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?
@KD: . Proofreading is for the weak.
An expected sentiment from the incompetent, sloppy thinker. Proofreading requires an attention to detail and the ability to recognize one’s own errors that is beyond you. Proofreading is for the minds that can focus and pay enough attention to detail to get things right and actually make things work. I understand your sour grapes, honey, but don’t worry. Adolescence is a recoverable disease. Just give it time.
@GeneH
Let’s see: the right to wear a hat, the right to get up when one pleases, the right to go to bed when one pleases, the riught to scratch one’s nose when it itches, the right to scratch one;s nose even when it doesn’t itch, the right to eat steak when one has a taste for it, the right to take a sip of Coke when one is thirtsy … you hopefully get the point. As I said , a fool’s errand.
I don’t object to your typos, I have to many of my own. Proofreading is for the weak. What I object to is your copying and pasting of thoughts you aparently have little understanding about, which we shall examine presently.
Carolene Products represents the modern theory of constitutional rights that by 1941 applied to both state and federal restrictions on liberty. The theory goes like this: adopt a loose conception of necessity and presume all acts of legislatures to be valid, except when an enumerated right listed in the Bill of Rights is infringed (or when legislation affects the political process or cerain minorities), in which event the Court applies a strict conception of necessity and puts the burden on legislatures to show that their actions were both necessary and proper. Subsequent cases made the presumption of constituionality almost irrebuttable. (See for eg, Williamson v Lee Optical). Any restriction on liberty will be upheld under this standard if there is a hypothetical reason why a “legislature might have concluded” that the restriction was necessary–unless a “fundamental” enumerated right is at issue, in which case few statutes will withstand “strict scrutiny” of both means and ends that will then be applied. Thus, Carolene Products represents a reversal of Constitutional presumptions; fundamental rights would be protected, but other liberties would be left to the merrcy of legislative majorities.
So Carolene Products basically did away with the ninth amendment’s guarantee of our retained unenumerated rights, that much is clear. This was done so that progressive legislation could be enacted. Obviously you love this legislation, but it was accomplished by trampling on our unenumerated rights guaranteed by the ninth amendment. So you’re wrong about that.
With respect to regulating coomerce, the Court did not simply expand the scope of the Commerce clause, which it did, but what it really did was to uphold various federal enactments as necessary and proper means to achieve the legislative objective of regulating interstate commerce. This expansive reading of the N&P clause was facilitated by adopting a presumption of Constitutinality in favor of Congressional judgment. So you’re wrong about that.
Now moving on to Griswold, Griswold expanded Carolene Products footnote four jurisprudence by protecting certain judicially favored unenumerated rights which could be used to shift the burden to the government to justify its restrictions on liberty. Big deal, as Bob, esq notes, the niinth amenment already protected all our unenumerated rights, not just some rights favored by our unelected Supreme Court.
Casey showed that the Rehnquist court was still committed to the Carolene Products/Griswold jurisprudence. However, Casey’s significance is that it relied upon the ninth amendment: “Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9.” In Casey, the justices wrote of “liberty”–a term that actually appears in the Constitution–rather than “privacy” which does not. Lawrence v. Texas confirmed this since it was based on liberty rather than the right to privacy.
The problem with the current jurisprudence is that judges must pick and choose among the unenumerated liberties of the people to find those that justify switching the presumption of Constitutinality and those that do not. The liberty to use birth control pills is protected, but the liberty to use marijuana is not. The business of performing abortions is protected, but the business of providing transportation is not.
Why is it that only specific prohibitions of the Constitution shift the presumption of constitutionality when the ninth declares, “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”? Disparaging the liberties or rights retained by the people that are not “within a specific prohibition of the Constitution” is exactly what Carolene Products accomplishes. It runs afoul of the text of the Constitution as does the modern incantation. So you’re about that as well.
@Gyges: I think the explanation that best fits our knowledge of ourselves and other species is that we built upon a foundation that was already there. As opposed to the sudden and radical shift that morals being a entirely human creation would be.
I think both are true. We built on a foundation, but nobody else has a house but us! Although we have been making stone tools for 2.5M years, to my best understanding the modern human mind appeared about 60,000 years ago. What is unique about the modern human mind, and is distinct from other animals (including chimps, also prolific tool makers), is
1) generalizing and respecification,
2) recursion. (which may be related to the first).
You can think of the first as a “metaphorical” ability; the metaphor is the generalization, applying that to your specific situation is the respecification (making the general specific). I tell you “Life is like walking a road, at the end the trip was about who you walked with, and who you met along the way,” and you understand there is no actual road — instead you are prompted to think about the important people in your life, and those memorable characters you have met in your life. You can take a generalized metaphorical thing, and make it specific to you, even if it is not literal.
The second ability, recursion, is our ability to solve problems by breaking them down into smaller problems, that get broken down into smaller problems, that get broken down into smaller problems, until somewhere in that descent we find a lot of very tiny little problems we can solve. Animals can solve problems, but no animals will invent the airplane, or even build the Parthenon.
Also, I am biased by my philosophical resistance to granting homo sapiens any sort of “special place” in the grand scheme of life on earth.
Our only “special place in the grand scheme of life” is our extermination of it!
We aren’t special in the grand scheme of things; we are an accident of evolution that turned us into the ultimate predator, with the ultimate tool: foresight. It doesn’t make us any more special than a cheetah or a brontosaur or a great white shark, we are just another example of an extreme development.
But our adaptation, whatever little twist or mutation it might have been, gave us infinite foresight. We can imagine the future a million years from now; or the world a billion years ago. Animals cannot. They have reason, that is not unique to us; but they do not have endless reason, they cannot follow a chain of logic that produces calculus, or even just an infinite set of counting integers.
We are unique in that respect, and in my opinion, that is what is necessary to have morals and rights: Extremely generalized rules of fairness, that we can uniquely respecify to judge specific circumstances, and say, “That action was unfair.”
from the commerce clause of the federal constitution.
prentice and eagan
I dont know Mr. Grossman seems pretty informed to me.
“Purpose of the Commerce Clause.—
The journals of the Convention and the public discussions of the period offer no conclusive answer to this question; but it appears that under a form of expression sufficiently general to give Congress power at all times to prevent burdensome, conflicting or discriminating State legislation, the Convention had prominently in mind the regulation of foreign commerce by the passage of a navigation act and the imposition of a tariff; while, so far as concerned interstate commerce, nothing more was immediately intended than to enable Congress to prevent the imposition of duties by particular States upon articles imported from or through other States.’
Interstate commerce in the eighteenth century was simple in its relations. The business of each State was its own.”
Grossman,
That would be your incorrect and ill-informed opinion.
Gene H
>Regulation of commerce is a Constitutionally reserved power of Congress
18th century regulation was not control but making equal among the states so that a state’s laws didn’t harm commerce among the states. Even so, its a law with horrifying potential for totalitarian control. We need an amendment protecting the right of property, production and trade and the right to the pursuit and enjoyment of profit. And restricting laws to man, ie, excluding brute animals and the environment from protection. Even more we need a rational philosophy of politics, not ones based on emotion, consensus or faith. Fortunately we have Ayn Rand and the lack of intellectual competition to her philosophy.
Bob,
What creates a penumbra? The occluding object or the back light? The only answer is both.
Gene,
The plurality treated privacy as a direct object created by the penumbras; watch the language…
“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting opinion). Various guarantees CREATE zones of privacy.”
There but for the grace of a sovereign of nine goes my right of privacy?
As if.
Bob,
I disagree. I don’t see penumbras as indicating that rights derive from the Constitution but rather that there is a close (or not) nexus of commonality between an unenumerated right and an enumerated right. I can see how one could rationally read it that way though. Thus the old story repeats itself and reasonable minds differ.
AY:
you are a moron, kderosa is not Byron. But I understand Byron thinks quite highly of you. Bdaman told me.
Just so you know kderosa is not Byron, nor is Byron Stephen Grossman nor Noway nor Roco.
You see him here
you see him there
that damned old Byron
he is everywhere
It is like people obsessing over the Gene H/Buddha nexus, it is quite funny to think someone like Gene H is remotely related to Buddha let alone being Buddha. I remember Buddha he is nothing like Gene H. Gene H is a pussy cat compared to Buddha and quite a bit smarter. Gene H is really very interesting while Buddha was an insufferable boar and mean as hell. So I for one am quite delighted to see Buddha gone and Gene H now posting. I say good riddance to bad rubbish and welcome to Gene H.
If Buddha ever comes back, I hope he learns a thing or 2 about civility from Gene H. Gene H is the quintessential man for all seasons. He can speak with authority on a number of different subjects at some depth. Very impressive. I for one look forward to reading his posts, they provide profound insight into the law and the philosophy behind the law.
In re: Griswold, the reasoning by both the plurality and the dissent was wrong. Penumbras implies the constitution confers rights while the dissent completely ignored rule of construction as set forth within the Ninth amendment. Per Goldberg’s concurrence, it was a re-hash of the reasoning by the plurality.
**If your objection**
Not only do I use copy and paste, I’m a sloppy prufreader.
kderosa,
If I missed a few million, you should have no trouble coming up with a dozen.
If you’re objection is that I’m a lazy typist, I am completely unconcerned. I’ve got the ability to copy and paste. Look out! I’ll use it again!
If you’re so concerned about Carolene Products, I’m equally unconcerned that you’re upset because the court applied a lower rational relationship standard to regulation of commerce. Regulation of commerce is a Constitutionally reserved power of Congress and as such is not subject to a higher level of strict scrutiny because such regulation on its face does not violate the terms of the Constitution (by the terms of Art. I, sec. 8). Nor does regulation of commerce attempt to distort or rig the political process or discriminate against minorities all of which would call the higher level of scrutiny into play.
I would expect a Libertarian to be upset by this on purely ideological ground, however, Carolene Products does not limit protection solely to those right enumerated in practice. What it does is bolster the 14th Amendment and creates conditions so that if a law is passed that does on its face violate a Constitutionally protected right (as some would argue that anti-gay marriage legislation violates the right of free association and equal protection in the attempt to discriminate against minorities), then in examining the Constitutionality of that law, a higher standard of scrutiny applies. It provides more protection to unenumerated rights, not less. If you’ve still got a problem with the regulation of business, your problem rests squarely in Art. I, sec. 8. When combined with the holding in Griswold, Carolene Products provides quite a bit of protection for unenumerated rights.
On Griswold v. Connecticut, I have no issue with how that case was decided as it applies to analysis of unenumerated rights. It’s one of the few times I disagreed with Hugo Black. When looking at an unenumerated right, it makes sense to distinguish between those that are closer to enumerated rights (in the penumbra) and those that are not in determining if an unenumerated rights is fundamental. The Court’s logic in defining a right to privacy was sound.
Planned Parenthood v. Casey? Your statement is opinion that is too unclear and subjective to offer much comment on. Casey was decided primarily on the 14th Amendment issues (not the 9th) and did not address privacy in the same manner as Griswold. In fact, it barely mentions privacy at all. They’re related cases but only tangentially in that Casey did not explicitly overturn either the fundamental holding of Roe v. Wade (which was based on the right to privacy found by the Griswold court). If your support of the case is based on it being (wrongly) perceived by those in the pro-life movement as a (marginal) victory, then your support is entirely ideological, but your legal correlations are tenuous and weak at best. This case really doesn’t impact the 9th Amendment or its function as an interpretive guideline directly.
What seems to upset you is that laws that impact unenumerated rights, if they are prime facie unconstitutional, discriminatory or seek to rig the political system, are subject to a higher standard of scrutiny than rights specifically enumerated by the Constitution. Being that the Constitution itself protects and defines enumerated rights, it is only logical that unenumerated rights benefit from the application of a higher standard of judicial review when laws are passed that affect them and they are closely related to (within the penumbra of) an enumerated right. The cases you name don’t harm unenumerated rights. They help protect them. If you don’t want them protected, you should be against the 9th Amendment, because those cases enhance the 9th and its intended purpose as Madison drafted it. Just because you can read law doesn’t guarantee that you understand it properly. You’ve just throughly demonstrated that you don’t understand the law properly by completely misreading three cases. You really shouldn’t wonder that people who do know what they are talking about don’t take you seriously.
Tony C
>the regulation, social safety net, unemployment insurance and other regulations that produced the wonderful results you will now attribute to “capitalism?”
And just exactly how does aiming a gun at a businessman’s head to force him to obey bureaucrats (with their long history of producing prosperity) and stealing his investment money produce material wealth? Perhaps youre a Marxist and think that man’s mind is irrelevant to his survival, that skyscrapers and factories and computers are the product of glandular secretions of his headless body…
Tony,
Well like I said, that was the weak point in my argument (that and my lack of proof-reading). I guess the question is: are morals unique constructs, or are they transcriptions of innate behaviors? I think the explanation that best fits our knowledge of ourselves and other species is that we built upon a foundation that was already there. As opposed to the sudden and radical shift that morals being a entirely human creation would be.
Of course at some point in time one little thing suddenly shifted to using oxygen instead of dying when exposed to it, so anything’s possible.
Also, I am biased by my philosophical resistance to granting homo sapiens any sort of “special place” in the grand scheme of life on earth.
kderosa:
you are beating him like a red headed step child. Stop, it is too painful to watch.
I liked him more when he was all puffed up and full of himself, fighting for pragmatism, soical justice and centralized control of markets.
Regards,
Dick Head
Stephen Grossman: “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).”
You sound like…
http://www.youtube.com/watch?v=4TAixFYnDh4&feature=related
Only, unlike Dennis Hopper, you’re as full of shit as a Christmas goose.
Words have definitions; and you call that “submission?” I call it language. A word stands for an idea, and this is how we convey ideas, by using these tokens of meaning. Anybody that is making up their own definitions or decrying standard definitions, like you, is purposely trying to reduce the efficacy of language.
Contrary to your childish expectations, a sign of true intelligence is the ability to speak and write to be clearly understood; you are obviously not smart enough to grasp that and bother trying to make yourself understood, or you are trying and are incompetent, or you are so insecure that you feel a need to puff up your speech and obfuscate your meaning. Any of those mental states makes you worthy of my pity.
Mike Spindell
>Calling Rand a hack writer is not ad hominem, it is merely an informed critical description of her literary skills.
Informed? I looked for the alleged information but didnt find any.
Please repost this alleged information.
>You’ve never once answered criticism of her ideas with anything but vain hopes, magical thinking and attempts to change the subject.
Personal attacks are not criticism and Ive not read anything here except personal attacks. You bags of selfless trash know your depraved attack on man’s life has been refuted. You should join Allen Ginsberg and howl at your moral emptiness.
Oh, youre doing that here in the guise of legal criticism. Well, plenty of Ph.Ds ran the Nazi death camps. The head of the German Bar Assn was Hitler’s ruler of occupied Poland, responsible for maybe 3M murders. See Leonard Peikoff’s _Ominous Parallels_ on how German liberals created the nihilist culture that vomited up the Nazis.