Column on Kelo & Utlitarianism

[Please edit/proof read this column closely. Tibor Machan]

Kelo & Utlitarianism

Tibor R. Machan

If one judges by the Declaration of Independence, the American political
tradition is clearly an instance of affirming the merits of rights based
political theory. Rights based political theories consider justice in
terms of whether a legal order establishes, maintains, upholds the rights
of members of a community, that is to say, principles that identify the
sphere of authority of these members, wherein they are in charge of making
decisions, regardless whether these decision achieve certain desired goals
of leaders, majorities, God or some other aget apart from the individual
involved. Just as in the case of the right to freedom of speech, rights
based law is concerned not with whether the exercise of a right is
agreeable or good but with making sure that the right is protected--I may
disagree with what you say, but I will defend your right to say it.

A different approach to political theory is propsoed by utlitarians or
consequentialist who hold that a just or good society is one that promotes
certain values and rights are subordinate to these values--only if the
respect for and protection of the individual's right to, say, private
property or freedom or religion leads to more of the desired or desirable
values than does the violation of such a right does the right deserve to
be respected and protected.

There has been a widespread and ongoing debate among defenders of the free
society about whether a rights based or consequentialist political theory
is sound. Some of the debate is a bit extreme in that thw two sides appear
to have absolutely nothing in common--rights based theories are supposed
to care nothing at all about whether anything good comes of a society
based on rights, utilitarian or consequentialist theories are supposed to
care nothing about principles and individual liberties. But there are more
compatible versions of the two positions, as well. Some rights based
theories admit that, in the end, one of the main points about respecting
and protecting individual rights is that such respect and protection is
the best approach by which individuals can purpose their proper goals in
life--e.g., their happiness, a virtuous life, and so forth. But, of
course, the rights are necessary for them to do their own effective
pursuing of these goals, which is essential for the value of such pursuits
and even
for the achievements of the values. A happiness isn't worth much if it
isn't the result of the choices and decisions of the individual whose
happiness it is supposed to be. At the same time, many consequentialists
admit that values should be pursued in a principled, orderly fashion and
indeed one cannot really effectively achieve values helter skelter,
without paying close attention to principles. So the two schools are not
all the far from each other, yet they do emphasize different issues of law
and public policy.

In the infamous Kelo v. New London City, CT, case the US Supreme Court
ruled, narrowly, in favor of a consequentialist or utilitarian approach to
American law and public policy. It said, basically, that if the goal of
economic development--which without argument the court accepted as a
highly desirable goal for members and representatives of communities to
pursue--is advanced, individual rights--in this case to private
property--are to be violated. This, clearly and unambiguously went
contrary to the principles of the Declaration in which individual rights
are identified as unalienable and government taken to have as its proper
goal to secure these rights. So on that score there is little that can be
reasonably disputed: the court sided with the consequentialist-utilitarian
side in the famous and ongoing classical liberal, libertarian debate.

It is, of course, an interesting question whether so siding the court did
the right thing--in other words, which side of the old debate is correct.
My only point here is that few if any commentators--and I have read quite
a few of them--have made note of this point, namely, that
consequentialism-utilitarianism has conquered the majority of the court.
Actually, quite a few of those who objected to the Kelo decision are
themselves closely aligned to this group of classical liberals and
libertarians than to the rights based group. I am curious why they didn,
then, champion the court's decision.