4. Consequentialism and Constitutional Rules: Next consider political institutions and constitutional rules. At the political level, this approach suggests that we should employ rules that are designed to produce good results. That will, of course, mean laws and institutions that protect and promote liberty, but it may have certain limited departures such as the possibility of welfare for the poor. But while the laws and institutions should ultimately be justified based on human welfare, that does not mean, as I develop below, that the government should have the discretion to freely depart from institutions of freedom based on its claims of promoting welfare.
Now consider constitutional rules. Bruce claims that consequentialism is “a strategy of maximization. So the state can always appeal to the need to increase prosperity or decrease unemployment to pursue its social engineering.” Thus, Bruce suggests that consequentialism will approve of cases like Kelo v. City of New London.
But this is mistaken. There is a strong consequentialist argument for placing in the constitution a prohibition on takings of private property for nonpublic uses (takings that Kelo wrongly approved). Even though the state claims to be acting for the public welfare, that does not mean we should allow it to act on this claim. Instead, the state will neither have the right incentives nor adequate information to use the eminent domain power to good effect when it is allowed to act for nonpublic use. Thus, we should constitutionally prohibit such actions on consequentialist grounds, even though on occasion the state might act beneficially. In general, its takings will be harmful.
Bruce counters that if Kelo is prohibited, it will be based not on a “principled objection” but “just a pragmatic one.” But this is not persuasive for a couple of reasons. First, I don’t know why it matters whether our constitutional provisions have a principled basis or a pragmatic one. Second, I reject this distinction. For a consequentialist, all constitutional provisions will be justified on the basis of promoting the welfare of the people, but that does not make them any less weighty. Finally, as any lawyer know, the distinctions in our laws are often messy and seem pragmatic. For example, should we allow takings for public use with just compensation or instead require the state to negotiate like any other private actor? If we allow such takings (as Bruce seems to suggest we should), is that based on principle? Maybe, but what principle? Most often, such takings are justified on the ground that they are needed to promote the public welfare.
5. Theories Based on Truth and Theories Based on Defending One’s Position
Finally, I want to speculate on the hostility that philosophers, including libertarian and conservative ones, feel about consequentialism. The arguments that Bruce makes are representative of the criticisms of consequentialism. (For others that are also representative, which I hope to respond to in the future, see this post by Matt Zwolinski at the Bleeding Heart Libertarians Blog.) The basic argument is that consequentialism is problematic because freedom may not always lead to desirable results.
Now, what is odd about this argument is that libertarians almost always believe that freedom leads to good results. The typical argument is: “While individual freedom leads to good results, you have a right to it whether or not it does.” So why do libertarians suddenly start imagining horrible consequences when someone asserts consequentialism?
The answer may be complicated, but I do think at least one thing is going on. When arguing with non-libertarian opponents, libertarians are able to make a cleaner argument if they pursue non-consequentialist arguments. The non-libertarian will believe freedom often has bad consequences and rebutting those arguments is often very complicated, requiring specialized knowledge not only for the libertarian to make his argument, but also for his non-libertarian opponent to appreciate the argument.
It is so much cleaner simply to assert that people have a right to freedom. No complicated arguments about real world consequences. Of course, when the opponent disagrees with the moral premises – about individual freedom – there will be controversy, but it is difficult for anyone to dislodge the libertarian from his position. He may not be able to persuade the other guy, but at least he is secure in his own position. After many discussions with non-libertarians, the libertarian comes to feel more comfortable and secure making the non-consequentialist argument.
The problem is that, while this secure feeling may be relevant to defending libertarianism, it is not necessarily relevant to the truth of the theory. Simply feeling liberty is important tell us about our feelings, not necessarily about the validity of the theory. Instead, if the welfare of the people is the important thing, then it is the complicated world of real world consequences that matters, even if it makes one feel less secure.