Excellent Post and Comments at Cafe Hayek

Russ Roberts made reference to David Rose’s good work in his post Justice and the Rule of Law at Cafe Hayek.  The comments section was good too.  Key paragraph from Rose’s work:

But a consequentialist judge would look beyond the law and consider the insurance mandate’s impact on society. Using this criterion, the consequentialist judge might see the mandate as a “benefit to public health” and a “compelling state interest.” Such thinking would lead to a loose interpretation of the Commerce Clause and an affirmation of an unprecedented loss of personal liberty in America.

Commenter MichaelSmith writes:

“Consequentialist” — at least as it is being used in this context — essentially means “collectivist”. It is an effort to obliterate the concept of individual rights in the context of evaluating the Constitution by substituting, instead, the thoroughly collectivist notion that “the public good” — or some similar allegedly superior “right” of the collective — trumps and cancels individual rights.

Collectivism is invoked for a single reason: to justify the power to sacrifice some individuals for the sake of others.

As Ayn Rand explains:

Since there is no such entity as “the public,” since the public is merely a number of individuals, any claimed or implied conflict of “the public interest” with private interests means that the interests of some men are to be sacrificed to the interests and wishes of others. Since the concept is so conveniently undefinable, its use rests only on any given gang’s ability to proclaim that “The public, c’est moi”—and to maintain the claim at the point of a gun.

How did we did we stray from the Constitution so that Government could sacrifice some individuals’ rights for the sake of others?  The Constitution is about protecting our liberty and rights from abuse from others, including government.  Yet government has co-opted the power as Ayn Rand says, “that the interests of some men are to be sacrificed to the interests and wishes of others.”

Two parts of the Constitution seem to be the source of this divergence.  These are commonly referred to as the Welfare clause and the Commerce clause.  Both appear in the section that defines the powers of congress.

The Welfare clause appears in the first sentence of the section.

Article I, Section 8 – Powers of Congress: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…

The Commerce clause comes just two lines below:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

As vidoyhs points out about the Welfare clause:

It does not say to provide for the welfare of specific people or specific groups of people, it says the United States.

vikingvista makes an excellent point:

So, by that overtly false interpretation of “general welfare”, the CotUS has no meaning or purpose. Under that interpretation, the rest of the CotUS is a waste of paper and ink.

Very true.  What meaning does the rest of the the Constitution if Congress can pretty much pass whatever law it deems will be for the greater good, even if it’s not really?

Timothy Cullen’s great point:

It’s not that consequentialist thinking is wrong or dangerous; its that many who engage in it don’t consider all the consequences, they only look at the intended consequences for some groups.

vikingvista responds to Timothy Cullen:

It [consequentialist thinking] isn’t, in a very general sense, always wrong. What is wrong is disregarding the CotUS, and that is what consequentialist justices and politicians do all the time, when consequences take precedent over the CotUS.

Finally, vikingvista sums up the underlying problem rather well:

The REAL problem then, is simply the concentration of coercive power. Since coercive power is the major threat to liberty, advocates of liberty should AT LEAST always oppose its concentration.

Well written gentlemen and (maybe) ladies.  I learned some things from this or perhaps crystallized a few thoughts.  That’s one of the great benefits of the internet – I get to learn from others all the time.

The lure of consequentialist thinking is strong.  Thomas Sowell refers to it as cosmic justice.  We exhibit our support for it when we watch movies and root for the hero to dispense with due process and to act as the villian’s judge, jury and executioner.  It feels good.

And sometimes it seems right.

That’s one reason the citizens of the country have let it happen for so long — it seems right.  Especially when a smooth-talking politician or a well learned judge (as if these people know actually know better than you or I) make a persuasive case for us that builds on the intended and seen positive benefits.

The problem here is two-fold.

First, no matter how good we think it sounds, no matter how good it will make us feel to approve of such cosmic justice, it truly is not within our power to do so, by design.  For very good reason the commenter pointed out – we should not sacrifice the rights of some for the benefit of others.  That leads to bad things.

This was good parenting by the Founders.  If you see a problem, fix it through voluntary action, not force – or someday you will be shocked at how little legit voluntary action you will have left to exercise.

At its core, it’s no different than us deciding to take something from our neighbors house to give to someone else we think needs it more.  No matter how good your intentions, that’s stealing.

The second part of the problem is that we rarely, if ever, consider the unseen consequences of the action or give good judgment as to whether the good intentions were actually achieved.  For example, in a Letter to the Editor yesterday a writer criticized the education system for falling behind in quality, but then suggested that we increase taxes to keep teachers employed.

Many people would like nod their heads in agreement.  But, that’s like rewarding a child for bad behavior by giving them ice cream.  It reinforces the undesired behavior.  That’s bad judgment.   We would get more of the same.


1 thought on “Excellent Post and Comments at Cafe Hayek

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