Rights, consequences, and the counterfactual functions of SCOTUS

I was thinking the other day that my political intuitions and my moral intuitions are totally out of whack. I know there’s a huge literature on the connection between political theory and moral theory, and I know exactly none of it. My philosophical specialties are philosophy of mind and aesthetics. I know less about political theory than I do about ethics, logic, metaphysics, epistemology, and philosophy of language. I did hear of someone recently who specialized in philosophy of nanotechnology. I probably know more about political philosophy than that. But not all that much. So these musings are extremely ill-informed, but what the heck. I’ll share them anyway!

My ethical leanings are reasonably anti-consequentialist. That is, I don’t think what makes shoplifting a soda right or wrong is a matter of consequences or the unhappiness it causes. I lean toward virtue ethics, or a blend of virtue ethics and Kantian ethics. What makes something right or wrong are the character traits it manifests and develops (virtue), or the degree to which it fails to respect a person’s dignity (Kantian). That is, what makes shoplifting wrong is that it exhibits greed, inflated self-centeredness, and lack of sympathy. And it fails to respect the shopkeeper. It does all this even if the shopkeeper never finds out and is never made unhappy about it.

So the other day I was thinking about why I am not a libertarian. Libertarianism kind of matches with Kantian ethics. It seemed to me that the consequences are so terrible if one is wrong about being libertarian that it was too much of a moral risk to be libertarian. The comments on Alex’s interesting open thread suggested that we are far from certain about how we know which rights we have. There seems to be some connection to moral reasoning, but it’s not clear how. If libertarians are right, then of course a wrong is committed by, say, demanding people buy healthcare. But let’s say libertarians are wrong. You actually don’t have a right preventing citizens taking your property against your will in order to promote greater well-being. Then people will die who would not otherwise die. And it seems to me that the moral risk of violating a right by taking some of someone’s property is much lower than the risk of letting people die.

Also, if we have a right that the government not take property without permission, even if it promotes greater well-being, it should presumably always be enforceable. Which means any tax whatsoever is wrong. That is not a world I would care to live in. Unless I’m damn sure that we really do have a right not to be taxed, I’m going with taxing. And if we tax at all, why limit it simply because it partially respects a right? Aren’t rights absolute? If we think there’s no right not to be taxed, why don’t we tax until the greatest well-being is achieved? In practice, in order to drive competition, I’m guessing that won’t be Sweden high.

Of course, the whole point of libertarianism is that there are some things a government cannot do even if most people, even if everyone would be better off. But, again, how do we know that we have those rights and what we are?

So, in the end, my political feelings are entirely consequentialist. I am pretty much always in favor of pragmatism rather than idealism driving policy. Whichever form of government that promotes the greatest well-being (NB: by which I mean flourishing or eudaimonia, NOT the greatest amount of pleasure) is one that seems less risky.

Then I thought about why I do favor some rights. For example, the government really ought to leave you and your property alone unless it is clearly justifiable for the promotion of the greater good (and I thought Kelo was an overstep). And democracy is pretty good. And it’s nice that you can criticize the government without fear of retribution. When I think about why I support those rules, though, it’s because those sorts of rules tend to promote the kind of society where well-being can reach its maximum. Really, it’s rule-utilitarian.

So, my first question is, is this a mismatch? Do I have to do some serious re-jiggering of either my ethical or (more likely) my political view? I tend to think I don’t for two reasons. But I’m really not sure, and if I still have any readers of this post who’ve made it through this far, I’d love to hear from you.

First of all, the government is not a person. Rights and duties are supposed to be correlative. People have rights in virtue of respect for their rationality (or other cognitive qualities). The government, as a body, doesn’t have rationality (ha!) or cognitive properties. So can it have duties to us? Even if there’s some way to say that it does have duties to us, are they the same duties a person has to us? We certainly don’t have the same duties to government that we do to a person! For example, we don’t respect its autonomy – we try to interfere to make it suit our preferences, whether those preferences are ideological or pragmatic. We try to set its ends for it.

Second reason is that the moral risk is much lower respecting rights in person-to-person ethics than in government-to-person ethics. Kantian ethics does a halfway decent job of capturing our moral intuitions. When followed by people in their everyday lives, untoward consequences usually do not occur. So we don’t incur a risk by respecting Kantian moral rights.

My second question is of less moment, perhaps. Assuming a government like ours, except explicitly pragmatic rather than rights-protecting, I was trying to think about what the job of a Supreme Court would be. I suppose it would be a fact-finding body that judges whether laws really do promote well-being. Then I thought about all the complaints I hear about the politicization of the court from both the left and the right. The fact that judges are reliably split right and left (which one would not really expect if their job is really pure fidelity to the law) indicates one of three things, it seems, and I’m not sure which it is. 1) The judges are (consciously or non-consciously) consequentialist wolves in Kantian sheep’s clothing, judging cases such that they ensure the outcomes they want with a mere pretext of rights protection, 2) COnservative and liberal judges honestly have a different conception of which rights ought to be protected, or else which rights trump which other rights. Which is, I suppose, what they would say. Or 3) The conservatives of the court adheres to rights protection, the liberals more interested in pragmatism.

It is such a happy thing for me that readers of my blog know more about a lot of this stuff than I do. Would love to hear any related thoughts.

Rose Woodhouse

Elizabeth Picciuto was born and reared on Long Island, and, as was the custom for the time and place, got a PhD in philosophy. She freelances, mainly about disability, but once in a while about yeti. Mother to three children, one of whom is disabled, two of whom have brown eyes, three of whom are reasonable cute, you do not want to get her started talking about gardening.


  1. It is such a happy thing for me that readers of my blog know more about a lot of this stuff than I do.

    If only I were one of them…

    Anyhow, I’m not going to wade too deeply into your first question, other than to say I think you thread the needle well.

    And I go with answer 2 for your SCOTUS question. Assuming the moral and intellectual integrity of the Justices, I think they have a different understanding between them of which rights deserve more weight and which less. But I do think the liberals tend more toward pragmatism than the conservatives.

  2. “That is, I don’t think what makes shoplifting a soda right or wrong is a matter of consequences or the unhappiness it causes…It does all this even if the shopkeeper never finds out and is never made unhappy about it.”

    Eh? You seem to be misinterpreting consequentialism, here. Maybe it’s just a matter of only giving it a brief treatment in this post.

    It doesn’t matter if the shopkeeper finds outs about the shoplifting itself and becomes unhappy (or loses whatever matter of utility you choose to track) because he knows about the shoplifting, but rather if any consequence of the shoplifting causes the shopkeeper to become unhappy. When the shopkeeper discovers they have less money and/or less inventory than they would if no shoplifting occurred, they presumably are unhappy about that. The loss to the shopkeeper is small for a single stolen soda, of course, but so is the gain to the shoplifter.

    • Oops. That “and” should be an “or.” And it is pretty confusingly worded. Proofread, Woodhouse, proofread!

      • Ahh, I see. I think what you wrote is actually grammatically correct for what you meant (if not totally clear, at least to me, obviously), I just didn’t get it.

      • Although, in that case, I think you’d find that the vast majority of shoplifting cases would also be forbidden by most formulations of consequentialism.

        • Oh, totally. You often get the same moral judgment as Kantian. That’s why I think it’s less risky.

  3. Assuming a government like ours, except explicitly pragmatic rather than rights-protecting, I was trying to think about what the job of a Supreme Court would be. I suppose it would be a fact-finding body that judges whether laws really do promote well-being.

    This might not be the kind of response you were looking for, but it could serve as the final court for interpreting the law, even if we did not have a rights-protecting (and, I assume you also mean to include separation-of-powers protecting) government. Lower courts will almost inevitably adopt interpretations of at least some laws that are at variance with others, and a Supreme Court could resolve those conflicting interpretations.

    • That’s what our Supreme Court does. We don’t have a Constitution or Bill of Rights so there’s no legal basis to challenge laws Parliament passes. The Supreme Court will occasionally review actions by local government or the executive branch, judging their actions by the powers the laws empowering them, but otherwise has no role in the governing process. Instead our Supreme Court functions principally as the highest court of appeal.

  4. My argument is more of a… well, I hate to use the word “wager”…

    The punchline to the setup is some vague tension between the silver rule (where I lean most heavily) and the golden rule (where I try to avoid going if I possibly can). This basically means that I try not to bug anybody for the most part… but, on occasion, I see a situation or dynamic where I am willing to say “if I were the weaker party in that dynamic, I would want someone to intervene on my behalf”. I’ve been messed up by that last one, however, and much more often than I’ve successfully helped another.

    For the most part, my Libertarianism comes from a place of how I wouldn’t want to interfere in the life on another in a way that I hate when they interfere in mine… and, so far, that’s included not adopting their tactics (involving coercion) to get them to stop interfering.

    • I suppose I should also point out that I don’t have any kids. I understand that having children can change the way one sees a relationship to authority.

      • I actually don’t think having kids changed my political views that much, if at all. And although I believe that the government should be able to tax us for, say, healthcare, I hesitate to call myself liberal or left. I think Burke is absolutely right about unintended consequences and to be very wary of top-down re-jiggering.

  5. 1) There’s a principle-agent problem regarding the ones allowed power to pursue the common good as you see it. Simply put, they can lie. I don’t see how that can avoid clashing with rights in some form — it’s said that something they’re doing is a public good, you disagree, we’re back to an argument where either they get their way or you reject their authority.

    2) If there are no rights to protect, and it’s all a matter of pragmatism, what is the point of a Supreme Court at all? The rest of the government would simply decide and be done with it.

    re: your follow-up about why the Court is reliably split: your 1st view is the correct one, IMO. They could care less about the actual question, they have their boxes they want to check mark & they mark them. Once in a blue moon their preferences conflict internally and you get something like what Roberts did the other day or what the right wing of the Court (minus Scalia — squashing the Damn Hippies outweighed federalism for him) did in Gonzales v. Raich.

  6. Rose, eudaimonia IS at the heart of the American scheme of rights—which you may have noticed in Alex’s discussion is different from the other schemes.

    The Declaration of Independence is a natural law document, liberty is a necessary component of eudaimonia, “human flourishing,” the “pursuit of happiness.”

    What nettles me is that so few people even understand our system of rights and the philosophical premises that ground our lives and liberty. Our civic education has so largely failed—and we both know why. Our educators despise those premises.

      • Tom’s making a futile attempt to put the Bearded Guy back at the controls again using the long-discredited fulcrum of Aristotle.

        It won’t work, of course: the Bearded Guy has delegated the task of being the Light that Shines in the Darkness to human beings who don’t always behave rationally. Furthermore, everyone has his own definition of Flourishing.

        There’s a verse in the Book of Judges: In those days there was no king in Israel: every man did that which was right in his own eyes. The Eudaimonia crowd wants to tell us to behave like so many hobbits: “They have seldom even heard of the king round here…”

    • Do you think that there’s a difference between government promoting happiness and goverment promoting the pursuit of happiness?

      • A necessary distinction, Rose. The latter is a component of “liberty.” If not life, as eudaimonia understands the best life.

        That was my main point, the other one being, yes, our educators expect to boot “endowed by their creator”—and if you read the FP discussion, “unalienable rights”!—and get the same results.

  7. Given human nature, a government designed to promote well-being while being tightly bound by the restrictions implied by individual rights is actually quite pragmatic.

    Our nation was founded by individuals with a healthy respect for both the good and harm a government can cause to its constituents.
    Defining inalienable rights in advance might serve as a necessary hedge against a range of possible abuses. Surely it surprises none that well-meaning people often make very bad decisions, and that furthermore power has a corrupting influence upon those who wield it, even for the public good. Those inescapable facts of human nature make it very risky indeed to design a government to (nominally) seek the single goal of pragmatic promotion of the common good. A strong system of rights is necessary to guard against massive harm, even if it occasionally requires us to miss an opportunity to do significant good.

    As for taxes being an all-or-nothing proposition, that’s just silly. Without LIMITED surrender of rights to government, the concept is meaningless, and without some source of funding, it’s not much better. So if you believe a government is of any value whatsoever, taxes (and a host of legitimate ways to use them) are required. Though it’s useful to view human rights as absolute (because it encourages us to respect them), they obviously cannot be truly so in a governed state. Our relationship to government is a trade-off, and government deserves a fair bit of respect as the vehicle by which we promote the well-being of ourselves and our neighbors. From there, it’s a question of balancing the (necessary, limited) ways in which we cede individual autonomy to the government with the (equally necessary) limitations we place on that government to ensure it doesn’t do more harm than good.

    • Oh, and I meant to add, obviously the Supreme Court, in this scenario (which I hope approximates our actual state), is required to ensure that the other branches of government respect their limitations.
      No specific judgment on my part is offered on whether they correctly played that role in any recent decisions — that’s just what they’re supposed to have done. Because individual rights (in a governed state) cannot functionally be absolute — despite their immense importance — that these are tricky questions, and reasonable people can disagree. The fact that those disagreements so often track party lines is disturbing, and the fact that it may reflect a widespread increase in political polarization is doubly disturbing, but that may just be part of human nature, too.

    • Rights are rights in virtue of their disregard for consequences. They are things you must do or may never do even if it yields better consequences. So if you say that we have rights except where the consequences are too unpleasant, then we are not talking about rights any more. We are talking something like rule-utilitarianism…rules that are in place because we are better off with rules. So you could have a lot of government-limiting rules on rule-utilitarianism.

      • Now, while I will readily admit to not having the background, training or experience to take up a Serious Discussion of The Definition of Rights, I feel like I’m working with a valid concept here. Let me explain myself, with the implicit understanding that I am quite ready to be schooled by you or by other commenters better-educated and/or smarter than myself — I just don’t think we’ve gotten there yet.

        It seems clear to me that that no government can exist without placing limits on individual autonomy. For that reason, if you’re having a discussion of the relationship between individual rights and governments, there seems to be very little to say if you presume absolute inviolability to be necessary component of anything we will call a ‘right.’ It also seems no government could function or even exist if it were actually structured on an absolute definition of ‘rights.’ Basically I think you imply exactly this dichotomy in your original paragraph about taxes.

        I guess you can get around that by setting up very particular definitions of rights (i.e. citizens have a (potentially unlimited) number of specific rights not to be taxed when the tax is associated with some things, but do not have similar rights to not be taxed when the tax is associated with other things. That might be what you’re saying, but that seems an odd way of understanding rights.

        And BlaiseP — what you got against hobbits?

  8. Protecting property interests is the basis of our government. I forget where it says that, but to paraphrase, it is for the purpose to protect property that governments are instituted.
    The view of rights has been evolving for some time, notably in the civil rights act of 1871. One of the big divisions here is whether “persons” are protected or merely “classes of persons.” I think the Left is far more likely to move to protect classes of persons and completely ignore persons.
    Too much emphasis is placed on the hot-button social issues. If you step back, you can see that exerting ever-more governmental control is the common theme among the SCOTUS.
    For example, the ‘enterprise’ requirement in RICO cases. For many years, people who were victims of serious felony crimes under the federal code had any means of redress summarily dismissed; in fact, the courts seem to resent the idea that Congress allowed a specific means of redress. A lot of that had to do with the ‘enterprise’ require of RICO– that the enterprise must be separate from the pattern of racketeering activity. Some circuits even ruled that the enterprise must be conducted like a business.
    That changed with the Boyle gang, a group of bank robbers whose membership shifted with each heist, and had no formal organizational structure. When Mr. Boyle appealed his racketeering conviction to the SC, come to find out that sometimes the enterprise is expressed in terms of its pattern of racketeering activity.
    The courts bend over backwards to convict people of crimes with little regard for rules or law, but they are typically weighted against recovery in a civil matter.
    What do you think of DUI checkpoints? Is stopping people just for the hell of it, “Because they were there!” a reasonable search?
    Think of how many times you’ve heard about someone locked up for years being freed on DNA evidence.
    Courts love to convict; and when you get right down to it, it doesn’t matter how.
    I’ve been reading about the civil rights acts a bit. Some terrible decisions from the 2nd circuit, going out of their way to find no manner of liability on the part of the NYPD in some fairly egregious instances of wrong-doing by the police back in the late 70’s, influenced the jurisprudence of 42 USC 1983 quite a bit in a regrettable way.
    With 42 USC 1985, the big issue was whether civil rights violations from purely private actors were actionable. It took the court a long time to decide that the phrase “or go in disguise on the highways” probably wasn’t referring to state authorities.

    I was never really concerned with police brutality either, until I watched as they lined up a firing squad and gunned down a man I had known for 11 years.
    I was never really interested in judicial misconduct until I saw a state court, without hearing, modify the automatic stay in a bankruptcy to prevent the investigation of assets where concealment and alienation of property was rampant, and then act to retaliate against the informant.
    Any generalizations I might make from this have yet to gel properly.

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