The Curmudgeonly Clerk, if I get this right, is saying that the majority may deprive minorities of rights, and treat them really, really badly, but that this is “fundamentally different” than a government which he would say is properly described as a “tyranny.” Tyranny he defines as “a government in which absolute power is vested in a single ruler.”
Okay, well, we’ll give him that—tyranny of the majority means that the absolute power is vested in many rulers acting together, rather than in a single ruler. Does that make a difference?
If you believe that the legitimate purpose of government is to secure individual rights, and that no government is justified in violating those individual rights—that is, if you’re concerned with the ends of government and not its means, then this makes no real difference. You would be in the same category as the framers of the Constitution, such as Madison, who said that wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is cheifly [sic] to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents. This is a truth of great importance, but not yet sufficiently attended to....
On the other hand, if your primary concern is with the collective—if you’re concerned “that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty,” then you might see these two as different.
The Clerk complains that “to characterize majoritarianism as tyranny as libertarians so often do trivializes the latter and calumnies the former. They are different in kind. To maintain otherwise is to equate the parliamentary democracy of England with the Stalin-era Soviet state....[which] merely serves to render the word tyranny so boundless as to become devoid of useful meaning.” Tell it to Madison, would be my first response. But the second one is, of course a majoritarian society is safer than a dictatorship: that’s Madison’s point in Federalists 10 and 51. But when the “people” strip you of your life, liberty, or property—or, more properly speaking, when the government agents acting in the name of the “people” do so—that procedural distinction makes little factual difference to you. This form of oppression is not “different in kind,” only different in form.
The Clerk says “many of our rights and much of our liberty is derivative of process rather than substantive guarantees.” I believe his usage here is as sloppy as he claims ours is: none of our natural rights and none of our liberty is derivative of process or of substantive guarantees. Our natural rights and our liberty derive from nature, more specifically, from our nature as human beings. Some civil rights may derive from legal forms, but they do so only in order to protect our natural rights, which are ours even in the absence of any process whatsoever.
I suspect the Clerk’s usage is sloppy, rather than him actually disputing this point, because he goes on to say “it is often procedural rules and mechanisms that ensure the right to a fair civil or criminal trial.” Yes—these mechanisms do not grant us the right to a fair trial; they simply ensure that right; it is a civil right, which is instituted to protect our natural right not to be falsely imprisoned. Yet this sloppiness pervades his post, and hints at sloppy thinking. For instance, he says “[t]he process of organized, fair elections renders our system of government so unalike from absolute kingship that to characterize the functioning of majoritarianism as being tyrannical utterly disregards the former’s process-based freedom.” But freedom is not process-based, and never has been. Freedom is ours by nature. To protect our freedom, processes are created. If we have an election on the question of “should we murder the Curmudgeonly Clerk and take all his worldly goods?” he is not free, no matter how fair the processes are. The Clerk acknowledges this sub silentio in the next sentence when he says “The problem, of course, is that even an open and fair process can produce unjust results.” But if our freedom is “process-based,” then there’s no way that fair process could ever produce an unjust result. (And, by the way, no way to determine when a process is fair!)
It’s true that fair processes can cause injustices, if the term “fair” has no substantive content. As Hadley Arkes puts it, When the law is not tested for its substance, but merely for its enactment, any order may claim the standing of law. Do we think that a law has made injustice binding? Surely there can be no such problem: the presence of the law removes the injustice. As the law violated the canons of morality by carrying out a theft in legal form, or by confiscating property without paying for it? But the answer, quickly tendered, is that the ‘law,’ in this place, evidently does not recognize the principle of morality.... [This] merely offer[s] a stylish way of clothing the power of the state, and reduc[ing] any principle of natural justice to a convention or custom, with no claim to moral standing. As Daniel Webster remarked in one of his briefs, “We come before the Court alleging the law to be void as unconstitutional; they stop the inquiry by opposing to us the law itself. Is this logical?”
The Return of George Sutherland 223 (1994). The founders, of course, believed no such thing. In Federalist 51, for instance, Madison says that justice “is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” If justice is the result of process, however, this sentence would be meaningless: whatever outcome there was, so long as it abided by (I suppose arbitrarily-set) procedural rules, would be, ipso facto, just.
I suspect that, like so many people today, the Clerk seeks a “process-derivative conception of liberty” because moral statements such as “all men are created equal,” and that they are “endowed by their creator with certain inalienable rights,” are not only controversial, but almost universally derided by the legal community. In the wake of World War II, after spending a generation hacking away at these self-evident truths, the legal community tried to come to terms with the undeniable and unambiguous fact of the reality of evil by discovering “neutral principles,” that is, “a search for core values or basic principles around which lawmakers might cohere.” G. Edward White, Tort Law in America: An Intellectual History 140 (1985). Unfortunately, the only such principles are the ones espoused in the Declaration of Independence, and are therefore unavailable to those who, like the Clerk, believe the Constitution is created by people of fundamentally differing values.
The Clerk’s conceptual sloppiness continues when he says “if our majoritarian political process led to a law that required aspirants for congressional office to sign a statement affirming their belief in Jesus as Lord and Savior, a federal court would be fully justified in striking the law down...[because n]ot all rights are procedural in nature; substantive rights...are also guaranteed in our Constitution.” But, again, the question is not whether they’re “substantive” versus “procedural,” the question is whether they’re rights, which means, something no government may justly deprive us of, or whether they’re just permissions, which means favors extended to the people by mutual agreement. The Clerk seems to believe that it’s the latter. If rights are just the result of procedure, it doesn’t matter whether those procedures are statutory or constitutional—they’re still just procedures, and the majority may revoke them at will. The Clerk is suggesting that substantive rights are rights only because they are “guaranteed in the Constitution.” But as Prof. Barnett is fond of pointing out, we didn’t have a Bill of Rights for two years under the Constitution; surely nobody imagined that we didn’t have rights, as a result. Why not? Because “all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity.”
But the Clerk seems to say (again, I’m not sure he means to say this) that our rights are created by the state; thus if they’re not enumerated in the Bill of Rights, they aren’t rights. The Clerk says that recognizing such rights is “controversial and has lately fallen into some disrepute, owing to its utter intellectual bankruptcy.” That it’s controversial is no surprise—individual rights are always controversial, because they get in the way of tyranny (or oppression, or whatever word the Clerk would like to use). The notion of individual rights has also always had some disrepute. But as to its alleged “intellectual bankruptcy,” the Clerk has hardly made a case for this; it’s merely a pejorative used to substitute for argument. The fact is, the concept of unenumerated rights predates the idea of enumerating those rights! And the concept of substantive due process is almost as old as the United States. See, e.g., Anonymous, 2 N.C. 28, 30 (1794); Hoke v. Henderson, 15 N.C. 1, 7-8 (1833).
Finally, the Clerk says that when we use terms like “tyranny of the majority” in discussing cases like Lawrence and Goodridge, we’re “not really address[ing] the matter at hand.” That would be true, if that were the point we were making. It’s true that many “[c]ritics of these decisions are not arguing for anything like tyranny...[or] denying judicial review any place whatever.” It should be added, in fairness, though, that many critics of these decisions do make just these arguments: Robert Bork, for instance, really does not believe in judicial review. Still, most of the criticisms of these cases rest on the argument that such decisions go beyond interpreting the law and into making the law. Fine enough. But the problem is that there is no real difference between interpreting the law and “making” law, as used in this context. And those who say that the judges should act as handmaiden to the legislature, and should not second-guess the legislature, are arguing for a state of affairs wherein the judges are powerless to stop the tyranny—or the oppression, or whathaveyou—of the majority. And the arguments that they make—including the arguments that the Clerk himself makes, even in the post under consideration—are premised on the notion that the minority don’t have rights independent of the decisions of the majority. That notion is philosophically incoherent, politically dangerous, and totally contrary to the views of our founding fathers.
The Clerk concludes that “while keenly aware of the shortcomings of majoritarianism, [libertarians] seem to be blissfully unaware of the dangers of imbuing a single, insular, and rather small institution with such awesome power and incontestable authority on the most inflammatory political subjects.” This is absurd, and I would like to see some evidence of it. No libertarian with whom I’m familiar believes that the court—or any other part of government—should have “awesome power and incontestable authority.” We have never said that judges should not be subject to Senatorial scrutiny. We have never said that the courts should be joined to the legislative and executive branches. Indeed, we believe the administrative state violates the separation of powers! That’s an argument you haven’t heard since Humphrey’s Executor v. United States, 295 U.S. 602 (1935)!
In the end, what destroys the Clerk’s argument is his failure to understand the origin of rights. Once you equate rights with permissions, you are sunk. At that point, there is no justification for judicial review—no justification, in fact, for separation of powers—no good reason for a Bill of Rights—no good reason to appeal to the Founding Fathers—no way to see a difference between justice and the decisions of the majority—no way to explain the Ninth Amendment or the privileges or immunities clause—no way to understand the origin of sovereignty. In fact, it leaves you no way of understanding why the majority has a right to govern. Indeed, this requires one to reject so much of the American founding that it’s a wonder such a position can be described as conservative!
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