Will’s provocative but undeveloped comment that “judicial deference is a dereliction of judicial duty” is intriguing. This is something that conservatives have a hard time with. Shouldn’t we trust the popularly-elected departments of government to make laws and regulations, and keep the courts out of it? That’s the common complaint we hear when courts invoke a “right to privacy” to overturn popularly-decided laws and referenda on same-sex marriage, for example.

The resolution of this problem, in my view, is twofold. First, courts are just as “republican” in character as legislatures and executives, since republicanism requires all powers to be derived directly or indirectly from the people (Federalist #39). So we do not defend republican principles by attacking the courts on “democratic” grounds.

Second, we have to understand what judicial duty is. Judicial duty is the responsibility to uphold the law. In a situation where a democratically-elected legislature and executive pass a positive law which violates a fundamental law (the Constitution and, perhaps, the natural law principles of the Declaration), the courts are doing their job by upholding the higher law (Federalist #78).

You’re absolutely right that the idea of a right to be free from discrimination quickly descends into utter incoherence, since it requires a subsequent distinction between “okay” discrimination and “bad” discrimination, and the whole idea collapses on itself.

That said, and this is more a commentary on the state of things than this post, but your argument is unlikely to convince or get a fair hearing from anyone inclined to disagree with you. But sometimes it’s still necessary to make the argument, if only to illuminate the line of reasoning for those inclined to agree.