How the Dobbs Ruling Convinced Me to be ‘Libertarian’ Again
Libertarianism is classical liberalism, but in continuous progress
When SCOTUS handed down the Dobbs decision that overturned Roe v. Wade in 2022, I was not surprised about the result at all. Before the decision, I thought those who were expecting a more moderate result (e.g. preserving Roe but drawing the line at 15 weeks) were unrealistically optimistic, and it turned out that I was correct. After all, overturning Roe had long been the holy grail of the American ‘conservative’ legal movement, and they clearly had the numbers to achieve it now, so why would they back down at the last minute? As much as I had expected the result, there was something in the majority opinion written by Justice Samuel Alito the made me surprisingly uncomfortable. I had expected the court to overturn Roe based on a narrow literalist reading of the Ninth and Fourteenth Amendments of the US constitution alone, which I thought would have been enough to overturn Roe. However, Alito actually argued that, while the Fourteenth amendment has been held to guarantee some rights that are not explicitly stated, such rights must be “deeply rooted in this Nation’s history and tradition”. Alito used the existence of numerous abortion bans throughout both American and British history to demonstrate that abortion bans were accepted for a long time in the Anglo-American legal tradition, and hence the right to abortion is not deeply rooted in America’s history and tradition. Therefore, the case to overturn Roe in Dobbs was basically predicated on the idea that unenumerated rights could only exist if they are “deeply rooted in this Nation’s history and tradition”.
While the ‘conservative’ legal movement has long emphasized its commitment to ‘originalism’, i.e. reading legal documents like the US Constitution in a way that preserves their original meaning as much as possible, the Dobbs decision actually went way beyond just originalism. While originalism aims to read only what is actually written in the legal document, and opposes taking a more expansive view of how the law should be applied, originalism does not prevent the law from applying to new circumstances not foreseen by the lawmakers at the time of the law’s adoption. For example, the 2020 Bostock decision held that the sex discrimination provisions in Title VII of the Civil Rights Act of 1964 applied to sexual orientation and gender identity, because ‘an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex’, and hence ‘sex plays a necessary and undisguisable role in the decision’. This might be a scenario lawmakers didn’t expect to see back in 1964, but it clearly fits into the scope of the law, even with the word ‘sex’ interpreted under its original 1964 meaning. Notably, two out of five conservative justices were willing to support this argument, and it was actually conservative Justice Neil Gorsuch, a Trump appointee, who wrote the majority opinion in this case. (Some have argued that Gorsuch’s opinion here is an example of textualism, but I think it is also originalism, because he was clearly using the word ‘sex’ to mean only biological sex, thus totally consistent with the meaning of the word in 1964.) Thus, while originalism is much more limited than for example a ‘living constitution’ approach when it comes to likelihood to lead to a ‘progressive’ decision, that possibility is still far from zero. On the other hand, the approach Alito used in Dobbs would have led to a ‘progressive’ decision inherently being impossible, because everything must be ‘deeply rooted’ in ‘history and tradition’, which means how things have been done in the past, whether they were correct or not, becomes the strongest justification for how things should be decided today. Hence, in my view, Dobbsism (I have no better term for it, unfortunately) leads to only the possibilities of preserving the status quo, or reverting to an earlier status quo (as Dobbs did). If Dobbsism were a political ideology, it would necessarily be reactionary by definition.
This brings me back to the use of the term ‘libertarian’ as opposed to ‘classical liberal’. While the two terms have had very similar meanings for a long time, many 1990s and 2000s ‘libertarians’ switched to using ‘classical liberal’ somewhere in the 2010s, when extreme AnCap types, like those who booed people who supported driver’s licenses, began to dominate many libertarian circles. We just didn’t want to be associated with that kind of extremism. And ‘classical liberal’ sounded just right: it implied that we were sticking to the original meaning of ‘liberal’. I also thought making this distinction was especially important, in a context where ‘liberal’ had come to mean anyone and anything left-of-center for many people, and a substantial part of the left was into illiberal practices like cancel culture and de-platforming.
However, the logic of the Dobbs decision, and the fact that some former ‘classical liberals’ ended up defecting to the reactionary-populist New Right, got me thinking again. If we define our movement as one of sticking to an earlier version of liberalism, in opposition to a ‘newer version’, this would inherently be backwards looking in a way. Moreover, post-Dobbs, the Dobbsean logic has been taken up and used by the reactionary right more and more. In this context, the term ‘classical liberalism’ could be interpreted in a Dobbsean, rather than originalist, sense, i.e. defined not by how liberalism used to be defined, but rather, by how liberalism used to be like in practice. This would actually be very different, because liberalism really did not live up to its ideals and promises for a long time. For example, historically people who identified as liberals, or at least subscribed to some of the ideas of liberal thinkers, nevertheless supported slavery, colonialism, imperialist wars, denying political rights for the working class, and even McCarthyist witch hunts. These things are, by definition, not liberal, yet people who were supposedly liberal supported and practiced them during one point or another. On the other hand, recent reforms like gay marriage are clearly liberal, even by the original definition of the word, but wouldn’t have been ‘deeply rooted’ in the ‘history and tradition’ of liberalism, simply because gay relationships were socially taboo until very recently. While liberalism, as originally defined, is supposed to break down such taboos over time, and the knocking down of such taboos is testament to liberalism’s success, a Dobbsean version of ‘classical liberalism’ would deny all this, and pretend that ‘classical liberalism’ does not have to support equal rights in marriage law. Thus, if ‘classical liberalism’ were defined in a Dobbsean way, then it would look very different to what we usually mean by liberalism, and also very reactionary indeed. I’m worried that this logic would inadvertently create a classical liberal-to-reactionary pipeline.
In contrast, ‘libertarianism’ implies a continued commitment to expand individual freedoms, including beyond what is ‘deeply rooted’ in ‘history and tradition’. Libertarianism, as it has always been understood, is by definition not constrained by what happened in the past, and thus is unable to be corrupted by the Dobbsean logic. This is why I now think it was a mistake to abandon the ‘libertarian’ label to extremists, and identify as ‘classical liberals’ exclusively. What we need to do is to reclaim ‘libertarianism’, and show that it does not have to be an extremist, impractical philosophy. Libertarianism is classical liberalism, i.e. liberalism as originally defined, but it is also inherently forward looking, always looking for ways to further advance the cause of freedom, unconstrained by the reactionary Dobbsean logic that one must necessarily only look backwards. Of course, we don’t have to give up the term ‘classical liberalism’ to Dobbsean reactionaries either: we can continue to use both terms interchangeably, picking the more suitable term depending on the context. ‘Classical liberalism’ emphasizes the roots of our ideas, while ‘libertarianism’ emphasizes our ongoing vision of progress. We certainly can’t give up on ‘libertarianism’, because its forward looking implications are very useful for preventing our movement from being dragged into a reactionary dead-end via Dobbsean logic.
Originally published at https://taraella.substack.com.
TaraElla is a singer-songwriter and author, who is the author of the Moral Libertarian Manifesto and the Moral Libertarian book series, which argue that liberalism is still the most moral and effective value system for the West.
She is also the author of The Trans Case Against Queer Theory and The TaraElla Story (her autobiography).
