Libertarian? Or Fascist-Light?

The shooting death by police of Ferguson, MO teenager Michael Brown, and what has happened in the aftermath, has been blanketing the news for the past few days. It’s a story about race, but it’s also become a story about the power of the state and how it’s wielded, and against whom.

So my question is this: Where are the libertarians?

Why aren’t libertarians talking about Ferguson?, Paul Waldman, Plum Line, Washington Post, yesterday

The answer to the question that the title to that post asks is: they are. Libertarians are talking about Ferguson.Waldman’s question addresses a linguistics problem, a misappropriation of a particular ideological term, “libertarian,” by those who ascribe to a narrowly prescriptive ideology that adopts extreme economic libertarianism and certain aspects of fascism.

It is a curious brand of fascism that is peculiarly American, in that it artificially distinguishes between federal powers and state and local ones. A veritable foundation of this ideology formally or tacitly authorizes the use of state and local government police powers—by police, prosecutors, judges, prison guards–to engage in wholesale violations of American constitutional and international human rights. Federal prosecutors and federal judges engage in abuses, including on presumably-rare occasions of actual illegality, but now, finally, at least there’s the possibility of actual scrutiny of federal prosecutorial excess. There remains no working mechanism by which federal or state judges will be investigated for actual illegality in relation to their judicial office, unless the conduct involves an overt monetary bribe or express monetary extortion; judges themselves operate within a statutory system whose very essence is cover-up by their colleagues, and every attempt, including by members of Congress, Republican and Democrat, to change this statutory sham vis-a-vis federal judges is batted down with cries from several Supreme Court justices, including the two Clinton appointees, about judicial independence. (Freedom! Liberty! Judicial Independence!)  As if an independent office of inspector general, as statutory proposals would establish, couldn’t distinguish between unethical or outright illegal conduct and, well, everything else.  And wouldn’t be forced to do that.

About a month ago, Simon Lazarus of the Constitutional Accountability Center wrote an article in The New Republic titled “John Roberts’ Supreme Court is the Most Meddlesome in History” and subtitled “How radical libertarianism is reshaping the bench.” I remember thinking when I saw that article that the primary title is correct but the subtitle is not. Certainly there are some radical libertarians—those who want to eliminate virtually all taxes, federal and state, an virtually all government regulations and civil and criminal prohibitions, federal and state, and who also are, as Waldman puts it, talking about Ferguson. And who want to dismantle the prison-industrial complex. But best as I can tell, they’re not Republicans, and they’re certainly not federal judges, much less federal Supreme Court justices. Accepting their pose as libertarians, without the modifying adjective “economic,” is buying their marketing campaign.

Freedom! Liberty! Libertarianism! The new and improved variety, marketed as the late 18th century strain. Back from the future. I guess.

What most of this crowd actually is is sort of classic-fascist-light, not libertarian. By which I don’t mean that they’re Nazis; Nazism was (and is) only one brand of fascism. I mean fascism more along the lines of the Benito Mussolini or Francisco Franco variety—a pairing of a muscular state police force left to its own (and the dictator’s) devices, and moneyed interests whose support the dictator an his party needed. Modern U.S. neo-federalism, a.k.a. “states’ rights!”–i.e., the right of state and local government officials and employees to violate individual, non-Republican humans’ constitutional rights—is libertarianism only in a George-Orwell-comes-to-Madison-Avenue sense, but it underpins much of Tea Party/Supreme Court libertarianism, if only ostensibly.

One of the most stunning sentences I’ve ever read in a Supreme Court opinion, a sentence that has not received nearly the amount of attention in the general news media or by Democrats that it deserves, is John Roberts’ express statement in the majority opinion in McCutcheon v. FEC, this year’s Citizens United sequel, that extremely wealthy campaign donors become “constituents”–constituents, in the literal election-law, voter-ID sense–of members of Congress not by living in the senator’s state or in the representative’s district but instead by buying access and the right to author proposed legislation. Ordinary folk are constituents only of the elected officials in whose voting jurisdiction they have their primary (for most people, their only) residence, but the Koch brothers are the constituents not just of Kansas’s senators and Wichita’s congressional representative but also of any other senators and congressional representatives that they choose to co-opt as their legislative proxy, for a fee. This, Roberts said, is at the heart of our democracy.

Which indeed it now is, formally and officially, as per the Supreme Court. It’s at the very heart and soul of our democracy these days–our democracy, alone among democracies, since ours is the only democracy in which this flavor of freedom!, liberty!, is packaged as libertarianism. It’s a specialty flavor that would be recognized by 1930s Europeans for the albeit-milder iteration of the political ideology that it really is. And that is recognized, I’d bet, by most close observers of the Supreme Court’s state-courts’-and-state-prosecutors’-and-local-police-officers’-and-state-and-local-prison-guards’-rights-to-violate-individuals’-constitutional-rights-because-the-Constitution’s-structure-requires-it jurisprudence.

This ideology is libertarian only as some characters in Lewis Carroll’s novels, or the Koch brothers, would define that word.  Or as five current Supreme Court justices do, as suits their focused interest of the moment.  Or of the Conservative Legal Movement era, which has in fact been very focused for more than three decades now.  So any moment will do.

Pick your moment.  Any moment.  They sure do.  Just call what you’re doing anything but what it actually is.

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