Leash the Police: A Response to Late Rothbard

Murray Rothbard’s 1992 article “Right-Wing Populism: A Strategy for the Paleo Movement” has once again reared its ugly head in libertarian discourse. Rothbard, for those who are unaware, is often referred to as the father of anarcho-capitalism. I still sometimes refer to myself as a Rothbardian, given my admiration for much of his earlier work.

However, near the end of his life, Rothbard made numerous strategic and philosophical slip-ups, to put it mildly. This era of Rothbard’s work, often referred to as “late Rothbard,” was the peak of the paleo strategy he developed alongside Mises Institute founder Lew Rockwell. This strategy was described by Rothbard as “outreach to rednecks” and largely consisted of pandering to some of the worst tendencies of a group of people that could be described as a precursor to the alt-right. This strategy spawned Rothbard’s apologism for former KKK Grand Wizard and downright horrible human being David Duke, Rothbard’s about-face on immigration, and the infamous Ron Paul newsletters, which many believe were written at least in part by Rockwell himself.

On top of all of this, though, was a pro-police brutality sentiment put forward by both Rothbard and Rockwell. There was Rockwell’s 1991 LA Times pro-police brutality op-ed about Rodney King, in which he lamented the fact that cops could no longer beat up accused criminals without being filmed. In the same vein were Rothbard’s musings on police in his article “Right-Wing Populism: A Strategy for the Paleo Movement,” the same article in which he mourned the defeat of David Duke’s campaign (that is, unless you read the version on Lew Rockwell’s site, in which the David Duke praise is curiously cut out).

Within that article, Rothbard laid out a “Right-Wing Populist Program” that he claimed would “[liberate] the average American from the most flagrant and oppressive features of [elite] rule.” One step of the program was entitled “Take Back the Streets: Crush Criminals.” There, Rothbard wrote of fighting back against violent criminals by allowing police to engage in brutality: “Cops must be unleashed, and allowed to administer instant punishment, subject of course to liability when they are in error.” The next step of the program, entitled “Take Back the Streets: Get Rid of the Bums,” similarly involved a call to “unleash the cops to clear the streets of bums and vagrants.”

This rhetoric, far from being libertarian, is essentially fascistic. The idea that police should be able to roam the streets, brutalizing those that they believe committed crimes (even violent ones) sounds far more like something from an authoritarian dictator’s wet dream than something put forward by a man who was nicknamed “Mr. Libertarian.” Making this even worse is that Rothbard is not talking of some far-off anarchist society, in which police work is taken out of the hands of government and features greater checks on power from the market, communities, and individuals. Rothbard’s call to unleash the cops refers to the cops who are doing the dirty work of the state as we speak. The same cops who murder and brutalize innocent people in the course of enforcing unjust laws, have a code of silence in protecting each other from punishment for their misconduct, and act as if they themselves are above the law that they are more than happy to enforce upon others are supposed to be trusted with the power to use gratuitous violence against arrestees who will already face the possibility of being held accountable in court for any violent actions they may have committed.

Fans of Rothbard’s later work like to bring up the fact that his unleashing the cops is seemingly qualified by “subject of course to liability when they are in error,” as if this wipes away any of the issues with his proposition. The first issue with this is the idea that a cop being forced to pay damages, for instance, after wrongfully brutalizing someone in any way fully compensates the victim. While the money received can surely be useful and a nice consolation prize, a person who is wrongfully accused of a crime and attacked by violent agents of the state may face mental and physical trauma that could take years or even a lifetime to recover from. Compensatory damages, while a useful way to pay back victims and punish wrongdoers, are not a reset button.

In addition, as I previously alluded to, there exists a culture within many police departments that consists of officers covering for each other when others in the department commit wrongdoing. This culture is a large part of the reason why police accountability is such a difficult objective to achieve, to this day. If it meant saving a fellow officer from losing his job or facing civil or criminal liability, there is no doubt that many police officers would cover for their colleagues, allowing those cops who use brutal force “in error” to escape responsibility.

I also take issue with the idea that there is anything libertarian about beating up violent criminals who have already been apprehended. The non-aggression principle (NAP), which is central to many libertarian ideologies (including anarcho-capitalism), states that the initiation of force is inherently wrong. This does not mean, however, that force can never be used; force in self-defense or in defense of one’s property, or force in defense of another or their property, is permissible under the anarcho-capitalist interpretation of the NAP. In addition, there are various common justifications for the permissibility of using force to compensate a victim of initiatory force (essentially righting a wrong) or, more controversially in some anarchist circles, imprisonment of those who would seek to use force against innocent people (the debate over the pros and cons of the prison abolition movement is a topic for another day).

However, in the situation Rothbard is referring to, it seems as though the suspected violent criminal would already be in police custody; if not, the phrase “instant punishment” would have been replaced with something about police using the force necessary to apprehend them. The violence from the police, in that situation, would not serve to compensate the victim, nor would it serve to protect the victim or anyone else, as the suspect is already incapacitated by virtue of being in custody. Instead, the beating of the suspect serves a bloodlust that should be rejected by libertarians and non-libertarians alike. There already exists an issue with those who look to rule over and dominate others becoming police officers for the opportunity to do so; expanding the ways in which police can utilize this raw violence would only make things worse.

Mises Caucus comedian Dave Smith recently brought up Rothbard’s rhetoric on a podcast episode entitled “What We Can Learn From Late Rothbard,” saying (in reference to the “unleash the cops” quote), “So, I… to me… even though this is viewed as such a controversial statement, I don’t really see anything wrong with it, and I think it’s completely reasonable for libertarians to support that, particularly in the face of what we’re seeing… uh… in the streets right now.” Smith had previously mentioned the idea of essentially unleashing the police in regard to the BLM protests, writing on Twitter in reference to an incident involving protesters surrounding Senator Rand Paul that “the mob should be put down by any means necessary.”

I will let what I said above stand alone in response to Smith’s praise of Rothbard’s pro-police brutality sentiment. However, I think Smith’s idea about stopping the mob “by any means necessary” also deserves a response.

There are numerous issues with Smith’s thoughts on and representations of the Black Lives Matter movement, which for the sake of brevity, I will not get into here. But for the sake of argument, let’s say that Smith is correct about his depictions of what is going on “in the streets right now,” meaning that there is a glaring issue with mobs related to the protests causing property damage and harassing people. As a libertarian, I do not condone damage to the property of innocent people, nor do I condone harassment of innocent people. But is the idea of stopping it by “any means necessary” an acceptable one?

I would argue it is not. Smith likes to argue that when he says “any means necessary,” he’s saying that up to what would be necessary to make “the mob” stop (and no further). But suppose, as may often be the case, that those who are causing damage to the houses, restaurants, and stores of innocent people are using the guise of the protests to act as they please and commit acts of violence. And suppose that the only way to stop the bad actors would be to use force against those who are there to simply peacefully protest against police brutality, whether by arresting or fining them for simply being there, or worse, by brutally beating them or even shooting them. If this is the means “necessary,” this would clearly not be justified by libertarian principles, as using force against innocent people for the actions of others is a clear violation of the non-aggression principle. Just as Rothbard’s did, Smith’s rhetoric serves to both encourage violations of libertarian principles and pander to the worst factions of the far-right, who often celebrate violence against Black Lives Matter protesters in an effort to “own the libs.”

If anything, given the violence we’ve all seen them use against protestors during the most recent round of protests and the unjust laws we’ve seen them faithfully and brutally enforce, libertarians should be talking about further limits on police power. Leash, not unleash, the police.

4 thoughts on “Leash the Police: A Response to Late Rothbard

  1. This is excellent. I completely agree. The attempt of libertarians and pseudo-libertarians to ally themselves with totalitarian judges, police, prosecutors, etc. is sickening. As Snowden wrote in “Permanent Record,” fully half of the Bill of Rights is designed precisely and specifically to limit the powers of the police.

    Indeed, the entire classical liberal (libertarian) movement is one long attempt to limit the powers of the police, and prosecutors to actions that actually have a valid “corpus delicti.” Every corpus delicti must be comprised of both “injury” and “intent to injure” a specifically-identified “injured party.” This means: The drug laws, gun laws, tax laws, gambling laws, prostitution laws, etc. are all illegitimate, and that stolen property should be returned to the person who has the proper title to it. Far from obeying and enforcing the prior British “common law,” today’s cops go far beyond it, and are constrained only by practical limits on their power. (Which, as we’ve seen throughout history, are often transitory and ineffective as limits. ..This is especially true in technology-enabled police states like Nazi Germany and today’s communist China.)

    No less a libertarian than Bastiat wrote, as the intro to his book, “The Law”:
    “The law perverted! And the *police powers* of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law become the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish! If this is true, it is a serious fact, and moral duty requires me to call the attention of my fellow-citizens to it.” …Was he wrong to say that the police powers of the nation were “perverted” in the service of slavery and protectionism, in that same essay? No. …Bastiat was a consistent libertarian. Here’s a link to the entire essay:
    https://web.archive.org/web/20200408104737/http://bastiat.org/en/the_law.html
    (It’s interesting that the Thomas DiLorenzo translation doesn’t use the term “police powers,” and also defends the South as if Bastiat would have defended the South. It’s things like that which make me (1) wonder if the totalitarian conspiracy is just way higher IQ than the entire libertarian movement. (2) if not the prior, whether the cultural and tribal bigotry inherent in American society is just far more entrenched than any political ideology.

    Here’s a link to DiLorenzo’s translation of “The Law”:
    https://www.gutenberg.org/files/44800/44800-h/44800-h.htm#linknote-2
    Here is DiLorenzo’s translation of the prior intro:
    “The law perverted! The law—and, in its wake, all the collective forces of the nation—the law, I say, not only diverted from its proper direction, but made to pursue one entirely contrary! The law become the tool of every kind of avarice, instead of being its check! The law guilty of that very iniquity which it was its mission to punish! Truly, this is a serious fact, if it exists, and one to which I feel bound to call the attention of my fellow citizens.”

    DiLorenzo goes on to write:
    “Frédéric Bastiat died on Christmas Eve, 1850, and did not live to observe the convulsions that the America he admired so much would go through in the next fifteen years (and longer). It is unlikely that he would have considered the U.S. government’s military invasion of the Southern states in 1861, the killing of some 300,000 citizens, and the bombing, burning, and plundering of the region’s cities, towns, farms, and businesses as being consistent in any way with the protection of the lives, liberties and properties of those citizens as promised by the Declaration of Independence. Had he lived to see all of this, he most likely would have added “legal murder” to “legal plunder” as one of the two great sins of government. He would likely have viewed the post-war Republican Party, with its 50 percent average tariff rates, its massive corporate welfare schemes, and its 25-year campaign of genocide against the Plains Indians as first-rate plunderers and traitors to the American ideal.”

    Unlikely. Bastiat’s writing in “The Law” was 100% anti-slavery. It solidly sided with Frederick Douglass. (And what does DiLorenzo think the Southern system was, with respect to runaway slaves, if not “legalized murder”?) Bastiat would have been thrilled that Slavery was abolished, even if it took destroying the South. Indeed, I find it rather abhorrent that so many libertarians object to “the injustice of the Civil War,” while disregarding the current injustice of the police to black people, in the form of “black codes” and “Jim Crow laws” that inspired Hitler, and still are not repealed.

    Here’s Bastiat, again, lamenting the corruption of teaching in the Universities:
    “So that if a law exists that sanctions slavery or monopoly, oppression or plunder, in any form whatever, it must not even be mentioned—for how can it be mentioned without damaging the respect that it inspires? Still further, morality and political economy must be taught in connection with this law—that is, under the supposition that it must be just, only because it is law.”

    This famous exposition comes from dedicated libertarian Robert Higgs:
    “The whole Good Cop / Bad Cop question can be disposed of much more decisively. We need not enumerate what proportion of cops appears to be good or listen to someone’s anecdote about his uncle Charlie, an allegedly good cop.

    We need only consider the following:

    A cop’s job is to enforce the laws, all of them;

    Many of the laws are manifestly unjust, and some are even cruel and wicked;

    Therefore every cop has to agree to act as an enforcer for laws that are manifestly unjust or even cruel and wicked.

    There are no good cops. – Robert Higgs”
    [I only disagree slightly with his phrasing. I agree that there are no good cops who enforce all the laws. There are, however, some rare cops (specializing in “homicide” or “property crimes”) who do not enforce victimless crime laws, including victimless speeding laws. Nearly all such “pro-liberty” cops are eventually fired, and/or become whistle-blowers, but they can briefly exist. For example: Justin Hanners(AL); Bradley Jardis(NH); Raeford Davis(OK); John Douglas (FBI – founder of the ISU – “investigative support unit” that taught local police departments how to profile and catch serial murderers); Nic McKinley (CIA – a tiny, allegedly underfunded anti-sex-slavery division).] …And yes, perhaps I’m being gullible by taking some of the prior “at their word” and “collated with known events” (what about unknown events?)… For example, even though John Douglas wrote in “Mindhunter” that he opposes the existence of victimless crime laws, his homepage hypocritically links to the DEA’s homepage. So, there’s a deep corruption in all US law enforcement, and even those who gullibly join trying to improve law enforcement are either corrupted by it, or fired trying to make it better.

    In any case: Why Rothbard would want to “unleash” the forces of socialism is an interesting question. Was he simply too stupid to care about his legacy? That does seem to be the case. It’s interesting to note that Ayn Rand disliked Rothbard and viewed him as a phony. Maybe he signaled a lack of virtue to her? It’s unfortunate that Rothbard wrote so much excellent material that his “Unleash the Police” contradicts. I’ll have to check out the online Rothbard archives and see how I missed this “copaganda” from him. (Rothbard, unfortunately was “all over the map” in other cases, too. He suggested that libertarians ally themselves with “rational bestialists.” This, of course, was used by the Rand crowd as an excuse for why objectivists “could never work with libertarians.” …As if Rothbard spoke for all libertarians.)

    In any case, I agree with leashing the cops. In their current form, they do far more harm than good. They need to be leashed by the Bill of Rights, by the corpus requirement, and by body cameras that expose violations of the prior.

    Obviously.

    Like

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