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….
I’ve worked with people who are mentally ill for many many years now, irregardless of any other lessons learned the most important by far is never ever ever try to argue with one’s paranoid thoughts.
Tony C
>accepted definition, which conflicts with your ideological definition;
Youre rationalizing intellectual submission to society. Definitions are contextual, relative to observed similarites and differences in a context. The widest fact in a context is the contextually defining fact regardless of social acceptance or rejection. For more on definition, see Rand’s Intro To _Objectivist Epistemology_. When man is defined as a rational animal, a specific politics ,individual rights, follows. When defined as a social animal, another politics ,collectivism. follows. Nazism defines man as a racial animal, Marx, an economic class animal. Nazis and Marxists and religionists merely fight over which gang of thugs collects the sacrifice of the individual.
You are welcome Byron….I would do the same for you…..
The out-of-context replies to my comments on the Social Contract are sad testimony to the conceptual disintegration taught by the dominant Progressivism of US schools. (Its oozing into the UK and France, too). This conceptual disintegration becomes formalized into a doctrine in universities which provide brain-cracking rationalizations for complexity-worship. But complexity is merely a stage in reasoning and worthless until integrated into a concept, principle or fundamental. Newton didnt stare mindlessly at stars, planets, and records of past observations, measurements and experiments. He didn’t compartmentalize. He didnt obsess with nuances of nuances ad infinitum. He didnt rest content with formal descriptions of regularities. He conceptually organized these complexities into causes and contextual essences. Thats how he discovered universal gravity. Knowledge outside of perception-based rational system is worthless. One may as well count blades of grass instead of conceptualizing them into a lawn.
Modern culture is lost in the Many without the One. Religion imagines a One with no Many. We must return to the Greek respect for the One in the Many. Some of the scholarship here on Social Contract is greater in quantity than mine. But its mostly worthless because its lost in the Many.
America was created as BASICALLY an individualist society regardless of any collectivist influences seeped thru the Founders unsystematic thinking. Eg, consent of the governed is an end for Social Contract but a mere means for America’s original, individual rights politics. Does anyone here want to maintain that the Founders would have accepted the rejection of individual rights merely because the governed consented?
Howington, I see you appear to have made quite a few enemies is that why you abandoned your old persona? And look at good old AY trying to run cover for his new friend, I mean old friend. It’s cute.
@GeneH you fancy yourself a legal scholar just like Buddha used to. Isn’t that special.
You missed a few million retained rights, listed quite a few rights that were delegated and not retained, and improperly listed some positive rights which weren’t considered natual rights at all by the founders. That’s 0 for 3, not that I’m counting.
I see you copy from Wikipedia about as impressively as Buddha did as well.
So tell me, if the ninth amendment retained its original meaning, how do you ecplain footnote 4 of Carolene Products? This approach limits protection solely to those retained rights that happen to be enumerated. And then what about Griswold which extended protection to unenumerated liberties (the right to privacy) but only for a few that the Court deemed to be “fundamental.” Only Casey brought the ninth back to some degree of respectability.
Please let us get back on subject and topic…Leave the personal barrages out…I was learning a lot…and Byron…even from you…
k:
Old Howington is due for a little knicker twist. I see it coming, the wind is gathering the grains of sand and the dark cloud approaches on the horizon.
Buddhinton ask not for whom the bell tolls, it tolls for the.
Did I actually write Buddhington, silly me, I meant Howington. I get mixed up.
kderosa,
If by karmic retribution you mean perpetually setting yourself to be proved wrong and illustrating why you should not be taken seriously, then I submit that you have an unusual definition of fun unless you are a masochist.
kderosa,
“[E]ven though you can approximately quantify all the retained rights, it is foolish to attempt do so.”
Foolish by your reckoning? I think I’ll pass on your opinion.
Right to have privacy
Right to live, exist
Right to have a family
To work for anyone
To own property
Free Speech
Social Security
Safety from violence
Protection by law
Equality of both males and females; women’s rights
To a fair trial
To be innocent until proven guilty
To be a citizen of a country
The right to express his or her sexual orientation
To keep one’s own gender identity and rights to have or not to have a surgery
To vote
To seek asylum if a country treats you badly
To think freely
To believe and practice the religion a person wants
To peacefully protest (speak against) a government or group
Health care (medical care)
Education
Eat/drink
To communicate
Not be forced into marriage
To pursue happiness
Freedom of assembly
Freedom to do what a person wishes if it does not harm others (even if other people think it is bad)
Feel free to add your dozen now.
All of these human rights are retained to one degree or another. That some of those rights interfere with your political agenda are an ancillary matter. Your understanding of the 9th Amendment is insufficient. The 9th Amendment does not confer positive rights. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The 9th Amendment has not been eliminated from jurisprudence but rather expounded upon in a manner consistent with Madison’s intent in including it as a vitiation of the legal maxim “expressio unius est exclusio alterius” (the express mention of one thing excludes all others). It was a concern at the onset that including a Bill of Rights would exclude any right not specifically mentioned. The wording of the 9th Amendment assures that this does not happen. It is not an amendment that confers positive rights. It is an amendment that applies to Constitutional interpretation. “[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.” Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991). This understanding of the 9th Amendment is precisely in line with the intent of Madison when he said when discussing the construction of the amendment before the House of Representatives in 1789. “It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.” Given that Gibson is still cited today as the proper interpretation and application of the 9th Amendment, your claims that the 9th has “been erased from our jurisprudence” are spurious at best. Far from being erased, the 9th Amendment as been rather strictly upheld.
Whatever you say, TonyC, whatever you say.
@KD: Aw sweetie, you don’t understand. I was making a philosophical argument from logic and accepted definition, which conflicts with your ideological definition; I was not making a concrete Constitutional argument. See, when adults talk, they understand that distinction, and know to answer in kind; their refutation will be from logic; not a demand for a concrete example. Perhaps some day when you are older, you will understand.
Just having a little fun at old Howington’s expense. A little karmic retribution if you will.
k:
be a dear and quit making old Howington cranky. He is Buddha and there is definitive proof. Just move on, it really doesnt matter.
Personally I dont understand why you should want to out him. I imagine there are a good number of people who would want to tar and feather him if they had the chance. I shouldnt want that on my conscience.
I would just leave it be and continue to make the points you are making. They are, for the most part, very good and some are brilliant.
@TonyC, our Constitution contains an enumeration of negative rights (i.e., liberties) we have given to the Federal Government, we have retained all the rest. Show me where in the Constitution there is a positive claim on government or others. (I belive the 13th amendment contains a negative right directed to the people, not the Government.)
Howington,
Isn’t the sad little man the one who accumulated a shameful record under one online persona and then had to disavow that persona when anonymity was no longer possible? Why are you so embarrassed of your “Buddha is Laughing” alter ego?
Onto the substantive issues …
Of course you can enumerate the rights surrendered — they are the rights enumerated in the Constitution. However, it is a fool’s errand to enumerate the rights you retained. And the problem with trying to enumerate all your retained rights in a Constitution is that you can never capture them all. Make any list of liberty rights that you care to and I can add a dozen more. So, any explcit protection of these enumerated liberties carries with it the inevitable danger that the list will be taken as evidence that the people surrendered up to the general government any liberty that is not on the list.
That’s why Madison gave us the ninth amendment and not unsurpirsingly it has been erased from our jurisprudence.
Thus, even though you can approximately quantify all the retained rights, it is foolish to attempt do so. Too bad you didn’t understand that twist.
@KD: They are not positive claims on government or on others.
Perhaps in your broken and logically inconsistent philosophy you can come up with some ad hoc argument du jour to justify your selfishness, but this is a false statement in my logically self-consistent philosophy.
Bob,
“What utility is there in deconstructing a literalistic interpretation of the social contract?” To the end of analyzing what makes for good law or bad law in the socially beneficial senses of the term, none whatsoever. However, some people will do anything to avoid that discussion.
kderosa,
Cataloging? You are a sad little man. Do you have a Nixonian enemies list too? Do you often feel like you are persecuted? I suspect the answer to both of those questions is yes.
“It is not possible to enumerate all the rights we have retained, i.e., not surrendered to government upon entering civil society.”
This would not change that it is possible to enumerate the rights we have surrendered to government upon entering civil society and to what degree. Just because real numbers are an infinite set does not mean that useful calculations cannot be made without using all of them. I don’t think you considered how logically ridiculous invoking an infinity can be. Human experiences and relationships are a limited set. Since all human/civil rights must be constrained by the limits of human experience, they are a subset. As a subset, that list of rights has outer boundary limitations. People may disagree on criteria for quantification, but that does not preclude quantification.