Submitted by Gene Howington, Guest Blogger
In 1780, John Adams succinctly defined the principle of the Rule of Law in the Massachusetts Constitution by seeking to establish “a government of laws and not of men”. This reflects the democratic principles enshrined in the Constitution’s preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The very foundation of our legal system says that the law should work for us all, not just a select few.
This raises the question of what is a good law that serves the majority of society and what is a bad law that doesn’t serve the majority of society?
This idea is further bolstered by the Equal Protection Clause of the 14th Amendment:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The latter addition of the 14th Amendment as well as the Preamble of the Constitution both reflect the spirit in which this country was founded as set forth in the Declaration of Independence: “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Clearly, the pursuit of the Rule of Law under the Constitution as informed by the Declaration is a pursuit of the Utilitarian concept of the right course of action is the one that maximizes the overall good consequences of an action; what is in the best interest of greatest numbers of We the People is in the best interests of the country.
Utilitarianism is a quantitative and reductionist philosophical form. Utilitarianism, however, is not a unified philosophical view. It comes in different flavors with the two primary flavors being Rule Utilitarianism and Act Utilitarianism. Strong Rule Utilitarianism is an absolutist philosophical view and rules may never be broken. Like any absolutist view does not take into account that reality occasionally presents situations where breaking a rule results in the greater good. For example, the strong reductionist rule that murder is bad is countered by the exceptional example of murder is not bad if performed in self-defense or the defense of others. This result of practical application is reflected in what John Stuart Mill called Weak Rule Utilitarianism. It becomes apparent that since not all rules are absolutely enforceable when seeking the common good and exceptional circumstances require flexibility in the law, that the Utilitarian pursuit of the Rule of Law must be in Mill’s Weak Rule formulation of Utilitarianism. But is considering the greater good and circumstantial reasons for breaking or modifying rules the best way to judge whether a law is good or bad?
If one considers Kant’s Categorical Imperative – “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.” – then any law not universally applicable should not be a maxim worthy of being recognized as universal. This is contrary to Utilitarianism in general as well as Weak Rule Utilitarianism specifically, but while Kant’s view takes subjectivity into account when dealing with circumstances it does not take into account that there can be objective differences in circumstances as well. It is part of the judiciaries role as a trier of fact to consider not only subjective differences but objective differences in circumstances in formulating the most equitable and just solution to a case at bar. In seeking to be universally applicable in defining maxims, Kant is an absolutist as surely as Strong Rule Utilitarians are absolutists. As a consequence of reality not being neatly binary in nature and thus not often compatible to absolutists approaches to formulating laws for practical application, what can be done to keep Weak Rule Utilitarianism from degenerating into Act Utilitarianism where actors will seek the greatest personal pleasure when presented with a choice rather than the greater good? Utilitarianism conflicting with the Categorical Imperative? Is there a unitary philosophical approach to evaluating whether a law is good or bad?
The answer seems to be no. If there is no single view, absolutist or otherwise, that leads to a practical system for evaluating whether a law is good or bad, then there is only one option for building a framework for evaluation. That option is synthesis.
Consider that absolutist systems as they are not applicable in reality should be confined to being considered theoretical boundaries rather than practical boundaries. This does not negate the value of considering systems like Strong Rule Utilitarianism or Kant’s Categorical Imperative, but rather puts them in the place of aspirational goals rather than practically attainable goals in every circumstance. Given that Mill’s Weak Rule Utilitarianism can degrade into Act Utilitarianism and that degeneration can be compounded by the number of exceptions there are to a rule, are there ways to minimize the defects of using only Weak Rule Utilitarianism to determine the societal value of a law? What supplements can be made to that framework?
I submit that one such supplement is found in the form of Negative Utilitarianism. Negative Utilitarianism is exactly what it sounds like; the inverse function of Utilitarianism. Whereas Utilitarianism is the basic proposition that the right course of action is the one that maximizes the overall good consequences of an action, Negative Utilitarianism is the basic proposition that requires us to promote the least amount of evil or harm, or to prevent the greatest amount of suffering for the greatest number. If one takes both into account in evaluation of the social value of a law (a synthetic approach), the test becomes a balancing act. On one side of the scale is the societal value of overall good consequences, on the other side is the societal value of preventing overall harm. This proposition suggests the following framework for evaluation of whether a law is good or bad.
- How many people benefit from the good consequences of a law?
- How many people benefit from the reduction of harm as consequences of a law?
- Does the benefits from promoting good consequences outweigh the costs of reduction of harm?
- Does the benefits from reducing harm outweigh the costs to the greater good in taking no action?
- Are the net consequences of a law perfectly knowable from either perspective or does the possibility of unforeseeable consequences exist? Can the unforeseeable risks be minimized either by construction of the law(s) to allow for contingencies or by regulating other risks or contributing factors?
- Do solutions from either perspective negatively impact human and/or civil rights? Do those negative impacts outweigh the positive effects to the greater human and/or civil rights of all?
This is but one way to evaluate whether a law is good or bad for society. What are other methods? Are there ways to improve this method? What do you think?
Gene H:
just another post that underlines your total lack of understanding of America.
Volunteerism is what we believe in, not force.
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Gene H.
>your total disregard for objective scientific evidence (biological, sociological and psychological)
You corrupt objectivity into social agreement. And science is based on philosophy. Your philosophy of subjectivism yields specific scientific methods, premises and conclusions.
>and logically consistent and formal arguments’
Youre a consistent subjectivist. Kyudos. Your forms are subjective.
[Rand] faulty premises about human nature and the nature of tyranny.
You evade my refutation of your irrational man.
>the sentence that starts “Its good, ie, selfish,” is loaded with false equivalences and more gibberish.
Arbitrary, lacking even invalid evidence
>Seriously, critical legal studies is somehow the equivalent of Marxism? One is an analytical framework for the study of law and the other is a disproved political/economic ideology.
“The critical legal studies (CLS) movement attempts to expand the radical aspects of legal realism [skepticism, uncertainty, self-doubt] into a Marxist critique of mainstream liberal jurisprudence.” [Internet Ency. of Philosophy, “A Peer-Reviewed Academic Resource]
Is this sufficiently scholarly? Theres more instantly available online if you need it. Isnt the Internet wonderful?!
CLS was founded or announced at a 1977 Marxist conference by intellectually and morally corrupt, New Leftists who ,sadly, took the 1960s seriously. CLS is Marxism conceptually disintegrated. Bits and pieces of an evil whole remain evil. Analysis is always from a specific view. There is no metaphysically neutral analysis, no safe place for your selfless love of death. You accept a Marxist Pragmatism while rejecting Marxist ideology. You’ll eat anything. Youre an intellectual whore. Im not necessarily saying that youre dishonest about your ethics and politics. Youre honest relative to, perhaps, years of many concrete decisions of important and trivial issues to reject your mind as your court of final authority. Altruism and collectivism are valid relative to subjectivism. Rejecting mind without a mystical alternative will necessarily lead one into rejecting self for anything or anyone other and, eventually, into regarding your relations with people as more important than your own life. I cannot possibly know any concrete details. This is philosophical psychology, valid for man essentially, necessarily.
“Equal protection under the law is in no way egalitarian in the sense you mean the word.”
Actually, it is and so is the “promote the general welfare” language.
“The founders were interested in protecting individual rights not in individual outcomes of life. ”
Actually, they were interested in both or promotion of the general welfare would not have been included as a specific function of government or amended the Constitution to include the Bill of Rights. They recognized that the common good was bolstered by providing for the general welfare of society. The health of a society is not measured by its wealthiest member or its poorest. It’s measured by the average quality of life.
“You can read the Constitution anyway you want, ”
I will. That would be “correctly read”. Why? Because unlike you, I understand both that the Constitution is a living document and the jurisprudence that shapes it as a whole. Again, evidence dictates theory, theory does not dictate evidence. I use all the evidence too and I don’t resort to making up terminology or employing logical fallacies when the evidence conflicts with my desires.
“I will read it as a document respecting the rights of the individual and protecting those rights from other people who would infringe your natural rights and from intrusions on those rights from government.”
Which is only half-reading it, again displaying your inclination to a cherry picking confirmation bias. Half-reading (or half-understanding) a document is as good as not reading or understanding it at all. Just because you don’t want government to help others in society because you’re selfish doesn’t give you the right to selectively enforce the law. The law can’t protect your rights without defining their boundaries and their boundaries are not absolute or what you simply wish them to be. They are what the majority defines them to be in a democracy. And yet you cherry pick away in your futile attempts to rationalize your ethically deficient and ultimately irrational choice in belief systems as being a basis for both a proper life and proper governance. Denial is not just a form of factual ignorance, it’s a form of willing self-ignorance to justify bad behavior . . . like selfishness.
Gene H:
Equal protection under the law is in no way egalitarian in the sense you mean the word. The founders were interested in protecting individual rights not in individual outcomes of life.
You can read the Constitution anyway you want, I will read it as a document respecting the rights of the individual and protecting those rights from other people who would infringe your natural rights and from intrusions on those rights from government.
@Grossman: I evade nothing, in your laughable system the only contracts enforced are the contracts of the rich that can hire mercenaries (your “government”) to enforce them.
1) Pray tell, why would the rich overpay them so much they would have the resources and manpower it would take to protect the rights of the poor, investigate the murders of the poor or the oppression of the poor or the property violations against the poor?
2) What does this “government” do when a poor man pays, once in his life, to have an enforceable contract with a rich man, that pays for ten a day? Well of course they will take the poor man’s money, but they aren’t going to actually enforce the contract, because their bread is buttered by the rich man. So who will make this government honor their contracts?
3) If the payment is voluntary, then the rich have an easy out: Pay nothing, and there will be nobody protecting any rights at all, they can hire their thugs to enslave the poor, just like the good old days of kings, knights, lords and the 99% of the day, serfs.
Your attempt falls flat at first consideration. It is impossible to design a system in which the government that is supposed to protect rights is voluntarily funded by the rich: The rich and powerful will not voluntarily fund the protection of the same people that they very much want to exploit, threaten, coerce and use to earn their profits. The idea is ridiculous.
Tony C:
“First they did not believe in “tyranny” by majority vote, what they believed in was that a majority had the right to set the law by which all citizens would be bound.”
No of course they didnt and I understand that, but apparently you do not. By your own admission you acknowledge the majority has the right to set what ever law to which we are bound. Hitler had laws and Soviet Russia had a constitution. Stalin had courts of justice.
So it is OK to vote for Hitler by your own admission. Very good Tony.
Gene H
>>The entirety of the argument for Objectivism (as displayed here and elsewhere on this blog) is an exercise in outcome determinism
Given a specific premise, the outcome is determined. Eg, empiricism outcomes as a rejection of any definite reality, so that anything can happen at any moment and a moment later be contradicted.
>relevant scientific and philosophically rhetorical evidence that she was wrong.
Relevant within your subjectivist view, agreed.
>dogmatic and slavish devotion to Rand
You evade my observation-based evidence for your floating abstractions.
>One cannot argue for Objectivism without cherry picking evidence.
Even within the narrow definition of cherry-picking, you have never presented any omission.
>circular reasoning that appeals to Rand’s authority.
You evade evidence. This is your intellectual habit. Its who you are, who you have chosen to be. You are guilty. You have sacrificed your mind.
gENE H:
“It is not tyranny to accept that the Rule of Law applies equally to all . . . unless, of course, your entire religion is based on the flawed precept of “special people” who shouldn’t be subject to the Rule of Law or have any responsibility to maintain society.”
Blatant evasion of the concept postulated. Are you serious? I have nowhere said the rule of law only applies to certain people.
In this context as a response to my assertion that it is ludicrous to be able to vote for tyranny, you are proposing tyranny for all, equally applied.
Very good Gene, your true colors are shining right through again. It is quite amusing.
Sucks to be a tyrant with no one to tyrannize.
Tony C.
>@Grossman: On the contrary, I refuted it completely.
Youre an intellectual fraud.
>There is no “law” in your system, Grossman, because you cannot figure out how to ensure even the right to life for the weak and poor, much less any other right to property or contracts.
You evade my recent post in which I did that. Perhaps youre attempting to bore me with your evasions, hoping that I’ll leave if there’s no intellectual challenge. You are probably right.
@Bron: The idea that they would accept tyranny by majority vote is so ridiculous an assertion that I cant believe your implication is serious.
First they did not believe in “tyranny” by majority vote, what they believed in was that a majority had the right to set the law by which all citizens would be bound.
Second, their endorsement of majority vote, whether you consider it “tyranny” or not, is not “my assertion,” it is written throughout the Constitution. Majority votes on bills, a Majority of Electors chooses the President and Vice President, 3/4 Majority of States to Amend, 2/3 Majority to overrule a veto, 2/3 of the Senate to Impeach.
They did not just employ majority rule, they put absolute and unconditional faith in it: There are no bright lines anywhere that cannot be overturned, the entire Constitution, anything in it, can be changed even if they do not have the unanimous consent of the House, Senate, or President.
Perhaps someday you should read it. Or at least find it online and search for the words “vote” and “majority.”
In any case, you don’t get to call a fact an “assertion.”
Also, if you have a problem with an egalitarian form of government, you should consider trying to get the 14th Amendment repealed as the Equal Protection Clause specifically endorses an egalitarian form of government. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It clearly states that life, liberty and property may be constrained so long as there is due process and equal application.
Good luck with that.
It is not tyranny to accept that the Rule of Law applies equally to all . . . unless, of course, your entire religion is based on the flawed precept of “special people” who shouldn’t be subject to the Rule of Law or have any responsibility to maintain society. The Founders were interested in maximizing liberty, not your Randian fantasy about absolute liberties. Absolute liberty only exists in anarchy and it’s all the liberty you can personally defend or take from others. Anarchy leads to the tyranny of the strong over the weak. That is why our Constitution has protections for the minority. Those protections, however, are also not absolute. A minority of people like to have sex with children, yet it is still prohibited behavior. This does not change that absolute liberty is an anathema to civilization. All of your rights under the Constitution have constraints and corresponding duties. It works this way under any governmental system and in any society. Why? Because – once again – that is the fundamental nature of the social compact; you sacrifice absolute liberty for mutually gained advantages.
Tony C:
Defending your freedom is not a claim, it is self interest. The founders were not tyrannical progressives like you and Gene H. They were interested in liberty.
The idea that they would accept tyranny by majority vote is so ridiculous an assertion that I cant believe your implication is serious.
democracy \di-ˈmä-krə-sē\, n.,
1a : government by the people; especially : rule of the majority
b : a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections
[emphasis added for the hard of understanding]
@Bron: Oh I see, so we should refrain from using words that weren’t invented at the time, even if they are completely descriptive of the content?
So I cannot call Jack the Ripper a “serial killer?” I suppose I also cannot call Tyrannosaurus Rex a “predator,” or anything, because there were no words back then!
Egalitarianism is a word from the same root at “equal” and the founders believed all men were created equal, not only in their standing before the law, but all were also equally qualified to make law and govern. There is no education requirement for becoming a federal politician, no religious requirement, just some age requirements to ensure sufficient life experience to govern wisely.
I am certainly not claiming all men have equal abilities, that is a red herring you are throwing out. As for “no men having a right to subjugate another,” Bull Shit. The founders had no problem with prisons, constables, and physical punishments, enacted by the people. They believed the government was vested with the power to govern, perhaps you should look that word up.
The founders ALSO specifically did not have a problem with taxes and tariffs, so it is MORE bullshit to claim they are “entitled to their productive work,” without including the responsibility to “support the government and law enforcement and protection of the rights of others.” And MORE bullshit to claim “no man has a claim on any other man,” because the founders specifically believed all men were responsible for defending and supporting the Constitution.
The founders were no strangers to the use of force and violence to get what they wanted, they did kill British soldiers after all. One thing you can tell, and the entire Constitution speaks to this fact, is that every signer of the Constitution believed the majority had the right to set the laws for the whole. The Declaration of Independence, their letters, the articles they published, are all secondary to the Constittution, which is the Law of the Land they agreed upon, and it was “majority rule” from the start.
The founders had no problem with a majority overruling a minority, by force if necessary. They had no problem with taxes and tariffs and government fees. They had no problem with enforcing the majority-determined law with as much violence as needed to bring the criminals to heel.
If you are looking for heroes for your sick little selfish philosophy, you should look elsewhere, the founders endorsed majority rule enthusiastically, even the Bill of Rights can be overturned by Majority Rule.
Tony C:
I was just curious how a concept, egalitarianism, which did not exist until around 1885 could be part of the language of the Constitution? Jefferson and Madison had no access to that word.
Definition of EGALITARIANISM
1: a belief in human equality especially with respect to social, political, and economic affairs
2: a social philosophy advocating the removal of inequalities among people
Our founders wanted a society in which all men were equal in terms of their standing before the law, not in outcome. Jefferson knew full well that individual men did not have equal abilities. The founders wanted a society in which all men were left free to rise to the level of their abilities.
Being equal before the law or appreciating the fact that all men are created equal only means that no individual man has a right to subjugate another. Men are not slaves and are entitled to their productive work, no man has a claim on any other man.
There is no way to remove inequalities among people except by force, North Korea is an egalitarian society, everyone truly has the same miserable life.
@Bron: Jefferson’s concept of equality was equality with regard to rights and government; not ONLY was the law to be equally applied, but no man had any more right than another to be in charge. Jefferson’s view was in its essence non-elitist, he rejected the model of royals or a privileged class, and endorsed the view that common people could choose from among their own who would represent them. There would be no royal privilege, or court, or special laws applied to some based on status, bloodline, wealth, or any other criteria. All men would be equal before the law, and would have just as much say in making the law. I do not know how much more egalitarian one can be.
“All men are created equal” does not means anything but equality before the law and equality in the opportunity to shape the law and choose the lawmakers. I am pretty sure Jefferson was rejecting Kings, Emperors, Sultans and others that routinely claimed divine selection of their bloodline.
Gene H:
“all men are created equal”
Do you seriously think Jefferson meant that the way you are construing it?
If you are, you dont understand the Constitution, you dont understand Jefferson, you dont understand a single thing about the founding of our country or about the principles behind the founding.
Personally, I think you just say that to pander to the stupid and uneducated to promulgate your collectivist bullshit. Much like Obama last night. What a fucking fascist that clown is.
Justice is not social justice, justice is that all men receive equal treatment before the law not that they are do their daily bread.
Locke inspired the Declaration you boob, where the hell do you think Jefferson got “Life, Liberty and the Pursuit of Happiness”? Directly from the 2 Treatises of Government as I pointed out above.
Equal treatment under the law does not mean an egalitarian society, it only means that men have a right to protection by government of their life, liberty and property. That is what the DOI says and that is what the Constitution does. We have the freedom to fail, we dont have the right to succeed, we have an opportunity to succeed. Government is under no obligation to provide for the necessaries of our life, such as food, clothing, shelter, health care, etc.
Rothbard and Rand are different in that Rothbard was at heart an anarchist, Rand was no anarchist. But you have read neither and dont know what you are talking about. So what if Rand was hard to be around, so are you as evidenced by your lack of a wife or children and the fact that you live with a bunch of cats. Rand loved cats as well although she had a husband. Are you more of an asshole than she is purported to have been?
Obama gave us a healthy does of government force last night, man you collectivists are some scary dudes.
Be as wrong as you like, Bron. Your attempts to revise history do not change history. The very first self-evident truth Jefferson put forth in the Declaration was “all men are created equal”. Egalitarian is defined as “a belief in human equality especially with respect to social, political, and economic affairs.” That our democracy is a representative democracy does not change that it is a democracy. That nature is neither just nor equitable does not change that the Preamble specifically names the establishment of justice is a prime function of government nor that the nature of justice requires equity by definition. As to what Locke said? Well to bad for you Locke didn’t write the Constitution, which in the Preamble states in full “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The very words “We the People” are egalitarian as it is an all inclusive set. I’ve already made the point about justice being inseparable from equity. Providing for the common defense and the promotion of the general welfare – no matter how you want to twist the plain meaning of that term – are both egalitarian concepts. For those of you keeping score at home, of the functions of government as defined by the Constitution, three out of six are egalitarian in nature and based on a primary all inclusive set that is by order of operation egalitarian. Spew all of that “people aren’t created equally”/Rothbard horseshit that you like. It doesn’t change history or that the Founders wanted an egalitarian state where everyone was equal under the law.
As to “collectivist brainwashing”? Sorry, not the case. I’m letting the evidence guide my theories. Evidence such as our founding documents and the words of our Founders in their private writings, all of which point to you simply being wrong. Unlike you, I don’t have a religion that clouds my reason, Bron, let alone worshiping sacrifice to the state. I’m just not so intractably stupid and selfish that I think society can or will happen without it. The very nature of a social compact requires sacrifices from the individual to gain mutually shared benefits. This truth applies to all societies and to all forms of government.
The reason you can’t find anything in the founding documents of this country is the same reason you can’t accept the evidence Rand is a fraud: you’re blind to evidence or anything that doesn’t appeal to your confirmation bias that being selfish is a good thing. It’s not. And people who consider selfishness a virtue are at best misguided and at worst simply evil and/or sociopaths.
I’d say sorry for your wasted life, sucker, but I’m not sorry in the slightest. You made the choice to be selfish. You get to live with the consequences of that choice, including the consequence that people with a conscience are likely going to think you’re vile.
Have a nice day.
Gene H:
This country was not founded on egalitarianism, not even close. It was formed on the premise of individual rights protected by a limited government and the rule of law. Democracy was limited by having representatives to act as a buffer between the people and the Constitution in case they decided to do something in opposition to the Constitution. As far as justice and equity, nature is neither just nor equitable. The founders didnt create our society to give everyman 100 acres and a cow.
I am always amazed when you say that, where do you get that idea? I can find it nowhere in our founding documents.
Locke said there were 3 things protected by government; life, liberty and property. Those are the functions of government as laid out by our founders. There is nothing about equity or egalitarianism. In fact equity and egalitarianism are antithetical to individual rights. North Korea is utterly egalitarian but not so much on individual rights. Egalitarianism necessarily requires force, for people are not equal by nature.
But . . . whatever you brainwashed collectivist clowns want to think. Worship at the alter of your choice. You’re free to pick and practice your religion of choice. Even if that religion is worshiping sacrifice for the state.