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The Myth of Rational Legislation

The ongoing debate between libertarian and more traditional constitutionalists is about something more fundamental than what standards of review to apply to which cases. What’s at stake in this disagreement is politics—its very survival, and in what form. Is this institution that is, or at least was, enlivened by argument among citizens to be replaced by a desiccated vision of rational claims adjudicated by courts?

The libertarian constitutionalists make a demand that appeals to common sense: that the government be required to justify any restrictions on liberty as reasoned rather than arbitrary.

In his excellent Our Republican Constitution (2016), for example, Randy Barnett writes of the “obligation of the servants of the people to explain [to courts] why their restrictions on the liberty of a fellow citizen and joint sovereign are not irrational or arbitrary.” This demand sounds fair enough. But it is rooted in a series of presumptions that fare better in the rhetorical aggregate than under careful (strict?) scrutiny.

The first is a dual maneuver whereby the buffering mechanism of the political community—whose “deliberate sense” acts through the government rather than the government’s acting, as a foreign agent, on it—vanishes, leaving only the regime and the individual member of the community standing in opposition to one another.

Second is the presumption—almost always contained, in question-begging fashion, in the premise of such arguments—that the courts are the appropriate forum for the individual and the government to present their claims.

The third is the idea that legislation—which in a regime devoted structurally to liberty is the product of a decentralized process of percolating compromises, not a top-down imposition of discrete reason-giving—ought to be, even can be, rational in any sense cognizable by a court.

Each of these presumptions is rhetorically appealing, intellectually attractive, and politically pernicious.

Start with the first: There is no community, no zōon politikon, in the libertarian constitutionalist worldview. One suspects that they would not dispute this. The political community does not exist, only individuals and the regime. This is a Hobbesian frontier and a Tocquevillian terror.

Thus the idea of a deliberate majority working its will, James Madison’s “vital principle of our free constitution,” is foreign. Indeed, the regime itself is foreign. It is an alien entity that must justify itself to the people because it is constantly assumed to be opposed to them, not an expression of the people’s deliberate will itself.

This mistakes Madisonian theory. On Madison’s understanding, two forms of abuse were possible: the regime abusing the people or majorities abusing minorities, a distinction he makes explicit halfway through Federalist 51: “It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.”

The first scenario is the one to which the libertarian constitutionalists refer in describing a “government” on the one hand and an individual on the other. Yet Madison speaks not of an individual opposed to government, but of a political community opposed to government. He writes of guarding the “public rights,” not individual rights, against abuse by the regime, and the protection he proposes is not strictly judicial review but rather the general mechanism of separation of powers.

But what of legislation in which some people get this and others get that? Here it sounds much more like some of the people abusing other of the people, and Madison proceeds to say that this kind of abuse will be mitigated by the extended republic theory he elucidated in Federalist 10 and repeats in Federalist 51.

Significantly, the theory does not rely on any institution of government to restrain majorities, only on the natural conditions of an extended republic. Still less could it rely on courts constituted to be isolated from the republic, since Madison explicitly rejects empowering “a will not dependent on” majorities to control majorities.

The libertarian constitutionalist rejection of majority rule is ultimately a rejection of political community. For them, the individual stands exposed to the regime, protected not by the buffering influence of a Tocquevillian community in which he or she can participate, but by a buffer over whom he or she, by design, has no control—judges. Which buffer better secures rights?

That is precisely why, with respect to the second presumption, the case against rent-seeking legislation ought to be made by the citizen to the legislature.

It is certainly true that those who would restrict liberty ought to bear the burden of demonstrating the propriety of their proposals. They should not do so with false justifications that seek merely to tart up corrupt rents in the dress of legitimate politics.

But it does not follow that the place for demanding that demonstration is a court of law. The courts cannot judge of the objective intent of lawmakers, who—as the libertarian argument correctly presumes—are ingenious at inventing seemingly benign, if sometimes absurd, justifications for corruption. To place courts in the position of deciding whether a rationale for a law is adequate is to make them judges of whether that law is justified and good—in its very essence a legislative function.

The paradigmatic case of rent-seeking abuse, often taken as proof of judicial rubber-stamping under the rational-basis test, is the 1955 case of Williamson v. Lee Optical. But the effect of applying the rational-basis standard in that case was not to give permission for what could rightly be called favoritism. It was to force the issue of favoritism back into the legislative realm by saying that rent-seeking must be repealed by consent of the community.

Stopping rent-seeking by that means is, to be sure, less likely today because government has grown so complex and detailed. But that complexity, which breeds corruption, is itself the product of a longstanding constitutional settlement in which Americans, for good or ill—certainly often for ill—expect government to be an agent of economic distribution. The imperative is not to deny that reality but rather to constitutionalize that regime.

Thus point three: Legislation is often a collection of bargains and compromises. Progressives wanted it otherwise. The early Progressives spoke of “scientific legislation.” Woodrow Wilson complained that the decentralization of Congress resulted in policy with “little coherency.”

There is another word for this: “politics.” Politics is transactional in nature; some people receive this, others that. It involves compromises, bending, accommodation. To try any one discrete act of legislation, especially in isolation from the whole, on the grounds of discrete reason-giving is to misapprehend the nature of the legislative process, which is more Hayekian than Platonic. It is not directed by philosopher-kings. It is the product of a vast array of individual accommodations that accrete into a whole that—like the “market”—becomes falsely personified as though its behavior were susceptible of rational explanation.

That is a hot, ugly mess and no partisan of liberty should want it otherwise. Liberty assumes the dispersal and separation of power. Rational legislation in a form that conforms to discrete reason—to be assessed by judges, who are as human as the rest of us, according to theoretical standards—assumes the concentration of power.

It is true, as Phillip Hamburger has written, that judges’ oaths confer a judicial duty not to give effect to lower laws that violate higher laws. But in the American tradition, that higher law allocates to judges a certain place, and to politics a more prominent one, in the constitutional scheme. There are reasons for that difference. The dispersal of power, to which libertarians ought to be sensitive, is one. Legislation could only answer the tests they would apply if it were the product of powers they normally would not countenance.

Reader Discussion

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on July 27, 2016 at 08:26:11 am

Greg--

A thought provoking essay, thank you.

A question: does political community in the Madisonian sense require institutional form to exist? Or perhaps better, what must be true about a society or culture for political community to provide the kind of intermediate buffer between the individual and the government that Madison suggests? So ok, that's two questions, but questions that I think are closely related.

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Kevin R. Hardwick
on July 27, 2016 at 10:50:43 am

Kevin,

Thanks, and good to see you here. I think you're right that your questions are closely related. The separation of powers is the institutional architecture on which he relies to protect individuals from a rogue regime--i.e., you would have to capture three branches to pull it off--but he also says in the Virginia ratifying convention that individuals need sufficient virtue to choose virtuous representatives. So I think you need a political culture that values liberty but also values public-spiritedness, with, in my view, the latter including the capacities to be a gracious winner and not to be a sore loser. You know this history better than I do, but Patrick Henry, among other Anti-Federalists, accuses Madison of being inattentive to questions of public virtue like this. That is what I would loosely call a sort of Platonic perspective in which we need virtue and therefore the regime must inculcate virtue. Madison's perspective (again, using the terms loosely) seems more Aristotelian: the regime and political culture draw from one another. So--to bring your questions together by way of an illustration, the fact that the separation of powers is only loosely enforced today, in Madisonian terms, is partly due to the fact that Congress does not defend its prerogatives, but that would ultimately have to do with the fact that the public is not sufficiently attentive to constitutionalism to elect members who care about doing so.

Not sure if I've clarified or muddied these waters.

Greg

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Greg Weiner
on July 27, 2016 at 11:33:55 am

From Walter Lippmann's "The Good Society" pp. 287 et seq.:

But in modern times men have come to think
that because there are practical reasons for separating and
specializing the legislative and judicial functions, they are
morally and psychologically distinct.

THEY ARE NOT. When the legislator ceases to think of him-
self as an impartial judge among contending interests, he soon
adopts an imperial view of his function. He ceases to judge
causes among the people: he issues commands to the people, and
regards himself no longer as the representative of their true
will but as the providential contriver of their destiny. Against
this imperial view of the state, which comes down from the
Byzantine emperors and was revived in Europe by the study
of Roman law during the Renaissance, 8 the liberal movement
has always fought. The imperial view is that the official de-
crees the law according to his will rather than that the official
finds the law by judging causes. This is the legal theory of
absolutism. To that theory the modern collectivists and all the believers in legislative or executive supremacy have re-turned.
The growing complaint of legislators that judges are legis-
lating is the obverse of the fact that lawmakers have ceased to
be judges. Legislators have come to think of themselves as
the lineal descendants of the Ceasars, and the heirs of their
sovereignty. Against this revival of the absolute state, the
courts have sought to provide a refuge. They have given
refuge to many interests that probably ought not to have it.
They have also given protection to many vital human interests
against the tyranny and arbitrariness of legislative majorities.
But their "judicial usurpation" would not have received so
much popular assent had men not realized that its complement
was the growing dictatorship of lawmakers. Yet two wrongs
do not make a right. Both are perversions of the liberal
state, arising from the failure to recognize that the legis-
lative function is only a more generalized form of the judi-
cial..

The separation of the two functions is a question of expediency rather than of principle.

In broad
terms we may then say that liberalism seeks to govern primarily
by applying and perfecting reciprocal obligations, whereas
authoritarianism governs primarily by the handing down of
decrees. The liberal system seeks to define what one man
may expect from all other men, including the officials of the
state, and to guarantee that expectation. The authoritarian
system permits the official to declare what he wishes other men
to do and to enforce his will.

The prejudice which liberals entertain against the multiplica-
tion of government enterprises has come not from their basic
principles but from practical experience of how difficult it is to
keep a powerful bureaucracy under the law, how great is its
tendency to take to itself the attributes of a Byzantine emperor.

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R Richard Schweitzer
on July 27, 2016 at 11:56:30 am

Having set down some of the salient remarks about legislators (as Tyler says: read the whole thing), in this "rationality" context, should we not first, or at least equally, consider what is (or are) the function(s) of legislation in our social order; and, are those derivative of the functions of legislators - or - are the functions of legislators derivative of the functions of legislation.
Which is occurring as our social order has developed?

Greg Weiner:
"The libertarian constitutionalist rejection of majority rule is ultimately a rejection of political community."

Perhaps Kevin's comment opens a refutation; or suggests that "political community" is something different from, and certainly more than, "government" and the legislation for actions through its mechanisms.

It bears repeating: Normative Libertarianism is framed by the impacts of the functions of governments on Liberty and thus to limit those impacts by limiting those functions.

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R Richard Schweitzer
on July 27, 2016 at 16:10:15 pm

Short version: Some libertarians argue that judges should subject ALL laws that limit people’s autonomy to heightened scrutiny.* But this policy would not unambiguously empower the individual. Rather, it would empower unelected judges to veto the acts of democratically-elected legislators. It is unclear that this policy would result in greater liberty, or greater tyranny. Indeed, courts created the tiers of scrutiny precisely to get out of the trap of having to second-guess legislators—except under exceptional circumstances when greater scrutiny is warranted.

*(The federal Religious Freedom Restoration Act directs judges to subject laws that impinge on religious liberty to heightened scrutiny. But to reconcile that law with the 1st Amendment duty to avoid discriminating on the basis of religion, judges should also have to subject all laws to heightened scrutiny. Thus, courts should grant the same scrutiny to the Native American who claims that his people ritually consume hallucinogens as part of their ancestral traditions communing with the Great Spirit, and the pothead who observes the long tradition of young men gathering to get stoned, eat pizza, and ponder ultimate questions.)

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nobody.really
on July 27, 2016 at 16:42:36 pm

Greg--

Thank you--as with anything complex, you both show the way forward and open up more questions--both of them attributes of the good teacher.

I very much agree with your characterization of the Virginians--Henry and Madison had legitimate differences, but they both took seriously the idea that public virtue is necessary to sustain not just republican government, but a liberal (small l) culture more broadly. Henry is hard to get a read on, but I take the bill for supporting teachers of the Christian religion he supported in the mid-1780s to stem from the kind of quasi-platonic impulse you describe here. On this matter, as near as I can judge these things, George Washington tended towards the same kind of thinking.

Madison was more libertarian, and ultimately more persuasive, but he too perceived the importance of public virtue. When I teach this, I use this quote, from Federalist 55:

"As there is some degree of depravity in mankind which requires a certain degree of circumspection and distrust: So there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us, faithful likenesses of the human character, the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring
one another." [Federalist, Gideon Edition, p. 291]

As an aside, I think the distinction you draw above also usefully helps us separate Federalist and Anti-Federalist arguments about the Bill of Rights. Federalists were always more attentive to the structural elements of constitutional framing. Anti-Federalists--I am thinking here especially of the Brutus essays, in New York--treated a Bill of Rights as in part serving a pedagogical purpose. Anti-Federalist arguments about the Bill of Rights were all over the map, but one important strand stressed their importance in keeping before the people those principles to which the people ought to be committed.

I am not sure I am advancing the conversation here either--but so much good stuff here to mull over. Many thanks, as always!

Kevin

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Kevin R. Hardwick
on July 27, 2016 at 21:38:32 pm

Kevin,

Political communities exist and have institutional forms whether they are explicitly recognized or not. The interactions of people in any type of sustainable group inevitably create poiitics. The processes of competition, cooperation, collaboration, and opposition among people who live among one another arise spontaneously and inevitably. They may be guided by reason and sound politics, or by emotion, or superstition, or tradition, or otherwise, but they will exist and they will influence people's interactions with one another, with government, the state or what have you.

In my opinion when we are talking about discrete institutions with defined roles we are not really referring to separation of powers. "Powers" is an inexact term for the actual entities under consideration. I have previously made a distinction here between power, authority and influence, and to my mind this distinction is more useful than separating "powers" into legislative, judicial and executive prerogatives. (What to make of the modern administrative agency which exercises rule-making, adjudicative and enforcement functions?)

Briefly, power is the physical capacity to do something; authority is recognized legitimacy to do it and influence is the capacity to affect the views and conduct of others; individuals, groups of individuals and governments, etc.Military juntas usually have the power to seize control of government, but no authority to do so; an attorney general may have the authority to opine on a particular issue, but no power to enforce it. Influence is more potent: dead people have no authority and no power, but may have enormous influence.

In a perfect United States (my opinion, remember) it is authority that is clearly and exclusively vested in a particular institution; separation of powers is separation of authority. The idea is to check the illegitimate (i.e. unauthorized) use of power. The executive branch, pretty much by default is the exclusive repository of government power, and when it acts without authority, well we have a problem, and we turn to the authority of the other branches to keep that in check. Now here is the fundamental challenge of government: the mob potentially has power, the people are the source of authority, even if power may be exercised in its absence, and individuals or very tiny minorities may have outsized influence. These are the facts of revolutions. In a properly functioning republic, the government is subject to the influence of the people, by elections, petition, etc., and attempts to minimize or counter that influence by restrictions on the press, free speech, freedom of association, etc. are illegitimate.

The institutions of a healthy republic serve two distinct functions: to preserve the ability of the people to influence government, and to maintain clear distinctions as to the authority that may be exercised by the various branches of government. Courts telling Kansas City how to run their schools: bad government, courts telling Terry McAuliffe and Batack Obama that they cannot change legislation by decree: good government. Legislators allowing police to seize property from innocent individuals to fund government operations, bad government; legislators requiring certain standards of common carriers, good government.

Individuals, groups of individuals, sects, majorities, minorities, etc,, all have interests that may be affected by operation of government. A common fallacy on this site, and elsewhere, is to assume that all libertarians are averse to government for this reason. What libertarians like me want is to ensure that government exercises no power without consent of the governed, that the channels by which ordinary (i,e, decent, law abiding, responsible) citizens influence policy are safeguarded, and that bureaucratic adminstrative agencies do not encroach on individual rights under spurious claims of legislative authority and executive power. And when they do, the institutions with the authority to do so tell them to back off.

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z9z99
on July 27, 2016 at 21:52:00 pm

Just to be clear:

The executive has the authority and the power to enforce the laws;
The legislative has the authority to enact the laws subject to restrictions such as the Consititution;
The judicial has the authority to declare that actions of the two other branches are or are not within their authority;
The people have the exclusive right to influence the policies of the various branches of government, as well as their fellow citizens. And I forgot to mention, this influence must be open.

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z9z99
on July 27, 2016 at 22:50:14 pm

Z9z99--

I wish I had a more elegant name by which to refer to you. There is something mechanistic about your handle here that strikes me as inadequately humanistic, if that makes any sense. It feels disrespectful, if nothing else--your comments are almost always thought provoking, and I don't like even the hint of treating the person behind the handle with anything short of proper dignity.

Anyway--I agree with much of what you write above, but I also think you are at some risk of confirming Greg's description of the libertarian occlusion to the concept of virtue. One way to put the argument of guys like Henry or Washington is to ask, can a republic whose citizenry is completely depraved endure for any length of time? If not, does the state have a role in nurturing or encouraging in citizens the dispositions necessary for the republic to last?

Anyway, I really appreciated the post above. Very nicely and succinctly stated, especially the final paragraph.

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Kevin R. Hardwick
on July 27, 2016 at 23:16:04 pm

Kevin,

As I said before, don't fret the handle. If you would like you can refer to me as Joe. There are a lot of Joe;s but not quite so many z9z99s. But I do appreciate your effort of thoughtfulness.

In response to your your question, no, a society that is completely depraved cannot survive, nor should it. A body that is consumed with cancer will not survive no matter how much chemotherapy you pump into it, nor how many machines you hook it up to and try to force it to function with external interventions. People are able to form and thrive in societies and communities because of a complex system of instincts, emotions beliefs and values.Those that are emprically observed to to be beneficial to these interactions are designated as virtues. People are not made virtuous by laws, and are not depraved in the absence of them. At the risk of provoking a post from Phil, look at the preamble to the Constitution--nothing about making people virtuous there, or the Declaration of Independence's explanation for why governments exist. You cannot make a person virtuous by force. I think a lot of people might be shocked at how virtuous some people are if the are just let alone.

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z9z99
on July 28, 2016 at 10:16:32 am

Z:

Well said!

"You cannot make a person virtuous by force. I think a lot of people might be shocked at how virtuous some people are if the are just let alone."

Absotively!

Funny isn't it, this talk of virtue. Did Madison advocate such? Will Law generate it?

In oldentimes, there was a construct known as the Common Mind - custom, practice, assumptions, tradition, etc - It was this which not only defined but instilled virtue in the citizenry. It assumed that people OUGHT to be left alone and virtue would be a natural outgrowth of this condition.

Contrast that with today's *Un-common Mind* crafted by our *Caesarian* legislators (see Richard's post below) and foisted upon us by a similarly inclined Judiciary and it is not difficult to see how one's resentment may adversely affect one's *virtu.*

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gabe
on July 28, 2016 at 12:56:53 pm

Prof. Weiner conflates structure and principle.

The objective of a libertarian government is maximizing individual liberty - as a matter of principle we grasp that the excercise of a few freedoms - such as that of using violence, reduces freedom overall.
The purpose of the social contract is to find a structure that maximizes freedom by careful restrictions on a few freedoms such as that of using violence that have a significant net negative effect.

The constitution is one very good structure to accomplish that purpose. Its merit, its value, the explanations of how it was intended to work by Madison and other founders are still all subservient to principle.

Prof. Weiner's next failure is conflating the power to say no with the power of saying yes.

Liberty demands atleast that majoritarian legislative process that Prof. Weiner celebrates as the means of choosing to expand government or restrain liberty. No minority - whether the president, the courts, the legislature should ever have the power to say yes to restricting our liberty. We expect that restrictions on liberty conform to that maximizing principle - that we are sacrificing a small amount of our freedom for a net greater outcome.
That situation is incredibly rare, hance we not merely require majorities, but supermajorities to do so.

Conversely the power to sa no to resritcions of liberty, to greater government power is far far less dangerous.

In the constitutional framework that Prof. Weiner notes and that we have the separation of powers, the checks and balances the various intricacies of our constitutional structure all work to make it very hard to say yes to increasing government power and very easy to say no

No small cabal of the unelected should ever have the ability to increase the power of government.
But the converse is NOT true. There is absolutely nothing at odds with libertarianism or constitutionalism in enabling a small group divorced as much as possible from the political process to say NO resoundingly to increases in government power or decreases in liberty.

The merit in our form of government - in its structure lies in the extent to which is acheives the principle of maximizing individual liberty. It is our beleive that our constitutional form of government acheives that objective best. But should we tomorrow find we were wrong - or than another form works better we are obligated to change.

While I do not expect that, the concept is important, because that helps to understand that our constitution is not the epitomy of perfect government handed down on stone tablets by god.

This also substantially effects our understanding of the constitution.

Prof. Weiners conflation of structure with principle leads to a form of the same error the left makes with their particular brand of living constitution.

When Madison writes he is telling us how the constitution works as written - he is telling us how he thinks it should work. That is very important. But it need not be how WE think it should work.

When we endow the text of the constution - or the federalist papers with super human authority we shift from being free to change the constitution where it is wrong through the difficult process of amending it, to trying to find in its words our own beleifs and transforming it by interpretation. When we think of Madison and the founders as gods, we must construe the meaning of their words to conform to our ideology - as we know our ideology is correct, and they were gods so what they meant must be what we beleive.

It is important to accept that our founders and the constitution are fallible - but that it can be changed.
because otherwise we fix it not by changing it, but by changing the meaning of the words.

We become the government of men, not laws that adams feared.

.

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jbsay
on July 28, 2016 at 13:49:08 pm

I am disappointed - logic is generally considered a forte of libertarians.

What laws enhance liberty ?
How can giving anyone greater authority to strike down a restriction on liberty reduce liberty.

There may be arguments for restricting the power of judges to strike down laws that infringe on liberty, but the claim that does not result in greater liberty or that it does result in greater tryany are not among those.

Te decrease liberty or increase tryany you must empower judges to restrict freedom, not enhance it.

democracy is a means - liberty is the ends. reduced democracy is not inherently anti-liberty - quite often it is pro-liberty.

The RFRA is merely a congressional reaction to the courts refusal to take the first amendment as written.
Yes the court should go beyond protecting religious liberty - but I will take every additional freedom I can get

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jbsay
on July 29, 2016 at 08:25:09 am

Joe, Gabe--

I agree entirely that state coercion can not make persons virtuous--virtue here understood to mean those dispositions in citizens necessary to sustain republican government. But to put it that way is to misunderstand the argument of guys like Henry and Washington. After all, not everything the state does is coercive. Henry directly and Washington indirectly both suggested that the state can take various kinds of actions to encourage people to inhabit (that is, to habituate within themselves) the right kinds of character.

For Henry and Washington, one way to do this was to encourage people to nurture within themselves Christian morality. In the modern US, this shows up in state support for commemorative or monumental architecture, or civic sites across our country, or proper burial rites for veterans, or civic education in our school systems--just to name examples that come easily to mind.

To argue this way, of course, is to make at least a modest step in the direction of suggesting there are better and worse ways to live our lives, that we can objectively distinguish between them, and that we have a political stake in affirming some life choices and not others. This kind of argument tends away from the libertarian premise that it is up to each individual, magnificently alone and autonomous, to determine for him or herself the ends of life. I think Tocqueville points us to the problems with the libertarian conception of the autonomous life, but that is likely another conversation!

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Kevin R. Hardwick
on July 29, 2016 at 10:02:01 am

Kevin:

Good stuff as always - especially re: Henry and Washington on virtue. I would add some commentary of Madison as well.
BUT:

If we are today reduced to using State mechanisms such as veterans memorials, cemeteries, and the like as THE principal means of instilling or at a minimum supporting virtue, then a) we have lost and b) we are a rather long way from what many of the founders hoped and advocated for with respect to republican virtue and the deployment of State mechanisms.
Heck, they funded religious schools as one example.
And today we offer what? - empty platitudes.
Also agree with the problem of libertarian *individualism* - for all the apparent "bonhomme" it ultimately offers / provides a desperate isolation.

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gabe
on July 29, 2016 at 10:26:47 am

What laws enhance liberty ?

Big topic, but briefly:

Depends on your concept of liberty. A lawless world lives according to the laws of the jungle: might makes right. No property rights. And if that's your concept of liberty, then I suppose a lawless world is a world of liberty for you.

But some people have a concept of liberty that encompasses autonomy rights and property. What laws enhance these? Law schools teach entire classes on the subject. For example, the concept of "property" has evolved as social values evolve. But whatever your theory, property rights might well entail a mechanism for enforcing property rights--police, courts--and thus a mechanism to pay for the enforcement mechanisms, and mechanisms to correct/restrain errors that arise in the enforcement mechanisms, and so on. Again, not simple.

And not individual. Property rights, as rights an individual asserts against everyone else, rely on social recognition. How do we manage social recognition of rights? Government, typically.

So how do we manage government? Western nations favor democracy. Yet democracies tend to become tyrannies of the majority. So to fend this off we establish some limits on majoritarianism, including the Equal Protection clause. As Justice Scalia remarked in Cruzan v. Missouri Dept. of Health, "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me."

And Scalia's understanding of Equal Protection prompted him to write his famous decision in Employment Div. v. Smith, holding that the law's of general applicability should apply to people equally--even when some people assert a religious reason to be exempt from a law's provision. Legislators should have to choose between burdening everyone, or burdening no one, but they should not get to impose a law on some people but grant exemptions to similarly-situated people who just happen to be members of a favored class.

But in Congress, religious people are a favored class, and so Congress reversed the Smith decision by adopting the Religious Freedom Restoration Act. (Note that the authority for this law does not rest on the First Amendment, but on Congress's authority over interstate commerce and its taxing/spending powers.) The law directs government to discriminate not on the basis of bona fide governmental purposes, a subject which is susceptible to reasonable investigation and debate, but rather to discriminate on the basis of religion, a subject which is beyond the reach of investigation and debate.

So that's how we get to the status quo.

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nobody.really
on July 29, 2016 at 10:46:17 am

nobody:

Fair enough re: origins / rationale behind RFRA.

BUT:

would you not concede that a reasonable argument can be made that under the 1st amendment it is unavoidable that some otherwise general obligations (correct or not) may not be imposed upon those claiming (entitled to?) protections under the Free Exercise Clause. For instance, must a Baptist Theological School accept a Jihadist as an instructor of theology?

No, I ain't being *clever* here - only wish to point out that whatever scheme we manage to concoct, there will always be collisions and that those who look only to the Positive Law are often disappointed to see that "there is some real sh*t going on here."

Let me cite an example from today's Seattle Times. A State Appeals court has ruled that it is discriminatory for a the State's largest mental health hospital to have limited the race of certain staffers charged with caring for a virulently anti-black patient. The hospital apparently thought that good order could be more likely maintained and that the personal security of black staffers better protected by limiting this lunatics exposure to black folks.
This does not seem unreasonable to me AND there was no difference in pay / benefits attendant upon treating this miscreant. YET, The Law says - "No Soup for you"

A collision, for sure.
Should we do anything about it other than what the hospital did.

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gabe
on July 29, 2016 at 13:46:25 pm

I would say that monuments, civic sites, burials, etc. are much more likely to reflect certain virtues than to cause them. To the extent that government has a role in nurturing virtue, it is to ensure that the virtuous are not disadvantaged for being so.

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z9z99
on July 29, 2016 at 14:09:37 pm

[M]ust a Baptist Theological School accept a Jihadist as an instructor of theology?

First, I know of no prohibition on rejecting a job applicant who is known to be prone to violence.

But second, you’re right, employment/civil rights laws often provide “ministerial” exceptions. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court held that the ministerial exception means that employees of religious institutions cannot rely on labor laws to sue their employers, provided the employees were hired to advance the employer’s religious mission.

So, if a religious employer were merely seeking someone to teach church history and is not expecting that person to promote a theological message, then arguably labor laws (including bars on discriminating on the basis of suspect categories arising from the federal 1964 Civil Rights Act) might still apply. Or if a school were hiring someone to teach and promote a theological perspective, but that employer was a branch of government, then the laws might also apply because arguably promoting theology is not a bona fide governmental purpose. (I really don’t understand the legal status of chaplains in the military.) But otherwise, the employee/applicant would be out of luck.

But arguably, this is not an exception to Equal Protection, because equal protection does not preclude discrimination on the basis of bona fide qualifications. In Hosanna-Tabor the Court merely clarified that where an employer’s goal is to promote a faith, then an employee’s/applicant’s embrace of the faith is a bona fide occupational qualification. True, this leads to grossly self-service dynamics whereby an employer will demand subservience from employees as a demonstration of faith—and any employee who then objects to any labor conditions can be fired not for demanding reasonable working conditions, but for demonstrating insufficient faith. It sucks, but that’s how the case came out.

A State Appeals court has ruled that it is discriminatory for a the State’s largest mental health hospital to have limited the race of certain staffers charged with caring for a virulently anti-black patient. The hospital apparently thought that good order could be more likely maintained and that the personal security of black staffers better protected by limiting this lunatics exposure to black folks.

This does not seem unreasonable to me AND there was no difference in pay / benefits attendant upon treating this miscreant. YET, The Law says – “No Soup for you”

Not so fast: The court merely found that the practice violated a state prohibition on race-based discrimination in employment. The allocation of soup—damages and fees—hasn’t been resolved. And the court rejected the argument that the employer’s practice created a hostile work environment. So the case may ultimately say, “Yup, that violated the prohibition on discrimination, but no harm/no foul.”

But more generally, a variety of cases arise whereby the state arguably becomes the agent of private undue discrimination. In Shelley v. Kraemer, the Supreme Court held that private parties are free to enter into contracts based on racial discrimination—but that it would be wrongful for courts to enforce those contracts. I surmise that the police can legally comply with a landowner’s demand to remove all the trespassers or certain designated trespassers, even if this demand is motivated by the landowner’s racial animus--but it’s probably not legal to comply with a demand to remove only the black trespassers.

But may the state establish a battered women’s shelter—and exclude battered men from seeking shelter there? Perhaps it’s understandable that the traumatized residents at the shelter have an aversion to men. But to take a bad experience with a few guys and generalize it to all men is simply gender-based discrimination, and when the state acts to accommodate this discrimination, it arguably becomes the agent of private discrimination. Nevertheless, this seems like an extremely reasonable accommodation to a damaged psyche.

Here’s my theory:

Ideally the state would have separate shelters for men and women. But if there is only enough money for one shelter, then it is not crazy for the state to build the shelter for which there is the greatest demand. Thus, demand-based discrimination is ok, even if it arises from gender-based discrimination.

Likewise, public schools can design schedules to accommodate Christian holidays but not Jewish ones, assuming the school serves more Christians than Jews. It’s demand-based discrimination.

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nobody.really
on July 29, 2016 at 17:51:32 pm

You are wrong in so many ways. Your first mistake is in assuming that this idea of a “political community” vanishes. This isn’t true. The scope of the power of the so called “political community” is indeed limited, but that doesn’t mean that it does not exist. No longer would the elected branches be allowed to perniciously benefit one group of people at the expense of another. But that doesn’t mean that the legislature can prohibit harmful actions. If an action is violating the rights of another, that is within the scope of legislative powers to prohibit IF IT CHOOSES TO (there is still discretion in the hands of the legislature of if the state should be acting to prohibit the harm, or if that should be left up to the individual to protect themselves).
Of course the courts are the appropriate place to present the claims that a person’s rights have been violated, where else would it occur? To say we will leave it up to the legislature to decide is to say that there is no right at all. The legislature, to pass any law, must think that law is a good thing. And you are going to put in the hands of the people who have already declared it to be a good thing to determine if a right exists? Even worse, you would put in the hands of the legislature the ability to determine the extent of their own powers. No rights are protected with such invidious incentives.
There are plenty of times where it is unclear as to if something is harmful, and some discretion must be left in the legislature to make these determinations. But that doesn’t mean that when the judges know that no such harm is occurring and yet the legislature would still limit the rights of the individual that should be allowed. The Fifth Amendment protects against the legislature by mere will taking the liberty of an individual or a group of individuals without due process of law.
You mistake Madison entirely, for instance this is what he said about this idea of absolute majority rule. "[D]emocracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths." "[In a democracy] a common passion or interest will, in almost every case , be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual." By public rights, he meant the rights of the public, which are individual rights. Judicial review is a part of the separation of powers that prevents the legislature from running roughshod over the rights of the people.
You misunderstand Madison yet again with your quote on “a will not dependent on” majorities to control majorities. He was speaking (if you read the quote in context) of an aristocratic or self-appointed power of kings and lords. These are pernicious things, to have power granted without the majority. “This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major[ity], as the rightful interests of the minor[ity] party, and may possibly be turned against both parties.” But judges are given the power they have by the majority (they are selected by an elected president, and confirmed by an elected senate), and judges do not act by the direct power of government, they can merely limit the power of the other branches. Before the judges get involved, congress must affirmative approve the statute which then authorizes the executive to enforce the law. Judges just limit what the executive and the legislative branches would do in their absence. This makes it very hard for judges to violate rights, unless the executive and the legislative branches all agree. So the power of judges to ignore both the majority and the minority and act on their own is not the threat in our system of government (unlike in England which is what he was talking about in that part).

Why do you present it as an either/or? This is a false choice. You can be protected by the legislature (to the extent that they listen), and by judges (to the extent they listen). Then you can have the best of both worlds.

There is a HUGE difference between if the justification for the limitation on liberty is merely “adequate” and that the statute is “good.” Judges should never be the arbitrators of what is “good” laws and what are bad ones. Judges merely need to look at the law and ask (as you say sometimes occurs), if the justification is absurd.
I disagree that Williamson v. Lee Optical did not result in favoritism, it clearly favored optometrists and ophthalmologists over opticians. It said that a faction can operate by pure political strength take away the rights of the minority to compete in the marketplace for no reason other than they gave more money to the political campaign of the legislature. This is might makes right in its worst form, and pure favoritism endorsed by the courts.

I don’t care if legislature includes bargains and compromises, but those cannot be at the expense of a minority without any kind of wrongful action done by the minority. That is merely taking property from A to give to B because “we say so,” it is might makes right and undermines the rule of law. It creates a hobbsian war of all against all to control the legislature to prevent losing what liberty or property you already ahve rather than the legislature trying to act for more high minded ideals of justice.

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Devin Watkins
on July 30, 2016 at 11:27:18 am

nobody:

From a legal perspective what you say and propose makes sense.

MY point was, as almost always, was to simply demonstrate that NO LAW, no matter how cleverly crafted, no ideology no matter how broad or well intentioned, is going to provide a sure and clear path through all the *collision* consequent to human intercourse.
From a legal perspective, one may claim that the good Judges in WA. Sup Ct were correct.
From a practical or common sense (common law, perhaps? as in oldentimes) could we or should we make the same claim.
It is funny that so much of what we have done with modern Law and Jurisprudence is to remove the requirement of mens rea. One is now guilty of nothing more than attempting to do what is proper towards one's employees, i.e., to shield them from potential violence, and the result is that one is in violation of The Law. (Let us assume for the moment that there were not some other motives involved).
One sees this in many instances of the Law nowadays and it is to my mind quite disheartening and further highlights the hubris of our modern Lawgivers in believing that they may prescribe / proscribe all *collisions* out of existence.

Heck, if I wanted utopia I would go down to the local pot shop and stock up on some good weed. It is as effective as our modern laws in that it provides a (false) sense that "Hey, man, everything is gunna be cool."

seeya

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gabe
on July 30, 2016 at 12:26:43 pm

Interesting case, and one that illustrates the point you make. Patient's have a right to refuse care, based on any reason they choose. Is it a violation of the patient's right to be cared for by a person against the patient's will? Consider a woman who has a diagnosis of post traumatic stress disorder from sexual assault. She refuses to be cared for by male providers. The presence of males tending to her causes severe anxiety. If males are prohibited from providing care just because they are male, are their rights violated? If they do provide care and the patient suffers as a result, are her rights violated? Is the law being observed if the facility pretends to make staffing decisions on anything other than these considerations? If so, is it legitimate to evade laws by pretense?

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z9z99
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