David Boaz Understood Liberty and the Rule of Law are Inseparable

   

I had the privilege of working with David Boaz for four years as his staff writer, the last of a dozen or so he brought into this role over the decades to help launch our careers. Working with David was not just a job, it was an education. It was also an opportunity to become a close friend as we spent the days discussing political philosophy, history, and the ideas to which he’d devoted his life.

I was already an eager young libertarian but David’s influence shaped how I view the world in ways I didn’t expect, deepening my understanding of these concepts as not just a litany of policy positions but a coherent set of fundamental principles.

David also brought a sense of historical perspective, a remarkable way to recognize the through-lines and craft a compelling narrative. I once remarked my favorite of his books was The Libertarian Reader, his selection of historical documents and excerpts. His characteristically deadpan reply was “so, the one full of stuff I didn’t write,” with a wry smile. But I meant it, including his prefatory explanations. We weren’t just promoting a niche 20th century ideology, but a heritage of moral progress stretching back to time immemorial.

One of these principles was a phrase David liked to use in his speeches, including the last one he gave to a Students for Liberty conference shortly before his death.

Asked to define the greatest libertarian accomplishment – and to David, “libertarian” was nothing more than a radical application of liberal principles – he would initially point to the abolition of slavery. Pressed further, he hit upon the true heart of the matter: “bringing power under the rule of law.”

Unfortunately, not everyone in the fractious libertarian movement appreciates this central importance of law. Law, after all, is how the state imposes its will, how it wields its hated monopoly on force. But it is also how we constrain the state, how we replace the arbitrary rule of kings and despots with predictable rules and impersonal due process. Through the rule of law and its ultimate manifestation, constitutionalism, we find the only mechanism which has ever succeeded over the long term at securing human freedom.

The contrary temptation can be alluring to devotees of smaller government and free markets, just as much as any ideology with a firm set of policy commitments. Instead of the tedious process of public persuasion, of legislation and courts, what if we simply vested power in one man to slash the state? Such thinking is reflected in the gullibility many have had for Elon Musk’s chaotic slash-and-burn approach through his so-called Department of Government Efficiency. After all, he is indeed slashing agencies and mass firing federal employees. If it were up to us, many if not all of the same bureaucracies would be shuttered. Shouldn’t that be more important to us than the arcane proceduralism of things like the Appointments Clause, the separation of powers, and the congressional power of the purse?

As David was acutely aware, it is all too easy to succumb to the libertarian version of an enlightened despot and join a cult of the presidency, be it in Washington or far-flung capitals such as Budapest, Manila, and Moscow. To paraphrase Thomas More in Robert Bolt’s A Man for All Seasons, there is an impulse to cut down all the laws to get at the ‘devil’ of modern big government. But as he always does, the devil has now turned ‘round on us.

A government which can illegally slash programs created by Congress and upheld by the courts (even if we rightly disagree) can just as easily, as this one is, lawlessly create new bureaucracies, seize new powers, levy new taxes. A tyrant is no friend of freedom, even when there is some superficial overlap with your own preferences. The Faustian bargain never works out in the end.

David was not a moderate, as some misunderstand this kind of commitment. He was a proud radical, an unabashed “taxation is theft” libertarian. The kind who was not quite an anarchist, but whose ideal cut as close to it as he thought possible. Nor did he have any love for the Beltway political class, the elites who’d created and maintained the status quo and all its injustices and failures. He would often listen to NPR only to complain about its credulous, left-leaning coverage of the latest big government imposition.

David understood, however, it was ultimately self-defeating to attempt to win policy debates not by persuasion and through lawful, constitutional processes, but through force and arbitrary power. He was appalled by January 6th and the attempt to steal an election, regardless of his dim view of the normal business happening on Capitol Hill. David’s path to freedom was not one built on the ashes of America’s constitutional republic, but as the highest embodiment of its ideals, taking its principles of freedom and power constrained by law to their logical conclusion.

Fundamental principles aside, David was also attuned to how a lawless populist regime does not even deliver on its promises. While he rejected, as any good libertarian would, the bloated taxpayer-funded welfare and administrative state, he understood these were not the state at its worst. The “size” of government is best measured not by a balance sheet, not in dollars and cents, but in the coercive harms it inflicts on innocent people.

In the grand scheme, little tax money is spent on things like denying marriage equality to gay people, or brutally seizing peaceful immigrants for deportation, or waging the war on drugs with all its atrocities. As a portion of the government budget, they pale in comparison to transfer payments and welfare programs. In economic consequences, they matter much less than regulatory policy. But these were, he recognized, some of the most immoral uses of state power, brought to bear against the most vulnerable and marginalized.

Nothing offended David more than picking and choosing some people as more deserving of freedom than others, treating some people’s rights as important and other people’s rights as disposable. He would chastise libertarians for telling a story of ever-shrinking freedom and growing government while neglecting how the age of the Founding Fathers didn’t sound so gloriously free if you were black, or a woman, or gay, or an atheist.

As David put it, with a tone of exasperation at needing to remind people, “We believe that all people are endowed with inalienable rights, that among these are life, liberty, and the pursuit of happiness. Not just some people.” He knew the first principle of bringing power under the rule of law is every person’s right to equality before the law, from which everything else flows.

David’s deep empathy, his firm conviction all are created equal in our inalienable rights, would never let him trade people away for a reduction in marginal tax rates or a rollback of regulations. He was not afraid to buck the traditional ‘fusionist’ combination of somewhat market-friendly policies paired with social authoritarianism. And in today’s post-fusionist GOP, he saw how the balance was being tipped aggressively towards unrestrained statism and performative cruelty.

David did not indulge mealy mouthed false equivalency, the “both-sides-ism” which equated the threat of an anti-constitutional populist autocracy with the many misguided policy failures of its opponents. He’d much rather have been debating free markets and smaller government with misguided progressives, as opposed to basic human dignity and the perils of dictatorship with those on his right lurching towards fascism. But he had no doubt where his kind of libertarianism belonged in such a contest.

At the end of the day, laws and constitutions are just words. But David, who justifiably prided himself on his extraordinary skills as a writer and editor, knew words are never just words. They represent ideas, and our ability to communicate, share, and ultimately act upon those ideas. They embody our capacity for reason. If language is what separates humans from other animals, the written word is what separates our humanity from the worst of our animal instincts. The rule of law is ultimately about countering the power of violence with the power of words.

Political opportunists and power-hungry madmen come and go. There will always be those who succumb to making a deal with the devil. But the desire for freedom, the great cause of human history, will never be snuffed out completely. David carried that torch, refusing to let it be extinguished, determined to pass it to the future generations. As he concluded in his final public remarks: