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02/16/2015

Greg Weiner vs. Randy Barnett on Natural Rights Adjudication
Michael Ramsey

At Liberty Law Blog, Greg Weiner: Who Are the Guardians of the Natural Rights Polity?  From the introduction:

There is no reason there cannot be a natural rights politics as opposed to a natural rights jurisprudence.

Rights are not inherently judicial claims. We are only accustomed to thinking of them that way. Consider that the Supreme Court was almost wholly silent on the Bill of Rights for much of its first century even though early political commentary (see the debates over the Sedition Act) is rife with references to it.

It might be healthier and, crucially, ultimately better for liberty if rights claims were to be politically resolved. There is substantial evidence that this is what prominent Framers, including Madison, had in mind.

Randy Barnett responds: The majoritarian fable.  From the core of the argument:

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.

...

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.