The Strong Hayekian Argument Against Immigration, Gay Marriage, And Ending Racial Segregation Is Morally Indefensible Bigotry

Perhaps the greatest thing that can be said about Hayek is that he was not a strong Hayekian. Rereading Jonathan Rauch's powerful essay on Hayek and gay marriage, published a few years ago in Reason:

The Hayekian position really comes in two quite different versions, one much more sweeping than the other. In its strong version, the Hayekian argument implies that no reforms of longstanding institutions or customs should ever be undertaken, because any legal or political meddling would interfere with the natural evolution of social mores. One would thus have had to say, a century and a half ago, that slavery should not be abolished, because it was customary in almost all human societies. More recently, one would have had to say that the federal government was wrong to step in and end racial segregation instead of letting it evolve at its own pace.

Obviously, neither Hayek nor any reputable follower of his would defend every cultural practice simply on the grounds that it must exist for a reason. Hayekians would point out that slavery violated a fundamental tenet of justice and was intolerably cruel. In calling for slavery’s abolition, they would do what they must do to be human: They would establish a moral standpoint from which to judge social rules and reforms. They thus would acknowledge that sometimes society must make changes in the name of fairness or decency, even if there are bound to be hidden costs.

If the ban on same-sex marriage were only mildly unfair or if the costs of lifting it were certain to be catastrophic, then the ban could stand on Hayekian grounds. But if there is any social policy today that has a claim to being scaldingly inhumane, it is the ban on gay marriage. Marriage, after all, is the most fundamental institution of society and, for most people, an indispensable element of the pursuit of happiness. For the same reason that tinkering with marriage should not be undertaken lightly (marriage is important to personal and social well-being), barring a whole class of people from marrying imposes an extraordinary deprivation. Not so long ago, it was illegal in certain parts of the United States for blacks to marry whites; no one would call this a trivial disfranchisement. For many years, the champions of women’s suffrage were patted on the head and told, "Your rallies and petitions are all very charming, but you don’t really need to vote, do you?" It didn’t wash. The strong Hayekian argument has traction only against a weak moral claim.

To rule out a moral and emotional claim as powerful as the right to marry for love, saying that bad things might happen is not enough. Bad things always might happen. People predicted that bad things would happen if contraception became legal and widespread, and indeed bad things did happen, but that did not make legalizing contraception the wrong thing to do; and, in any case, good things happened too. Unintended consequences can also be positive, after all.


So the extreme Hayekian position -- never reform anything -- is untenable. And that point was made resoundingly by no less an authority than F.A. Hayek himself. In a 1960 essay called "Why I Am Not a Conservative," he took pains to argue that his position was as far from that of reactionary traditionalists as from that of utopian rationalists. "Though there is a need for a ‘brake on the vehicle of progress,’" he said, "I personally cannot be content with simply helping to apply the brake." Classical liberalism, he writes, "has never been a backward-looking doctrine." To the contrary, it recognizes, as reactionary conservatism often fails to, that change is a constant and the world cannot be stopped in its tracks.

His own liberalism, Hayek wrote, "shares with conservatism a distrust of reason to the extent that the liberal is very much aware that we do not know all the answers," but the liberal, unlike the reactionary conservative, does not imagine that simply clinging to the past or "claiming the authority of supernatural sources of knowledge" is any kind of answer. We must move ahead, but humbly and with respect for our own fallibility.

And there are times, Hayek said (in Law, Legislation, and Liberty), when what he called "grown law" requires correction by legislation. "It may be due simply to the recognition that some past development was based on error or that it produced consequences later recognized as unjust," he wrote. "But the most frequent cause is probably that the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice....Such occasions when it is recognized that some hereto accepted rules are unjust in the light of more general principles of justice may well require the revision not only of single rules but of whole sections of the established system of case law."

Rauch's hypothetical is even more powerful than Rauch himself realizes, for it's not a hypothetical at all: It actually happened. For, in fact, one did actually say the federal government was wrong to step in and end racial segregation instead of letting it evolve at its own pace. This one was none other than an unsigned March 1960 editorial in National Review, that great bastion and protector of mainstream social conservativism. The editorial reads:

"In the Deep South the Negroes are... retarded. Any effort to ignore the fact is sentimentalism or demagoguery....In the Deep South the essential relationship is organic, and the attempt to hand over to the Negro the raw political power [i.e., the vote] with which to alter it is hardly a solution."

The fact that this editorial was unsigned implies one of two things. It implies that every single person on National Review's editorial board at the time either agreed with the editorial's position, or did not object to having the views expressed in the editorial implicity attributed to themselves.

Brian Doherty, reviewing Jeffrey Hart's The Making of the American Conservative Mind: National Review and Its Times, in next month's Reason, gives us the modern-day mainstream social conservative's reaction to this relatively recent (1960!) embarrassment in National Review's history:

The most dudgeon Hart can summon about this is to comment [in all seriousness, apparently], "Everyone has a bad day. This wanders off into the tall grass," and to note that, OK, the use of the word retarded "is insulting."

Even his very best Officer Barbrady impersonation—"Nothing to see here, folks, just move along"— can't keep Hart from admitting just how embarrassing this is.

From this, Doherty makes a good point about how advocating radical change is actually more realistic than this Russell Kirkian, strong Hayekian social conservativism:

Here we see how hewing to the supposedly possible made it impossible to be not utopian but genuinely realistic. Advocating radical change is often the only way to be realistic, since many central aspects of the modern world cannot, in the long run, survive—from segregation in the 1950s to the entitlement state today.

So what should we conclude from all this? First and foremost, we should conclude that when we see a bigot, we should say so, and not lend intellectual support to the defense of these indefensible beliefs out of some misguided fear that doing so will somehow fracture the libertarian community.

Would you consider the National Review editorial bigoted? But they are simply making the strong Hayekian argument: In the Deep South, the essential relationship is organic. That is to say, the essential relationship between the white man as politically powerful and deserving of this superiority, and the "retarded" Negro as politically subservient and deserving of this subserviency, is an organic one. It is organic

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