Column on Government Favors

Who Do You Blame For Favors?

Tibor R. Machan

It is one of Ralph Nader's ongoing complaints about American corporations
that they control the American government. A great many on the Left share
this view and so badmouth corporate commerce endlessly. Business
corporations are supposed to possess their enormous control over
government by means of infusing huge sums of money into campaigns, as well
as by doing all kinds of other very expensive favors for politicians. By
getting very chummy with government, corporate managers secure for
themselves lasting friends in most administrations and succeed at
influencing legislation and regulation. Mr. Nader thinks that it is this
process that accounts for most of the ills of our society.

And to a large extent he is right. Anytime some groups of citizens,
especially those with tremendous resources, get up close and personal to
politicians, the standard of equal protection under the law for all of us
is bound to be violated throughout the society. That corporations are more
successful at this than, say, artists--although the latter do manage to
obtain a pretty good share of support--is not mysterious. Business
corporations are economic units brought about by millions of people coming
together and entrusting their wealth to managers of businesses in the hope
that they will prosper from this, which certainly is a good and
unobjectionable idea. When these managers approach government so as to
gain special favors, clearly the system has become corrupted. But who is
to be blamed for this, who is doing something wrong?

Ordinarily if someone tries to bribe a judge or police officer and
succeeds, the major fault lies with these officers of the law. They are
sworn to remain impartial, fair, objective and are supposed to refuse
point blank any efforts to undermine these character and professional
traits that are necessary to the performance of their duties. Sure, trying
to bribe them is a bad thing but taking the bribe is far worse.

Suppose, however, that judges and police officers are officially on record
inviting bribes from people in whose cases they are involved. Suppose the
system, as in the case with those of many foreign countries, is frankly
and unabashedly open to pay-offs and influence peddling. Now those who
approach officials in such a system with more or less successful efforts
to gain favors certainly could not be blamed. It is the system that would
be at fault, and indeed often is throughout the globe. And so it is with
corporate influence on the American legal and political system.

The original idea of the American founders was that governments are
instituted among us to secure our rights. Yet certain provisions of the US
Constitution opened the door to distract government from this proper
task--consider how the First Amendment talks of how we may all approach
government with our grievances, which has come to be interpreted as an
invitation to lobby government for favors. The powers of governments, too,
have departed from those just powers that a government may gain through
the consent of the governed. Instead governments meddle in all sorts of
affairs, especially economic ones, by means of, say, the interstate
commerce clause of Article I, Section 8 of the federal Constitution.

Once a system of law is so corrupted, it is like umpires or referees
opening themselves to influence by players and racers in sports. If they
get the message that it is all right to do so, it is rather curious to
blame them for it. Yes, influencing umpires and referees corrupts the
game but it is the system that makes this possible that's responsible, not
those who take advantage of it. At some point refusing to do so can become
suicidal.

That is just how many business corporations look at the American legal
system: It openly invites them to exert as much influence as possible and
not pitching in can actually amount to professional malpractice under the
prevailing circumstances.

Ralph Nader & his pals on the Left ought to devote themselves not to
business bashing but to
reforming the government so it operates along lines we demand of honest
judges and cops, to not play favorites and to have a system of laws that
makes playing favorites outright impossible, illegal. But then, of course,
he wouldn't have a change to lobby for his own pet projects either and
that is what he really seems to want to do, not clean up the system.

Column on Why Rights Based Systems are Sound

Why are Rights Based Political Systems Sound

Tibor R. Machan

In a previous column I noted that the US Supreme Court's ruling in Kelo
spells a victory for utilitarian or consequentialist notions of just
or good human communities. This is because in Kelo the majority held that
the right to private property may be violated not just for public use,
which is not really an exception to rights but a requirement of a system
in which rights are properly defended, but also for various purposes
private individuals pursue, if these purposes seem to advance overall
welfare or well being. In Kelo, in particular, this overall welfare or
well being consisted of economic development. (Of course, one can dispute
whether this is really so, but that's not the issue--assuming violating
private property rights advances overall welfare, go ahead and violate to
your heart's content, said the court, in effect.)

Is it a good thing that this utilitarian or consequentialist idea of a
just or good society gained headway via Kelo? After all, its spirit is in
clear violation of the political idea sketched in the Declaration of
Independence which took our basic rights to be unalienable, impermissible
to violate for any reason. So is this development in American political
history in which the Founder's notion of justice is abandoned and John
Stuart Mill's and those of other utilitarians (and pragmatists) is
embraced a good thing?

I ardently reject this and here is why: Human beings are moral agents and
their moral agency requires a legal order that secures for them their
basic rights, including the right to private property. When and if their
rights are indeed secured, they will have the chance to choose between
right and wrong conduct, although it is more likely that they will choose
right conduct since if other people's rights are also secured, no one will
be able to dump the bad consequences of his or her choices on others; they
will have to live with their mistakes and this will very likely discourage
them from making mistakes over and over again. Still, the possibility of
their making mistakes, of doing wrong cannot be avoided in a rights based
system, just as when the right to freedom of speech is protected, there is
no way to guaranteed that all who exercise it will only say worthwhile
things, or when the right to freedom of religions is protected all those
who exercise it will only believe in what is true.

But then why is still kind of system, one based on rights, the sound one?
Because it fits human beings better than the alternative, which would have
a legal system constantly promote welfare or well being, good things. The
fact is, that no one can ever devise a legal system and public policies
that guarantee good results. Putting people in charge of this massive
project is most likely to backfire in a big way. Politicians are not gods
or even angels, so what they plan is bound to contain many mistakes and
when they plan for others whom they do not know, that likelihood is
overwhelming. Also, politicians and bureaucrats are just as tempted to
dump their errors on others but being in power does not serve to
discourage them from doing so, quite the opposite. So, in point of fact,
to entrust the task of promoting economic or any other valuable
development to politicians and bureaucrats--the city of New London, CT, as
in Kelo--is futile and very likely destructive. Indeed, that is the big
lesson of the fall of the Soviet Union and its allies--they all had
centrally planned and/or regulated systems which entrusted leaders to
promote welfare and it all came apart for that very reason. The city
fathers of New London, CT., or of any other city in the world, are no more
able to do well at the task of promoting the public welfare than were
those in the Kremlin.

So, a rights based system of justice has a much better prospect at
promoting good things all around than one in which public officials are
supposed to engage in planning for the welfare of society. A rights based
system sets the citizenry free and in freedom they are better positioned
to promote overall and of course their own well being--which is really the
same thing--than if they are regimented about.

Thus Kelo was indeed a very bad decision and it would have been much
better to stick to the teachings of the American founders and affirm
individual, including private property, rights for Americans everywhere,
including in New London, CT.

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.