Not well, all things considered. With respect to the basic issue of whether or not Americans still own their own lives, the biggest action was not in legislative races, but in ballot initiatives. With respect to the congressional elections, many libertarians argue that there is little difference between the Republicans and the Democrats. This is not entirely true. Almost all Republicans, including President Bush, believe strongly in tax cuts. They do not always do it for the right reasons – President Bush sold his tax cuts mostly as a way to revive a struggling economy – but they do it just the same. And tax cuts are an important weapon in the war for freedom because they provide some restraint on the growth of the state, as Ronald Reagan knew well. The president’s tax cuts will presumably expire now, and that transfer of resources from individuals to the government is a significant loss. While it is probably true that the Democrats will try to turn back some of the excesses of the national-security state, it is unlikely they will succeed in getting them past the president. But on the whole, since the natural trajectory of the state has been upward with only occasional interruptions for most of the last 70 years, there was nothing in yesterday’s results that dramatically changed this. Indeed, while President Bush clearly believes in tax cuts, he does not seem to believe in lower government spending. In this he is different from Ronald Reagan, but similar to the Democrats in Congress. The entanglement of the Republicans with the special-interest rent-seekers peddling influence in Washington made them more and more resemble the corrupt Democratic empire of 1994, and I suspect this is part of what turned the electorate against them.
And with one and a half exceptions, the ballot issues were no better. Most shockingly, many states voted for a mandatory increase in the minimum wage. At least two of them, Nevada and Ohio (there may be more), actually wrote this into their state constitutions. The importance of this as an expansion of state power is hard to understate: in these states, the labor-management bargain over wages has now been transferred not just to legislative majority, but to direct majority vote, and into their constitutions
. And as I noted earlier
, the Ohio amendment is the most dangerous of all, because it allows anyone asserting an interest on behalf of worker to begin rifling through employment records. This opens the door to unprecedented harassment of business. In addition to the obvious incentive effects of this – expect employers to be even less willing to start businesses in Ohio than before – the threat to the autonomy of the entrepreneur is outrageous. This is a dark development. We should be thankful every day that the framers, properly concerned about the tyranny of the majority in a way that is unknown to most modern Americans, made the federal Constitution so difficult to amend. In taking this step, the advocates of Ohio's Issue 2 have made its constitution more like those of most countries and like the aborted one of the European Union – hundreds of pages long, dealing not with the fundamental structure of the government and with the checks and balances necessary to restrain it, but with affirmative promises made to various loud constituencies. This is the road to disaster.
On marijuana initiatives, where libertarians generally split from conservatives, the news was also not good from a libertarian point of view. A medical marijuana initiative lost in South Dakota, and an initiative to decriminalize the possession of small amounts of marijuana also went down in Colorado. In Ohio, an initiative to legalize slot machines went down hard in Ohio, but this is not a bad result. The issue was so specifically worded that it was basically a huge transfer of a guaranteed income stream to casino owners, along with a prior commitment to how to spend the tax revenue generated, which is a specific guarantee for specific constituency – college students in this case, who would get scholarship money. As this works against the rule of law, the defeat of this initiative is no tragedy.
Initiative to ban same-sex marriage went down everywhere except in Arizona, where the outcome is still in doubt. I am torn about this; there is much about the new gay-rights culture that is very similar to the culture of American gimme-tribalism that I despise. Gay-rights activists are not interested in obtaining, for example, the rights that blacks were deprived of for so long – the right to contract freely, the right to be on the street after dark, the right to vote, etc. They of course already possess these rights. This movement is partly about government ratification of a particular sexual preference – my choice in marriage is entitled to equal respect as yours. And there is some evidence that some campaigners for gay marriage are really interested in disrupting traditional marriage, which has served society well, if the tendency of all societies throughout history to adopt and stick to it is any indication. And yet in modern America, traditional marriage carries considerable financial benefits. It is possible for two married men or women to duplicate most of the contractual benefits of marriage – the presumed rights that marriage connotes in inheritance, end-of-life issues, etc. But establishing these contracts is very costly in a way that it is not for traditionally married people, and gay couples do not get any of the tax benefits that traditionally married people do.
And so if you believe in equality before the law, the gay-rights advocates seem to have you over a barrel. And yet there is nothing in the arguments advocating gay marriage that do not also serve to legitimize polygyny and other "alternative" family structures. The only solution to this problem is to completely untie the knot between state and marriage – to let churches defined marriage as they wish, but to give no tax benefits to any particular sort of family structure. Ultimately, the public increasingly is not worried about these alternative family structures, and so we are headed down the road in which the state treats them all the same, which will damage the traditional family the most. Paradoxically, separating marriage and state is probably at this point the best way to defend the traditional family (a worthy goal, in my view).
The one half-bright spot was eminent domain. Nine states passed laws or amendments restricting the ability of state governments to seize private property and transfer it to another private party. One of them was New Hampshire, which means that (against all sense of cosmic justice) David Souter’s house
is safe. Unfortunately, the ones that lost were the more stringent initiatives, which didn't simply ban private-to-private transfers, but required taxpayers to compensate private landowners when land-use regulations diminish the value of their property. This is, sadly, not surprising. Most people view an evident-domain seizure as something that could happen to them, while the gutting of property value because of a land-use regulation is something that happens to only to other people, with big McMansions or large lots who are far removed from the common man. Since the land use regulations are seen as benefiting many people even as they impose costs only on a few who can probably afford it anyway, they are seen as just. But the rich and the poor should be equal before the law, and the rich are just as damaged when the resale value of their land is destroyed as anyone, rich or poor alike, is when their property is seized. So this is a mixed victory at best.
California, of all places, did reject an initiative to tax oil production and use it to fund "alternative energy" research and production. The motivation again was not the best one, in that a lot of people pushing it probably didn't want oil drilling rigs on their coastlines (Reuters titled one of its dispatches on the outcome
"Big Oil Trumps Hollywood, Clintons in CA"), but since this would have been a measure that attacked a specific group for the benefit of another specific group, its defeat is important. So I will take what I can get.
The single biggest victory came from Michigan, which by a sizable margin approved a ban on racial discrimination by the state government, including its universities. The critic may object that since this limits the ability of universities there to run their own affairs, this is an anti-freedom measure, but in fact the reverse is true. While private universities should be free to diversify their student body as much as they like in a multiethnic society, a key cornerstone of liberty is that the state may not racially discriminate. If the state is to have universities, race must be irrelevant in their decision-making. Michigan joins Washington and California in banning this kind of been-counting flimflammery. The ultimate beneficiaries of this, ironically, will not be whites but Asians who have been systematically excluded from many of our best universities on the grounds that they are not the "right" sort of minority.
The founders knew that freedom was a tenuous thing, and that majority rule in particular was no friend of liberty. Charles Murray has argued
that America will ultimately turn back to freedom through the ballot box as enough Americans realize the growing incompetence of the state in addressing issues that are beyond its competence – family structure, income maintenance, picking which industries and businesses should succeed and fail, etc. But I wonder. Politics is usually zero-sum; successful political entrepreneur is often the one who succeeds in picking us against them – impoverished minimum-wage workers against greedy employers, for example. And so elections are a poor substitute for the bulwarks of the Constitution in defending us against our natural tendency to prey on one another.