This is a good piece by Jim Manzi:
I’ve been attending a fascinating series of monthly dinners here in Washington, in which liberals and libertarians exchange ideas. One thing that has become clear to me through these dinners is that there are two strands of libertarian thought. In somewhat cartoon terms, one strand takes liberty to be a (or in extreme cases, the) fundamental human good in and of itself; the other takes liberty to be a means to the end of discovery of methods of social organization that create other benefits. I’ll call the first “liberty-as-goal” libertarianism and the second “liberty-as-means” libertarianism.
He then sets up this paradox:
The freedom to experiment needs to include freedom to experiment with different governmental (i.e., coercive) rules. So here we have the paradox: a liberty-as-means libertarian ought to argue, in some cases, for local autonomy to restrict some personal freedoms.
This brings up the obvious example of this:
Now, obviously, there are limits to this. What if some states want to allow human chattel slavery? Well, we had a civil war to rule that out of bounds.
Good point. I think most libertarians tend to think that their beliefs are justified using the tools of the first category (liberty-as-goal, type one) and then subsequently then think that federalism (a tool of liberty-as-means, type two) is a good way to achieve it. A combination of both seems to be necessary. If you are purely federalistic, you would allow slavery — but then Manzi touches on an Arnold Kling-esque point:
Further, this imposes trade-offs on people who happen to live in some family, town or state that limits behavior in some way that they find odious, and must therefore move to some other location or be repressed. But this is a trade-off, not a tyranny.
But in some cases, this is a tyranny — and actually in precisely the scenario he suggests: slavery. It requires some basic type-one libertarian leanings to declare slavery wrong, because you feel that slaves have rights that can’t be violated by slavery.
But even the type two has a solution for this: “sure, we let a state declare slavery legal, but for federalism to work, we require that all people have the right of exit from that state, including people the state declares to be slaves.” A slave state that lets slaves leave whenever they want won’t be a slave state for very long. Now, Manzi could retort that the definition of a person is something that states could have the right to determine (for example, in the contest of abortion) within an extremely federalistic system, but I think this points to the fact that no one is a pure type two libertarian — there has to be some mutual adherence to the moral concept of what constitutes a rights-endowed person that trumps everything else.
So, I think that, for type two libertarians, this is less of a paradox (and I think Manzi himself states that it isn’t a paradox for type one libertarianism already) than it might seem. Plus, there is another method of objecting to liberty-infringing policies that a type two could put forth, but it isn’t necessarily libertarian: you could argue simply that the documents that all of the various experimenting states have jointly agreed upon place this action out of bounds. You could say that they should be interpreted in such a way that slavery is illegal, regardless of the moral (type one) or practical (type two) issues.
Other randomness: this might seem like craziness, but at what point do we start to allow people to change their jurisdiction without necessarily changing their location? For example, even right now, I am currently a citizen of Ohio, but most of the laws governing my employment are those of Arkansas, the state in which I work — though I am only rarely within the actual borders of that state. Obviously many laws are not transportable in this way: Ohio traffic laws should always take precedence in Ohio, no matter my preference for the ones in Arkansas.
But take Manzi’s prostitution example: if the entire transaction takes place within private property and no argument could be made that negative externalities are seeping out and harming prudish natives, couldn’t one elect to be a member of a different state’s jurisdiction for matters of sex, regardless of petty matters of borders? As more of our employment, entertainment and transactions take place well, in the United States of nowhere — it seems like one day this crazy libertarian scenario might work.