"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.

More on Guns

I want to elaborate further on an idea that I raised in my previous post. The trouble that rights-minded people like me run into when we argue against certain rights is that we have to explain why we are absolute in the protection of certain rights, willing to compromise on some, and against the protection of others.

"A well regulated Militia, being necessary to the security of a free State...." Read in the expansive way I interpret rights, I must read the prefatory clause of the Second Amendment broadly. Accordingly, I read the world "security" broadly. Security means security against the tyranny of the federal government, and, after the 14th Amendment, against the tyranny of state governments. It also means local policing, as this was another function of the 18th century militia. It means defense of one's home and one's neighbor's home. As one of my law school professors explained, there is a pattern in the first four Bill of Rights. The First Amendment starts with religion—our innermost thoughts—and moves outward to personal speech, press, and assembly. The Second Amendment reflects a desire for protection of our persons. Moving outward again, the Third Amendment is a protection of our homes, and the Fourth is a protection of our effects.

A Theoretical Constitution in a Practical World

"In theory, there is no difference between theory and practice. But in Practice, there is." - J.L.A. van de Snepscheut.

In theory, today's opinion in McDonald v. Chicago (PDF) was absolutely correct. As I have argued elsewhere, the prefatory clause of the Second Amendment, "A well regulated Militia, being necessary to the security of a free State," does not provide the outer obvious boundaries for the Second Amendment's reach. Briefly, what primarily concerned the Framers in writing the Second Amendment was protection from a tyrannical government that sought to impose law by force rather than by functioning self-government. But "security" is not so simple a concept: The people of a state have the right to self-preservation as against all enemies—foreign and domestic, governmental and non-governmental. In an era of less-than-modern police forces, communities relied on their individual right to keep and bear arms for this security.

A Living Constitution

From Justice Stephen Breyer's Active Liberty (emphasis added):


"[The Framers] wrote a Constitution that begins with the words 'We the People.' The words are not 'we the people of 1787.' Rather their words, legal scholar Alexander Meiklejohn tells us, mean that 'it is agreed, and with every passing moment it is re-agreed, that the people of the United States shall be self-governed."

The Agony of Ross Douthat

I had high hopes for Ross Douthat. After William Safire left the NYT op-ed page, we suffered through having Bill Kristol as the conservative voice on the Times. Now, we have Ross Douthat, who I thought could bring a young, intelligent conservative voice to the paper.

Unfortunately, Douthat seems to be more interested in delivering blanket generalizations that are entirely divorced from reality. This week's column, "The Agony of the Liberals," exemplifies that. Douthat argues that liberals are disillusioned with Barack Obama, and this is because certain vices and unrealistic beliefs make liberalism a dying theory.

Supreme Values

Last semester, I took a course entitled "The Art of Appellate Decisionmaking," taught by Judge Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit. Judge Edwards took great pains to describe to us what the role of the appellate judge truly was. In the Judge's opinion, 75 percent of the cases he hears are "easy" cases; the outcome is clearly dictated by law or precedent. Another 20 percent, he said, are "hard" cases; the law is unclear or ambiguous, precedent is not directly on point, and there are considerations that point towards different outcomes, but ultimately one outcome is much more favored by existing state of the law. (And note that appellate judges are bound by the law of their Circuit; a Circuit Court of Appeals must rehear a case en banc, with every judge on the court hearing the case, in order to reverse its precedent.) The last five percent are the "very hard" cases; in such cases, the various interpretive factors judges use are unavailing or in equipoise. In such cases, judges hit the Hartian line where "law runs out," and they must rely on other principles to guide them to a just decision.

The sun also rises, and the sun goes down, and hastens to the place where it arose...

Right now, the top three stories on the New York Times homepage are Israel and Gaza, anti-abortion laws coming out of state legislatures, and the ever-increasingly more depressing Deepwater Horizon oil spill.

And I think, Is it 2010, or 1980? Or 1970? Or 1960?

David Brooks Sees Complacency Where He Should See Corruption

In his column "Drilling for Certainty," David Brooks writes a very traditionally Brooks column: He identifies a real and interesting problem, completely misses its important causes, and fails to provide any sort of solution.

I would be the first to agree with all his premises in the column: Human beings are indeed very bad at risk assessment, risk assessment does get more difficult as the world becomes more complicated, and poor risk assessment can lead to disasters on the scale of the Deepwater Horizon oil spill. However, if the ever-increasing complexity of the world is a problem, we have to either find a solution or forsake technology.