Politics by other means (or “the fable of the neutral judge”)

If you are looking for more evidence that so-called “judicial conservatives” are every bit as politically-motivated and results-oriented as “judicial liberals,” then look no further to Randy Barnett, a professor of constitutional law at Georgetown University. In a recent blog post [*] at the Volokh Conspiracy (one of the best blogs about law, by the way), Professor Barnett belittles the political process, argues that administrative agencies are both unresponsive and unaccountable to private citizens, and then poses a rhetorical question (lawyers and law professors just love rhetorical questions, since it’s so much easier to smuggle your normative conclusions into your factual premises than be intellectually honest): “So tell me a story about how an individual denied the right to braid hair without an expensive and time consuming cosmetology license can get her right [to do business] vindicated in ‘the legislative process.‘” (Note the unintended irony in this question: you also need a license to be a lawyer, after all.)

Now, before we address Prof. Barnett’s question head on, please don’t get us wrong. We shall place our ideological cards on the table, for we agree that occupational licensing restricts economic liberty and harms consumers by restricting competition. If we could, we would start at home with our friends in the legal profession and declare all their burdensome and costly bar requirements as illegal restraints of trade. We are with the Ubers and Airbnbs of the world, not with entrenched incumbents. But here’s the rub. There’s a right way–and a wrong way–of effectuating change in Anglo-American systems of government. The right way involves discussion, debate, and political compromise. Marijuana legalization, by way of example, is the paradigm example of the right way of promoting change. The wrong way, in contrast, is to circumvent your fellow citizens by getting a judge to the dirty work for you. Abortion rights, death penalty delays, and gay marriage are textbook examples of the wrong way–politics by other means, so to speak.

[*] As a footnote, it’s worth noting that Professor Barnett’s blog post carries the provocative title “The majoritarian fable.” Hey. Thanks for pointing out the fiction of majority rule, Randy. Maybe next time, you can write about “The fable of the neutral judge.”

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