Timothy Sandefur was kind enough to remind me after my post on Robert Bork about an essay by Harry Jaffa called The False Profits of American Conservatism. Jaffa, a student of the late Leo Strauss, is one of the most prominent conservative intellectuals in the country and his essay highlights the major fault line that divides conservatism - the Declaration of Independence. He uses the Lincoln-Douglas debates as a pretext for examining this divide, noting that during those debates, while Lincoln was invoking the principles found in the Declaration as valid and binding in all times and places, Douglas was advancing a strictly majoritarian preference. To Jaffa, the preference for majoritarian rule over principle is nothing less than the very moral relativism that conservatives so often invoke against their political enemies:
When Douglas declared that he didn't care whether slavery was voted up or voted down, that he cared only for the right of the people to decide, he gave expression to a concept of democracy that identified majority rule with indifference to the morality of the outcome of majority rule.Such moral relativism dominates political thought in our time far more profoundly than when Douglas and Lincoln had their debates. And this moral relativism, now even more than then, takes the form of a rejection of the principles of the Declaration of Independence. This is not because it is the Declaration alone that embodies moral realism and moral rationalism. Indeed, the principles of the Declaration are expressed in many other places, in the Revolution, and in the Founding generally. The "laws of nature and of nature's God" in the Declaration represent, however, a distillation of the wisdom of a tradition of more than two thousand years.
It is in this context that Jaffa critiques such modern conservative heroes as Robert Bork, Antonin Scalia, Russell Kirk and Irving Kristol. He begins by attacking Scalia's often stated majoritarianism. For Scalia, democracy trumps virtually everything including liberty. For Scalia, the equal rights of conscience, the right to life, liberty and the pursuit of happiness that our founders declared to be unalienable, are merely concessions at the whim of the majority, who can as easily remove those concessions. Jaffa quotes Scalia from a famous speech he delivered in Italy in 1996:
The whole theory of democracy, my dear fellow, is that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection...you either agree with democratic theory or you do not. But you cannot have democratic theory and then say, but what about the minority? The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights.
This is, as Jaffa duly notes, entirely contrary to the founding premise of this nation, which is the self-evident truth that all men are endowed with unalienable rights that no majority, no matter how overwhelming, may infringe. The liberty invoked so famously by Jefferson in the Declaration of Independence was given substance by him as well when he argued that any law which violates the individual liberty is tyranny regardless of whether the law was supported by the majority. "Rightful liberty," Jefferson wrote, "is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual." Or as Jaffa puts it, "the rights with which we are endowed by our Creator are the basis of the political process, and are not negotiable within the political process." And make no mistake, the political process includes those "unelected judges" that Scalia and others are so intent on bashing. But as Jaffa argues so clearly, we should judge the actions of those judges not by how closely their rulings accord with the current public opinion polls but by how they accord with these founding principles:
Someone may object that Scalia, in common with other conservative jurists is merely objecting to "unelected judges" usurping legislative powers. Of course, the usurpation of authority is always wrong. However, that the judges are unelected has nothing to do with their alleged usurpations. They are no less unelected when they decide rightly as when they decide wrongly. The manner of their appointment, and their tenure, is provided by the Constitution, and is authorized by the rights with which the people have been endowed by their Creator.The independence of the judiciary was believed by those who framed and those who ratified the Constitution to be in the service of the rule of law. No one in 1787 believed that majority rule was the source of constitutional rights. They understood, as Scalia does not, that the prior recognition of the equal rights of all human persons is a necessary condition for the legitimacy of majority rule.
This rejection of the notion of natural rights is not limited among conservative scholars to Scalia. It is echoed by William Rehnquist, Robert Bork and many others. Their elevation of majority rule over natural rights, at its core, reflects a moral relativism that Jaffa accurately picks apart. If the process is more important than the result, then opposite results are equally valid and that is the very essence of relativism. Majority rule can result in a system that protects the rights of conscience, or it can result in a system that crushes human liberty. Are we really to see those two results as equally valid merely because the same process led to each? History screams otherwise, as Jaffa points out:
According to Rehnquist and Scalia the only rights that the people have are the rights that the people themselves have decreed. The people have become their own God. A people thus conceived may choose to express their rights by any form of government whatever. The legitimacy of Hitler and of Stalin was ratified by plebiscite. The moral relativism which denies any intrinsic worth to human freedom, or human life, can justify any form of government, however criminal or brutal.Rehnquist, and his followers, are mistaken in supposing that it justifies majority rule more than any other form of government. The triumph of will has no boundaries of reason. This is unadorned positivism, relativism, and nihilism. This is the crisis at the heart of present day conservatism. This is the crisis of the West.
This rejection of natural rights, so eloquently expressed in the Declaration, has deep roots in American conservatism in both its paleo- and neo- varieties. It is found in Russell Kirk, the quintessential paleoconservative philosopher, and in Irving Kristol (yes, Bill's father), one of the most influential neo-conservatives. Jaffa discusses at some length their shared disdain for the Declaration, which Kirk so absurdly dismissed as nothing more than an attempt to get military support from the French. He points out and ridicules Kristol's casual rejection of Jefferson, who he said "wrote nothing worth reading on religion or almost anything else." And he accurately points out that their real problem with Jefferson (and Madison, for that matter) is with their staunch advocacy of the notion that you cannot have liberty without separation of church and state:
The Constitution of 1787 heralded the novus ordo seclorum, the new order of the ages, when it declared that there should never be a religious test for office.There was no precedent for this in human history. The subsequent provision in the first amendment, against an establishment of religion, and against any prohibition of its free exercise, applied -- at least before the fourteenth amendment -- only to the federal government. But the pure doctrine, as it applied to all free government, was enunciated the year before the constitutional convention, in the statute of Virginia for religious liberty.
That statute, drafted by Thomas Jefferson, was the outcome of a long and intense struggle for disestablishment of the Episcopal Church, a struggle led by James Madison, and supported by George Washington. Madison's 1785 Memorial and Remonstrance against religious establishment is unsurpassed in the acuteness of its reflections on the relationship between religious freedom, true religion, and free government. Jefferson put these thoughts into final form in the statute, which declared that "our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry."
While the Virginia law of 1786 applied only to Virginia, its argument became in time the basis, not only of federal law, but of the law of all fifty states. It was clear to the Founders, if not to Mr. Kristol (or to Justices Scalia and Rehnquist), that a system of majority rule was impossible if the majority had the power to decide in what way its citizens must worship God. No Catholic could be compelled by majority rule to become a Protestant, or vice versa. No Jew could be compelled by majority rule to become a Christian, or vice versa.
Only by removing all such questions of religious belief from the political process, was government by majority rule possible. Nor was this designed only to provide for civil peace. Removing both penalties against nonconformity and rewards for conformity contributed greatly to the purity of religion. A man's relationship to his Maker ought to be exempt equally from the fears and temptations of politics.
There is, as always, much more to be said here. I am not in agreement with Jaffa on all issues. In particular, I find his views on gay rights to be every bit as vile as the views of those he criticizes in the essay under discussion, and entirely inconsistent with his otherwise passionate defense of liberty. But on the subject of the majoritarianism so common among conservatives today, and the obvious relativism at its core, I think he he is quite correct.
It should also be noted that not all conservatives are prone to his criticisms, and here perhaps it is worth pointing out that the commonly heard liberal criticism of Clarence Thomas - that he is little more than a lapdog for Scalia - is entirely offbase. One of the major distinctions between Scalia and Thomas is that Thomas takes seriously the Declaration of Independence and the natural rights philosophy that it expresses. The distinction is not merely an academic one, it has far reaching implications for constitutional law and for political philosophy.
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The problem with this concept is this: who decides what are "natural rights"? The Founders, always and forever?
No, the founders thmselves made room for their own error - that is, "majority rule" decides.
The rights that we have enshrined in the Constitution are there at our sufference. That is, if a larage enough majority decided to do so, they could change ANY aspect of the Constitution by amending it. That actually requires a super-majority, I suppose, but the reelvance to the above argument is the same.
If we have natural rights that cannot ever be taken away, no matter how big the majority opposed, then that right must be based on something other than the will of th governed... hmm, what does that leave? Oh, yeah - religion.
The paradox here is that I DO believe in natural rights. But I also believe that natural rights include YOUR right NOT to believe in natural rights, and even to press for the legal revocation of recognition of those rights.
Unless I am willing to cantradict my own belief in natural rights and IMPOSE those natural rights on you, I am left with the odd position of supporting majority rule OVER natural rights, as majority rule is PART of natural rights.
Or at least, that's one way to look at it.
Judge Roy Moore speaketh today citing phrases from the Declaration of Independence and quoting Abraham Lincoln and Ronald Reagan, he stressed that America began on the principle that citizens have God-given rights. "The role of government is not to split God from everybody," he said.
The other day the question of the legitimacy of government was in the forefront. The issue continues with these essays by Jaffa and Ed. One way to take the overt aspects of majority rule out of the equation is to promote IRV or other parliamentary multiparty representations in the voting laws of this nation. Then the view that there are a number of "natural" inalienable rights that are understood to be those of each and every citizen. Whether it is the rights themselves that constitute legitimacy can be determined under a set of rubrics that form the evaluative analysis regarding: consent of the governed, acknowledgement and respect among all citizens of those rights for themselves and others, the constitutional textual constructs that demarcate these rights as the foundation upon which the government is laid, and so far forth.
I am troubled by this post, Ed.
1) "Rightful liberty," Jefferson wrote, "is unobstructed action according to our will within limits drawn around us by the equal rights of others..."
True. It seems to me that the issue is who gets to set those limits.
2) But as Jaffa argues so clearly, we should judge the actions of those judges not by how closely their rulings accord with the current public opinion polls but by how they accord with these founding principles...
The moral judgements made by the Supreme Court concerning what the individual may not do are not always immediate and apparent consequences of the rights enshrined by the Founding Fathers. To say otherwise, I hope you agree, is much too facile - it is to ignore the bloody history of our own Civil War, at least. Again, the question is: who ultimately gets to decide whether a law is constitutional? The answer is and ought to be "the Supreme Court," but not because we absurdly assume that the Supreme Court never makes mistakes - take Dred Scott, for instance.
3) Their elevation of majority rule over natural rights, at its core, reflects a moral relativism...
The arguments I have heard from the right do not include "majority rule trumps natural rights." A better approximation is "the representatives of the majority should be entitled to estimate what natural rights are, and not the judiciary." There seems to be an unspoken assumption in your post that the current system of determining whether a right ought to be respected (judgement by the Supreme Court) is sacrosanct - it isn't.
Also, I found that quote by Justice Scalia a little odd. I looked up the speech here. You may want to note the part that is ellipsed out, as well as what follows:
The whole theory of democracy, my dear fellow, is that the majority rules, that is the whole theory of it. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection. Thus in the United States Constitution we have removed from the majoritarian system of democracy the freedom of speech, the freedom of religion, and a few other freedoms that are named in the Bill of Rights. The whole purpose of that is that the people themselves, that is to say the majority, agree to the rights of the minority on those subjects -- but not on other subjects. If you want minority rights on other subjects, you must persuade the majority that you desire those minority rights. Or else take up arms and conquer the majority. I mean you may always do that, of course. But you either agree with democratic theory or you do not. But you cannot have democratic theory and then say, but what about the minority? The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights. Otherwise you do not want a democracy, you want a king to decide what is right. Because the minority may be right.
Emphasis mine. I think it's pretty clear that Scalia is talking about how democratic societies approximate moral reality, not about the respective priorities of majoritarian rule and natural rights. I have doubts about the minority needing to persuade the majority (or his silly comment about revolt), but I think the rest of it is essentially correct. There really are no self-evident truths. Everything has to be guessed at. This says less about the universe than it does about the human mind.
You know, I suspect that I'm talking past you, and that we are actually in agreement on a lot of this. I'm no legal scholar, so please tell me what you think.
As I read your post, I thought: what about Clarence Thomas? I am pleased to see you recognize the difference between him and Scalia.
Question: if a big enough majority decides we don't need the First Amendment anymore, can they do away with it under our constitutional system?
Patterico wrote:
Unfortunately, yes. If a large enough majority got together, they could amend the Constitution to remove the first amendment. But if they did so, the government would lose its legitimacy and a revolution would likely take place. The Declaration says, and I strongly believe, that governments are instituted for the purpose of protecting the rights we have which precede it and when it ceases to do so, it needs to be replaced.
Deoxy wrote:
This is a profoundly silly position. The principles I have invoked deal with the question of what is a just law and what is not. A law does not become just merely because a majority at the time favors it. The bill of rights was written precisely to avoid having the majority pass laws which are unjust. The fact that the majority technically has the authority to override those things through constitutional amendment does not change the principle that we are dealing with. We are dealing with question of justice, not with calculations of power.
G-do:
The problem with Scalia's theory here is that he completely ignores the 9th amendment. His position is that only those rights explicitly stated are rights that the majority have agreed to allow the minority to have, but the 9th amendment clearly cuts against his argument. Remember that the founding premise of the nation is that natural rights come before government, that governments are instituted in order to protect those rights we are endowed with prior to the existence of government. So it simply isn't true, under our system, that we only allow minority rights because the majority is magnanimous enough to grant those rights to them. The constitution is, according to Madison, a charter of power granted by liberty, not a charter of liberty granted by power. Scalia has it exactly backwards from the founding fathers. The question they were concerned with was what the majority may justly do, and that is prescribed by the natural rights of man.
Ed,
I love you, man -- but your position here is incoherent, especially in light of what I believe to be your atheistic philosophy. (Correct me if I'm wrong about that.)
What we are discussing is simple: who is the final authority? The possible answers include God, a democratic majority, or whatever some individual happens to believe is right.
The Constitution's answer (and Scalia's) is the majority. The majority that enacted the Constitution wisely provided for the protection of minority rights. They made it difficult to take those rights away.
But not impossible. As my example demonstrates, even the First Amendment is subject to alteration or deletion if a large enough majority believes it necessary. I would fight such a change with all my heart and soul, but that doesn't change the fact that the Constitution would allow it.
So you are wrong to say:
"This is, as Jaffa duly notes, entirely contrary to the founding premise of this nation, which is the self-evident truth that all men are endowed with unalienable rights that no majority, no matter how overwhelming, may infringe."
Wrong. There is no right -- none -- that cannot be removed by a large enough majority. Scalia is right.
You seem to acknowledge this when you say:
"Unfortunately, yes. If a large enough majority got together, they could amend the Constitution to remove the first amendment."
But then you argue:
"But if they did so, the government would lose its legitimacy and a revolution would likely take place."
Hmmm. I find it very hard to imagine how any amendment could muster a large enough majority to surmount the significant obstacles placed by the Constitution, yet spark a revolution. But forget that. You say the government would lose its legitimacy.
On what authority?
If you reject the concept of the people as the source of government's legitimacy, what is your substitute? The sources you quote with suggest an alternative: God. But I'm not sure you accept it. Do you?
Also, you are wrong to use the label "moral relativism" to describe the concept that government's legitimacy derives from the people. There is a difference between what people believe and what they believe can legitimately be imposed on others as a matter of law.
To say that laws can be passed only with the people's consent says nothing about individual moral beliefs. It is simply a recognition that we have a democracy (the rule of law, meaning rule by the people, who make the laws) rather than a theocracy (rule by God) or a dictatorship (rule by Ed).
Patterico wrote:
You're wrong about that. I am not an atheist.
No, that's not what I'm discussing. My argument is about what a government, regardless of who is in charge of it, may justly do, not what it may have the power to do. Yes, a majority may have the power, if it is sufficently large and powerful, to amend the constitution and eliminate the first amendment, but to do so would be unjust by the principles of our founding. The principles in the declaration are a statement of what governments, whether ruled by majorities or by kings, may justly do. And if they deprive men of their rightful liberty - what Jefferson said was freedom restrained by the rights of others - then it is no longer just and no longer legitimate.
Again, you are confusing what a majority may have the ultimate power to do, and what they may justly do. A written constitution can only do so much to prevent the unjust exercise of raw power, someone with sufficent power (or firepower) may take over the government and change it so that it violates the natural rights principles upon which it was founded, but that doesn't mean that it would be just to do so merely because a majority supports it. The fact that Hitler was elected to office and turned the machinery of the German state into an engine of oppression does not give any legitimacy whatsoever to that oppression, and a majority here, no matter how large, would also not give legitimacy to an oppressive law. My argument is aimed at what a majority may do within the confines of the natural rights of man, not what it may do should it choose to violate those principles.
I don't think those are the only two choices, and I think we are still talking about two different things. The question of what the majority may justly use the power of government to do is a different question from what the majority could choose to do if it lost its collective mind and used that power to destroy the limits on government. The Declaration suggests that a government is legitimate only if it protects the natural rights of man. I believe that as well. If the people alone are the source of government's legitimacy (as opposed to the question of whether they ultimately have the power), then that would mean that anything the people choose to do would be legitimate, right? You can certainly see how quickly that becomes absurd. That would mean that as long as the majority wanted to kill black people, it would be legitimate to kill black people. But the premise of our founding is that the use of the power of government is legitimate only if it comports with our natural rights, and when that power is used without reference to that principle, it ceases to be legitimate authority. You appear to recognize this when you say:
But I would change the wording just slightly. There is a difference between what they may believe can legitimately be imposed on others, and what may indeed be legitimately be imposed on others. If the majority believed that it could legitimately impose a law on others forbidding them from reading the bible, for example, that belief does not make that law legitimate. The law's legitimacy is determined by reference to transcendent principles - natural rights, in this case - not by the mere fact of majority belief. The mere fact of majority belief cannot make a law legitimate if that law is oppressive. That is the touchstone principle of the Declaration of Independence, and the bill of rights was designed specifically to insure that majority rule stays within those principles. The fact that the majority ultimately has the power to destroy those principles if it chooses to does not mean we should not maintain the limits on power demanded by those principles. That is exactly why we substantive due process is so important, and exactly why we must read the Constitution through the lens of the Declaration and the theory of natural rights that it embodies.
Anything else IS relativism because it says that there are no principled limits to government action whatsover other than the whim of a majority at any given time. If majority vote itself gave legitimacy to government action, there would be no purpose to the bill of rights at all. The fact that we have one is proof that the founding principle is that legitimate laws are determined not by majority vote but by reference to natural rights.
I have time only for a brief response.
1. I am not confusing the concepts. I distinguish "authority" from raw "power" -- the former is legitimate and the latter not. Re-read my post with that in mind.
2. From where do these natural rights derive? What if you and I disagree as to what specific natural rights exist? How do we resolve that disagreement in the real world?
Then again, maybe we are talking about different things. My conception of legitimate authority is certainly more than simple raw power, but not quite the same thing as "justice." I can imagine laws that I might consider legitimate acts of lawful authority, yet are not what I would call "just."
Ed,
Thanks for the great post. The insight that the current majority view is the epitome of moral relativism is right on point. What could be more fluid and subject to the political whims of the times than public opinion?
There are certain inalienable rights that are beyond the voter's reach. Whether slavery is right or wrong is not determined at the voting booth. As the Colorado Supreme Court declared in Evans v Roemer, "The majority cannot use the ballot box to vote away the rights of the minority."
Yet Judge Scalia holds to this majority rules view. From an article about his Thursday speech at the George Bush Presidential Library:
Scalia's talk of innumerated rights as if they were the only ones we have is exactly what James Madison was afraid of regarding the Bill of Rights, that by listing these rights people might make the mistake of thinking that these were the only ones we have. Our founders support of the ninth amendment made it clear that this idea of limited rights was not the case. Instead, all powers not specifically provided to the government would be reserved by the states and the people. And through the fourteenth amendment specifically to the people.
The police powers of the states are clearly intended to protect citizens from being harmed by others. They are not to be used to regulate private behavior that harms no one. The NYU law student who asked Judge Scalia if he sodomized his wife was making a valid point . What business would the state have in asking him that question? He still doesn't get it.
States can make laws that effect a specified class of people, like people who steal things. These laws must serve a secular not a religious purpose. As the US Supreme Court confirmed in Roemer v Evans, states cannot make laws that single out a minority based on animous not reason.
Our courts must make the principled decision that people have inalienable rights and these rights cannot be denied by the whims of the majority. This is what our founders intended.
Patterico wrote:
But you're still confusing legitimacy with authority. You're arguing that a majority could, if it was sufficently large and (I would add) had lost its mind, amend the Constitution and gut the bill of rights. Yes, they do have the ultimate authority to do that as a matter of law. What I'm discussing, though, is not authority but legitimacy - would such an action be legitimate, and by what standard? My position is that we judge the legitimacy of governmental actions by the standard of natural rights as expressed in the Constitution and in other founding documents. And if the government (meaning, of course, the majority) takes an action that violates those standards, that action is illegitimate.
I would do it by appeal to logic and reason. But your question here applies equally well no matter what the answer is. If your answer is that God has revealed this truth to us, then how do you resolve a disagreement with someone who denies that God did so? I would argue that such a position is illogical simply because there is no evidence of any such revelation from God. There is nothing in the bible or any other alleged revelation from God of which I am aware that is even close to the concept of natural rights and political liberty enshrined in the Declaration. Indeed, there is much in the bible that is contradicted by the notion of natural rights, I would argue. Jefferson and his compatriots, on the other hand, argued that our rights are endowed by "nature's God", by which he meant a deity ascertainable solely by reference to reason rather than revelation, and that is precisely what I would appeal to as well. The fact that someone may refuse to agree with me has no more bearing on the truth of my position than the fact that someone else may refuse to agree with you on your basis for believing it.
Let me add one thing to my comment. The notion of an unelected body such as the Supreme Court acting as a check on majority rule to insure that they did not violate the principles that a government is founded to protect is in fact well in line with the views of the founding fathers. Remember that as originally set up in the Constitution, the Senate was not popularly elected but was appointed by the state legislatures. This was very much like the English House of Lords, a Senate that was made up of the powerful and the well-born, as opposed to the House of Representatives, which was to represent the people. This was fully in line with the founders' distrust of majority passions and what they saw as a need to have a mediating body that would act, as it says in Federalist 62, as an "additional impediment...against improper acts of legislation."
The founders spoke at great length of the need for a stable, politically secure body that was immune to the pressures and temporary passions of the mob and to counter the "propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolution." They established both the Senate and the Supreme Court to act as a break on majority passions, and clearly stated this as the goal of doing so. So it always baffles me to hear those who describe themselves as "originalists" taking up pure majority rule when the Constitution went to such lengths to insure that majority rule did not result in a violation of natural rights. That was the whole purpose of the Bill of Rights, and of establishing both the Senate and the Supreme Court. The pure majoritarianism espoused by Scalia and Bork is anything but "originalist" in this regard, it is quite contrary to the fear of majoritarianism that the founders spoke of at great length and took measures to prevent.
Ed,
Our charter document says that *any* part of it -- *any* part -- may be changed by a large enough majority. The Founders could have said: "except for the First Amendment, which can never be repealed by any size majority" -- but they didn't.
By setting up the structure of the Constitution so that it could be amended by a large majority -- 2/3 of each house of Congress and 3/4 of the states -- the Founding Fathers enshrined in the Constitution the principle that the people govern themselves. That doesn't mean 50% of any group can do what it wants. The Founders set up significant barriers to the people's ability to remove or alter certain rights. I think that was wise and wholly proper.
But the barriers are not insurmountable.
You seem to think they should be, as to some rights. But the Founders did not agree -- or if they did, they didn't bother to enshrine that belief in the Constitution.
You can argue that using the structure of the Constitution to delete certain rights is illegitimate in your eyes -- but you can't convincingly make the argument that it was illegitmate in the Founders' eyes.
You may have your own conception of what is "legitimate" and "illegitimate," but the Founders' conception -- as embodied in the Constitution -- is a government based on the will of the people. Where every right can be changed by a big enough majority.
This is what Scalia means when he says: "You protect minorities only because the majority determines that there are certain minority positions that deserve protection..." That is how the structure of the Constitution is set up, and you have not convincingly argued otherwise.
I'd like to see you at least concede this point as to the Founders. Then we can discuss what undergirds your vision of what is legitimate and illegitimate. I'll save that for a separate comment, as this is getting long.
The reason this is an important debate is that we are really debating a theory of judging. With looming fights over judicial confirmations, that's an important topic.
Republicans and Scalia agree with me: judges should enforce the law as written. They should not read into it things that aren't there. The basis for this philosophy is allowing people to govern themselves. When judges make the Constitution mean what they would *like* it to mean, rather than what it actually *says*, that threatens the people's right to govern themselves.
You take the opposite point of view, which I find very interesting: people shouldn't be allowed to govern themselves if their self-governance conflicts with the "natural rights of man." At that point, the governance becomes illegitimate in your eyes.
What I am probing for is how you distinguish what is "legitimate" from what is "illegitimate." What specifically are the "natural rights of man"? Can you show me the list?
No matter how you dress it up ("by appeal to logic and reason"), your answer is really that it's a matter of opinion -- *your* opinion. That's because you have no principle by which you can distinguish what is illegitimate from that which you consider legitimate.
If you were a judge, I take it that you would strike down laws that you felt violated people's natural rights, as determined by the "Rule of Ed": whatever Ed thinks comports with "logic and reason" is what get to remain the law. Everything else gets struck down. This is the Sandra Day O'Connor style of judging: Because I Say So. And I think it is dangerous to democracy.
Judging by this philsophy, in my mind, is illegitimate because it subjects the public to the whims of a set of nine philosopher-kings.
You say:
"Jefferson and his compatriots, on the other hand, argued that our rights are endowed by "nature's God", by which he meant a deity ascertainable solely by reference to reason rather than revelation, and that is precisely what I would appeal to as well. The fact that someone may refuse to agree with me has no more bearing on the truth of my position than the fact that someone else may refuse to agree with you on your basis for believing it."
What did "nature's God" say about gay marriage? About whether a 13-year-old child's parents must be notified before she gets an abortion? Etc.
The problem is that, when you get down to specifics like that, the answers aren't always there in the Declaration of Independence or any other document.
It comes down to whatever *you* think is right.
That is great for your own personal conception of morality. But it's no way to run a government, unless its a dictatorship and you are the dictator.
People are inevitably going to disagree with each other as to whether certain rights exist. These debates have to be resolved. We can resolve them by letting judges decide whatever they think is "just" -- or we can tell judges that their role is to to try determine the will of the people, as set forth in statutes and the Constitution.
I am more comfortable with the latter course.
One can always raise horribles, such as the Nazi regime, as an example of what could happen as a result of majority rule. But if our Republic ever loses its mind to the points where it elects a true Hitler-style figure (please, no wise-ass comments from the knee-jerk liberals about Bush; we're trying to have a serious discussion here), or that it wants to repeal the First Amendment, we will have problems too big to be solved by any court.
Until then, I want a system of government where the people have the ultimate say. I don't trust 51% of the people to be right at all times; I want the mob to be constrained by the limits of the Constitution. But I want the ultimate decisions of how we conduct our lives to be based upon the will of the people, within our Constitutional structure. I don't want our most crucial decisions to be based, as they are now, on the "logic and reason" of Sandra Day O'Connor.
At Volokh, Randy Barnett has an interesting post about legitimacy. The part I found intriguing was this:
Read it and see what you think.
I will take the time to write a complete answer to Patterico's comments tomorrow. It will likely be its own post, in fact, so it doesn't get lost. This is an incredibly important subject, I agree.