Randy Barnett, “What’s Next for Libertarianism?”

I’ve learned and profited a great deal from libertarian legal scholar Randy Barnett’s work—on contract theory, punishment, constitutional and ninth amendment issues, originalism, and more. ¹

In his really unique and excellent new book, A Life for Liberty: The Making of an American Originalist (2024), which I read cover to cover, he has an intriguing section near the end on “What’s Next for Libertarianism” where he hints a possible future book extending his previous thought on liberty and libertarianism. He suggests several extensions to or possibly modifications to libertarianism that might try to address. For example: “If we are to be libertarians and not propertarians, … libertarians need also to be concerned about threats to individual liberty now posed by privately owned companies. … A good theoretical start would be to separate the “public-private” binary from the “government-nongovernment” binary.” I have concerns about conservatives and libertarians who try to blur the distinction between between private and state actors—for example in attempts to subject big tech platforms to defamation liability out of spite or because they just don’t like them ², or in arguments that private actors (banks, big tech, New York Times) are really “part of the state” and thus it’s fine to subject them to otherwise unjust and unlibertarian laws, such as libel law, or even to justify having the state regulate these corporations, since they are after all effectively state organs ³—but it would be interesting to see Barnett grapple with these matters.

In addition, on immigration:

In a world of competing nation-states in which some polities are much freer and more rights-respecting than others, libertarians need to think harder about the potential ill effects of unregulated immigration of persons beyond the capacity of American society to assimilate them as my ancestors were assimilated. There are also security threats posed by unrestricted movement of persons from hostile regimes.

Other issues he has been pondering:

Libertarians may also want to think harder about “private” corporations. Do publicly traded corporations necessarily have the exact same civil rights as individuals like Jack Phillips, the owneroperator of Masterpiece Cakeshop, or the closely held Hobby Lobby Stores, Inc., or an expressive corporation like Citizens United? There is a relatively obscure strain of libertarian thinking that has questioned whether corporations are actually free-market institutions. Short of that conclusion, maybe all corporations are not created equal.

In short, libertarian theory must take more seriously how liberty needs to be protected in the real world, from threats both governmental and nongovernmental, domestic and foreign.

Finally, libertarians should consider whether and how principles of ethics and virtue should be a part of libertarianism, in addition to individual rights. In the past, I have defended libertarianism as strictly a political theory that is compatible with competing moral theories. I have rejected the view that libertarianism needs to present a comprehensive theory of the good.

In recent years, however, I have begun to suspect that the natural rights basis of libertarianism needs to be compatible with a natural law approach to the good. I have long believed that, while the protection of individual liberty is the proper end of politics, individual liberty is not an end in itself but is rather a means to the higher end of individual human flourishing. One cannot fully justify the moral imperative for the individual liberty defined by natural rights without considering the ends that liberty is necessary to achieve. I am now open to the possibility that, without such an account, libertarianism as a political theory is incomplete.

In this latter concern and some of the others, I detect echoes of some comments made by Robert Nozick in Philosophical Explanations (1981), where Nozick seems to question some of his previous, more libertarian assumptions from his minarchist work Anarchy, State, and Utopia. He somewhat cryptically suggested that libertarianism doesn’t account for the “symbolic value” of certain joint actions undertaken by society, that individual rights were just one value among others, and could be overridden or diminished in trade-offs against other values (despite viewing rights as hard and fast “side-constraints” in Anarchy, State, and Utopia). As noted in an article in Commentary, 

The repudiation of an “egotistical stance” toward reality leads Nozick, in a surprise twist, to a repudiation of egotistical—i.e., libertarian—politics. Democratic institutions, he now believes, are not simply frameworks that allow us, selfishly, to become as real as we can be. Rather, these institutions “express” our notions of reality, including “our desired mutual relations.” Consequently, “the libertarian position I once propounded now seems to me seriously inadequate … .”  

(Later he stated, in an interview, “the rumors of my deviation (or apostasy!) from libertarianism were much exaggerated.”) ⁴

To return to Barnett:

One place for libertarians to start is with a 1985 book, Human Rights: Fact or Fancy?, the last book written by my beloved mentor, Henry Veatch. In this book, Veatch explains and justifies the idea of natural law morality—or what he sometimes calls natural ends morality. He then provides a natural law basis for the inalienable rights to life, liberty, and property on the ground that such rights are necessary for individuals to fulfil their moral duty to themselves to pursue the good life, to make something of themselves.

Individual liberty is essential to the pursuit of the good, he contended, because “no human being ever attains his natural end or perfection save by his own personal effort and exertion. No one other than the human individual—no agency of society, of family, of friends, or of whatever can make or determine or program an individual to be a good man, or program him to live the life that a human being ought to live. Instead, attaining one’s natural end as a human person is nothing if not a ‘do-it-yourself’ job.”*

These are just three of the ways that the libertarian model needs to be rethought and perhaps refined. I have not reached firm conclusions on any of these issues. I write books first and foremost to discover what I think, and I haven’t yet done the necessary work on these knotty subjects. So I cannot be sure how exactly libertarianism as a political theory needs to be updated. But my gut tells me it needs to be more realistic about how individual liberty is to be protected in the real world than it sometimes has been.

Finally, if libertarianism should require refinements along any or all of these lines, this in no way represents an abandonment of libertarianism as a political theory. What distinguishes libertarianism is its core commitment to personal liberty and individual sovereignty. Just as originalism has been strengthened by its continued refinement, so too would libertarianism be strengthened by a more realistic approach to securing its fundamental commitment to liberty.

1. See my review of his book, The Structure of Liberty, “Knowledge, Calculation, Conflict, and Law,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), and many other references to Barnett’s work in this book. [↩]
2. No, Libertarians, We Should NOT Abolish the CDA §230 and DMCA Safe Harbors! [↩]
3. KOL354 | CDA §230, Being “Part of the State,” Co-ownership, Causation, Defamation, with Nick Sinard; Van Dun, Barnett on Freedom vs. Property; Is Macy’s Part of the State? A Critique of Left Deviationists; on Block’s defamation suit against the New York Times, see Walter Block Defends His Libel Suit Against The New York Times; A Libertarian Analysis of Suing for Libel (“How … can I justify suing the New York Times for libel? It is simple. The libertarian case against suing for libel applies only to innocent people, and this newspaper does not at all qualify. Rather, this organization is a member in good standing of the ruling class, and all bets are off for criminals of that ilk.”), and others here. [↩]
4. Rothbard criticizes Nozick’s argument for the state in Robert Nozick and the Immaculate Conception of the State; see also Hoppe’s criticism of Nozick’s dilettantism and “razzle-dazzle” in Murray N. Rothbard and the Ethics of Liberty. [↩]