The Volokh Conspiracy

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Volokh Conspiracy

The majoritarian fable


On Law & Liberty Greg Weiner has posted Who Are the Guardians of the Natural Rights Polity? in which he makes the following observations:

It might be healthier and, crucially, ultimately better for liberty if rights claims were to be politically resolved. . . .

Either judges are better at identifying rights (or, in Barnett's case, reasonable uses of the police power) than the rest of us-or they aren't. If they aren't, of course, the issue ought to be a matter of disputation in institutions arranged to encourage majorities to behave reasonably (emphasis added). . . .

[I]s there any reason to believe judges will make better decisions about rights, or about reasonable uses of the police power, than majorities so situated? . . .

One is that citizens' errors are more easily corrected than those of judges: They require a mere election; judges must be willing to correct themselves, a time-consuming and chancy affair. . . .

If judges are better at all this than the rest of us. . . .

Generally, there are reasons to doubt whether judges will reach the right decisions more often than will deliberate majorities.

Let us assume for the sake of argument that "majorities so situated" can be trusted to fairly treat the rights of the minority. Disregard Madison's warning about the problem of faction:

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

Forget Madison's warning about the tyranny of the majority in the legislature and the community at large:

In our Government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker. It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But it is not found in either the executive or legislative departments of Government, but in the body of the people, operating by the majority against the minority.

Set aside everything you know about how legislatures actually operate. Overlook that statutes are drafted by staff, not elected legislators, when they are not actually being drafted by lobbyists or political activists. Pretend that legislative "hearings" are attended by members of the committees, and that they actually listen to the 3 minute summaries of the written testimony that is submitted "for the record." And imagine that legislators actually read the bills they vote for.

Forget all that and assume that majorities of Congress or state legislators actually deliberate on how the rights of the people are to be restricted. Then remember that, in the real world we live in, 99.99% of economic regulations are not even written or voted on by elected legislators. They are written by unelected government employees, some of whom are political appointees, others are "career" civil service workers, and many of whom work for so-called "independent agencies." (Independent of what?) At the local level they are often written by "boards" made up of members of the regulated industries, where it was the industries themselves who lobbied to be regulated so they could suppress competition. We are not talking about mere "citizen's errors." We are talking about the errors of powerful government employees or industry-staffed boards.

So tell me a story about how an individual denied the right to braid hair without an expensive and time consuming cosmetology licence can get her right vindicated in "the legislative process." Tell me how some monks can get their right to sell a wooden box in which to bury the dead without being licensed funeral home directors can get their rights decided by "the rest of us."

I don't want proof or a report of an actual case. I just want Mr. Weiner to tell me a story about how it can possibly happen. What does this African American woman do who wants to braid hair for money? How does her right become part of the agenda of the state Republican and Democratic parties and their candidates for the state representatives or senators? How does she make "the rest of us" aware of her liberty being violated so they can vote Republican or Democrat accordingly? How does she get the public to place a greater weight on her lone right to pursue a harmless occupation than they do on the other policies advocated by Republicans or Democrats? When will "deliberate majorities" ever even hear her claim?

"The rest of us" were never asked our opinion about hair braiding or casket sales. Majorities in the state legislature never voted on the regulation beyond delegating their lawmaking power to administrative agencies or professional boards.

While we might be able to tell a story about how a big corporation could accomplish this, it would involve campaign finance contributions that are either illegal or that advocates of majoritarian democracy would like to make illegal, while claiming that majoritarian democracy is legitimate because everyone has an equal voice.

I know of only one way for an individual to assert her claims against administrative government workers and boards and panels. By bringing a lawsuit that is then decided by a genuinely neutral magistrate. Bringing suit is hard. Bringing suit is expensive (unless supported by a public interest attorney). But bringing suit is possible. It is only possible, however, in a legal system that recognizes the existence of a third co-equal branch of government called the "judiciary." In a system that acknowledges that the "due process of law" includes the ability to get an independent magistrate to pass upon the reasonableness of a legislative or regulatory restriction of liberty so that it is within the "just power" of republican government.

This is why we need courts, why we need judges, and why we need lawyers.

If the employees of government agencies or members of regulatory boards are merely "citizens" then so too are judges. It is precisely because judges are just people like the "rest of us" that they can fairly adjudicate the claim by a professional board that you must be a licensed funeral home director to sell a casket or the claim by the monks that this restriction is irrational and arbitrary. Provided, of course, that they are told that this is part of their job description, and they are not told that they should reflexively "defer" to one of the two parties before them.

I enjoy science fiction, but even a science fiction narrative has to make sense. So tell me a "political fiction" story of how "citizen errors" made by faceless individuals are "politically resolved" by "deliberative majorities" in our actual system of government when the rights of a single individual who is not part of a politically powerful group are unreasonably restricted. I am serious. I want you to actually write a fictional story by which Mr. Smith goes to Sacramento or Austin or Richmond and gets his liberty to pursue a livelihood protected by a majority of state legislators.

Then, after we read a credible fiction, we can all get real and discuss when this has ever happened in real life.