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June 25, 2011

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I totally agree, Mark. However, as I noted in my post on the Fed flying the gay pride flag, it's not sure whether human rights appeals work before the cost/benefits are calculated. When we think about the Geneva Convention for the treatment of prisoners, many people today support it because of the utilitarian consequences for one's own troops. Human rights may be the window dressing on the side--quickly put aside (by Bush) when it was no longer convenient. Any thoughts?

Interesting point, Jonathan--had to think about it for a while. I think that, deep down, people have deontological intuitions, but they're wary of enduring large costs to support them--that's where the cost-benefit analysis comes in, like with threshold deontology.

But then again, you have the case of torture, which many people are willing to endure very high costs to avoid engaging in. It depends on the seriousness of the duty or rule, too, but then that risks becoming a cost or benefit too.

Just a quick comment here to say there is another perspective: a legislative victory can actually be more durable because it is viewed as democratic and thus legitimate. Courts are so often tarred with the label of "activist judges" that it can set off a backlash. There are some who believe--references escape me now--that if pro-choice statutes would have come from legislation rather than Roe v. Wade that there would not be such a prolonged and violent anti-choice movement.

Thanks, Jason--yes, that's the prevailing consensus, against which I'm arguing. The legitimacy of legislation is illusory which the issue is rights, which are a matter of principle rather than policy, and therefore best left to the judiciary in the interest of true legitimacy (deriving its claim to popular consent through the Constitution itself).

Hi Mark, many thanks for the reply. I'm now reading your post on the "absurd legislative ping-pong game" in New Hampshire, and certainly share this concern.

I agree with you as a matter of principle that basic human rights should not be subject to legislative whim. However, we are here dealing with tactics to extend rights, which may put us on different footing. There are many senses of "true legitimacy" and sometimes a legislative extension can be as--if not more effective--at delivering that.

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