allergy to accepting responsibility. It is also consistent with the yawning gap between Trump’s public assertions and the claims his campaign has made in its lawsuits, which the 3rd Circuit’s decision highlights once again.

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Sixth Circuit Reinstates Governor’s Closure of Kentucky Schools

From Kentucky ex rel. Danville Christian Academy, Inc. v. Beshear, decided today by Judges Karen Nelson Moore, John Rogers, and Helene White (see here for the District Court order which this reverses):

This is an appeal from a preliminary injunction, primarily based on the Free Exercise Clause of the First Amendment, against enforcement of a COVID-19-related executive order by Governor Andrew G. Beshear prohibiting in-person instruction at all public and private elementary and secondary schools in the Commonwealth…. The order excepts from its requirements “small group in-person targeted services” and “private schools conducted in a home solely for members of that household.” The order also excepts, by omission, both preschools and colleges or universities.

As the Governor explains, elementary and secondary schools pose unique problems for public health officials responding to the COVID-19 pandemic. Compliance with masking and social distancing requirements is difficult to maintain, and students receiving in-person instruction must in any event remove their facial coverings to eat. The Commonwealth is particularly vulnerable to these problems, as it “leads the nation in children living with relatives other than their parents—including grandparents and great-grandparents, who are especially vulnerable to the disease.” …

“The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, provides that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….'” Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) (alteration in original) (internal citation omitted). “On one side of the line, a generally applicable law that incidentally burdens religious practices usually will be upheld.” Roberts v. Neace (6th Cir. 2020) (citing Emp. Div. v. Smith (1990)). “On the other side of the line, a law that discriminates against religious practices usually will be invalidated because it is the rare law that can be ‘justified by a compelling interest and is narrowly tailored to advance that interest.'”

Executive Order 2020-969 applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise; it is therefore neutral and of general applicability and need not be justified by a compelling governmental interest….

Recent binding and persuasive authority does not compel a contrary result. In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the challenged COVID-19 order restricted attendance at religious services. In Roberts and Maryville Baptist Church, Inc. v. Beshear (6th Cir. 2020), the challenged COVID-19 orders prohibited attendance at drive-in and in-person worship services. The orders at issue in those cases, applying specifically to houses of worship, are therefore distinguishable.

Moreover, the order at issue in Roman Catholic Diocese treated schools, factories, liquor stores, and bicycle repair shops, to name only a few, “less harshly” than houses of worship. Similarly, the orders at issue in Roberts and Maryville Baptist Church excepted from their requirements airlines, funeral homes, liquor stores, and gun shops, again to name only a few. No such comparable exceptions apply to Executive Order 2020-969. And the exceptions expressly provided for in the order—for “small group in-person targeted services” and “private schools conducted in a home”—are nothing like “the four pages of exceptions in the orders” addressed in Roberts. The contours of the order at issue here also in no way correlate to religion, and cannot be plausibly read to contain even a hint of hostility towards religion.

Justice Kavanaugh has reasoned that, under Smith, we should look “not [to] whether religious worship services are all alone in a disfavored category, but why they are in the disfavored category to begin with.” Here, religious schools are in the category of “K–12 schools” because the reasons for suspending in-person instruction apply precisely the same to them. Any burden on plaintiffs’ religious practices is “incidental” and therefore not subject to strict scrutiny. In Justice Kavanaugh’s concurrence in Roman Catholic Diocese, he emphasized that, “[i]n light of the devastating pandemic, … the State[ has the] authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike.” Executive Order 2020-969 does just that. Unlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions were “targeted” or “gerrymandered” to ensure an impact on religious groups. In addition, while many of the houses of worship in Roman Catholic Diocese could seat well over 500 people, they were subject to attendance caps of ten or twenty-five persons, while retail businesses were not. There is no comparable harsh requirement aimed at religious institutions here….

We are not in a position to second-guess the Governor’s determination regarding the health and safety of the Commonwealth at this point in time. See Roman Catholic Diocese (“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area.”). Because Executive Order 2020-969 is neutral and generally applicable, we also need not address the Governor’s argument that the order is in any event narrowly tailored to advance a compelling governmental interest. That requirement applies only if the challenged restriction is not neutral and generally applicable. In determining that plaintiffs are unlikely to succeed on the merits of their Free Exercise claim, we also have no need to rely upon either South Bay United Pentecostal Church v. Newsom (2020) (Roberts, C.J., concurring), or Jacobson v. Massachusetts (1905).

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Sixth Circuit Reinstates Governor’s Closure of Kentucky Schools

From Kentucky ex rel. Danville Christian Academy, Inc. v. Beshear, decided today by Judges Karen Nelson Moore, John Rogers, and Helene White:

This is an appeal from a preliminary injunction, primarily based on the Free Exercise Clause of the First Amendment, against enforcement of a COVID-19-related executive order by Governor Andrew G. Beshear prohibiting in-person instruction at all public and private elementary and secondary schools in the Commonwealth…. The order excepts from its requirements “small group in-person targeted services” and “private schools conducted in a home solely for members of that household.” The order also excepts, by omission, both preschools and colleges or universities.

As the Governor explains, elementary and secondary schools pose unique problems for public health officials responding to the COVID-19 pandemic. Compliance with masking and social distancing requirements is difficult to maintain, and students receiving in-person instruction must in any event remove their facial coverings to eat. The Commonwealth is particularly vulnerable to these problems, as it “leads the nation in children living with relatives other than their parents—including grandparents and great-grandparents, who are especially vulnerable to the disease.” …

“The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, provides that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….'” Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) (alteration in original) (internal citation omitted). “On one side of the line, a generally applicable law that incidentally burdens religious practices usually will be upheld.” Roberts v. Neace (6th Cir. 2020) (citing Emp. Div. v. Smith (1990)). “On the other side of the line, a law that discriminates against religious practices usually will be invalidated because it is the rare law that can be ‘justified by a compelling interest and is narrowly tailored to advance that interest.'”

Executive Order 2020-969 applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise; it is therefore neutral and of general applicability and need not be justified by a compelling governmental interest….

Recent binding and persuasive authority does not compel a contrary result. In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the challenged COVID-19 order restricted attendance at religious services. In Roberts and Maryville Baptist Church, Inc. v. Beshear (6th Cir. 2020), the challenged COVID-19 orders prohibited attendance at drive-in and in-person worship services. The orders at issue in those cases, applying specifically to houses of worship, are therefore distinguishable.

Moreover, the order at issue in Roman Catholic Diocese treated schools, factories, liquor stores, and bicycle repair shops, to name only a few, “less harshly” than houses of worship. Similarly, the orders at issue in Roberts and Maryville Baptist Church excepted from their requirements airlines, funeral homes, liquor stores, and gun shops, again to name only a few. No such comparable exceptions apply to Executive Order 2020-969. And the exceptions expressly provided for in the order—for “small group in-person targeted services” and “private schools conducted in a home”—are nothing like “the four pages of exceptions in the orders” addressed in Roberts. The contours of the order at issue here also in no way correlate to religion, and cannot be plausibly read to contain even a hint of hostility towards religion.

Justice Kavanaugh has reasoned that, under Smith, we should look “not [to] whether religious worship services are all alone in a disfavored category, but why they are in the disfavored category to begin with.” Here, religious schools are in the category of “K–12 schools” because the reasons for suspending in-person instruction apply precisely the same to them. Any burden on plaintiffs’ religious practices is “incidental” and therefore not subject to strict scrutiny. In Justice Kavanaugh’s concurrence in Roman Catholic Diocese, he emphasized that, “[i]n light of the devastating pandemic, … the State[ has the] authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike.” Executive Order 2020-969 does just that. Unlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions were “targeted” or “gerrymandered” to ensure an impact on religious groups. In addition, while many of the houses of worship in Roman Catholic Diocese could seat well over 500 people, they were subject to attendance caps of ten or twenty-five persons, while retail businesses were not. There is no comparable harsh requirement aimed at religious institutions here….

We are not in a position to second-guess the Governor’s determination regarding the health and safety of the Commonwealth at this point in time. See Roman Catholic Diocese (“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area.”). Because Executive Order 2020-969 is neutral and generally applicable, we also need not address the Governor’s argument that the order is in any event narrowly tailored to advance a compelling governmental interest. That requirement applies only if the challenged restriction is not neutral and generally applicable. In determining that plaintiffs are unlikely to succeed on the merits of their Free Exercise claim, we also have no need to rely upon either South Bay United Pentecostal Church v. Newsom (2020) (Roberts, C.J., concurring), or Jacobson v. Massachusetts (1905).

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Bourgeois Libertarianism Could Save America

topicsideas

As the streets of various U.S. cities descended into disorder set off by anger and anguish over police brutality, the domestic tranquility for which Americans theoretically surrender large chunks of their fortunes and freedom to the government seemed out of reach. Some protests devolved into generalized orgies of destruction and even arson—the most fiendishly destructive thing the average person can do in dense cities, and an act committed with careless glee dozens of times.

In the public debate between angry forces on the left and right wings, too many Americans insist on recapitulating the stark choices Germany seemed to offer its citizens between the world wars a century ago: a controlling, decadent left out to destroy private property, and a right embracing harsh, violent authoritarianism and viewing outsiders of all stripes with suspicion.

Each side seems so obviously, intolerably evil to the other that both sides agree the only moral or prudential choice is to come out swinging against the other side. The blood on the streets of Kenosha, Wisconsin, where in August a right-wing 17-year-old shot three people during a protest is a small preview of where that path leads. Radicals on both left and right seem to agree that traditional American libertarianism either supports the evil side (wittingly or unwittingly) or, at best, provides a pusillanimous, pie-in-the-sky distraction from the necessary business of seizing state power to crush the enemy. But that old-school, nonrevolutionary, bourgeois libertarianism is, in fact, the only peaceful way out for our troubled country.

It is one of libertarianism’s staid tenets that it’s a mistake—both morally wrong and likely ineffective—to use government force to solve most social problems. As this year’s urban unrest has shown, police power in the conventional sense can’t keep cities secure if even a small number of people are unwilling to play by the nonviolent rules. If you actually care about a functioning civilization, it is never enough to have the state controlled by the “right side.”

What makes civilization work is people roughly hewing to “live and let live” principles. Fortunately, most of us do so even when we are not governed in a libertarian manner. Most people, most of the time, simply want to live in their justly owned space, work for a living, engage in mutually beneficial commerce, and thus contribute to the web of peaceful interactions that makes our lives rich in every sense.

Civilization collapses, on the other hand, when people relentlessly seek state (or state-like) solutions to their grievances—particularly when they act in ways that threaten their fellow citizens’ liberty to live, think, express themselves, work, save, and do business in peace. Such violations of peaceful people’s lives are not justified even if what you are protesting against are indeed evils that ought to be halted.

In a more libertarian world, police would not be continually engaged in overly aggressive assaults on citizens, whether those citizens were suspected of crimes or not. We suffer that now because police, as representatives of the state, are not subject to the same discipline that the rest of us are, and because they’re charged with enforcing, potentially through violence, all sorts of petty or flagrantly unjust dictates, from traffic laws to drug laws.

In a more libertarian world, we also would not see angry, threatening mobs insisting that random fellow citizens join them in public expressions of political piety or setting fire to buildings and breaking windows. However honorable the cause may be, such actions tear at the roots of our prosperity: the ability to possess wealth and space and to use them to offer goods and services for a price, helping others while peacefully bettering ourselves.

American “movement libertarianism” is revolutionary—but only intellectually so. Most American libertarians, even in the face of obscene injustices inflicted by the state, do not conclude that transforming the civic order into a battlefield is the just or prudent response. The mission has always been convincing people that they would benefit from more libertarian governance and voluntary ways of life.

Some react to injustice by insisting, “No justice, no peace.” But given the libertarian’s limited sense of when violence against people or their property can be justified, even righteous anger at recalcitrantly evil policing does not justify vandalism, arson, and assault against bystanders.

When it comes to domestic battles to change government policy or public attitudes—as when it comes to overseas wars—most libertarians don’t think the lives and property of innocent people are acceptable collateral damage. That is especially true when the connection between the violence or destruction and righting the relevant wrongs is obscure.

The standard American libertarian has been traditionally and boringly bourgeois. While preserving life is indeed a higher priority than preserving property, libertarians understand that property’s vital role in human flourishing means it should not be blithely sacrificed merely to show how angry you are or even to follow a dimly lit path to “justice” for others.

Bloody extremism never really appealed to most libertarians, at home or abroad. Our love of liberty, and of the peace and prosperity it helps secure, inclines us to think that truly effective and secure social change comes not from violence, chaos, and force but from treating fellow humans with respect—as ends rather than means—and working to persuade them that libertarian ideas should shape social life.

The fanatical insistence on “no justice, no peace” makes any reasonably desirable civic life impossible, no matter how great the wrongs you aim to right. Sacrificing peace in a way that alienates too many of your fellow citizens likely will damage your chances of getting the justice you say you want. Such potentially alienating actions include denying people the right to use public streets unmolested and ruining their livelihoods, especially since history teaches us that violent unrest can destroy a neighborhood’s prosperity for decades.

What America needs most right now, then, is boring old bourgeois libertarianism: the lived philosophy of peacefully enjoying life and property while mostly minding your own business. That philosophy rules out attempts to enforce orthodoxies of thought and expression, no matter how good the cause, and refuses to treat other people’s lives and property as dispensable in the pursuit of political goals, no matter how noble.

When people reject those principles, they create civic spaces where no one can thrive—in the long run, not even them.

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Bourgeois Libertarianism Could Save America

topicsideas

As the streets of various U.S. cities descended into disorder set off by anger and anguish over police brutality, the domestic tranquility for which Americans theoretically surrender large chunks of their fortunes and freedom to the government seemed out of reach. Some protests devolved into generalized orgies of destruction and even arson—the most fiendishly destructive thing the average person can do in dense cities, and an act committed with careless glee dozens of times.

In the public debate between angry forces on the left and right wings, too many Americans insist on recapitulating the stark choices Germany seemed to offer its citizens between the world wars a century ago: a controlling, decadent left out to destroy private property, and a right embracing harsh, violent authoritarianism and viewing outsiders of all stripes with suspicion.

Each side seems so obviously, intolerably evil to the other that both sides agree the only moral or prudential choice is to come out swinging against the other side. The blood on the streets of Kenosha, Wisconsin, where in August a right-wing 17-year-old shot three people during a protest is a small preview of where that path leads. Radicals on both left and right seem to agree that traditional American libertarianism either supports the evil side (wittingly or unwittingly) or, at best, provides a pusillanimous, pie-in-the-sky distraction from the necessary business of seizing state power to crush the enemy. But that old-school, nonrevolutionary, bourgeois libertarianism is, in fact, the only peaceful way out for our troubled country.

It is one of libertarianism’s staid tenets that it’s a mistake—both morally wrong and likely ineffective—to use government force to solve most social problems. As this year’s urban unrest has shown, police power in the conventional sense can’t keep cities secure if even a small number of people are unwilling to play by the nonviolent rules. If you actually care about a functioning civilization, it is never enough to have the state controlled by the “right side.”

What makes civilization work is people roughly hewing to “live and let live” principles. Fortunately, most of us do so even when we are not governed in a libertarian manner. Most people, most of the time, simply want to live in their justly owned space, work for a living, engage in mutually beneficial commerce, and thus contribute to the web of peaceful interactions that makes our lives rich in every sense.

Civilization collapses, on the other hand, when people relentlessly seek state (or state-like) solutions to their grievances—particularly when they act in ways that threaten their fellow citizens’ liberty to live, think, express themselves, work, save, and do business in peace. Such violations of peaceful people’s lives are not justified even if what you are protesting against are indeed evils that ought to be halted.

In a more libertarian world, police would not be continually engaged in overly aggressive assaults on citizens, whether those citizens were suspected of crimes or not. We suffer that now because police, as representatives of the state, are not subject to the same discipline that the rest of us are, and because they’re charged with enforcing, potentially through violence, all sorts of petty or flagrantly unjust dictates, from traffic laws to drug laws.

In a more libertarian world, we also would not see angry, threatening mobs insisting that random fellow citizens join them in public expressions of political piety or setting fire to buildings and breaking windows. However honorable the cause may be, such actions tear at the roots of our prosperity: the ability to possess wealth and space and to use them to offer goods and services for a price, helping others while peacefully bettering ourselves.

American “movement libertarianism” is revolutionary—but only intellectually so. Most American libertarians, even in the face of obscene injustices inflicted by the state, do not conclude that transforming the civic order into a battlefield is the just or prudent response. The mission has always been convincing people that they would benefit from more libertarian governance and voluntary ways of life.

Some react to injustice by insisting, “No justice, no peace.” But given the libertarian’s limited sense of when violence against people or their property can be justified, even righteous anger at recalcitrantly evil policing does not justify vandalism, arson, and assault against bystanders.

When it comes to domestic battles to change government policy or public attitudes—as when it comes to overseas wars—most libertarians don’t think the lives and property of innocent people are acceptable collateral damage. That is especially true when the connection between the violence or destruction and righting the relevant wrongs is obscure.

The standard American libertarian has been traditionally and boringly bourgeois. While preserving life is indeed a higher priority than preserving property, libertarians understand that property’s vital role in human flourishing means it should not be blithely sacrificed merely to show how angry you are or even to follow a dimly lit path to “justice” for others.

Bloody extremism never really appealed to most libertarians, at home or abroad. Our love of liberty, and of the peace and prosperity it helps secure, inclines us to think that truly effective and secure social change comes not from violence, chaos, and force but from treating fellow humans with respect—as ends rather than means—and working to persuade them that libertarian ideas should shape social life.

The fanatical insistence on “no justice, no peace” makes any reasonably desirable civic life impossible, no matter how great the wrongs you aim to right. Sacrificing peace in a way that alienates too many of your fellow citizens likely will damage your chances of getting the justice you say you want. Such potentially alienating actions include denying people the right to use public streets unmolested and ruining their livelihoods, especially since history teaches us that violent unrest can destroy a neighborhood’s prosperity for decades.

What America needs most right now, then, is boring old bourgeois libertarianism: the lived philosophy of peacefully enjoying life and property while mostly minding your own business. That philosophy rules out attempts to enforce orthodoxies of thought and expression, no matter how good the cause, and refuses to treat other people’s lives and property as dispensable in the pursuit of political goals, no matter how noble.

When people reject those principles, they create civic spaces where no one can thrive—in the long run, not even them.

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