The Volokh Conspiracy

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.

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.

"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.

So elected judges have more legitimacy than appointed ones? Of course, judges are appointed by elected representatives.

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!

"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.

"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.

"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.

"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.

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.

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."

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

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.