Yes, the libertarian moment has arrived

Robert Draper posed an important question in last weekend's New York Times Magazine cover story: Has the "libertarian moment" finally arrived, with voters ready to support a presidential candidate (presumably Republican Rand Paul) who champions libertarians ideas? Those would include drastic cuts in taxes and spending, an end to the culture war and the war on drugs, and a foreign policy of much greater restraint than even Barack Obama has proposed and enacted.

A range of critics — from Jonathan Chait and Paul Krugman on the center-left, to David Frum on the center-right — have answered the question with a resounding "No!"

The evidence for their case, based mostly on surveys of public opinion, is strong. The American people on the whole support raising taxes on the wealthy. Young people are the most pro-government of any age cohort. Older Americans, by contrast, say they dislike government in the abstract, but even they favor the specific programs that benefit them directly. (Today those programs include Social Security and Medicare; someday soon ObamaCare may join them.)

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All of it adds up to an electorate in which older voters lean toward the Republican Party (anti-government rhetoric combined with social conservatism, tax cuts, and robust spending on the elderly) and younger voters favor the Democrats (social liberalism, tax hikes on the wealthy, and robust spending on everyone who asks for it).

Libertarianism, meanwhile, is nowhere to be found. Or rather, it remains what it always has been: a quirky, syncretic, marginal ideology with little mainstream political appeal.

There's just one problem: America clearly is becoming more libertarian — it's just that the transformation is happening in morality and culture, not in economic, tax, and regulatory policy.

The swift and broad-based triumph of the movement for gay marriage and the rapid rise in acceptance of marijuana legalization are the most obvious examples. But the source of these changes is deeper than the policies themselves — and may lead to other changes down the road.

The prophet of the moral and cultural libertarianism that is sweeping the nation may well be Supreme Court Justice Anthony Kennedy, whose words upholding the right to abortion in Planned Parenthood v. Casey (1992) expressed an outlook that was just beginning to emerge 22 years ago, but which has since become common sense to many Americans: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, of the mystery of human life."

Justice Antonin Scalia recognized immediately that such a libertarian principle created serious problems for morals legislation of any kind. In his Casey dissent, he pointed out that the principle would seem to make laws against bigamy unconstitutional.

Twelve years later, in Lawrence v. Texas (2004), Kennedy used similarly libertarian language to declare anti-sodomy laws unconstitutional — and Scalia was back to say that once all consenting adults, gay and straight, were free to do whatever they wished in the bedroom without any government interference, laws against same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity were bound to be thrown out as well.

The feud between Kennedy and Scalia has continued right down to U.S. v. Windsor (2013), which struck down the core of the federal ban on gay marriage, the Defense of Marriage Act. Kennedy once again based his majority opinion on (among other things) the liberty of homosexuals to make "moral and sexual choices" without government interference — while Scalia angrily argued in his dissent that Kennedy's libertarian arguments implied that state-level bans on gay marriage were constitutionally unjustifiable. Since then, lower courts have eagerly (and repeatedly) vindicated Scalia's reasoning by citing his dissent to strike down such bans.

But the logic of Kennedy's libertarianism not only transformed constitutional law. It also anticipated the direction of public opinion and American popular culture in striking ways.

Americans now inhabit a world in which increasing numbers of individuals find it difficult, if not impossible, to imagine submitting to rule by any authority higher than themselves on moral and religious matters. Sure, people continue to accept that one will be judged harshly and punished for violating another individual's consent (the only libertarian moral consideration). But beyond that? Don't be ridiculous.

Who are you — who is anyone — to judge my behavior?

That's the rhetorical question we increasingly pose to ourselves, our family members, our neighbors, our church leaders, and our fellow citizens as a way to put a stop to any conversation that threatens to veer into moral evaluation and condemnation.

Consider the phenomenon of Miriam Weeks (Belle Knox), the Duke University undergrad who's become a breakout celebrity (and something of a libertarian folk hero) for proudly admitting that she works as a porn actress to pay for her education.

Pornography is obviously nothing new. But what is new — aside from its easy and costless availability online in effectively infinite quantities and varieties — is the claim that we shouldn't judge Weeks' decision to earn a living by having sex for money and in public, which is often the subtext behind discussion of her job choice. At least when the discussion isn't explicitly framed to make her look like a saint for "empowering women and sex workers."

In our libertarian paradise, moral judgments are perfectly acceptable, as long as they praise and never blame.

And just in case you're inclined to object on feminist grounds to singling out Weeks as an example of moral libertarianism, here's a recent column (with accompanying author photo) posted at Time in which a man named Jim Norton (who describes himself as a "consummate john") proudly declares, "I'm not ashamed to pay for sex — and other men shouldn't be either."

This doesn't mean that every man in America is ready to proclaim in a public forum that he regularly and shamelessly pays for sex. But it does mean that we now live in a culture in which an author (and a mainstream newsmagazine and website) can foresee no negative consequences of making such a proclamation.

Yes, the libertarian moment has arrived. Just not in the precise sense that Rand Paul and his ideological compatriots anticipated.