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?
Swarthmore mom,
I second raff’s wishes for you to have a good time in Colorado. Hopefully it will be much cooler temperatures than Austin.
AY,
I guess you are correct!
Have fun in Colorado Swarthmore!
Oh the irony.
Back from Austin, Blouise. It was hot but had a wonderful time and am in a very good mood. Off to the the mountains in Colorado in a week.
rascal,
You have attempted to hijack another user’s identity. This is strictly against blog policy. Your comments have been removed and you are blocked from further posting.
Cranky are we?
boring …
You know raff….
They say schizo’s are very seldom alone…they keep each other from getting lonely….but Paranoia will destroy ya….But they exhibit its hard to be humble because they treasure their own company…..
Gene,
You have made some new friends!
He can run but he can’t hide.
Gene…I am sure that Angora would suit Kdponzi well…He could find out who is in charge…Maybe the light will shine on him…Well you know they say that the ones the Midnight train light shine on makes them special….
Evade, l’il Buddha, evade. It’s about the only thing you are good at.
rascal,
You’re someone who’s opinion means even less to me than kderosa’s.
kderosa,
I not only know the difference, I’ve already told you the difference and it comports with Locke. As I said, license is the essence of the rule of law. If the rule of law poses a problem for you, you are free to leave and find yourself a nice lawless wasteland. I’d give your week survival odds at about 9 to 1 against. If you’d like to make up your own definitions and get back to us, I’d be completely not surprised. You seem to like doing that.
I don’t like that visual.
What you gonna do to the Howington…Spank him…This I got to see….
@Gene Buddha Howington
Learn the distinction between liberty and license and get back to me so we can resume your education.
buddhA
give up the charade
time to pay the piper
“1. You confuse liberties and license.”
Not in the slightest. Liberty is a state of being free to enjoying various social, political, or economic rights and privileges. License is a permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act. License (or forbidding license) is the essence of the rule of law. You saying I don’t understand is not a rebuttal or a history lesson, but it demonstrates that you are squarely against the rule of law.
“2. Your understanding of what the commece clause power is based on subsequent case laws have expanded that power to capture much more than what the original term was meant to cover, i.e, the regulation, nor prohibition, of “trade” between the states.”
It’s called the English common law system and the concept of stare decisis. If you have a problem with that, not only do you have a fundamental lack of understanding regarding our legal system, your only real option is immigration. Once again, you demonstrate that you are squarely against the rule of law. Unless if gives you exactly what you want. Sorry. That’s not how the law works.
“3. Your understanding of Gibbons v Ogden is off.”
Actually my understanding of Gibbons v Odgen is spot on. Commerce is a synonym not only of the word “business” but of the words “intercourse” as well as the words dealing, dealings, economics, exchange, industry, marketing, merchandising, merchantry, retailing, trade, traffic, truck, wholesaling, relates, affinity, application, association, bearing, bond, communication, correlation, correspondence, interrelation, kinship, link, nexus, partnership, reciprocity, relation, relationship, relevance, tie-in, and togetherness. Your attempts to make your own definitions fails again. Your argument on this point is not only semantic, but wrong.
“4. O’Gorman & Hartford Fire”
If you mean O’Gorman & Young, Inc. v Hartford Fire Ins. Co., then your contention that it “really expanded Congressional power, through the N&P clause by adopting a rebuttable presumption of Constitutionality to congressional regulation unless tha action was spcifically prohibited by the Constitution” is total crap. The Brandies Court in O’Gorman held that ‘[t]he statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute.” O’GORMAN & YOUNG, INC. v. HARTFORD FIRE INS. CO., 282 U.S. 251, 258 (1931).
In other words, unless a law is prime facie unconstitutional, you must prove that it is.
Why how dare the Court demand proof from a claimant who absent a prime facie case bears the burden of proof! They should just take claimants at their word on what the law is, shouldn’t they? If courts did that, there would be no need for trials because the law would be whatever the claimant wants it to be. Hmmmm, that does sound familiar. No wonder you don’t like the ruling in this case. Do you even know how a court operates? It certainly doesn’t sound like you have a clue.
In addition, O’Gorman dealt with the police powers as related to a state law, specifically the police powers regarding enforcing laws applicable to regulating insurance rates. The claimants in the case based their argument on the state law depriving them of Due Process. O’Gorman didn’t address the N&P Clause. It’s about police powers. According to the 10th Amendment, policing powers prohibited from or not delegated to the Federal Government are reserved to the states or to the people. The implication of this is that states do not possess all possible powers, since some of these are reserved to the people and delegated to the Federal Government. People with a legal education file that under “duh!” All the O’Gorman decision did was say that the State of New Jersey had the right to regulate insurance rates how they saw fit and unless the claimants could prove a Due Process violation on its face, they had to bear the burden of proof of proving that the law was a Due Process violation.
The audacity!
“5.” Repeating your still wrong argument about the nature of Carolene Products does not make it correct, but simply repetitive. This paragraph offers nothing of substance that hasn’t already been sufficiently rebutted so I’m going to treat it like the repetitive gibberish that it is and ignore it.
“6.” You offer no proof, only opinions. Wrong ones at that considering that the First Bank of the United States was indeed founded, a fact that squarely indicates that Hamilton did indeed win the day. As this is merely your opinion and not fact, it’s not worth addressing.
“7. You misunderstand my point about having unelected judges making policy decisions, which are the rightful province of the legislature.”
I don’t misunderstand a thing. You misunderstand democratic process as it relates to judicial and legislative process.
“8. Your bolded quote of O’Connor merely indicates that O’Connor was simply following the Courts accumulated butchering of the ninth amendment and N&P clause and had accepted the usurpation of Power of the juciciary and the legislature from the unenumerated retained rights formerly enjoyed by the people.”
No, my quote of O’Connor (from the dissent) clearly says that 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. That she elsewhere indicates agreement with you over the use of the Commerce Clause to intrude into intrastate commerce is irrelevant because she was once again in the minority dissent in Garcia. If you wanted to use her Garcia dissent, you should have used it in the first place instead of Planned Parenthood v. Casey. That would of course required that you actually understand what you read and not operate off of what someone is clearly spoon feeding you. The law is what the law is as determined by legislation and regulation as viewed and applied through the prism of the U.S. Constitution (or a state constitution as appropriate) and upheld through stare decisis. Your view, and hers, is childishly simplistic as in an ever interconnected world (and economy), very little modern commerce is truly intra-state commerce. If you’re unhappy with the common law jurisprudence, take it up with your state and Federal representatives and attempt to get laws passed that say what you want that can withstand judicial scrutiny if (and in your case more like when) challenged.
Re-education? Your arrogance is as astounding as your paranoia, but not nearly as astounding as your ignorance. As to my earlier prediction that your “history lesson” would be ridiculous, it’s nice to be proved correct.
@Gene Buddha Howington
As is your custom when posting under your various personas your argument rests on many faulty premises:
1. You confuse liberties and license. Only liberties, both enumerated and unenumerated, are protected under our Constitution. though subsequent case law has eliminated many of the unenumerated liberties from protection except a few that the Court deems to be “fundamental.”
2. Your understanding of what the commece clause power is based on subsequent case laws have expanded that power to capture much more than what the original term was meant to cover, i.e, the regulation, nor prohibition, of “trade” between the states.
3. Your understanding of Gibbons v Ogden is off. Marshall indicated that “commerce” meant “intercourse” as defined in sanuel Johnson’s dictionary (and others) and not manufacture or agriculture. This was the understanding of the term (See E.C. Knight and Carter Coal) up until 1936 when the New Deal Court expanded the term so that the progressive agenda could be enacted. It was not until 1941 in U.S. v Darby that the Court stopped holding Congress to its enumerated Commerce power.
4. O’Gorman & Hartford Fire was the case that really expanded Congressional power, through the N&P clause by adopting a rebuttable presumption of Constitutionality to congressional regulation unless tha action was spcifically prohibited by the Constitution, unlike Lochner which presumed the opposite and required Congress to demonstrate necessity.
5. Carolene Products was, however, still related to ordinary commercial transactions and not the expanded meaning of “commerce” as adopted by the New Deal Court. However, the significance of Carolene Products is that it established the modern theory of constitutional rights which by 1941 applied to both state and federal regulation, as I’ve indicacted above. Basically, it shifted the presumption of regulation from unconstitionality to constitutionality except when an enumerated right in the Bill of Rights was being infringed (or the other two exceptions) and required legislatures to show that their actions were both necessary and prooper. Previously, under Lochner, all rights, both enumerated and unenumerated, enjoyed this protection. So Carolene producst greatly limited the protection of unenumeated rights, effectively didrergarding the ninth amendment.
6. Your understanding of the N&P clause is also off. Madison’s view was the original meaning of that clause as enacted. Marshall did expand the meaning of the clause in McCulloch but not as far as Hamilton had wanted. Hamilton also had lost that argument during the convention. Nonetheless, McCulloch, though it expanded Congressional power to encompass unenumerated powers, still established the means-end scrutiny of the necessity of any such regulation that restricted liberties up until Lochner and until this scrutiny was abandoned in O’Gorman.
7. You misunderstand my point about having unelected judges making policy decisions, which are the rightful province of the legislature.
8. Your bolded quote of O’Connor merely indicates that O’Connor was simply following the Courts accumulated butchering of the ninth amendment and N&P clause and had accepted the usurpation of Power of the juciciary and the legislature from the unenumerated retained rights formerly enjoyed by the people. Of course, O’Connor agrees with my argument as to how the New Deal court expanded federal power:
Garcia v. San Antonio Metropolitan Transit Authority
Your misunderstanding of almost the entirety of basis upon which our system of Government was founded, the original meaning of the Constiition which protected all of rights, enumerated and unenumerated, what a right even is, and what is proper judical review is deep and vast. But I suppose we must start somewhere in re-educating you.