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Human Imperfection and Governmental Legitimacy:
I think Ilya and I are nicely peeling away the layers of our differing views about the role of judges. We each think the problem is that human beings are fallible. I draw the lesson that judges should be cautious about imposing their fallible views on the legislature and the public. Ilya draws the lesson that we need to have fallible judges vigorously checking fallible legislatures acting on behalf of the fallible public.

  Where Ilya and I differ, I think, is in the nature and importance of governmental legitimacy. I think the legitimacy of government is premised on the consent of the governed. Notions of legitimacy are complex, of course, and I don't want to oversimplify matters too much. But legislatively enacted laws generally deserve respect because they reflect a process involving wide participation of those who will be governed by them through their elected officials. In contrast, judges impose constitutional limitations on their own, either acting individually as trial judges or on panels of a handful of judges. I think the closer connection to the consent of the governed of legislative acts relative to judicial ones provides an important reason judges should be reluctant to latch on to fallible and contested theories that would lead them to invalidate lots of legislation.
ReaderY:
The people (and their legislatures) are often mistaken, but in federal system it is possible to have variant doctrines and practices and see their results and hence potentially learn from ones mistakes. Success comes from experience; experience comes from failure. When legislation is enacted by logical deduction from texts and ideas rather than from observation and experience, when a single way of doing things is imposed from above, there is no accountability, no way of calling for change if the way shouuld prove to be mistaken. There is nothing else to compare it to. There may even be no way of knowing.
1.24.2008 3:35am
John Kindley (mail) (www):
The truth is that, as Lysander Spooner famously illuminated, in the world as we know it "consent of the governed" is a myth, a total legal fiction, as is governmental authority that purports to be based on such consent. We're better off to the extent that the culture -- including legislators, judges, voters and non-voters -- recognizes that truth. Recognizing that truth should lead to more humility on the part of legislators, should lead them to be absolutely sure that what they're enacting is not contrary to natural rights "retained" by the people, and should lead the public to demand such humility from "their" legislators. (Which natural rights have we "retained"? ALL of them.) "Consent of the governed" is less of a myth in the context of very local governments, and as Thomas Jefferson explained, this is the level at which the bulk of government should be carried on, with the people delegating to "higher" functionaries only what they deem truly necessary and beyond their competence. "Democracy" moreover took a wrong turn in its early infancy when it arbitrarily assumed that a mere majority of 51% was enough to confer legitimacy on measures that limit the freedom of those who have not explicitly consented to those measures or the process by which they were manufactured. The arbitary number should have been more like 90%. I bet you could get 90% of voters to agree that murder is a crime; you probably couldn't get 90% to agree that smoking marijuana is a crime, though.

As for how fallible judges should view "laws" passed by fallible legislators purporting to act on behalf of a fallible public, no one's said it better than Lysander Spooner in the 2nd chapter of his The Unconstitutionality of Slavery (1860):

"Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals ‑‑ let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.
In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law [*16] contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal [*17] rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed "strictly" in favor [*18] of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit: "Where rights are infringed, where fundamental principles are [*19] overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects." [*20]
It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law."
1.24.2008 3:53am
John Quincy Public:
The only difference between your conclusion and that of Somin's hinges, exactly as you say, on the consent of the governed.

If the Constitution represents a portion of the consent of the governed and it is considered an issue of primacy over the laws produced by the legislature then it becomes possible for a corrupt congress to simply ignore the bounds they are sworn to work within. We can see that this is true and happens currently. And for which judicial review is a necessary component as Somin states.

However, your issue is already covered in the matter that the congress can write the Supreme Court out of jurisdiction depending on the parties involved. That the Supreme Court has disagreed, if I remember correctly at this early hour, satisfies to prove the correctness of your point and the necessity of this notion. And if my memory lacks enough coffee as yet then we can still say that you are correct and covered in your argument anyways.

Either way, it's a wash.
1.24.2008 3:55am
CDU (mail) (www):
Recognizing that truth should lead to more humility on the part of legislators, should lead them to be absolutely sure that what they're enacting is not contrary to natural rights "retained" by the people, and should lead the public to demand such humility from "their" legislators. (Which natural rights have we "retained"? ALL of them.)


What happens when people can't agree on what "natural rights" are? Someone has to decide, and in this country that's either going to be judges or elected officials. So we're back to the argument Orin and Ilya are having. Who is best suited, or least bad, at making those decisions.
1.24.2008 4:08am
John Kindley (mail) (www):
"What happens when people can't agree on what "natural rights" are? Someone has to decide, and in this country that's either going to be judges or elected officials."

Basically, you have the right to do anything you want to do so long as it doesn't violate the equal rights of other people. Then the question becomes: what kinds of things violate the equal rights of other people? To my mind, it's self-evident that practicing law without a license (so long as you've been forthright with your client about your credentials) or smoking marijuana does not violate the rights of other people. I recognize that some people nevertheless disagree with what seems to me to be self-evident truths. That's where my points about bringing government down to the very local level where "consent of the governed" actually means something, about the inadequacy of thinking that a mere 51% majority confers legitimacy, and about the "presumption of liberty" (to use Randy Barnett's formulation) in judicial review, reveal their importance.
1.24.2008 4:25am
John Kindley (mail) (www):
BTW, I recognize that the abortion issue is one of the toughest from a libertarian perspective, and in the context of these kinds of discussions about the role of judges in constitutional interpretation. I don't have a ready answer to how a Supreme Court Justice should regard abortion in the context of our current constitutional regime. Strange as it may sound, I think that in a better constitutional regime the question would be decided not at the federal or state level but at the local community level.
1.24.2008 4:38am
mobathome:
So elected judges have more legitimacy than appointed ones? Of course, judges are appointed by elected representatives.
1.24.2008 7:17am
Aultimer:

legitimacy of government is premised on the consent of the governed

That statement is incomplete, unless you think the "tyrrany of the majority" is a good thing.
1.24.2008 9:32am
wekt:
One disturbing trend is that legislators vote for a law even though they are concerned about its constitutionality. In effect, they're saying "screw my oath of office, let's punt the decision to the Supreme Court". And then the Supreme Court defers the legislature!
1.24.2008 10:03am
CDU (mail) (www):
Basically, you have the right to do anything you want to do so long as it doesn't violate the equal rights of other people. Then the question becomes: what kinds of things violate the equal rights of other people? . . . I recognize that some people nevertheless disagree with what seems to me to be self-evident truths.


Ay, there's the rub. What seems self evident to you may not be to someone else. You propose to deal with this by requiring supermajority agreement "measures that limit the freedom of those who have not explicitly consented to those measures or the process by which they were manufactured."

The problem is that there are a great many cases where both sides of the question can be framed as protecting freedom. Abortion, as you mention, is one of these, but there are many others. Many religious freedom or establishment clause cases have freedom on both sides, as do free speech cases (the right to speak versus the right to be left alone), and many others. Even things like murder can be framed this way. If we've decided murder is a crime, the subject of a self defense exception comes up. So do we need 90% of people to agree there's a self defense exception, because someone defending themself is going to deprive the attacker of his freedom by taking his life? Or do we need 90% of people to agree that there's no self defense exception, because we're going to take away the freedom of someone who kills in self defense as punishment?

"Natural rights" just aren't as self evident as you seem to think.
1.24.2008 11:47am
John Kindley (mail) (www):
"So do we need 90% of people to agree there's a self defense exception, because someone defending themself is going to deprive the attacker of his freedom by taking his life? Or do we need 90% of people to agree that there's no self defense exception, because we're going to take away the freedom of someone who kills in self defense as punishment?"

You would need 90% of people to agree that there's no self defense exception, because the relevant question is what government proposes to do (in this case jail someone who's killed somone else in self-defense), that it really has no special inherent authority to do. (As Lysander Spooner argued in his "No Treason: The Constitution of No Authority," the government has no more inherent authority to enforce natural rights -- or to do anything else -- than anyone else in society.) I would have to say the same about the abortion question (even though I detest abortion), because the primary question is not the rights of the unborn child, but the government's proposal to put women and abortion doctors in jail for committing abortion. For that you should indeed need a supermajority (80% might work instead of 90%. Both numbers are just as arbitrary as 51%.) Of course, in determining whether they're going to put women and abortion doctors in jail for committing abortion by a supermajority vote, a primary question for voters should be the natural rights of the unborn child.
1.24.2008 1:33pm
CDU (mail) (www):
You would need 90% of people to agree that there's no self defense exception, because the relevant question is what government proposes to do


So you're saying that you would require 90% agreement not just that murder in general is a crime, but 90% agree that murder in a specific circumstance is a crime? Do you think we could get 90% of the people in this country to agree killing a doctor who performs abortions is a crime? In 1950 would 90% of people agreed that lynching a black man is a crime? In Germany in 1940, would 90% of people have agreed that killing a Jew was a crime? It seems that limiting government power so much invites anyone ruthless enough and capable of mustering the veto percentage (whether it be 11% or 21% or whatever arbitrary number you choose) to run roughshod over anyone they don't like. If might plus 10% makes right, why bother to have a government at all?
1.24.2008 3:55pm
John Kindley (mail) (www):
"Do you think we could get 90% of the people in this country to agree killing a doctor who performs abortions is a crime? In 1950 would 90% of people agreed that lynching a black man is a crime? In Germany in 1940, would 90% of people have agreed that killing a Jew was a crime?"

I would hope so, to all of the above. (To the extent there's doubt, this suggests that 80% might be a better arbitrary number.) Most Germans weren't privy to the murders that were going on, and in any event were not asked by the Nazis whether killing a Jew was a crime. But the prior question would have been, would 90% have agreed that THE GOVERNMENT could arrest someone (let alone kill him) just for being a Jew? Despite the apparent widespread support the Nazis had (for a number of reasons besides anti-semitism), I would hope not. If the society is so corrupt as to make that hope untrue, then the society is already going to hell in a handbasket anyway, and ceding to the government more power rather than less (by saying it needs only 51% rather than 90% to approve its actions) would tend to speed rather than slow it on its way. That's what the Nuremberg Trials were for.

In any event, I'm not saying that "might plus 10% makes right." Rather, I agree with Lysander Spooner that "there is, and can be, correctly speaking, no law but natural law." Judicial review using a "presumption of liberty" is also important, as is federalism (which in my opinion should have been extended all the way down to the local government level, where "consent of the governed" is more plausible). The only thing that legitimizes a human law is the extent to which it conforms with natural justice. The measures I've been talking about here (the "supermajority" idea and the "superfederalism" idea would seem to require a revamping of the Constitution, whereas the "presumption of liberty" theory of constitutional interpretation and judicial review is quite do-able) are merely ways by which it seems we could arrive at a better collective understanding of the content of "natural rights" (which are objectively inherent in reality, independent of our collective opinions). The fact that the government has no real moral authority of its own (except to the extent to which individuals might actually, explicitly, and freely contract to be bound by its determinations) makes these measures all the more important.
1.24.2008 4:50pm
CDU (mail) (www):
Rather, I agree with Lysander Spooner that "there is, and can be, correctly speaking, no law but natural law." . . . The only thing that legitimizes a human law is the extent to which it conforms with natural justice. The measures I've been talking about here . . . are merely ways by which it seems we could arrive at a better collective understanding of the content of "natural rights" (which are objectively inherent in reality, independent of our collective opinions).
People can't even agree that "natural rights" exist, much less universally agree on a common definition laying out what those rights are. Thus in the end we come back to the same question: "Who decides?" Do we lean towards judges deciding (Ilya's position) or elected representatives (Orin's)?

I don't think a presumption of liberty gets around this problem. A presumption of liberty doesn't help when there are many ways "liberty" can be applied to a given situation. Who decides how liberty is applied?
1.24.2008 5:17pm
CDU (mail) (www):
"Do you think we could get 90% of the people in this country to agree killing a doctor who performs abortions is a crime? In 1950 would 90% of people agreed that lynching a black man is a crime? In Germany in 1940, would 90% of people have agreed that killing a Jew was a crime?"

I would hope so, to all of the above.


I would hope so too, but given the number of Germans who participated in the Holocaust, the number of Rwandan Hutus who chopped up their Tutsi neighbors, and numerous other examples, I'm skeptical enough about human nature that I wouldn't want to bet my life on it.

Most Germans weren't privy to the murders that were going on, and in any event were not asked by the Nazis whether killing a Jew was a crime. But the prior question would have been, would 90% have agreed that THE GOVERNMENT could arrest someone (let alone kill him) just for being a Jew?
Why would they need the government to do it? They could have organized the holocaust on a private basis and use 10% or 20% of the German population that's sufficiently anti-semitic to prevent government action that would stop them.
1.24.2008 5:36pm
John Kindley (mail) (www):
"Do we lean towards judges deciding (Ilya's position) or elected representatives (Orin's)?"

Both. The judiciary should place the burden of proof upon the legislature to demonstrate that what it's doing is necessary and proper, and the legislature should put the burden of proof upon itself as well. If the legislature isn't going to prevent people (i.e. government people or private people) from killing Jews, then the judiciary certainly should. If neither the legislature nor the judiciary are going to stop it (like in Nazi Germany), (or if 20% of the German population are so crazy as to vote for carving out an exception to the murder statutes so as to decriminalize the killing of Jews), then the whole society seems pretty screwed anyway, and it's time for armed insurrection and/or war to try to stop it, abolish the government, and put the criminals (government and private) in prison.

My argument doesn't depend on a belief in natural rights. It just depends on recognizing, with Lysander Spooner, that the Constitution, and everything that comes from it, is of "no authority." This is, to put it mildly, an argument for legislative restraint (not so much for judicial restraint). But a legislature, just like any other individual or association of individuals in a state of nature, is within its rights to "enforce" its own or others' genuine natural rights. On the other hand, I think the "presumption of liberty" can be recast as a presumption against the use of force and coercion (which is the essence of government). Sometimes force and coercion is necessary and justified, but any society endeavoring to live justly and peacefully should use it only as a last resort.
1.24.2008 7:00pm
CDU (mail) (www):
"Do we lean towards judges deciding (Ilya's position) or elected representatives (Orin's)?"

Both.
Heh. Way to cut the baby in half, very Solomonic.

If neither the legislature nor the judiciary are going to stop it (like in Nazi Germany), (or if 20% of the German population are so crazy as to vote for carving out an exception to the murder statutes so as to decriminalize the killing of Jews), then the whole society seems pretty screwed anyway, and it's time for armed insurrection and/or war to try to stop it, abolish the government, and put the criminals (government and private) in prison.
I'd bet it wouldn't have been difficult to muster a 20% veto bloc against anti-lynching laws in the Jim Crow south and we managed to get out of that without another civil war. But it would have been much more difficult without the ability of the federal government to use coercive force against white southerners (and local governments, for that matter). Yet those coercive measures would have been possible if they required 80% agreement.

On the other hand, I think the "presumption of liberty" can be recast as a presumption against the use of force and coercion (which is the essence of government). Sometimes force and coercion is necessary and justified, but any society endeavoring to live justly and peacefully should use it only as a last resort.
The problem is, I don't know that everyone would agree with that. A lot of people seem to like the idea of government coercion or force as long as it's applied to someone else. Thus their decisions are going to depend more on who's ox is getting gored than on some abstract notion of "presumption of liberty" or a "presumption against the use of force and coercion". And this brings us back to Orin's point about sweeping judicial philosophies that just happen to lead exactly where the judge wants to go anyway.
1.24.2008 7:38pm
CDU (mail) (www):
Make that, "Yet those coercive measures would not have been possible if they required 80% agreement."

Can I get a proofreader for my internet posts as a natural right?
1.24.2008 7:39pm
John Kindley (mail) (www):
This is kind of surreal, talking about the possibility that a significant minority of a population might think that murder is OK and shouldn't be forcibly prevented or punished. It fortunately doesn't reflect the society in which we now live (with the significant exception of abortion, arguably). Prior to the Civil War, not only a significant minority but an actual majority of people in the South apparently believed that something just about as bad (i.e. slavery) was OK. And the North for the most part really couldn't care less until the South started objecting to paying the tariffs that served the North's economic interests. And this is the context in which Lysander Spooner made his "presumption of liberty" argument in his "The Unconstitutionality of Slavery" (1860), a passage from which I've quoted above. His argument was valid then, and it's valid now.

I'm not convinced that 20% of people even in the Jim Crow South would have been so shameless as to vote to carve out an exception to the murder statute so as to allow for the lynching of black people. But if they had, the exception would have been null and void, just as slavery was always null and void. According to Spooner, a judge at any time could have declared slavery unconstitutional, according to the principles Spooner had laid out.

How do we know that slavery or laws allowing lynching would have been null and void? By the same principles under which Nazi war criminals were tried at Nuremberg. In extreme situations like these, such principles may be all we have to go on.

Moreover, in the Jim Crow South, requiring an 80% majority would have made it harder to enact all the racist government laws which were in fact enacted. In any event, as I said above, requiring only a 51% majority as we do now is certainly no guarantee that outrageously unjust laws won't be passed, or that outrageously unjust actions on the part of private citizens won't be allowed to be carried on unmolested.

Natural justice is more of a science and more "knowable" than some people think, and I believe that it should be a larger part of our legal system and jurisprudence (relative to textual interpretation, precedent, and the whims of a real or imagined "majority) than it is now. We're so enthralled with statutes and court opinions that we forget to take a closer look at justice itself, or imagine that it's just an irrelevant figment of people's imaginations. While there will always be areas of uncertainty in the most problematic issues, certainly I think a considered study of the principles and corollaries of natural justice would make it clear as day that killing someone just because they're black or Jewish is a punishable crime, regardless of what any human laws might say.
1.24.2008 11:41pm
CDU (mail) (www):
This is kind of surreal, talking about the possibility that a significant minority of a population might think that murder is OK and shouldn't be forcibly prevented or punished.
All of the nastiest, most evil parts of history are disturbingly surreal. I visited the United States Holocaust Memorial Museum a couple of weeks ago and the whole damn thing is surreal. But if you want to talk about building a society that will prevent that sort of thing, thinking about the disturbingly surreal is important.

I'm not convinced that 20% of people even in the Jim Crow South would have been so shameless as to vote to carve out an exception to the murder statute so as to allow for the lynching of black people. But if they had, the exception would have been null and void, just as slavery was always null and void. According to Spooner, a judge at any time could have declared slavery unconstitutional, according to the principles Spooner had laid out.
Hold on a second! If a judge could, on his own initiative, declare a "lynching exception" in some racist Jim Crow era law null and void, he could also do the same to any other exception: self defense, mental illness, etc. How does that square with requiring an 80% or 90% supermajority to deprive anyone of their liberty? How did we suddenly go from requiring the agreement of 80% of the electorate to deprive someone of their freedom to allowing a single judge to do it?

While there will always be areas of uncertainty in the most problematic issues, certainly I think a considered study of the principles and corollaries of natural justice would make it clear as day that killing someone just because they're black or Jewish is a punishable crime, regardless of what any human laws might say.
It's clear to you and me, but if history teaches us anything, it's that it's certainly not clear to everyone.
1.25.2008 12:06am
John Kindley (mail) (www):
I've kind of been trying to draft an outline for a new constitution on the fly in this thread, so it's not really surprising to me if I'm voicing some seeming inconsistencies. I'm not necessarily convinced that my supermajority idea would really work better in the real world than our current 51% rule, but I would reiterate that: the former is more consistent with the reality that the Constitution is of "no authority;" 51% is every bit as arbitrary as 70 or 80 or 90%; and the injustices that are now able to be committed by government because we use 51% likely outweigh the injustices by private persons that might not be prevented by government were we to use 80%.

The reason that a judge would be justified in striking down as null and void a "lynching exception" to a murder statute but not a self-defense or insanity exception is simply that a lynching exception would be wholly without foundation in natural justice, whereas the other exceptions do have such a foundation. You are concerned that people disagree about the content and mandates of natural rights. My contention, however, is that natural justice is something more stable and certain and knowable than the chaos that passes for our legal system today. I think the devil we know is so bad that we should take our chances with the devil we don't (cautiously and incrementally, of course). Let me quote Spooner yet again (since he says things so much better than I):

"If, then, law really be what this definition would make it, merely 'a rule of civil conduct prescribed by the supreme power of a state' ‑‑ it would follow, as a necessary consequence, that law is synonymous merely with will and force, wherever they are combined and in successful operation, for the present moment.
Under this definition, law offers no permanent guaranty for the safety, liberty, rights or happiness of any one. It licenses all possible crime, violence and wrong, both by governments and individuals. The definition was obviously invented by, and is suited merely to gloss over the purposes of, arbitrary power. We are therefore compelled to reject it, and to seek another, that shall make law less capricious, less uncertain, less arbitrary, more just, more safe to the rights of all, more permanent. And if we seek another, where shall we find it, unless we adopt the one first given, viz., that law is the rule, principle, obligation or requirement of natural justice?
Adopt this definition, and law becomes simple, intelligible, scientific; always consistent with itself; always harmonizing with morals, reason and truth. Reject this definition, and law is no longer a science: but a chaos of crude, conflicting and arbitrary edicts, unknown perchance to either morals, justice, reason or truth, and fleeting and capricious as the impulses of will, interest and power.
If, then, law really be nothing other than the rule, principle, obligation or requirement of natural justice, it follows that government can have no powers except such as individuals may rightly delegate to it: that no law, inconsistent with men's natural rights, can arise out of any contract or compact of government: that constitutional law, under any form of government, consists only of those principles of the written constitution, that are consistent with natural law, and man's natural rights; and that any other principles, that may be expressed by the letter of any constitution, are void and not law, and all judicial tribunals are bound to declare them so. Though this doctrine may make sad havoc with constitutions and statute books, it is nevertheless law. It fixes and determines the real rights of all men; and its demands are as imperious as any that can exist under the name of law. [*15]
It is possible, perhaps, that this doctrine would spare enough of our existing constitutions, to save our governments from the necessity of a new organization. But whatever else it might spare, one thing it would not spare. It would spare no vestige of that system of human slavery, which now claims to exist by authority of law."
1.25.2008 1:51am
CDU (mail) (www):
51% is every bit as arbitrary as 70 or 80 or 90%
It's not entirely arbitrary. 51% (or to be technical, 50% of the voters plus 1) is the minimum level of approval for a voting system to produce consistent results. If you go any lower than 50%+1 you start getting weird results, like a minority making a decision and another minority immediately overturning it. However, the level of approval required can be anywhere between 50%+1 and 100%. The choice within that range of 50%+1 is basically arbitrary.

You are concerned that people disagree about the content and mandates of natural rights.
Yep. There are things that I think are simple and obvious rights, but I know people who disagree with them. I'm sure there are things that other people think are obvious rights that I disagree with. I see no evidence that there is a set of rights that we can get everyone to agree on as a complete list of axiomatic natural rights. Any list of rights that everyone agrees with (or even 80% or 90% of people agree with) is going to be sufficiently small that I'm sure it would leave out things that I think are important.
1.25.2008 2:58am
CDU (mail) (www):
My contention, however, is that natural justice is something more stable and certain and knowable than the chaos that passes for our legal system today. I think the devil we know is so bad that we should take our chances with the devil we don't
"Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time." --Winston Churchill
1.25.2008 3:00am
John Kindley (mail) (www):
"Any list of rights that everyone agrees with (or even 80% or 90% of people agree with)..."

Note that under my supermajority formulation you would only need 20% or 10% of the relevant population to agree that something is a right (or, more precisely, that government has no right to prohibit that something) for it to be protected from government.

If natural rights were more a part of our cultural and legal discourse than statutes and court opinions, then more agreement would be more possible. You could have a body of judicial (and non-judicial) thought on how natural justice applies in multifarious circumstances, which is pretty much what the common law was getting at. In any event, we still have plenty of disagreement even with our present focus on written, positive, human law. At least if we focused more on natural justice we'd be arguing and disagreeing about realities rather than shadows of realities.
1.25.2008 3:10pm
CDU (mail) (www):
Note that under my supermajority formulation you would only need 20% or 10% of the relevant population to agree that something is a right (or, more precisely, that government has no right to prohibit that something) for it to be protected from government.
You only need 10% or 20% agreement to prevent the government from infringing on natural rights, but you need 80% or 90% agreement for the government to prevent private parties from infringing on others' natural rights.
1.25.2008 3:34pm