Conservatives vs. Libertarians

by Russ Roberts on August 1, 2008

in Crime

Steve Chapman writes eloquently on what are called consent searches:

The other day, the American Civil Liberties Union
of Illinois issued a report on "consent searches" that sometimes
accompany traffic stops. Relying on data provided by local and state
law enforcement agencies, the report documented that black and Hispanic
drivers are much more likely than whites to suffer such invasions—even
though the cars of minorities are far less likely to yield contraband.

These treasure hunts are called "consent searches" because they require
the motorist to give permission. They take place only when the police
officer has no grounds for suspicion. If he has probable cause, he
doesn’t have to ask. Only when he’s acting out of a vague hunch, racial
prejudice or simple malice does he need the driver’s consent.

But the term is fantastical in these instances. Stopped on a lonesome
stretch of highway, at the mercy of an armed man who has the power to
arrest, very few citizens feel free to refuse. The Illinois State
Police report that 94 percent of white motorists and 96 percent of
minority ones "consent" to such searches.

Is that because
they have nowhere else they’d rather be? Is it because they get a kick
from watching a cop take apart their cars in an effort to put them
behind bars? Or could it be because they suspect that refusing a cop is
far too dangerous?

A conservative would argue that innocent people have nothing to fear. So it’s all upside–you might catch a criminal. The libertarian worries about the power of the state, willing to let some criminals be undetected.

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Lee Kelly August 1, 2008 at 2:49 pm

I think that libertarians are primarily concerned with the undetected criminals on Capitol Hill, not those with a stash of drugs in the trunk of their car.

HH August 1, 2008 at 3:21 pm


Most of us don't view the person with a stash of drugs as a "criminal" anyway.

Bob August 1, 2008 at 6:03 pm

I think that the "power of the state" is a key issue here.

A second example is the unbridled power of the IRS. How many people do you know that don't sweat a little when an envelope shows up in their mail box from the treasury department?

Whether it's a black or hispanic being stopped on a rural highway or any other taxpayer getting a letter in the mail saying they're being audited by the IRS, when citizens are afraid of the state there is a problem.

Nathaniel August 1, 2008 at 6:06 pm

Yes, conservatives argue that if you don't break the law then you shouldn't fear voluntary searches. What conservatives seldom understand is the difference between arbitrary legislation (i.e. "drug laws") and common law.

Ray Gardner August 1, 2008 at 6:27 pm

Are they worried about state control or are they worried about racial discrimination?

A registered libertarian, I am very concerned with state control, but I'm also wary of arguments that rely on emotional appeals from people – the ACLU as represented by the author – that have demonstrated a clear and obvious lack of concern for state control.

A libertarian wouldn't frame the argument as certain races or classes being discriminated against, but would appeal to the logical conclusion that an abuse of police power harms every citizen – immediately in principle, and eventually in their own lives.

I know the response would be that the racial aspect of it is what brought the situation to light, but that brings us back to the history of the ACLU, and their lack of concern for government power.

Are there abuses of power going on? If so, remedy it.

But I'm still wary of that article, and would hardly praise it as a libertarian piece of thought which seems to be the implication.

Ray Gardner August 1, 2008 at 6:34 pm

I went looking for some evidence of white people being more likely to have contraband but didn't see anything.

jpm August 1, 2008 at 7:19 pm

good job Ray. My thoughts exactly when I read the article. I always thought that besides their lack of concern for government power it was pretty clear the ACLU always has a racial/political agenda masked behind their phoney concern for abuse.

Also, noted is what exactly were the statistics they cite. The article writes like it was written, then the data was sought and sifted for support.

Unit August 1, 2008 at 7:56 pm

The other day I was behind an old beat up car driven by a young black guy. He had a bumper sticker saying "This car is protected by the constitution" then a list (small print unfortunately) of things he didn't consent anybody to do. Finally on the bottom was the name of a lawyer and a telephone number. I thought it was cool, it'd be nice to have one of those.

jpm August 2, 2008 at 11:04 am

Unit we used to have them, but the Yankees came down and freed them all.

It doesn't really matter though. Archer Daniels Midland has a much better method: the Combine.

gappy August 2, 2008 at 12:41 pm

I noticed that most conservatives, and some libertarians as well, are very critical of the ACLU. I was a member for a year, but never followed their activities in detail. In general however I agree with their initiatives, esp. regarding the excesses of executive power. And of course, I feel I owe to them for the Scopes Trial. This forum is a good opportunity to understand the reasons of the opposition from informed people. So, why the grudge from self-professed libertarians?

Ben August 2, 2008 at 1:10 pm

The assertion that conservatives would so universally think that this is a good idea that one could fairly say "A conservative would support this" is totally absurd and I'm sure most of you know it.

Ray Gardner August 2, 2008 at 7:09 pm

Ben, you're right. The conservative nomenclature is much too broad for blanket statements such as what is being attempted here.

Republican and conservative are of course not the same.

Gappy, feigning ignorance as to the ACLU's Left wing foundation either makes you truly ignorant – and thus not equipped for the kind of conversation you seem to be asking for – or it makes you a liar. Which of course no one cares to converse with a liar.

Speaking for "supposed" libertarians we have a general dislike for the ACLU because they are for more government involvement in the individual's life. (BTW, what's your voter registration say? Mine says LBT)

I've always held that a group purporting to be for individual rights would look more like the Institute for Justice.

vidyohs August 2, 2008 at 7:32 pm

"when citizens are afraid of the state there is a problem.
Posted by: Bob | Aug 1, 2008 6:03:01 PM"

Bob, most people don't even begin to know and understand just how active and intense is the effort of government to instill fear in the people.

Check this website out and read the article to get a good grasp of how your "justice" system works.

"Later, Taylor was told by a court official, "This system operates on fear, you have no fear and that's a problem for us."

vidyohs August 2, 2008 at 7:55 pm

One of the most wonderful features of our modern world is the easy availability of small solid state recorders that look like large ballpoint pens and other innocent objects. The one I have is older and will only record 30 minutes of conversation, and I am considering buying a more modern one with more storage.

Anyone who does not own one and keep it in his auto is not taking proper safeguards against police criminality. I keep mine clipped to my driver's side visor. If stopped I begin recording as I pull over. If the stop is clean I can erase the recording.

I know of a young man that became moderately wealthy courtesy of the State of Georgia because he had a small tape recorder that he activated on a stop. As he was not speeding, driving recklessly, nor under the influence, he was aggressive in asking why he was stopped. The cops (two of them) ordered him out of his car asked if they could search it, the young man agreed to the search. His small tape recorder clipped to the visor recorded the conversation of the cops as they searched.

The cops arrested him for "possession" of pot and had his car towed and my acquaintance landed in jail. Out on bail he retrieved his car and the small recorder, the recorder had the cops nailed dead. They were angry they couldn't find anything and openly conspired to "drop" some pot and subsequently "find" it. This was all loud and clear.

He made copies of the recording and when it was all said and done the state of Georgia laid a bundle of cash on him to get him to drop his case against them.

Chances are your stop may not go down that road, but increasingly in this country they do.

I also carry a valet key in my pocket. If ever ordered out of my car I will comply but I will lock my keys in the car as I exit. "Gosh, officers, and double damn, I accidently locked my car with the keys in it. Do you know of a locksmith I can call?"

vidyohs August 2, 2008 at 7:58 pm
Crusader August 2, 2008 at 10:39 pm

You know who to blame for the drug war: suburban soccer moms. They are truly the epitome of evil.

gappy August 3, 2008 at 1:01 am

Regarding the ACLU, I am not "feigning" ignorance. In what respect is it "left-wing"? I admit that my knowledge on the matter is wikipedia-level. I know that many conservative Republicans dislike the ACLU for reasons not dissimilar from the article quoted by Prof. Roberts. But what about libertarians? Are there good things to say about the ACLU? Are there bad things? I am not biased in their favor, although I sometimes agree with their initiatives. I don't need long explanations; a couple of links to informative material would be greatly appreciated.

Vidyohs: the idea of a voice recorder in these situations crossed my mind. I have been wondering if recording any conversation without explicit consent is legal.

Ben August 3, 2008 at 9:41 am

The ACLU was founded as a communist organization and is very selective in what liberties it will defend.

vidyohs August 3, 2008 at 11:37 am

Vidyohs: the idea of a voice recorder in these situations crossed my mind. I have been wondering if recording any conversation without explicit consent is legal.
Posted by: gappy | Aug 3, 2008 1:01:15 AM

Are you famliar with the saying, "I'd rather answer to 12 than be carried by 6."

The same principle applies to the recording, I'd rather have it in a illegal situation, than not have it in a legal situation.

Texas may be unique in its law. Recording is legal if one of the parties being recorded knows it. That makes it kind of a Duh law for me, as of course the recorder knows it so any situation is legal. Other states have varying laws. Check it out.

But as I said, I'd record anyway and then decide whether to use or not use it in the most judicious manner.

Living here in Texas creates the situation where I am constantly ounding into my wife, my kids, my family and friends that any time, anytime at all, one is going to make a phone call about something that could in anyway be controversial at a later date, you hook up a recorder and record the call so you have documentation of what was said.

Product failure/replacement
Failure to pay, or insufficient payment
anything at all that you might think could be later denied by the one you're talking to.

I took my pen into court where it was strictly verbotten and I did it strictly to check the accuracy of the finished transcript to make sure that no editing had been done. (For those of you who are still excessively naive about your justice system, trust me, the so-called true and accurate transcripts produced by the court reporter are often edited by the judge, with the help of the prosecuter, before being published and made available.) In my case minor editing had been done, but my team of advisors and I decided that what was left out was inconsequential to the accuracy, so I let it slide.

In order to maintain control and fear the justice system, including the courts, are fanatical about controlling the official record of the proceeding in court. That record is what all appeals will be based upon.

gappy August 3, 2008 at 11:46 am

Vidyohs, thanks for the explanation. I was wondering if I could use a voice recorder in any commercial transaction (I have been burned by customer services and salesmen a few times…) as well as regular transactions with the government (luckily, they are less frequent, but when they happen is kafka all over again). I live in NY. But I think I'll get a recorder anyway…

gappy August 3, 2008 at 12:18 pm


The ACLU was founded as a communist organization and is very selective in what liberties it will defend.

I found an article with a similar accusation. But the article shows at best that the ACLU founders were socialist sympathizers or feminists (the horror! the horror!). The article quotes a 1931 report without giving any sources behind the statement that "The [ACLU] is closely affiliated with the communist movement in the United States". Were evolutionists communists? But even this article does not go as far as stating that the ACLU was a communist organization.

Leaving aside blanket statements, in what respect is the ACLU selective? I know that they are for affirmative action (and I think a libertarian cannot really be for it), which is mostly a liberal cause. But many issues (immigration, searches and warrants, executive overreach) cut through both parties. And others (gay marriage) are definitely liberal darlings, but should not irk libertarians. And others (defending on specific issues neo-nazis or the North American Man/Boy Love Association) are universally disliked even by the ACLU, but are defensible on First-Amendment grounds.

Are there issues that, according to libertarian ideals, the ACLU should not take on? And are there issues that the ACLU should take on, based on the same ideals?

My answer to the latter would be to definitely include Property Rights, and maybe School Choice.

brotio August 4, 2008 at 12:50 am


The ACLU believes that the Second Amendment reserves the right to keep and bear arms only for the State – which is impossible because states don't have rights. They have remained adamant in this regard even after the DC versus Heller case.

Keith August 4, 2008 at 10:46 am

Quote from Crusader: "You know who to blame for the drug war: suburban soccer moms. They are truly the epitome of evil."

I wish there was less truth to this.

Mr. Econotarian August 4, 2008 at 4:41 pm

Here is what the ACLU is up to now (their "action alerts"):

Reject Endless War & Torture Cover-Up, Demand Accountability for Torture Now!, Close Guantanamo in 120 Days, Restore the Constitution: libertarian

Protect Women's Access to Birth Control (trying to force pharmacies to offer birth control): unlibertarian

Health Data: Not For Sale: unlibertarian, but I realize it is open to interpretation

Stop Sentencing Discrimination: libertarian-esque

Stop the FCC From Trampling Free Speech,Oppose the FCC's Proposal to Regulate T.V. Violence: libertarian

Investigate Katrina Abuses (of prisoners): libertarian-esque

Urge Your Senator to Fix REAL ID: libertarian-esque

Urge Congress to Stop Racial Profiling: libertarian-esque

Oppose Hate Crimes, Protect Free Speech: unlibertarian-esque

Support the Freedom of Choice Act: libertarian-esque

Help Restore Net Neutrality: how do you rate an unlibertarian regulation of an unlibertarian granted monopoly?

Demand NSA Oversight: libertarian

Support the "Medical Necessity" Defense for Medical Marijuana: libertarian

Help Mothers & Women Around the Globe: unclear

So I'd say more "libertarian" than "unlibertarian" on average. Better than most politicians outside of Ron Paul or the LP!

gappy August 5, 2008 at 7:23 am

Thanks for the last two posts. I didn't know the ACLU supported net neutrality. How is it a civil liberty? Actually, I don't necessarily think that racial profiling is un-libertarian (but I am not sure; however see the defense of racial profiling by Heather MacDonald).

Michael Greenspan August 5, 2008 at 11:02 pm

Prof. Roberts, please name prominent — by which I mean "thoughtful and influential," not "notorious" — conservatives who support consent searches in the circumstances Mr. Chapman describes.

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