Dispatches from the Creation Wars

Timothy Sandefur has posted an excellent essay on libertarian judicial philosophy, as part of an ongoing debate going on between myself, Sandefur, Jonathan Rowe, Randy Barnett and Larry Solum (on the libertarian side) and Clayton Cramer, Stephen Bainbridge and Owen Courreges (on the conservative side). The cries of “judicial tyranny” are heard from conservatives whenever a judge prevents them from imposing their will on an unpopular minority, but as Sandefur points out, they have a bizarre definition of “liberty”. They think that the right of an individual to be free to live his life as he sees fit and the right of a majority to force him to stop are equally valid claims as a matter of constitutional law. Robert Bork has said as much quite explicitly in his discussion of Griswold v Connecticutt, writing:

“Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratification of the two groups…why is sexual gratification more worthy than moral gratification?

The answer is stunningly obvious, one would think, but apparently Bork is incapable of grasping the distinction between the right of an individual to control his own life and the right of a group of individuals to control someone else’s life. This surreal equation of unequal ideas is so mind-numbingly stupid that I’m astonished at the fact that Bork continues to be called a brilliant legal scholar even by those who oppose his views. The passage from Lincoln that Sandefur quotes is brilliantly on point:

We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatable things, called by the same name?liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatable names?liberty and tyranny.

The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty…. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty.

This is, in essence, the conservative notion of liberty, that they have the right to govern others, regardless of whether they can justify the use of such power in any particular case. The irony is that they continue to use this argument when it was used in such embarrassing ways in the past. Do our conservative foes think that Loving v Virginia was decided wrongly? In those states that had laws against interracial marriage, did the majority have a “right” to maintain such laws? Did the Federal judge who overruled those laws violate the rights of the majority to impose their will on individuals who should be free to marry whomever they please? The only argument against it was precisely the argument that is being made today by our opponents in this debate, that “unelected judges” have established “judicial tyranny” by violating the “rights” of the majority to make unjust laws that violate the rights of individuals.

For a great essay on the subject of what the founders thought about majoritarianism, see this one by Randy Barnett.