"Rights Consequentialism" and McDonald

The title of this post is something of a contradiction in terms. In moral philosophy, "rights" tend to be associated with deontologists, who regard morality as a series of duties that exist independent of their consequences. The arch-enemy of deontology is consequentialism, the belief that the relevant target of moral evaluation is the consequences to be achieved, rather than means used to achieve them.

I tend to fall into the consequentialist camp, and I feel that my legal and political philosophies must track my moral ones for my theories to be internally consistent. Yet, I am something of a libertarian at heart, and I put a great deal of emphasis in my personal legal philosophy on rights and liberties. This can be reconciled through a form of "rule consequentialism"--the theory that the relevant target of moral evaluation is the consequences of the rules by which we guide our actions. As I argued in my senior thesis (inspired by my advisor), the best defensible form of rule consequentialism (which I dub "sophisticated consequentialism") is one in which the appropriate level of generality for the rules is the one at which human cognition is too slow or imprecise to evaluate the effect of increased rule complexity.




This brings us to rights. I do not believe rights are valuable in and of themselves. A right is valuable only insofar as it furthers the consequence it is designed to achieve. Thus, any true discussion of rights is also a discussion of values--what values underlie the right such that we can evaluate whether the right is "doing its job."

This is effectively what the Supreme Court does in its role as a constitutional court when it hears cases involving rights. This is the reason why simple but ambiguous text in the Bill of Rights lends itself to complex tests, exceptions, and exceptions to exceptions that law students have to memorize. What the Court is doing in such cases is fine-tuning the rule to fit with the appropriate underlying values.

However, herein lies a problem. As Justice Souter identified in his recent speech, there is not one value underlying our rights. Indeed, every right in the Constitution is a balance of competing values, with the vague and ambiguous language being the result of the compromise between the champions of those values. For example, as I learned the history of the Fourteenth Amendment, the lofty and vague text of the Amendment was ratified because Republicans were certain that it could be used to create racial equality and Democrats were certain that it could never be stretched to achieve those ends. What, then, is the "goal" or "value" behind the Fourteenth Amendment?

Obviously, different values underlie different provisions of the Constitution, and my interpretation of a constitutional provision will be motivated by a form of "rights consequentialism": How well is the right doing its job? Given that the Constitution is an amalgamation of competing values, one's "judicial philosophy" is just to what degree one thinks each of those values important. Justice Breyer champions the value of democracy. I tend to put the values of self-government, personal autonomy, and self-actualization above others when they are present.

The oft-cited "Lochner-era" is an example of such rights consequentialism. The Lochner era was a time roughly from 1897 to 1937 when the Supreme Court struck down virtually all worker-protection legislation, including minimum wage and maximum hour laws, as a violation of the "liberty of contract." In the abstract, there is nothing absurd about such a right, and several provisions of the Constitution point towards such a right. The prohibition on states "impairing the Obligation of Contracts," combined with expansive language in the Ninth and Fourteenth Amendments could well support such a right. However, the Lochner era is today almost universally reviled, and it was swept away in the constitutional blink-of-an-eye in 1937.

There have been many theories as to why Lochner (which ruled unconstitutional a New York law mandating a maximum work week of 60 hours for bakers) was wrongly decided, but my personal view is this: The "liberty of contract" simply wasn't doing its job. A right "designed" to protect the autonomy and dignity of the human actor was being enforced so as to impoverish and demean working classes. The enforcement of the liberty of contract was undermining its own values.

It is not often that the Constitution states explicit what values underlie a provision, but one of those rare instances is the Second Amendment. As I elaborated upon at great length in my previous post, the value underlying the Second Amendment is security--security in the ability of a free people to throw of the chains of oppression and security (as the Heller and McDonald majorities emphasized) in defending one's home. There are other values--e.g. a value of individualism that underlies a great deal of American history--but security is the major one.

So, a rights consequentialist like me has to ask the following question in deciding how to interpret the breadth of the "right to keep and bear arms": How well the right is doing its job? And the answer, in my opinion, is "not very well." Given the number of gun-related homicides every year in this country, it is hard to argue otherwise. And I have seen no evidence that widespread gun ownership reduces state oppression rather than simply making encounters with police more deadly for all parties involved.

This is not to say that I propose widespread federalized gun control as a policy matter. On the contrary, this is a perfect area for state regulation. Just as many states have much stricter search-and-seizure protections than those afforded by the Fourth Amendment, a "weak" interpretation of the "right to keep and bear arms" would allow states to have much stronger gun rights than those afforded by the Second Amendment. My suggestion is that, given the danger inherent in a strong Second Amendment, that the Amendment be interpreted weakly, so as to let the states that face the brunt of firearm violence control that scourge as they see fit.