Here's something you probably didn't know about North Dakota: the oil-rich, population-poor state is a beacon of freedom--at least, according to the experts at the libertarian Mercatus Center, whose annual freedom index lists North Dakota as the freest state in America.
"A big part of North Dakota’s high ranking on regulatory policy is due to the state’s excellent liability system," explains Mercatus. "North Dakota also scores well on land-use freedoms, with better-than-average residential land-use regulations and significant eminent domain reform."
Plus, it's a right-to-work state with "relaxed" gun control laws. And "spirit taxes are fairly low." What's not to love?
Here's what else you might not know about North Dakota: the cost of living is soaring. And the state's governor recently signed a set of laws that could shut down the state's sole abortion clinic and ban abortions in the first trimester if doctors can detect a fetal heartbeat. Sexual assault is on the rise there; in the oil boom town of Williston, women in particular live with the constant threat of violence.
None of that makes it into the Mercatus Center's rankings. The tax burden of a state's citizens accounts for 28.6% of their index, with "freedom from tort abuse" accounting for another 11.5%. While civil liberties make up 0.6% of the rankings, reproductive rights are not included at all. Nor is there any measurement which accounts for the threat of non-state violence, workplace coercion, or most major kinds of inequality (whether along class, gender, or racial lines). Marriage freedom—as in the freedom to marry same-sex partners—accounts for 2.1% of the rankings, but there's no measurement to account for other forms of anti-LGBT discrimination.
Is freedom really 28.6% low taxes and 0% bodily autonomy? While the Mercatus Center's omission of abortion from its rankings is odd—and born out of a half-hearted compromise between competing accounts of "individual liberty," as they explain elsewhere on the site—its rankings method otherwise adheres faithfully to the spirit of libertarianism. And as such, it illustrates just what libertarian rights theory really is.
Take how the index treats LGBT rights. States which allow same-sex marriage get a post to their ranking, but that's the only nod towards equality which gay, lesbian and trans people receive. The freedom index is functionally blind to non-state coercion, such as gay bashing or workplace discrimination. In the version of freedom tacitly endorsed by the index, government action can make an individual less free, but the actions of homophobic bosses and violent bullies cannot.
Last July, political theorists Chris Bertram, Corey Robin and Alex Gourevitch wrote a hotly contested essay on "Libertarianism and the Workplace" in which they argued that libertarians have trouble accounting for workplace coercion as an infringement on personal freedom. They said the writers at the blog Bleeding Heart Libertarians "believe that workplace coercion is not coercion (or at least not impermissible coercion)." The same seems to apply to the Mercatus Center, whose rankings recognize a freedom to not pay union dues (right-to-work states are ranked positively on the freedom index), but not a freedom to collective action in the workplace.
If you already subscribe to a libertarian view of rights, then the reasoning behind these rankings is impeccable. Maybe you would assign a different numerical value to "property right protection," or rank "marijuana and salvia freedom" higher than "gun control freedom," but the essential principles on which those numerical values are based hold firm. Freedom from government interference is the only relevant form of freedom. There is no positive liberty which entitles citizens to health care, education, or housing. Keeping the government out of people's business is the main thing.
If the internal logic of the Mercatus Center's rankings is not lacking, then those principles certainly are. An alternative, progressive account of liberty needs different principles, and a more robust understanding of what makes people free. Maybe small-r republicanism?