OXON HILL, Md.— A libertarian and a conservative agreed that government does not create the common good but split over how it should regulate pornography.
In a debate at The Heritage Foundation’s conference The Forum, Randy Barnett, a libertarian constitutional law professor at Georgetown University Law Center, and Andrew Walker, a conservative dean of the theology school at the Southern Baptist Theological Seminary, both said they have much in common on the role of government.
“The audience here should take away some confidence that there really is a convergence in between some of the common good constitutionalism that we’ve heard about and a certain form of libertarianism that I’m critical of and I will be critical of in [my] book,” Barnett said.
The two, however, parted ways on the issue of state regulation of pornography.
“If Alabama wanted to pass a law deeply regulating pornography or prohibiting it, you might say that that could be a burdensome law that has negative trade-offs. My argument would be that that is aiming at a moral good, and that Alabama would have the moral right to enact such a provision,” Walker said.
Barnett pushed back, citing Stanley V. Georgia, a 1969 Supreme Court case that held people have a constitutional right to possess obscene material in the privacy of their home.
‘What the Supreme Court there did was draw a very, very firm line between what happens behind closed doors in one’s own home, and what happens in the public spaces, and that’s the line I would draw,” Barnett said.
He called the disagreement “slight” and “a peripheral issue” to the larger question.
Daniel McCarthy, a distinguished fellow of the Heritage Foundation, moderated the debate and observed that both men said government cannot be completely neutral.
“My libertarian answer is that government secures the liberty to act and the justly acquired property that every person requires to flourish,” Barnett said in his opening remarks.
“Governments cannot make us happy by redistributing wealth. They cannot make us virtuous by mandating morality, it can protect our natural rights by prohibiting acts that violate them, and by regulating how we exercise them to prevent harm, including the regulation of conduct in public spaces,” he concluded.
Walker started from the same premise but reached a different conclusion.
“Like Professor Barnett, I do not believe the government creates the common good, and yet the government cannot be neutral about the common good,” Walker said. “Its proper role is to recognize the common good, protect the conditions it depends on, and leave room for the institutions closer to the ground that foster it.”
The two ended in agreement on the foundation required for legislating.
“If the government is going to be making laws that are going to actually be for the common good, it has to be based on a true account of what the nature of reality is, and the nature of reality includes the nature of persons and the nature of the communities in which persons live,” Barnett said.
“As Andrew said in his original talk, nobody is neutral on this,” he concluded. “They all are acting according to some conception of what it is…I think we both agree.”
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[ H/T The Daily Signal ]
