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Government by Judiciary

Americans are united in professing respect for the Constitution, but they are deeply divided over what it actually means and how it ought to be interpreted. These disagreements have roiled our public life for decades. Everybody who follows politics knows about the clashes between the liberal proponents of judicial activism and the conservative defenders of judicial deference. These arguments go on and on, with neither side succeeding in persuading the other of the superior merits of its theory. Faced with this ongoing deadlock, we wonder if there is any way to achieve unity on the meaning of the Constitution.

Perhaps some new approach could break this impasse. This is the worthy purpose of Randy Barnett’s new book. The Georgetown law professor has risen to national prominence over the last several years as a defender of what might be called a libertarian constitutionalism. He has played this role both as a litigator (he helped craft the constitutional challenge to the Affordable Care Act) and as a theorist (he is the author of earlier scholarly books such as 1998’s The Structure of Liberty and 2003’s Restoring the Lost Constitution). In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, he addresses his arguments to a wider and more popular audience than the lawyers, judges, and academics who had been the primary target of his earlier work.

According to Barnett, we have largely forgotten the real meaning of the Constitution, and our politics has suffered as a result. Specifically, too many Americans are under the spell of what Barnett calls the Democratic Constitution. According to this view, the primary purpose of the Constitution is to enable the political majority—or various passing political majorities—to govern the country. Accompanying this understanding, says Barnett, is a belief in the propriety of judicial deference, the sense that judges should only rarely and with great hesitation presume to nullify the acts of the people’s elected representatives. America, after all, is a democracy. This means that the people get to rule, so judges should stay out of their way except in extraordinary instances. The problem with judicial deference, however, is that it often leaves the rights of individuals and minorities without adequate protection.

Barnett calls upon us to correct this error and avoid these dangers by returning to the Constitution as the Founders understood it. The Founders, it seems, intended something far different from what is usually supposed by the adherents of the Democratic Constitution. They were not primarily interested in establishing the conditions of democratic self-government. On the contrary, they were disillusioned with democracy by the extremely democratic state governments’ unruly behavior under the Articles of Confederation. From their experience of the misconduct of the states, the Founders learned that democratic government, rule by political majorities, all too often results in the oppression of the politically powerless.

As a remedy to this problem, the Founders sought to create what Barnett terms a Republican Constitution. The purpose of such a constitution is not so much to enable majority rule as to protect the rights of individuals, the natural rights that the Founders, following John Locke, believed human beings to possess by virtue of their humanity, and that they retain even when they have entered into civil society.

Accompanying this interpretation of the Founding is a new—or, as Barnett would say, a recovered—understanding of the meaning of the sovereignty of the people and the consent of the governed. The people are not sovereign collectively but individually: each person possesses sovereignty over himself by virtue of his natural liberty. The main point of the Constitution is not to secure the consent of the people understood collectively, as manifested in the will of popular majorities. It is instead to secure the kind of just government to which any free person would give his hypothetical consent because it secures his natural rights. As Barnett observes, Locke, and some of the Founders with him, spoke of certain kinds of laws as being intrinsically illegitimate on the grounds that they arbitrarily deprive people of their natural rights, and therefore nobody could ever reasonably be supposed to have consented to them.

With this Republican Constitution comes a de-emphasis on judicial restraint, which Barnett presents mainly as one of the errors of the Progressive Era, arising from the Progressives’ zeal to  sweep away judicial obstacles to their (then) popular political agenda. For Barnett, it is not so important that judges exercise their authority with restraint in order to show respect for the collective will of the sovereign majority. It is important rather that judges act conscientiously to protect the rights of the people as individuals, each of whom is sovereign in the sense of retaining his fundamental natural rights. Adequate protection of those rights calls not for judicial deference but for judicial skepticism, to ensure that all laws really serve a legitimate public purpose and intrude no more than is necessary on the freedom of the sovereign individual.

What are we to make of this Republican Constitution? In the first place, Barnett is to be credited for the aims he has in view and for the spirit in which he pursues them. The problems with which he is concerned are real and of grave import for the preservation of liberty and the rule of law: the decline of federalism, the undermining of separation of powers, and the proliferation of laws that seem to have no purpose but to give an undue economic advantage to politically well-connected groups. Moreover, Barnett confronts these problems with a bold and radical spirit.  That is, he is radical in the literal sense of going back to the roots: he returns to the Founding and the Constitution’s subsequent development with a view to taking a fresh look at the principles that inform our fundamental law.

But will this project work? That is, can it persuade enough people to generate a new consensus about how the Constitution should be understood? Here I have my doubts. It seems to me that the American belief in popular sovereignty—understood as the right of political majorities to govern the country—is very powerful and that an approach that tries to reduce it to a secondary consideration will have a hard time drawing adherents.

The presidential campaign of 2016 has strikingly revealed the latent power of the spirit of populism in American politics. The rise of Bernie Sanders and Donald Trump suggests the existence of a broad, bipartisan sense that government by the people is precious but has been neglected. The Americans attracted by Sanders and by Trump do not seem to be complaining  that anybody’s natural rights have been violated, but that the people generally have a right to rule in their own interest but have not lately been permitted to do so.

Moreover, those making and responding to such appeals are not simply acting on the basis of a misunderstanding of the Constitution they have inherited. They are instead acting on the basis of an aspiration deeply rooted in our history. Consider the venerable example of Abraham Lincoln, our first Republican president. Barnett correctly presents the creation of the Republican Party as driven by a determination to better align the Constitution with natural rights by limiting and finally doing away with slavery. Another important theme, however, was the right of the people, acting collectively through political majorities, to govern the country.

Thus Lincoln, in his celebrated Gettysburg Address, framed the Civil War as a contest to preserve “government of the people, by the people, for the people.” It is hard to read his invocation of government “by the people” as referring to anything other than the right of the people, understood collectively, to rule. Nor was this emphasis on the importance of democratic self-government a last-minute development in Lincoln’s thought. In 1860-61, he had condemned the seceding states not so much because they were acting in defense of slavery, but because secession itself was an attack on the right of the majority to rule. Secessionists would destroy the government rather than submit to the rule of the lawful authority: the voters who had elected Lincoln to the presidency.

Moreover, in making such arguments Lincoln was not departing from but building on the understanding of the Constitution that had informed the Founders. Barnett is right that the Founders believed that rights-protecting government is fundamentally more important than popular self-government. They nevertheless seem to have rated both quite highly. They understood the protection of natural rights as the essential condition of any just government. But they also treated popular self-government as highly desirable, and as very suitable to the American temper; certainly they intended to institute it. Hence James Madison’s suggestion, in Federalist 10, that the Constitution aimed to “secure the public good and private rights against the danger of” majority faction, “and at the same time to preserve the spirit and form of popular government.”

In an effort to combine these diverse goods, the Founders sought to create a Constitution that would empower the majority to rule even as it protected the rights of individuals. With a view to the latter purpose, they devised a number of constitutional expedients, including an enumeration of powers that limits the scope of the federal government’s authority, and the specification of rights in the Constitution in such a way that they could be vindicated by courts. On this understanding, we can see that the “republicanism” of the Constitution is manifested not only in its protections for individual rights and limited government, but also in its establishment of popular self-government.

Viewing the Constitution in this light, judicial restraint begins to look like a much more defensible way for judges to exercise their duties. Since the majority is basically authorized to govern, it makes sense for judges to conceive of their role as entailing a certain deference.  Nevertheless, since the majority is only authorized to govern within limits that are established by the Constitution, there may be cases in which a clear conflict between the Constitution and a law passed by a legislature requires a court to strike down the latter as inconsistent with the former.

If this account is correct, it would not be surprising to find that judicial deference or restraint has an older and more venerable pedigree than the Progressive movement. Such, indeed, would seem to be the case, at least if we can trust the classic Founding-era account of the judicial power, Alexander Hamilton’s Federalist 78. Hamilton, like Barnett, sees the Constitution as limiting the power of the government in ways that the courts can enforce. Unlike Barnett, however, he does not envision the courts as scrutinizing laws with a view to defending the natural liberty of the sovereign individual. He rather speaks of judges as performing the much more circumscribed task of enforcing “certain specified exceptions to the legislative authority,” or protecting the “reservations of particular rights and privileges,” contained in the Constitution.

Moreover, Hamilton contends that courts must strike down laws when they find “an irreconcilable variance” between them and the Constitution—a formulation strongly suggesting that courts must try to reconcile laws with the Constitution when there is some reasonable way to do so. But this is as much as to say that judges ought to approach their task of judicial review with a certain deference to the enactments of the legislature.

It is true that Hamilton, like Barnett, sees courts as “an essential safeguard” against “unjust and partial laws” that injure “the private rights of particular classes of citizens.” Hamilton, however, never suggests that courts have a power to strike down these abuses as unconstitutional—only to shelter the victims somewhat by “mitigating the severity and confining the operation of such laws.”

Barnett’s approach to the Constitution appeals to a deeply rooted American instinct: individualism, or respect for the sovereignty of the individual. But it also runs up against another deeply rooted American instinct: respect for the political authority of the majority. In view of this tension, Barnett’s interpretation will likely achieve a lasting place alongside existing ones, but without being able to supplant them. His libertarian constitutionalism will make our ongoing argument over the meaning of the Constitution more interesting, but probably will not be able to resolve it.

Reader Discussion

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on October 03, 2016 at 11:24:50 am

I would submit, that while the Courts may well give a wide berth of deference to legislation, when the details of a statute actually emanate from Congress, conversely, a much stricter scrutiny is warranted when they emanate from an Executive Administrative Agency. Chevron needs to be rejected or radically reconsidered.

The devil is always in the details, and they deserve to be debated by the peoples most direct representatives - Congress. I would further submit, that while the Judicial and Executive Branches are presently out of balance due to failures of oversight, it is Congress that needs greatest reform, that they might again legislate vs. delegate. To the critics who warn that this would result in a massive slowing of, and intolerable inefficiencies in the workings of the Federal Government, I say, "so be it".

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Paul Binotto
on October 03, 2016 at 15:06:46 pm

I think Barnett hit closer to the truth. The Framers created a Constitution in which the appointment was senators was intentionally kept out of the hands of the public, and then given power to prevent proposals from the popular chamber from becoming law. Same for the president. The structure of the government they created is more telling than the marketing materials that were put out to try to sell the proposed Constitution to a skeptical public.

I agree with Holloway that implementing the proposed project would be difficult. I am inclined to look to new or reforming governments to see what they are learning from the actualities of the American experiment. Thailand for example approved its new constitution in early August. Their constitution for a republican monarchy looks more like the republican constitution of the Framers than the current US Constitution does--at least in its principles of government. The previous Thai constitution of 2007 was a highly democratic constitution, that failed rather quickly. They learned their lesson. Popular government doesn't work very well, and at the same time representative government is a necessity. Democracy must be kept on a short leash.

A project as proposed by Barnett must have a credible example, a working model, before the confidence of the public can be secured. Such a model would be implemented in a foreign nation, and it would be based on solid theoretical principles from top-notch political scientists. When that eventually happens projects such as Barnett's can move forward in the US. Until then we have to live with the status quo, which is excess democracy.

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Scott Amorian
on October 03, 2016 at 19:13:38 pm

Now, if only Barnett and others could "unwed" the Republican constitution from "radical individualism", we could have the makings of a (constitutionally) proper judicial philosophy.

It would seem that this concentration on the *individual* at the expense of the "community" or polis is what leads many to question the concept of judicial engagement. With the individual *supreme* or sovereign, it is not unlikely that we shall soon see the creation of new, varied and heretofore unimagined new rights (and correspondingly, obligations).

Goodness gracious, this smacks of the Kingfish, Louey P. Long who announced that "Everyman a King"

How'd that work out?

How will it work out when Judges are expected to recognize the Kingship (sovereignty) of each and every individual.

My vote is for more Cabernet, Merlot and Syrah. Let us hope the good judges are from Washington State so I don't get any inferior wines to meet my "natural right to good wine!!!!!

I've said it before and I'll say it again. Combine "engagement" with a solid originalist understanding of a *republican* constitution and we may be getting back on track.

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gabe
on October 03, 2016 at 20:13:21 pm

Gabe, you buffoon! Have you never enjoyed a good Oregon wine?!!!

We have an excellent wine industry here. I can't throw a stone without hitting a vineyard. (My wife and I Iook forward to someday taking a bus on an Oregon wine tour some day, hopefully soon.)

Inferior ... Hhhrrrumph!

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Scott Amorian
on October 03, 2016 at 20:36:49 pm

(1) There are lots of people that believe that government is “instituted among men” to protect our natural rights (ie the declaration of independence). Perhaps we didn’t get two candidates that believe that for president this election cycle, but it was close. A Cruz nominee would have pushed the idea of natural rights protections and he was very close (but for john Kasich I think he could have won the one v one fight).

(2) I think you vastly misunderstand Lincoln, read his Speech at Peoria, Illinois: “The doctrine of self government is right—absolutely and eternally right—but it has no just application, as here attempted. Or perhaps I should rather say that whether it has such just application depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself?... If the negro is a man, why then my ancient faith teaches me that “all men are created equal;” and that there can be no moral right in connection with one man's making a slave of another.” The idea of self-government used by Lincoln included the idea of self-government over yourself as an individual (ie natural rights). Majority rule is fine EXCEPT when it violates natural rights. If rights would be violated the majority cannot do it (rights are primary, democracy is secondary to rights).

(3) Judges should not defer as to if the rights were violated, majorities don’t have the power to violate rights. As Federalist 78 says the courts “whose duty it must be to declare all Acts contrary to the manifest tenor of the Constitution void.” And that “If it be said that the Legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption.” “The interpretation of the laws is the proper and peculiar province of the Courts. A Constitution is, in fact, and must be regarded by the Judges, as a fundamental law.”

(4) The irreconcilable variance line is true, but first you must determine what the constitution means before you can answer if it is at irreconcilable variance with it. It is in this (the interpreting what the constitution means) that judges owe no deference.

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Devin Watkins
on October 03, 2016 at 20:42:56 pm

You misunderstand natural rights if you think there can be a "natural right to good wine." Natural rights, by definition, pre-exist government. You can think of them as given "by our creator" as the Declaration of Independence does, or as the reason based rights based on the essence of what it means to be human. Regardless you have these rights prior to government existing. So a right to have the government provide you with good wine (or anything else) is not a natural right (that's a positive right). But the right to liberty, the right to acquire property (not the right to have property), and the right to life are all natural rights.

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Devin Watkins
on October 04, 2016 at 11:05:21 am

Oh, I have had good Orygone wine. For the record, I include some Orygone wines when I laud Walla Walla wines. They are included in the official Walla Walla AVA designation.

Oh and take the bus tour - but it is more fun when you drive and have a BIG TRUNK to store all your purchases.

take care
gabe

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gabe
on October 04, 2016 at 11:24:37 am

Devin:

You, of course, understand that I was joking with the "wine - natural rights" nexus.

My point was that given a certain predisposition AND an inflated emphasis upon the importance of the INDIVIDUAL that a jurist may (likely will, and, in fact, has) created these heretofore unrecognized (unrecognizable?) positive rights. These new rights are then *constitutionalized* via Judicial decision (mandates?).

Moreover, one must admit that the pronounced emphasis upon the INDIVIDUAL and his or her own conception of Liberty WITHOUT recourse to the sensibilities, practices and traditions / ethics of the larger political community may lead to an ever accelerating rate of "collisions" between the various INDIVIDUALS comprising that community. Nor does it consider that other INDIVIDUALS may possess a rather different conception of Liberty.

Again, the number of "collisions" will be staggering and will make for a return to a quasi-state of nature where my view of Liberty is to be afforded state support - but so must yours!

Silly, you say?

Not when you consider that a) Judges have created new rights, b) these rights are effectively constitutionalized by repeated Judicial mandates, and c) when we have converted our constituent law (US Const.) into a variant of the Common Law, where Judges decide each and every detail of our lives (or allow it to be decided) BUT then purport to give such decisions the force of Constitutional Law. In short they turn positive rights, which by my reckoning are to be determined by the People, into Constitutional rights.

How, I ask, is this to be managed? What new rights are to be created? And why must these new positive rights be afforded Constitutional status.

What is missing here is a sense of balance. Any system predicated solely upon INDIVIDUAL preferences / conceptions of Liberty is doomed to the morass of juvenile preening and debate. It is endless, pointless and without a sufficient ground to sustain itself.

So, thus, I now proclaim that I have a natural right to good wine - after all, I am sure that there are some vinophile jurists out that that would agree with me and will constitutionalize my right to the grape.

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gabe
on October 04, 2016 at 11:41:15 am

"How will it work out when Judges are expected to recognize the Kingship (sovereignty) of each and every individual." - Ah, yes, that perfect freedom where every man becomes a criminal in his neighbor's house and defendant to his brother's prosecution.

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Paul Binotto
on October 04, 2016 at 11:57:32 am

A grape suitable for a good wine can take ten years or more to cultivate, and still, it may yield only one or two really good vintage years; a bad judicial ruling, about ten minutes....and it can be easily duplicated for a 100 years.

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Paul Binotto
on October 04, 2016 at 12:09:46 pm

#4 - "(the interpreting what the constitution means)"

would you agree that a Jurist who views the Constitution as a vehicle for the fulfillment of an INDIVIDUALS personal preferences would interpret the document differently than a jurist who sees the Constitution as a compact amongst individuals AND individual republics (States).

Thus we must still confront the issue of what are the predispositions of the jurist(s).

If individuals, what does this say about the importance of traditions, ethics, practices, etc that the larger community has inherited or will bequeath to the next generations.

It would appear that this focus on the INDIVIDUAL will assure a bequest of "collisions" and not much else; with judicial support for this, what we will have created is a State sponsored state of nature.

Then again, is that not what the Democrat party has endeavored to do these past 75 years. Each group is supreme.

Alas, there are consequences to such folly!

(Sorry for the exaggeration - but it helps to make a point).

take care
gabe

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gabe
on October 04, 2016 at 12:11:44 pm

and like a root fungus on a vine, it can and will spread to surrounding root stock.

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gabe
on October 04, 2016 at 15:13:54 pm

A judge that is ruling by their own personal policy preferences is not enforcing the rule of law, they are acting as a legislature. But a judge that views one of the purposes of the Constitution as to “secure the Blessings of Liberty to ourselves and our Posterity”—in other words to let every individual make their own choices about how to live their life—I think that judge is at least trying to properly interpret the constitution.

But yes, there are those that see the constitution as not based on the individual sovereignty of “we the people” joining together to create the United States, but instead seeing each state as a sovereign (either exclusively or in addition to the people directly) coming together to delegate power to the federal government. These do sometimes lead to different conclusions, such as the right of a state to secede, which would be implied if they are the one’s delegating their powers to the federal government. But usually as the power of the state is also derided from the people there are little differences between the two views.

I don’t think it says anything about our “traditions, ethics, practices” such things are not determined by judges.

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Devin Watkins
on October 04, 2016 at 15:31:34 pm

But yes, there are those that see the constitution as not based on the individual sovereignty of “we the people” joining together to create the United States, but instead seeing each state as a sovereign (either exclusively or in addition to the people directly) coming together to delegate power to the federal government. These do sometimes lead to different conclusions, such as the right of a state to secede, which would be implied if they are the one’s delegating their powers to the federal government. But usually as the power of the state is also derided from the people there are little differences between the two views.
I don’t think it says anything about our “traditions, ethics, practices” such things are not determined by judges.

So, lets say congress decides they wish to regulate hats and prohibit all but red hats. The question would come before the judges who would have to decide if the ability to wear the hat of your choice is within your liberty. In other words, is wearing a hat of a different color cause harm to any other person. The answer in this case, I believe, is no. And so you have the right to wear a hat of any color, and that should be recognized by the judges. New rights are not “created” by the judge, they are recognized by the judge of a right that pre-exists government (the right of liberty to wear the hat of your choice).

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Devin Watkins
on October 04, 2016 at 15:34:07 pm

By the way, the founders did talk about the right to wear hats as an example of an unenumerated right which was violated at one time during the founding by a judge who ordered a quaker to take off his hat.

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Devin Watkins
on October 04, 2016 at 19:07:04 pm

"(W)hat we will have created is a State sponsored state of nature." - and, yet, even in the (pre-civilized) state of nature, there still did not exist a right to, say, murder or rape, as even in nature, there does not exist a right to do a((n) unjustifiable) wrong - as perhaps not firstly, but elegantly, stated by Hadley Arkes elsewhere. As such, In the case of (legalized) murder (i.e. abortion) this would elevate the state of nature to a more highly evolved plain than currently exists in the United States.

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Paul Binotto
on October 04, 2016 at 19:46:56 pm

1) Funny, I actually recall from the distant past the instance of the Judge ordering the removal of a quakers hat - the things we have stored in our memories.

2) I think you are stretch my "State" reference a bit far. I do not assert that State power is not grounded in a grant from the people of that State; rather, i was referring to the intended Federal *structure* envisioned by Madison and approved by the citizens of the States (yes, via their representatives) which was intended to limit the sphere of influence / power of the central government. following that structure, it would cause one to question the role of both the Executive and the Federal Judiciary in determining who may use a bathroom in a particular State. Whereas, a judge who sees the individual as Sovereign would be more apt to order that the individual sovereign's preference must be respected.
It is then a question of perspective of the jurist(s).
To assert the sovereignty of any individual is to deny the essentially political nature of humanity. No man is sovereign if all are sovereign and the very existence of even the most primitive of cultures is proof of this truth. Humans agree to limit their own behavior in order that others will do the same. (No, I am not buying Locke's social copntract but there is empirical observation to lend the assertion some credence).

As Oakeshott terms it, *collisions* occur as a part of human intercourse - unavoidable (and to my mind, heretofore, beneficial) We have over the course of centuries managed to make accommodations when collisions occur. These are our traditions, practices, ethics. Comes now a Black Robed Jurist to inform us that he or she has a superior accommodation. Does he or she not remark upon the *collision* that the "superior" accommodation has generated? Of course not - it is by definition a) superior and b) final, coming as it does from the modern Oracle of democratic individualism - SCOTUS or the Federal Bench.

In short, such finality and such overemphasis upon the INDIVIDUAL denies politics as the most fundamental exposition of human intercourse. And yes, the judge is creating new rights or "renegotiating the basic social contract" Can it be truly said that Trans-bathrooms are an essential part of liberty when in fact it intrudes upon the liberty perceptions of others. You are right on hats but not on restrooms. This is where the judges have overstepped their bounds. we all accept limitations upon our behavior in order to be part of a larger community. are there to no longer be any limits?
Do we all not modify our behavior based upon circumstance / situation? This alone would indicate that there is something (I ain't sure what, anymore) we all owe to the larger community. Why is it that a judge is the only one who "knows" what that *tithe* is?

Ain't buyin' it, brudda!

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gabe
on October 05, 2016 at 00:46:36 am

Natural rights solve many of these so-called "collisions." The same-sex bathroom is a perfect example. In this case, under the natural rights theory of government can the government order that everyone use the bathroom that corresponds to their physical sex? No. Can the government order that everyone be allowed to use the bathroom that corresponds to their self-professed gender identity? No.

The proper way to understand this from a natural rights perspective is that someone owns the land upon which the bathroom sits. The owner of that land can set rules for those that wish to use the land (including the bathroom). These rules might be to follow the physical sex or the gender identity, that's up to the land owner to decide. And making that choice harms no other person and so it cannot be prohibited by the government.

As to the land owned by the state or local government (such as public schools), that is up to the local or state government that owns the land to decide.

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Devin Watkins
on October 05, 2016 at 17:28:56 pm

Well said both by yourself and Arkes, who is awesome!

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gabe
on October 05, 2016 at 18:07:07 pm

He is awesome. I never had the privilege of meeting him, but his many books, essays, etc. have been so impactful on my understanding and way of thinking about natural rights, law, the founders and the constitution.

And, you are kind; and quite knowledgeable and insightful (not to mention extremely witty), in your responses to the many issues discussed in this blog site. I enjoy them always!

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on October 05, 2016 at 20:13:15 pm

Paul:

Re: Arkes;

He is so good that even my millenial nephew, a Lefty of sorts, appreciated and learned from the course(s) he took with Prof. Arkes.

I especially love Arkes clarity of mind / reasoning. amazing!

Take care

AND yes, if it is DRY wine, it is fine OR All wine would be red, if only it could!

seeya

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gabe
on October 06, 2016 at 11:49:29 am

Ha - Yes!!

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Paul Binotto

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