The Calculus Of Freedom: An Updated Edition

Peter Grant has resurrected the most important political questions of all time: those that were undoubtedly on Thomas Jefferson's mind as he penned the critical passage of the Declaration of Independence:

Who decides what constitutes "happiness"? Who decides what constitutes "the populace's welfare"? Who determines what is (or what should be) "the ultimate good" of the populace, or a society, or a nation?

These are precisely the right questions for our time. That sort of murky utilitarianism is the foundation of oligarchy. Keynes called it the rule of a "wise minority." Most power-seekers either believe in that arrangement without question, or use it as a benevolent veneer over their true orientation and intentions. In recognition of their centrality to America's current crisis, I repost the following, which first appeared at Eternity Road on March 9, 2005. I'll provide additional thoughts after the repost.

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Your Curmudgeon received quite a lot of E-mail after posting this tirade. [That was a dissection of a rather fatuous Robert Locke column from American Conservative webzine. -- FWP] Most of it was moderately to strongly in agreement, but a couple of letters were dismissive or condemnatory. Their unifying theme was: Things are working okay now, so by what right or standard should we concede any respect to the libertarian thesis that lots of things are out of kilter and require the swiftest possible correction?

There was one writer who took your Curmudgeon to task for his reliance on rights, which, according to this gentleman, don't actually exist:

You harp on "rights" as if you actually know what you're talking about, but I defy you to point to one and drag it out in front of God and everybody. Anyone can claim that this or that thing they want is a "right." Isn't that exactly the counter you're always flinging at socialists and special interests?

Let it never be said that your Curmudgeon doesn't take a challenge like that seriously. Indeed, it's the only kind of challenge that has a real bearing on any of the fundamental questions of governance.

1. Objectives And Constraints.

Government is often viewed as entirely a practical affair, but whether or not government -- the organized, legitimized use of coercive force by an institution chartered for that purpose -- must live under constraints of any kind is an entirely theoretical one. The key to the entire subject is a four-letter word: work.

Every human activity of any kind exists within an envelope composed of two different things:

• Objectives,
• Constraints.

One's objectives are the things he wishes to achieve, acquire, or prevent. One's constraints are the things he may not or must not do along the way, for whatever reasons. Certain constraints -- the laws of the physical universe -- apply to all men at all times. Others are contextual, or identity-related; for example, in a regime that recognizes property rights, Smith would be constrained from pursuing any of his objectives by making free with Jones's property.

2. Theoretical Bases For Government.

A government, being a human institution, must rest upon one of only three kinds of basis for its existence and its operation:

1. Hobbesian absolutism ("Princes are gods") denies that the State, however organized, need suffer any constraint whatsoever.
2. Benthamite utilitarianism argues that constraints on the State are temporal and topical, and may be set aside without qualm when they impede "the greatest good for the greatest number."
3. Lockean natural-rights theory holds that the State must remain within those constraints arising from rights that individual men possess by nature -- that when it violates those constraints, then, regardless of its intentions or effects, the State has become criminal and must suffer to be judged.

Gentle Reader, you could struggle and strain for the rest of your life without elucidating a theory of legitimate government that differs in substance from all three of the above. There simply aren't any.

3. Attitudes Toward Rights.

Now, in practice, the State, which invariably possesses the preponderance of coercive force in a society, can do whatever it can get away with -- the very basis for most arguments to the effect that rights don't really exist. But the consequences of unbridled State action are historically well documented, and very negative. If we go by the Robert Pirsig approach to the existence of abstractions -- that an entirely abstract entity, which cannot be pointed to or fondled by any man, may nevertheless be said to exist if its removal from the world would cause perceptible changes -- then there is no question that rights exist. Quoth Louis Thiers:

Either rights exist, or they do not exist. If they exist, they involve absolute consequences...Furthermore, if a right exists, it exists at every moment. It is absolute today, yesterday, tomorrow, the day after tomorrow, in summer as in winter, not when it pleases you to declare it in force.

Indeed, the concept of rights underpins every other concept in political thought, including the proposals and arguments of absolutists and utilitarians.

When we speak of rights in practical terms, we must concede that an individual's rights can be, and often are, violated by one or another organ of the State, and that there's frequently little the violated party can do about it. As Kevin Baker and others have said quite plainly, whatever our rights are in theory, in practice they're limited to what we can assert and defend by force -- a space which is bounded by what State actions our society will countenance, or at least passively tolerate.

Still, that doesn't change the fundamental questions. Do societies that recognize rights as a category of constraints on State action function differently from those that don't? What are the differences? If we judge entirely on the consequences, which sort of society would we prefer?

4. The Dismissal Of Absolutism.

Hobbesian absolutism took as its premise that in the absence of a State, men would be engaged in "a war of each against all." He proceeded from there to propose that if the State were capable of suppressing that war, then it must perforce be so powerful that no other entity would be able to limit it. So as a "practical" matter, the State must be beyond constraint by lesser entities.

Mankind has known many such States. Some still exist today. They run roughshod over their subjects, who have no rights at all that they can defend by word or deed. Their sole concern is over the possibility that other States will bring them down through war or subterfuge.

Most men are minded to reject absolutism both from a rights perspective and from a consequences perspective. The individual rebels automatically against the assertion that his life belongs to anyone but himself. Our inborn model for interactions between men, and between men and governments, holds that the rights of an innocent man to his life are absolute and inalienable. That premise, all by itself, destroys governmental absolutism as a defensible basis for the State. That's not to say that it's no longer asserted by some, only that it cannot be defended theoretically without rejecting any and all rights to life.

5. The Refutation Of Utilitarianism.

Utilitarianism attempts to supplant the concept of rights, which Bentham and his followers deemed too abstract, with the concept of collective utility: "the greatest good for the greatest number." In this formulation, the actions of the State could and should be justified entirely on the basis of the results they achieve, or, alternately, how well they "work." Utilitarianism was prominent in the thinking of early American socialists such as Edward Bellamy, Herbert Croly, and Charles Sanders Peirce.

But collective utility presupposes many things:

1. Defensible concepts of "good" and "better" that can be applied to collectives;
2. Accuracy in the formulation of policy to achieve what's deemed as "good" or "better,"
3. Continuity of policy, once formulated, until the sought for "good" or "better" has been achieved,
4. The moral defensibility of policies formulated "in good faith" even after they've failed.

All four of these suppositions are provably unsound, usually by their own internal logic.

If "good" and "better" are applicable to a collective, then by implication individual choice by any member of the collective must be irrelevant, perhaps even invalid. Yet decisions about "good" and "better" must be made somehow, whether by majority vote or by some designated planner or planners. In the first case, collective utility comes up hard against the ephemeral nature of the collective: it has no enduring identity. Its component individuals will change over time, by death, procreation, association or disassociation, which can easily lead to changes in the majority's verdicts about "good" and "better." But if the collective's decisions can change in such a fashion, with no "upper limit" on how fast they can change, under what circumstances, or in response to what developments, then how seriously can we take the concept of collective "good?"

In the second case, where designated planners decide on "good" and "better" for the collective, the utilitarians have reintroduced individual choice. The sole difference here is that some individuals are deciding on "good" and "better" for many others, rather than each man deciding for himself.

It is obvious that many a State policy formulated to bring about some well-conceived end has failed to do so. Sometimes the failure was inherent in the policy conception; sometimes it was the result of discontinuity in administration or application. What matters is that the result upon which the policy was founded was not achieved. How, then, shall we defend, morally or practically, the imposition of collective decision-making that overrode individuals' claims to rightful autonomy, when the very good they were promised in exchange for their rights has failed to materialize? Shall we make restitution to those who were deprived of their lives, liberties, or properties in service to the unachieved goal? If so, what becomes of collective utility's conceptual superiority to individual rights? If not, why should individuals agree to submit to the usurpation of their rights, however conceived, in the first place?

It becomes clear from such simple analyses that utilitarianism in theory reduces to absolutism in practice.

6. Determining Rights And Securing Them.

Among the conceptual bases for a political order, natural-rights libertarianism is the "last man standing." If it is wrong, then all theory has failed, and there can be nothing but rule by the strongest until he fades and is pulled down by another. But is it wrong?

Proponents of natural individual rights have overextended their claims in many cases. Individual rights cannot cope with those situations in which we must act, or interact, as collectives; war and foreign policy are the most obvious examples. Nor can individual rights cope with clashing, seemingly valid assertions of rights, such as arise in the perennially difficult case of abortion. Finally for our purposes here, individual rights are insufficient for the analysis of those cases where the individual is incapable of wielding them on his own: children, the mentally unsound, and those under some constraint that thwarts rational decision-making, such as coercion by a kidnapper. However, in those situations where men can and do deal with one another as individuals, individual rights and their scrupulous observance are a sound guide to right action. "We" might not always "get what we want" by respecting them, but we may be sure that we have observed the first principle of both medicine and politics: First, do no harm.

It is inevitable that the exact scope of individuals' rights will be argued over for many years, possibly down the whole history of Man. Theorists can only do so much. But the failure of all other approaches to governance leaves us with no alternative but to have the argument and take the underlying concept seriously.

In yesterday's disassembly of Robert Locke's column, your Curmudgeon noted that the following statement revealed Locke's incomprehension of his subject matter:

There is no need to embrace outright libertarianism just because we want a healthy portion of freedom, and the alternative to libertarianism is not the USSR, it is America’s traditional liberties.

What are those "liberties," and on what basis are they recognized?

1. It cannot be from an absolutist standpoint, because an absolutist is required by his premises to reject all claims by anyone that his actions ought to be guaranteed against State interference.
2. It cannot be from a utilitarian standpoint, because an inviolable liberty -- really just another word for a right -- might thwart some sincerely conceived policy toward the "greatest good for the greatest number."
3. If it's from a natural-rights standpoint, then we must presuppose the existence of the category of claims called rights, and further ask: What claims qualify for inclusion in this category, and why?

...and the Robert Lockes of the world, infinitely dismissive of this broad, compelling calculus of freedom, are thereby forced from the table by their own hands. For them, only certain rights are admissible. Others whose exercise or consequences displease them must be excluded, even though, once rights are studied as a category, it becomes clear that those displeasing others have just as valid a claim.

And among those of us willing to concede our fallibility and talk seriously about Mankind's most serious subject, the discussion will continue.

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The above tirade was a condensed refutation of the notion, shared by the late Robert Bork among others less notable, that rights / "liberties" are entirely legal constructs: permissions granted by some government, with no deeper metaphysical basis. Judge Bork was no champion of freedom; he actually dismissed the Ninth Amendment to the Constitution as merely allowing that any "rights" the states' constitutions conceded to their residents would not be infringed by the federal government. Thus, for the "Washington Uber Alles" position of contemporary left-liberals, Judge Bork would have substituted a regime in which the federal government is constrained by the states' charters...but by no other pre-existing right or property of Man.

That notion would have had Thomas Jefferson whirling in his grave fast enough to power all of Philadelphia. Nor would he have been the only Founding Father to take exception.

There is simply no way in which the concept of rights can be melded with the supposition that a government, however constituted, can rightfully set them aside in the pursuit of some "greater good." The very best that we can do -- always assuming that we're resolved to tolerate a government at all, of course -- is to agree, in a contractarian fashion, to accept a strictly limited government with coercive powers straitly confined within those limits. That's the original American approach to the "necessary evil" of government, which we call constitutionalism.

The Founders were aware of their own fallibility. They provided a means by which an adequate consensus -- three-fourths of the states -- could amend the Constitution to cope with conditions they had never imagined. Steven Den Beste once called that provision "Institutionalizing the Revolution:" a fine, compact expression of the Founders' fundamental political philosophy, according to which true sovereignty reposed in the common man, not in some privileged monarch, oligarchy, or abstract collectivist fantasy called "the State."

Today, the governments of America are openly in breach of the Constitutional contract. The plain text of our Supreme Law invalidates ninety percent or more of what they do. Therefore, they seek to evade all discussion of their legitimate powers and activities. They decorate their usurpations with phrases like "the greater good" and "compelling government interest." Most recently, Washington's myrmidons have set forth to suppress those voices and associations that urge us to examine the matter according to American principles.

No one certain of the rightness of his position behaves in such a fashion.

Is our current system salvageable? Perhaps, though the odds are growing long. What about our current political elite? C'mon! Do you really think you can re-educate our supposed representatives? Remember Nancy Pelosi's "Are you serious?" Remember James Clyburn's "I don't give a damn about the Constitution?" Add those to Barack Hussein Obama's "I've got a pen and I've got a phone." What answer pops out of the slot?

No scheme of government that dismisses the metaphysical inviolability of individuals' natural rights, or that fails to provide stiff constraints upon agencies of pre-indemnified coercion for the protection of those rights, has any claim to legitimacy. The javelin that fatally pierces that presumption will be cast from those rights, and propelled by Peter Grant's question:

WHO DECIDES?