David C. Rose: Elena Kagan and the Consequences of Consequentialist Thinking
[David C. Rose is a professor of economics at the University of Missouri-St. Louis.]
President Obama certainly has a right to put a liberal on the Supreme Court because liberal political tastes can be perfectly consistent with an appropriate fidelity to upholding the rule of law. But there are moral beliefs that many liberals possess today that largely conflict with upholding the rule of law....
Moral philosophers divide theories of morality between those that are consequentialist and those that are nonconsequentialist in nature.
Consequentialist theories of morality contend that moral propriety is determined by the consequences of actions, not the actions themselves.
Stealing, for example, is therefore deemed wrong because it harms the victim, not because it is inherently wrong to take something that belongs to someone else. For many consequentialists, justice is therefore a matter of how fair the final outcome is, not whether the process by which it was arrived at was fair. So if the final outcome of a rule, law, or policy is unequal, a consequentialist might view it as unjust on that basis alone....
This is a timely issue. If confirmed, Ms. Kagan may hear a constitutional challenge to the mandatory insurance requirement of the new health-care law.
A nonconsequentialist judge would examine whether the Constitution empowers the federal government to require citizens to purchase a private good (health insurance) and make a ruling on that basis alone.
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....
America is the world’s best example of a free society in large part because for the first 160 years after the signing of the Declaration of Independence, nonconsequentialist moral reasoning dominated American legal ethics.
But consequentialist moral reasoning has been gaining legitimacy since the 1930s and it began to heavily influence legal ethics after the publication of John Rawls’s “A Theory of Justice” in 1971. Rawls’s framework was widely thought to provide a rigorous justification for claims that had been made by earlier contributors to the social justice movement. (It should be noted, however, that Rawls’s framework also has important nonconsequentialist elements.)...
Read entire article at CS Monitor
President Obama certainly has a right to put a liberal on the Supreme Court because liberal political tastes can be perfectly consistent with an appropriate fidelity to upholding the rule of law. But there are moral beliefs that many liberals possess today that largely conflict with upholding the rule of law....
Moral philosophers divide theories of morality between those that are consequentialist and those that are nonconsequentialist in nature.
Consequentialist theories of morality contend that moral propriety is determined by the consequences of actions, not the actions themselves.
Stealing, for example, is therefore deemed wrong because it harms the victim, not because it is inherently wrong to take something that belongs to someone else. For many consequentialists, justice is therefore a matter of how fair the final outcome is, not whether the process by which it was arrived at was fair. So if the final outcome of a rule, law, or policy is unequal, a consequentialist might view it as unjust on that basis alone....
This is a timely issue. If confirmed, Ms. Kagan may hear a constitutional challenge to the mandatory insurance requirement of the new health-care law.
A nonconsequentialist judge would examine whether the Constitution empowers the federal government to require citizens to purchase a private good (health insurance) and make a ruling on that basis alone.
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....
America is the world’s best example of a free society in large part because for the first 160 years after the signing of the Declaration of Independence, nonconsequentialist moral reasoning dominated American legal ethics.
But consequentialist moral reasoning has been gaining legitimacy since the 1930s and it began to heavily influence legal ethics after the publication of John Rawls’s “A Theory of Justice” in 1971. Rawls’s framework was widely thought to provide a rigorous justification for claims that had been made by earlier contributors to the social justice movement. (It should be noted, however, that Rawls’s framework also has important nonconsequentialist elements.)...