Cross: Bob Levy, Guiding Cato’s Vision of Justice

David Meyer-Lindenberg crosses Chairman of the Board of Cato Institute, Robert Levy.

 

Q. You grew up in DC’s rough-and-tumble Petworth neighborhood, where your dad ran a hardware store. Clearly, you liked the nation’s capital just fine: you chose to stay on for college at American University and only left the city for the wild and distant climes of Montgomery County, Maryland in ’66, once you had your Ph.D in business.

You went to American U in the early Sixties, a turbulent time when organized left-wing student activism was just getting started and students and faculty alike were outraged over the discovery of a secret U.S. Army counterintelligence program on campus. All in all, it doesn’t seem like a particularly natural breeding ground for libertarians. Where’d your politics come from? Whom were you reading? Who influenced your views?

A. Many thanks for asking me to participate. Your questions go back quite a few years, and my 75-year-old memory has reached the stage where I can plan my own surprise parties. Still, I promise to recall what I can – allowing of course for a natural tendency to flatter oneself.

My college years at American University in Washington, DC were far from “turbulent.” It’s not that the times were tranquil, but rather that I steered clear of campus activities. Instead, I assembled a jazz trio (I played piano) and a rhythm-and-blues sextet, which performed in the local bars six nights a week. For me, college years were about classes, studying, and making money in the music business. Public policy was not on my radar.

My libertarian leanings, however, developed pre-college – although they were more visceral than disciplined. I can remember as a teen, working in my dad’s hardware store. He complained at length about the supermarket down the street that sold mostly groceries, but also household items at discounted prices. Dad thought that was unfair, and should be illegal. My reaction was to argue that customers shouldn’t be forced to pay more if the supermarket offered them a better deal. Therein lay a fledgling libertarian.

When I studied political philosophy more rigorously, my major libertarian influences were Charles Murray (In Pursuit of Happiness and Good Government), Milton Friedman (Capitalism and Freedom and Free to Choose) as well as Ayn Rand (Atlas Shrugged, The Fountainhead, The Virtue of Selfishness, and Capitalism: The Unknown Ideal). Interestingly, Rand is considered by many to be the godmother of libertarianism even though she was among its most vigorous critics. She argued that her philosophy, Objectivism, was an integrated system with metaphysics, epistemology, and ethics as the foundation, and laissez faire capitalism (i.e., libertarianism) as its political subset. The entire system, according to Rand, had to be accepted or rejected. My own view – lacking formal training in philosophy – is that one can be a laissez faire capitalist without adopting, or even fully understanding, Rand’s foundation.

Q. At the age of twenty-five, you founded your first business, CDA Investment Technologies. It turned out to be the only one you’d ever need. You realized there was an opportunity, helped along by federal securities laws in the Seventies, to process and package data on investors and their performance, and that selling that data would be easier than making investments yourself. Business boomed, and by the middle of the Eighties, CDA was a household name in the trader world.

Many people talk a good game on law and politics. Few have your level of business success and experience. How did running a large company shape your views on the proper size and role of government? Were you swimming upstream at a time when the national trend was towards more federal oversight, more centralization, more regulation? (And is there a very gentle irony to the fact that without the Securities Act Amendments of 1975, you might never have gotten your hands on the data that made CDA great?)

A. My early business experience played only a minor role in questioning the efficacy of government regulations. In fact, the regulatory environment from 1966 through 1991 – the years that I ran CDA Investment Technologies – was far less intrusive than it is today. Currently, Washington, DC’s alphabet agencies are operating overtime – the Department of Health and Human Services regulating healthcare, the Consumer Financial Protection Bureau imposing the Dodd-Frank Act, the EPA setting global warming standards, and on and on.

To grasp the scope of those regulations, consider that federal agencies now dwarf Congress when it comes to making rules that control what Americans can and can’t do. The Code of Federal Regulations, which lists those rules, is about six times as large as the U.S. Code containing all of the laws passed by Congress. In 2016 alone, the final year of the Obama administration, Congress enacted about 3,000 pages of laws. That same year, federal agencies churned out 32 times as much – a total of 97,000 pages of regulations.

Not only were federal regulations less voluminous in the 1970s, but one set of regulations in particular was a significant boost to CDA’s business. Under the 1975 Securities Acts Amendments, large money-management institutions were required to report their portfolio holdings on a quarterly basis to the Securities and Exchange Commission. That information was very useful to brokerage house traders, investor relations executives, merger specialists, and others. At CDA, we wanted to acquire and distribute the data. At the same time, the SEC wanted an outside contractor to process the data in order to facilitate the Commission’s oversight.

The difficulty for me was to obtain the data without becoming a taxpayer-funded ward of the public sector. The solution: We bid zero on the SEC contract; and, needless to say, we were low bidder. Other firms could still get the data, but they had to go trough the Freedom of Information Act. CDA obtained the information earlier; we fulfilled our SEC contract; and it didn’t cost taxpayers a dime.

A different federal albatross – not the regulatory burden, but the tax code – finally prompted me to sell CDA and explore other avenues. Marginal income tax rates in the mid-1980s were 70 percent on so-called unearned income, plus a few more percent tacked on by the states. Essentially, successful entrepreneurs were working for the government. I decided to avoid that trap by trading my corporate ownership for the capitalized present value of the company’s earnings stream, which was taxable at lower capital gains rates.

The lesson for our nation’s policy makers is that marginal tax rates influence individual behavior. Not only are high rates unlikely to produce commensurately higher tax revenues, but they discourage entrepreneurship, innovation, and productive employment.

Q. You sold your share in the company in 1986, when you were 45, and were financially set for the rest of your life. But instead of kicking back and enjoying your well-gotten gains, you decided to embark on a second career as a lawyer. What possessed you to sacrifice your hard-earned peace of mind and throw yourself into this awful, awful business? What was the plan going in?

If the aim was to influence lawmaking and fund lawsuits, you could’ve done the traditional thing and stuck to donating to worthy causes. (To be sure, you’d already done plenty of giving, but the lion’s share – including to Cato – came after you went back to school.)

Was it, perhaps, natural for someone whose company was founded on the concept of informed investing to study the legal business before throwing his money at it? Were you always determined to take a hands-on approach to defending the Constitution, as you later did in Heller? Or were you going to be a scholar, a “thought leader?”

A. As it turned out, the tax-motivated sale of my business was a financial mistake. Not long after the sale, the Reagan revolution produced significantly lower tax rates on ordinary income and significantly higher tax rates on capital gains. Had I anticipated that development, I might still be a businessman rather than a constitutional lawyer.

On the other hand, economics was never my sole driving force. While I didn’t consider myself, or expect to become, a true scholar or even a “thought leader,” I had by then developed a profound respect for the Constitution and the rule of law. And I had determined that law school would provide me with the requisite background – not for a private legal practice, which didn’t interest me, but for entry into the public policy arena where I could become a hands-on defender of constitutional principles.

So I visited DC-area law schools to see where I might best fit. At each school, I’d ask, among other things, what books should I be reading to prepare for legal studies. The response, just about everywhere, was to read Mr. X on contracts, Mr. Y on torts, Mr. Z on property, etc. But at George Mason (now the Antonin Scalia Law School) the admissions advisor, Prof. Michael Krauss, who has since become a good personal friend, told me to read John Locke, Montesquieu, and Algernon Sidney. Right away, I knew I had found a home.

My goal was to reinforce and expand my philosophic understanding of the Constitution and libertarianism. I already knew that laissez faire capitalism generated the best economic results, but I also wanted to bolster my belief that personal freedom is good, in and of itself, independent of prosperity and income equality. Looking back, my legal education gave me the tools I needed.

Q. You crossed the Potomac and went to George Mason School of Law, where you absolutely wiped the floor with your younger classmates, becoming valedictorian and serving as chief articles editor of the law review. After you graduated in ‘94, you clerked for Judges Royce Lamberth of the DC District Court and Douglas Ginsburg of the DC Circuit.

Normally, we’d ask what working for these judges was like; whether you shared their legal philosophy, or came to share it; how they molded your conception of being a lawyer. And we are interested in the answers to those questions! But you were in your mid-fifties by then, a veteran of an entirely different business and, to put it delicately, wealthier than any judge is likely to be.

What was it like to be apprenticed to these eminent jurists – both of whom are actually younger than yourself – with so much experience of your own to look back on? Did you have as much to teach them as they did you? Judge Ginsburg was a well-known feeder judge. Were you ever tempted to shoot for SCOTUS?

A. My two federal clerkships, with Judges Lamberth and Ginsburg, were invaluable. Each of the judges was a luminary with vast experience and knowledge, which they generously imparted and I eagerly consumed. Later, I applied unsuccessfully for a Supreme Court clerkship. That position would have been extraordinary, but I take some solace in knowing that both of my clerkships were with judges of Supreme Court caliber.

I was 53 when I began clerking for Judge Lamberth. Because of that unusual chronology, I believe I have two unique claims to fame. First, I was the only federal law clerk who was older than both of the judges I served. Unsurprisingly, the federal marshals, who diligently guard the U.S. courthouse in Washington, DC, couldn’t fathom that anyone my age might be a law clerk. Each day, they greeted me with “Good morning, Judge Levy. Have a nice day, Your Honor.” Naturally, I never disabused them of that misconception, and I was treated with great deference in the hallways of the courthouse. It wasn’t until I entered chambers that I was told to go fill the water jugs in the jury box.

My second claim to fame involves my son, Jon – now age 33 and the only offspring of my 40-year marriage to Diane. Jon graduated near the top of his class from the University of Texas law school, and then went on to clerk for Judge Lamberth. For the first time ever, to my knowledge, two generations of the same family clerked for a single federal judge. After his district court clerkship, Jon clerked for Judge Allyson Kay Duncan on the U.S. Court of Appeals for the Fourth Circuit.

Q. After your clerkships, you were hired by Georgetown as an adjunct law professor and Cato‘s Roger Pilon as a senior fellow in constitutional studies. The Center for Constitutional Studies was then eight years old, and still quite small, though it took on an enormous share of work during the 90s. (For example, it played a major part in the fight against civil asset forfeiture.) What were your responsibilities at Cato during this time?

What about as a professor? Back then, were students less under the spell of progressivism than they are today? More receptive to the message that the rule of law is more important than the political cause du jour? Has the academic environment for libertarianism improved since you began teaching? Or is there reason to be pessimistic?

A. While in law school, I had become a Cato donor. After completing my clerkships, I told Cato’s then-president, Ed Crane, that he’d better give me a job if he wanted to retain my donation. In effect, I bribed my way onto Cato’s staff, joining the Center for Constitutional Studies under Roger Pilon’s innovative leadership. The Center is a strong advocate for a textual interpretation of the Constitution and principled judicial engagement in constraining the legislative and executive branches. We have framed the debate as one that’s not between liberals and conservatives, but between civil society (the voluntary sector) and political society (government power). I don’t have to state how important that is. Three Supreme Court justices – two liberals and one swing vote – are in or near their 80s. President Trump could have a major impact on the ideological mix of the Court, and that means a major impact on the nation.

My first project at Cato involved litigation against the major cigarette companies for smoking-related illnesses. Initially, I backed the tobacco companies – mostly on the ground that smokers were aware of the risks and should bear the consequences. But when the Master Settlement Agreement was negotiated, I argued that it was a quarter-of-a-trillion-dollar sweetheart deal among the industry, the state attorneys general, and the trial lawyers. One of the tobacco companies was especially indignant and told us to cease and desist. When we refused, the company ended its Cato donations.

Afterward, I wrote extensively favoring Microsoft in its browser-related antitrust case. A competing high-tech company was a meaningful Cato donor that opposed Microsoft. The company’s CEO wasn’t pleased when he saw a draft of our policy paper. He threatened to withdraw all financial support if we released the study. We released it anyway, after which the corporation terminated its contributions to Cato.

Those two stories attest to Cato’s independence – an area that’s been a key concern of the Institute’s board, which I chair. Cato’s reputation and effectiveness is grounded on a wall of separation between our scholars and special interests seeking to influence political outcomes. We take great pains to preserve that independence.

You also ask whether the academic environment for libertarianism has improved since I began teaching. My sense is that students today are propagandized to an equal if not greater extent than they were 20 years ago. This past September, a study published by Econ Journal Watch examined faculty voter registration at 40 leading universities. Out of more than 7,000 professors, Democrats outnumbered Republicans by 11-to-1. History departments were by far the least friendly to conservatives. Liberals outnumbered conservatives by 33-to-1. Fifty years ago, that ratio was less than 3-to-1. And sadly, the trend could be worse over the coming years. The ratio for young professors, under age 36, is even more tilted than for professors over 65.

The law schools are no better. Nicholas Rosenkranz – a Cato colleague and law professor at Georgetown, where I taught – recently published an article in the Harvard Journal of Law & Public Policy entitled “Intellectual Diversity in the Legal Academy.” He surveyed the Georgetown law faculty – 120 professors, one of the largest law faculties in the country – to determine how many professors would characterize themselves politically as any of the following: conservative, libertarian, Republican, or right of center. The answer: three out of 120. Sadly, that ratio – 39 liberals to 1 conservative – may be typical of most elite law schools.

Q. Starting in 2002, you laid the groundwork for the most important Second Amendment case in a century when you, together with the Institute for Justice’s Clark Neily and Steve Simpson, organized what would become Heller v. District of Columbia. It’s not entirely clear whose idea the case was – some claim yours, some Neily’s. Can you set the record straight?

You generously financed Heller in its entirety, as Cato doesn’t sponsor litigation. What made you decide this was the right Second Amendment challenge to bet your money on? You‘re the one who chose Alan Gura, who hadn’t yet argued before SCOTUS, as lead counsel. Why was he, and not a member of the established SCOTUS bar, the right attorney for the job?

How’d you find and pick the plaintiffs? Why Dick Heller, who was a pretty intense guy in some ways? Were you concerned his antics would damage the case after he became lead plaintiff when Shelly Parker was bounced for lack of standing?

A. Late in 2002, I was approached by Clark Neily, an attorney at the Institute for Justice (IJ), where I serve on the board of directors. Clark and his IJ colleague, Steve Simpson, had decided the time was right to file a Second Amendment challenge to Washington, DC’s handgun ban. They asked me to join the legal team and provide funding. I signed on, but it was their idea. Ultimately, Steve didn’t participate because of his duties at IJ. And because Clark and I were busily engaged on other projects, we hired Alan Gura as lead counsel. Alan was a talented private attorney in DC who had been a law clerk at IJ.

Not surprisingly, when the Supreme Court agreed to review Heller, I was besieged with advice to replace Alan with a veteran Supreme Court advocate. I rejected that advice for several reasons: First, Alan had piloted our winning effort before the appellate court. Second, he had immersed himself in gun-related issues over more than five years and knew the material cold. Third, and most important, he had agreed to work on Heller for subsistence wages, in return for which I had committed to him that he would carry the ball, however far the case advanced.

Three events precipitated the litigation. Each of them strengthened our claim that the Second Amendment secures an individual, not a collective, right. First, several respected liberals published articles in prominent journals. Second, the U.S. Court of Appeals for the Fifth Circuit issued its decision in United States v. Emerson. Third, the Justice Department adopted the individual rights position for the first time in a formal court submission.

We turned next to the selection of plaintiffs – ideally, persons who would be favorably perceived by the media and the public. We wanted diversity by gender, race, profession, income, and age. They had to believe fervently, but not fanatically, in Second Amendment rights, and certifiably need a weapon in their homes for self-defense. Naturally, we wanted law-abiding, responsible citizens, with no criminal record.

In trying to satisfy those criteria, we surveyed our contacts in the legal community, looked for names in newspaper articles and letters to the editor, spoke to friends and their friends, considered dozens of preliminary prospects, interviewed a smaller number, and settled finally on six – three men and three women, ranging in age from their mid-twenties to their early sixties. Four were white; two were African-American.

The lead plaintiff, Shelly Parker, was a neighborhood activist. Dick Heller was a special police officer, but he wasn’t allowed to take his handgun home. Other plaintiffs included a gay man who had been assaulted on account of his sexual orientation. Regrettably, five of our six plaintiffs, including Parker, were dismissed for lack of legal standing because they had not attempted to register a weapon or obtain a license. Only Heller remained. He had applied for registration, but was rejected by the District. That rejection was his injury and accorded him standing. Heller was a passionate and outspoken gun rights advocate. On occasion, we had to monitor his public communications to ensure that excessive passion didn’t compromise the litigation.

Q. Heller was, of course, a smashing success. But in retrospect, are you satisfied with how it and its progeny were received by the lower courts? Some venues basically dismiss it as binding precedent, preferring to treat Justice Breyer’s “interest-balancing inquiry” dissent as if it had been the majority opinion. Not only does this mean Alan Gura’s had to fight a lot more battles than he originally anticipated, but it seems rather damaging to the rule of law that some judges feel free to ignore decisions they don’t like. For that matter, what does this say about SCOTUS’ role as top dog in the judicial heap?

There’s also Justice Scalia’s hedge on “longstanding prohibitions” and “important limitation[s]” on the right to bear arms in certain circumstances, from being mentally ill to carrying in government buildings to owning “dangerous and unusual” weapons. Even if one acknowledges that rights have limitations, isn’t this a pretty gratuitous way of taking back much of what the decision was supposed to acknowledge? You’re no Second Amendment absolutist, but: should SCOTUS have been a little less squishy?

A. Justice Scalia acknowledged that the Second Amendment, like the First, is not absolute. Because of that unsurprising qualification, anti-gun-rights advocates tried to spin Heller as a hidden victory for gun control. Essentially, their contention was that Heller, by erecting a constitutional barrier to a broad gun ban, had taken confiscation off the table; therefore, the gun lobby could no longer invoke the slippery slope argument, and without that wedge issue, ordinary gun owners would be more receptive to sensible regulations.

Several observations: First, Heller challenged only three provisions of the DC code. The Supreme Court granted Heller 100 percent of the relief that he requested. Not bad for a hidden defeat. Second, it wasn’t the gun lobby that filed the lawsuit, picked the right time, provided the lawyers, identified the issues, selected the plaintiffs, chose the venue, decided on the legal strategy, wrote the briefs, argued in court, and won the case. Our goal was not to exploit a wedge issue, but to ensure that the DC government complied with the text, purpose, structure, and history of the Second Amendment. For us, Heller was about the Constitution; guns merely provided context. Third, if the regulators are correct in predicting sensible restrictions, I for one applaud that development. Thankfully, Heller took a major step to restore sensibility in DC. That was a big win for common sense, and a big win for the Constitution.

Yes, the Supreme Court could have been less squishy. But here’s what we now know: (1) The Second Amendment secures an individual right to bear arms commonly used for lawful purposes. (2) The right is subject to reasonable restrictions. But (3) because the right to bear arms is considered “fundamental,” we enjoy a presumption of individual liberty. That means government has the burden to justify its proposed regulations, subject to meaningful judicial scrutiny. Moving forward, the Court’s holding in Heller – and in other cases as well – can best be enshrined by electing politicians who will appoint judges with an understanding of our defining tenets – separation of powers, federalism, individual rights, and strictly limited federal authority.

Q. Your gun-rights contemporaries turned out to be skeptical of Heller’s prospects for success – right up until you proved them massively wrong. The NRA went so far as to start a competing suit and hire an established Second Amendment attorney to defend it, apparently just to undermine you. How come? Is it that they didn’t believe you could prevail before the Supreme Court? Were they jealous they didn’t come up with it first? Or is it that as a practical matter, their commitment to the Constitution leaves something to be desired?

The NRA’s support even for gun owners can be a little weak when something happens that doesn’t make for good ad copy. (Their silence when police shoot law-abiding drivers and homeowners for carrying firearms can be deafening.) How much genuine support from outside groups can libertarians and constitutionalists count on? Do they need to learn to rely on themselves to win, as you did?

A. One advantage in funding the Heller case personally was the ability to retain complete control over plaintiff selection, legal arguments, and litigation strategy. That didn’t mean we ignored potential alliances with groups like the NRA. Indeed, we sought NRA input. Lawyers there urged us not to proceed – presumably out of concern for a less-than-hospitable Supreme Court.

Nonetheless, we went ahead. First, we feared that an unattractive case, featuring an accused murderer or drug dealer as the poster boy for the Second Amendment, might eventually reach the Court. Second, with a sympathetic president, we thought the Court’s composition might improve by the time our case wound its way up. Third, federal appeals courts covering 47 states had denied that the Constitution secured an individual right. Those decisions would be no worse even if we lost in the Supreme Court. On the flip side, 44 states had their own constitutional or statutory provisions protecting an individual right. None of those laws rested on the Second Amendment. They too would be unaffected, even if the Supremes did the wrong thing.

Months later, evidently not wishing to remain on the sidelines, the NRA sponsored a copycat suit, and then filed a motion to consolidate its case with ours – a none-too-subtle attempt to take control of the litigation. We successfully opposed that motion, but the NRA’s suit was decided before ours. It failed. On appeal, it was dismissed on standing grounds. Because the appellate court never addressed the underlying Second Amendment questions, Heller was allowed to go forward. The NRA then tried to moot our case by lobbying for repeal of the DC gun ban. Congress balked. Finally, the NRA threw in the towel and became a valued ally in the Supreme Court phase of our case – garnering support from the gun rights community and crafting a powerful amicus brief.

With hindsight, even though Heller relied on the resources and efforts of a few individuals, I’m convinced that the more effective route to judicial relief is through alliances with numerous pro-liberty groups that litigate constitutional issues. Most notably, there’s the Institute for Justice, Competitive Enterprise Institute, Pacific Legal Foundation, Goldwater Institute, the Foundation for Individual Rights in Education, and even (on selected civil liberties issues) the ACLU. Those groups have the requisite experience, expertise, and organizational structure to fight the big cutting edge battles.

Q. You’re now the chairman of Cato, and during your tenure, you’ve done your best to preserve the Institute as a politically independent organization. That hasn’t always been easy: for instance, back in 2012, there was some concern that the Koch brothers, who helped found Cato and contributed to it over the years, would tie it to the GOP and conservative politics by establishing greater control over Cato’s board. This and other challenges to Cato’s independence were seen off, and it remains an institution with credibility on either side of a political debate.

Is there always some danger that libertarians will “lose their way,” be seduced by the promise of some transient gain into losing sight of what’s important? Conversely, how careful does one have to be when lending support to a movement that meets libertarian criteria in some ways but may fall short in others, as with the Tea Party? Is principle everything, even when it may cost one funding and the opportunity to change things now? Or are compromises sometimes necessary?

A. The internal debate at Cato five years ago never questioned the Institute’s libertarian blueprint. Instead, there were concerns about our corporate governance structure and management strategy. Those concerns are now resolved. On the governance issue, Cato is no longer controlled by stockholders but rather, like most 501(c)(3)s, by a self-perpetuating board of directors. On the strategy issue, Cato rejected an increased involvement in the political process, but continues as an independent, non-partisan source of intellectual ammunition intended to move public policy in a pro-liberty direction. Our tasks are difficult and frustrating; but ideas matter. That’s why organizations like Cato are indispensable. No group is more dedicated to the principles of individual liberty and limited government.

Yet compromise is still achievable. We understand that the vast majority of public policy questions fall clearly on one side of the libertarian line or the other. But we also recognize practical obstacles. For example, the pristine libertarian position is that government should play no role in compelling Americans to provide for their retirement. Nevertheless, we have been enthusiastic proponents of tax-funded Social Security private accounts. Our criteria for compromise are twofold: First, we state openly that we are offering concessions as a pathway to a more desirable, freedom-enhancing end result. Second, we verify with a high level of certainty that any concessions will in fact advance our longer-term aims.

The Tea Party, as you note, has been a mixed bag. But it has definitely accomplished one major objective – to get Americans thinking about the U.S. Constitution. At Tea-Party instigation, the Constitution was read aloud on the floor of the House of Representatives – for the first time in the House’s history. Even more important, every bill introduced in the House now has to cite constitutional authority. That sounds like it should have been standard operating procedure, but it’s never been a requirement until recently. Yes, the courts can ignore the congressional citation and substitute their own source of authority, so sometimes the process is symbolic. But it surely doesn’t hurt to have our national legislature consider whether its actions are constitutional. For that, we can thank the Tea Party.

Q. You’ve published stacks of books, restored the Second Amendment for generations of Americans and reached the pinnacle of both law and business. Really, the only thing left for you to do is become a medical doctor. How about it? Can you really look back over your career and consider yourself satisfied if you don’t? There are patients to cure, you know. What battles are still out there for you? What’s next for Bob Levy?

A. Next for Bob Levy are energetic hikes in the stunning mountains of western North Carolina, near Asheville, where I spend my summers. I’ll complement that with trips to Austin, TX, where Diane and I can enjoy our only grandchild – one-month-old Leilani Rose Levy. By the way, her other grandparents are both doctors, thereby satisfying our family’s commitment to the medical profession.

Meanwhile, I plan to remain engaged in pursuit of the Cato Institute’s libertarian mission. We will be instrumental in promoting such diverse ideas as entitlement reform, the right to bear arms, marriage equality, fundamental tax code changes, downsizing government, property rights, drug legalization, school choice, a non-adventurist foreign policy, free trade, and immigration reform. We will forcefully oppose corporate welfare, ObamaCare, Dodd-Frank, campaign finance restrictions, government control of the Internet, global warming excesses, overreaching executive power, infringements on civil liberties, and impermissible delegation of legislative authority to administrative agencies.

That’s quite an agenda. When I’m asked “what battles are still out there,” the list is long. But here’s the overriding theme: Those persons who prefer a society that sacrifices individual liberty to collectivism are free to form a regulated welfare state, shackled by government to their heart’s content. But they are not free to compel me to join. Libertarianism does not foreclose collectivist arrangements as long as participation is voluntary. By comparison, collectivists will not condone free choice within a collectivist system. That system can be implemented only if its opponents are coerced.

 

11 comments on “Cross: Bob Levy, Guiding Cato’s Vision of Justice

  1. Richard Kopf

    Dave,

    I greatly enjoyed this cross.

    As you may appreciate, some Germans like me are terribly afraid of chaos and anarchy. Thus, libertarians scare the crap out of me. Indeed, my view of the state of nature is much like Hobbes’ description of life–nasty, brutish and short. Thus, I have had a reflexive and negative reaction to Cato all these years.

    But, the penetrating Q&A of Mr. Levy startled me. He is a more thoughtful man than I would have expected. More important, as his unwillingness to bend to donors illustrates, he is a principled person, And, that is a very rare trait in the rarified atmosphere in which think tanks prowl for money to perpetuate their ideological agendas.

    Perhaps oddly, I was particularly impressed by the manner in which Mr. Levy settled on a particular law school. He wrote: “Prof. Michael Krauss, who has since become a good personal friend, told me to read John Locke, Montesquieu, and Algernon Sidney. Right away, I knew I had found a home.”

    Now, I would have said ditch Sidney for Hobbes in order to achieve some balance against Locke (and his nonsense on stilts, as Bentham reminds us), but that’s a quibble. Levy was smart enough to know that a deep understanding of classical political thought is one hallmark of a truly educated person. More to the point, Levy, albeit even if only intuitively, understood that the study of the classic political thinkers provides a basic primer for law students who wish to become top-flight lawyers.

    Dave, as you almost always do, you made me less stupid with your cross of Mr. Levy. Thank you, and thanks to Mr. Levy too.

    All the best.

    Rich Kopf

    1. SHG

      While I’m far too pragmatic to adhere to any ideology per se, libertarian lite has the virtue (in this age of divisive emotionalism) of being the only perspective that manages to the thread the needle between the radical fringes. And are you thinking of the same Hobbes that I’m thinking of?

      null

      1. Brian U

        Interesting–I made the same leap when Judge Kopf mentioned Hobbs. Does that mean I’m a great thinker like Mr. Greenfield? Oh heck no, not even close.

      2. Richard G. Kopf

        Scott,

        As you no doubt know:

        “Hobbes is named after the 17th-century philosopher Thomas Hobbes, who held what Watterson [the cartoonist] describes as ‘a dim view of human nature.”‘ He feels that animals (and tigers in particular) are superior to humans, showing disdain for human nature, mannerisms, and how mankind destroys their environment. Hobbes is much more rational and aware of consequences than Calvin but seldom interferes with Calvin’s troublemaking beyond a few oblique warnings. Hobbes is sarcastic when Calvin is being hypocritical about things he dislikes.”

        Calvin and Hobbes, Wikipedia (last accessed March 30, 2017) (footnotes omitted).

        So, the answer to your question is “yes” we are both thinking of the same Hobbes. In other words, Hobbes lives.

        All the best.

        RGK

    2. David Meyer-Lindenberg

      “Almost always.” I see what you did there.

      Thanks, Your Honor. I especially liked Mr. Levy’s “criteria for compromise.” Too often, we think of principle and pragmatism as opposite points on a spectrum. He steers an admirably intelligent and clear way around that problem.

  2. Brian U

    Question for Mr. Levy:
    You state “We will forcefully oppose corporate welfare, ObamaCare, Dodd-Frank, campaign finance restrictions, government control of the Internet, global warming excesses, overreaching executive power, infringements on civil liberties, and impermissible delegation of legislative authority to administrative agencies.”

    I support many Libertarian ideals, but I also see the case for government regulation, which flies in the face of Libertarian idealism (as I understand it).
    When industry has shown that it is incapable of self regulation to the detriment of the individual and individual rights, is government regulation of that industry justified? For example, if industry action could pollute the environment to the point that I cannot safely use my (individual or community as a whole) property , is the government justified in issuing regulations to prevent the pollution?

    At what point do the “…needs of the many outweigh the needs of the few? (Or the one?)”

    1. SHG

      Not sure why you think this is an opportunity for questions from the peanut gallery, but if Bob Levy wants to respond, that’s fine too.

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  4. Bob Levy

    Brian U asks whether libertarianism precludes government regulation, and he specifically raises the case of industrial pollution. The short answer is that libertarians not only tolerate but endorse government regulation that is designed to prevent some persons or groups from forcibly violating the rights of other persons or groups. Accordingly, a sensibly crafted prohibition or limit on specific polluting activities would not be incompatible with libertarianism. On the other hand, libertarians would vigorously oppose a ban on, say, 32-ounce sodas, because the purported victim could easily take steps to avoid exposure.

    The more complicated distinction is between regulations that prescribe punishment for offenders, after the fact – e.g., a fine for contaminating a river – and regulations that address conduct that might violate the rights of others but hasn’t yet done so – e.g., safety mandates. Libertarians do not object to punishing offenders, but we may have concerns about directives intended to prevent endangerment. That’s an area where rights theory is difficult to apply. For example, how much increased risk do I have to tolerate before your potentially (but not yet actually) harmful behavior is restrained. Surely government can impose safety requirements on nuclear power plants without waiting for a fatal accident. But should government be able to compel automobile manufacturers to install backup cameras?

    When rights theory doesn’t provide clear guidance, libertarians will sometimes look to cost- benefit tradeoffs. Here are the factors I would consider: (a) the magnitude of an injury that might occur, (b) the estimated frequency of occurrence, (c) the ability to reduce risk through reasonable care, (d) the possibility of ex post relief through payment of damages, (e) the likelihood that the regulation will remedy the problem, (f) the chance that the regulation will be exploited to limit competition, (g) the threat that politicians will use the regulation to coerce “cooperation” in other areas, (h) the availability of less intrusive remedies (especially private remedies like contractual waivers and disclaimers), and (i) the impact of the regulation on the cost and utility of the product or service.

    1. SHG

      I suspect a great many people have rather naive/extreme views on what libertarianism stands for, particularly given how adherents of other ideologies prefer to characterize it. Thank you for providing a much clearer idea of what libertarians believe.

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