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,
Why waste breath on the dolts so early in the morning….Maybe by noon they will be so tired of waving at the sun….that they take a nap…..
Stephen Grossman:
you’re right!
wow I like this kind of intellectual discourse.
[Thanks Gene H.]
Grossman,
Shouting doesn’t make you right. It does illustrate you act like a child though.
****************
kderosa,
Your now proper cite does nothing to bolster your legal argument. What that says is that not all retained non-enumerated rights are touched upon by the enumerated rights. Nothing more, nothing less. Whoever told you it did is simply wrong and if you came up with your interesting interpretation on your own, it’s just further evidence of why you shouldn’t be taken seriously.
Also, I don’t care about what you think of BiL’s legal skills. Considering your fatuous and paranoid nature, should you wish to insult my skills, you’ll find me equally unconcerned. No matter if you address your imaginary friend or not, I’ll still point out when you are wrong.
On your suggestion, I read “The Bells Are Ringing: Sarah Palin and the Revised Story of Paul Revere’s Ride” thread. I anxiously await your “history lesson”, which if it is of the quality of the history lesson you attempted on that thread, ought to be completely factually incorrect and ridiculous. Thanks for the referral to a thread that shows even more of how your mind works.
@Buddha,
Your legal research skills as well as your legal interpretation as lacking:
Casey, 505 U.S. at 848
I’ll give you the full history lesson later today.
Gene H.
> would be your incorrect and ill-informed opinion
Youre wrong.
[See, I, too, can make arbitrary assertions, w/o evidence, as if I had said nothing. Whee! Isn’t this mindless fun! “I assert myself, therefore I am right” is your intellectual habit, your cognitive style.
THERE IS NO INTELLECTUAL COMPETITION TO AYN RAND’S PHILOSOPHY OF OBJECTIVISM!
kderosa,
Your “dozen” items are fine example of you not knowing what you are talking about. I also don’t care about your objections. That’s a cute argument “you’ve made” by the way. Did you get that from the Libertarian Handbook? You’d get flunked out of any reputable law school with misreadings like yours.
Carolene Products was a valid application of the Commerce Clause as defined by Gibbons v Ogden, 22 U.S. 9 Wheat. 1 1 (1824). There was a valid nexus with interstate commerce as the Carolene Products attempting to sell their product in question (filled milk) across state lines against Federal law. It’s effect on enumerated rights was the application of the rational basis test for applying the Commerce Clause to economic regulation. Do you really want to bring up the Necessary and Proper Clause too? Carolene Products was not the first instance of the application of that test to a Federal law either. That fight goes back to the Federalists and the Anti-Federalists over the establishment of the First Bank of the United States. Hamilton essentially beat Madison (who despite writing the Federalist Papers was on the side of the Democratic-Republican Party against forming the bank and was trying to recreate himself as a strict constructionist) by using his own words against him. He told his friend Elias Boudinot that Madison had contradicted himself on the value of the N&P Clause by reversing his earlier position in Federalists 44; “No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included.” Since you want to argue about the Necessary and Proper Clause like a strict constructionist, I suppose it’s just too bad for you that the Anti-Federalists lost that battle. “Your argument” proves you’ve never read McCulloch v. Maryland, 17 U.S. 316 (1819) and if you did, you didn’t understand it was a second loss for the Anti-Federalism stance over the N&P Clause. The N&P Clause is a power of Congress, not a limitation of power. If you have a problem with stare decisis, you probably should consider immigration at this point because the Constitution isn’t going to help you there. We have a strong Federal government. Adults learn to deal with the facts. Children whine about them. That’s in essence the Libertarian stand; whining because they don’t get what they want.
Carolene Products effect on non-enumerated rights was to create a higher standard of scrutiny for laws impacting those rights if those rights are related to an enumerated right (prime facie unconstitutional), related to discriminatory behavior or that sought to rig or distort the political process. Almost every one of those rights on that list you seem to think I don’t understand can be traced to either an enumerated right or potential discriminatory behavior or are already an enumerated right in themselves.
As far as Griswold goes, if you have a problem with SCOTUS being appointed, I suggest you look at the special interest graft riddled morass that is Congress and then think again about how wise it would be have Federal judges elected. They are bad enough on SCOTUS by merit of the luck of the draw that allows partisans to stack the Court in their favor.
On your Casey “qoute”? That’s a fine unattributed quote you used there, but it’s nowhere in the decision. ““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.;'” So exactly who are you quoting there, kderosa? It’s not the Supreme Court.
The 9th Amendment is only brought up twice in Planned Parenthood v. Casey in O’Connor’s dissent.
“It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution [505 U.S. 833, 999] has an evolving meaning, see ante, at 848; that the Ninth Amendment’s reference to “othe[r]” rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to “speak before all others for [the people’s] constitutional ideals” unrestrained by meaningful text or tradition – then the notion that the Court must adhere to a decision for as long as the decision faces “great opposition” and the Court is “under fire” acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be “tested by following” must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change – to show how little they intimidate us.
Of course, as THE CHIEF JUSTICE points out, we have been subjected to what the Court calls “`political pressure'” by both sides of this issue. Ante, at 963. Maybe today’s decision not to overrule Roe will be seen as buckling to pressure from that direction. Instead of engaging in the hopeless task of predicting public perception – a job not for lawyers but for political campaign managers – the Justices should do what is legally right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled.
In truth, I am as distressed as the Court is – and expressed my distress several years ago, see Webster, 492 U.S., at 535 – about the “political pressure” directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account [505 U.S. 833, 1000] their views, as though we were engaged not in ascertaining an objective law, but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today’s opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls “reasoned judgment,” ante, at 849, which turns out to be nothing but philosophical predilection and moral intuition. All manner of “liberties,” the Court tells us, inhere in the Constitution, and are enforceable by this Court – not just those mentioned in the text or established in the traditions of our society. Ante, at 847-849. Why even the Ninth Amendment – which says only that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” – is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, unhinted-at “rights,” definable and enforceable by us, through “reasoned judgment.” Ante, at 848-849.
What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here – reading text and discerning our society’s traditional understanding of that text – the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U.S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value [505 U.S. 833, 1001] judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school – maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it.” PLANNED PARENTHOOD OF SOUTHEASTERN PA. v. CASEY, 505 U.S. 833 (1992).
And what was O’Connor’s conclusion about the law if people are unhappy with how SCOTUS decides? See the bold section above. If the people are unhappy with the value judgements that are “accidentally committed” to the Supreme Court, they should take it up with Congress and try to get laws passed that do reflect their values while not prime facie violating the Constitution. Democracy in action that. That you’ve adopted the values of an extremist fringe minority would be your problem to overcome. If the ideas of Rand and Libertarianism are so grand, sell them to the American people and to Congress so you can implement them as law. Good luck with that.
In regard to your note about having interacted with Buddha Is Laughing shortly before he took his leave? I offer you the same response as I did to your “grammatical evidence”: So what? How desperate are you find yourself a Boogey Man? The level of paranoia you are displaying is truly sad. I suspect it’s not helping your credibility much either. I happen to think the guy is funny and I told him so. That’s my opinion and I’m entitled to it. Much like I am entitled to my opinion that you’re a paranoid pretending to understand the law based on what somebody told him it should be instead of what it actually is.
@KD, Roco, Grossman: No, the problem is you argue like immature children; and this is the Internet, so for all I know you ARE immature children, and as an adult I should treat you as the evidence dictates: It is my social responsibility to help you understand, and I can’t do that if I descend to your level, and we obviously haven’t accomplished that goal by trying to treat you as adults, so there is not much left to try, childrens.
[h/t Chef.]
Tony C:
ever stop and think that I might not be arguing with you on any real level because when I do you get very frustrated and start calling me a sociopath.
Why would I subject myself to that? And why do you think I would have any respect for some one’s ideas who would do that?
You are nothing but a collectivist with a very limited world view and understanding of human nature, our government and just about anything else having to do with human interaction because you perceive through a lens polished by Marxist premises.
And you are wrong on most everything having to do with the social contract, republican government, Jefferson, Rousseau, Locke and whoever else.
Bob Esq does understand these things and he has been trying for months to explain to you. You really should listen to him, he knows what he is talking about and is probably the only regular on this blog who does have a clue.
@TonyC, the problem is that you don’t understand what the social contract is or how it was codified in the Constitution.
@Bob: No, the issue is that the level of argument attempted by kderosa and Roco literally reminds me of raising a child, so I figure I should try to speak on their level. I think the burden is upon the intelligent to figure out how to communicate with the less intelligent. Doesn’t that make sense? It seems ridiculous to demand that people do something they are literally incapable of doing.
So we will see, this experiment may work yet. And I’d say the social contract has been taken pretty darn literally as the foundational justification of law.
kderosa:
“@Roco, He also has a nasty habit of arguing against points he wants you to have made instead of the points you actually made. That’s the kind of bad argument skills law schools try to break students out of.”
Yes he does that a good deal. I would be saying one thing and then he would be responding to what I didnt say. I thought it was some sort of lawyer trick to throw the other person off balance. I used to shake my head all the time and think WTF?
“Fortunately we have Ayn Rand and the lack of intellectual competition to her philosophy.”
It is true that Rand has no competition for her attempt at philosophy. It is only a poor attempt at creating a philosophy, in order to justify her own narcissistic feelings. Why would anyone with intellectual depth contend with it? It’s just one more failed belief and self justification for her own frailties. Her acolytes, smugly carrying the banner of their religiosity, just as Marxists piously practiced their gospel to the point of ruination.
Tony,
That’s gotta be the first piece of mental masturbation I’ve ever read that sounded like the writer was actually masturbating when he wrote it.
Apparently, taking a literalistic approach to the social contract is the least of your problems.
@Roco, He also has a nasty habit of arguing against points he wants you to have made instead of the points you actually made. That’s the kind of bad argument skills law schools try to break students out of.
By the way, did you happen to catch this bit of hilarious sock-puppet banter between “Buddha” and “GeneH” the first day “GeneH” mysteriously showed up out of the blue. The Buddha avatar was decommissioned two days later and GeneH posts this first “guest post” a week later. Quite the whirlwind introduction.
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Buddha Is Lauhging1, July 7, 2011 at 11:05 pm
Gene,
Dude, no wonder you picked something like Eta Carinae as an avatar. You are on fire! We have several other science geek types who frequent here. I saw where you’ve met OS, Tony and LK. Keep an eye out for Slartibartfast and Bob, Esq. as well. Slarti is a mathematician and Bob just loves physics. You guys will hit it off just great.
And go, Team NASA!
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Gene H.1, July 7, 2011 at 11:19 pm
Buddha,
Thanks for the complement. I’ll have to say that among the many reasons I chose Eta Carinae, being “on fire” never came to mind. Mainly I picked it for aesthetic reasons. It’s a very pretty stellar event. There were some philosophical reasons as well, but pretty sold the deal. I should also say I’ve really enjoyed your posts too. You’re a rather savagely funny fellow. Jonathan has provided a great forum with his blog and you and the other “Regulars” really give it additional character. I’ve only been reading Jon’s blog for about a week now and I’m completely hooked. It provides some of the most stimulating conversations I’ve seen on the Internet in quite some time. Let me second your “Go, NASA” and I’ll leave it at that.
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Buddha Is Lauhging1, July 7, 2011 at 11:26 pm
Gene,
“Savagely funny”? I like your choice of adjectives. Thanks for noticing.
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kderosa:
I have thought that for a good long while and I am not even a lawyer.
@TonyC, I bet you thought that was profound when you were writing it.
@Roco, I do not think that Buddha/GeneH has a legal education, based on his inability to read caselaw and statutes coherently.
Tony C:
“An expected sentiment from the incompetent, sloppy thinker.”
kderosa may not spell well [probably because he is focusing on the content] but the words are correct in context and the misspelling is because of finger placement on the keyboard and his thoughts are extremely cogent and very competent.
Your thinking on the other hand is balderdash.
kderosa:
“What I object to is your copying and pasting of thoughts you aparently have little understanding about, which we shall examine presently.”
Are you implying the veracity of his claim to a legal education?
@KD: Well I’m just a man, honey, and that is the nature of human thought, it is full of error and irrelevant associations, and that error cannot be trained out. Neurons are a messy and inaccurate business, and a hundred billion neurons can be very, very wrong indeed. Golly, it sure seems like we talked about this when you were in middle school! But maybe my memory is wrong, it isn’t perfect.
The trick, of course, is recognizing that imperfection in ourselves. Mark Twain said, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.”
Pretty funny, huh? (Of course sometimes it IS what you don’t know.) The lesson is, when somebody tells you they know something for certain, even if it is your Daddy, or Jefferson, or Locke, or Rousseau, or Newton, or Einstein, well maybe they think it is certain, but maybe they are wrong, or they got tricked, or some people will say they are certain when they are not, because they want to trick you into doing something.
So you see what we need, little darlin’, is a way to guard against error, and to realize that even if we are so sure we are right, we should think about what happens if we are wrong, and what we could do now to minimize the damage just in case we ARE wrong.
There are lots of ways to do that. Skepticism is one way Daddy taught you, and tracing ideas back to their underlying assumptions to see if you agree with them, that is another way, and just studying and understanding the myriad kinds of errors that people have made that got them into trouble is another, and learning to detect when people are lying in order to trick you or manipulate you is another. As you grow up you will learn all these different ways of helping you see the truth of things.
So we don’t have to worry if our thoughts are confused, or sloppy, or unfocused. Once we realize that will always be true to some extent, what we need is ways to filter out the errors and mistakes in our thinking, to refine them, so that what we present on the outside —- our decisions and actions and reasoning and statements —- reflect the most probable truth, which is another way of saying that we are the least likely to be wrong.
But nothing is ever 100%, princess. Daddy has been wrong many times, and as you grow up and mature, you will be wrong many times. You need to be brave and admit your errors, at least to yourself, because understanding your errors in their exact and embarrassing detail and the harm they caused you and others is the first step in not making the same mistakes again and again and again. That is what your Daddy wants for you when you grow up, that you are right far more often than you are wrong, and when you are wrong, it isn’t a total disaster. It is up to you, cupcake, it all happens inside your pretty angel head.
@TonyC, so what’s your excuse for your cluttered, sloppy, error-filled, unfocused thoughts?