A reader asks how seriously I take my consequentialism,
As I listen to the democratic senators questioning Amy Coney Barrett, I hear them engaging in speculative consequentialism. They ask to what extent the judge should consider what the questioners regard as catastrophic consequences of a decision that is otherwise reached through sound legal reasoning and constitutional validity. In particular they are claiming that millions of people will lose their health care if the court strikes down the Affordable Care Act, even if the justices rightly believe the act to be unconstitutional. Therefore, they argue, the right thing to do is to uphold the act.
1. I don’t consider myself a devotee of any well-known moral philosophy. There is a reason that the field is still contested.
2. I make a case for consequentialism against the intention heuristic in cases of high causal density. In such cases, it is very hard to know the consequences of one’s actions. Will raising the minimum wage by $1 do more good than harm for low-wage workers? We don’t know. You have to take whatever information is at hand and make your best guess. But using as a shorthand the intention that you have of helping low-wage workers is a terrible way to form your judgment. In my view, the intention heuristic used in that way does not qualify as moral philosophy. It is bad thinking.
3. So don’t ask me to make a full-on stand in favor of consequentialism. But whatever virtues and defects consequentialism has in the abstract, in practice I think that paying at least some attention to consequences is better than relying on the intention heuristic.
4. In the question at hand, there is a question of whether consequences should be judged on a case-by-case basis or on the basis of general rules (“act” utilitarian vs. “rule” utilitarian). That is a can of worms I do not want to open. But suffice to say that allowing an unconstitutional law to stand might be ok in an “act” utilitarian sense but really bad in a “rule” utilitarian sense.
In short: Consequences are hard to predict. That is why we need to worry about consequences!
I fully agree with your last paragraph.
In the case of ACA, your reader and most other people, including eminent observers, that like “to predict” catastrophic consequences should first justify their predictions. And if they were catastrophic, then the issue is one that elected politicians should decide, not the judiciary.
ACA is a good example. 60 senators representing 65% of the US population pass a bill that borrows from various conservative plans to get everyone covered with either private health insurance or Medicaid (where the government pays private providers for services to the poor.)
If the ACA were to be ruled “unconstitutional,” about 30 million people would lose coverage immediately. Everyone in the country would lose protection against recision, preexisting conditions, policy maximums, etc. These are the consequences.
Who would write replacement legislation? The supreme court? They would have to because any legislation passed by Democrats would be immediately challenged as unconstitutional.
I don’t know how many will lose coverage if the law is ruled unconstitutional. I know that if it’s ruled unconstitutional as it’s written, politicians can pass a new law, one that it’s constitutional. The fact that you don’t want politicians to pass a new law means that you are scared that politicians will not pass the law that you like. Sorry, that’s democracy.
It’d have much better if Obama had the courage to reach an agreement with Republicans to pass ACA. But he rejected that and passed a law that could be ruled unconstitutional. Blame Obama and all the D-lackeys that approved such a law.
You mean to say if one R had voted for it then it wouldnt be at the SC right now? That makes no sense.
I see. You don’t want to understand.
Negotiating an agreement with Republicans would have resulted in a different ACA, not Obama’s ACA that can be ruled unconstitutional. Of course, Obama wanted “his” ACA, he got it, and he failed to provide financing for health care to many people.
Your TDS explains your obfuscation.
” But suffice to say that allowing an unconstitutional law to stand might be ok in an “act” utilitarian sense but really bad in a “rule” utilitarian sense.”
This will sound like nitpicking, and is why moral philosophy gives people such headaches, but even restricting oneself merely to “act utilitarianism”, the usual legal argument is that one might still want to follow the law, also because of other “unintended consequences”, such as opening the door to all sorts of abuses and the long-term decay of reliability of legal institutions. How will utility be estimated correctly, and who will review for error and how?
This is usually the argument deployed against Amartya Sen’s silly “idea of justice” case for his “three kids and a flute” argument. The rich, unmotivated, untalented kid with the flute should have it snatched away so that it can be given to the poor, motivated, talented kid.
Isn’t that act clearly a net improvement in overall utility? If it was completely isolated and inconsequential, sure. If it becomes part of a larger social scheme of policies and incentives, no. Because now who is going to be motivated to make high-quality, expensive flutes? What are the market feedbacks if quality or value falls? Who decides who gets the flutes? And so forth, the usual anti-socialism economic critique.
There is no ‘rule of law’ if every case case be decided on the whims of decision-makers if they merely claim it’s better for their personal view of utility or justice, just a distributed, decentralized, bureaucratic dictatorship.
Arnold correctly identifies the problem with an over reliance on consequentialism. We aren’t very good at predicting future consequences and virtually all interesting legal controversies involve cases where important values conflict and we need to worry about more than one thing anyway.
Rules most certainly have consequences and so no consequentialist can be indifferent to significant rule violations. It is worth noting here that the originalism that is offered as the alternative to consequentialism today is in conflict with its own most basic principles. There was no “original” consensus that the Supreme Court could declare laws unconstitutional in the first place. That precedent wasn’t set until 1803 and came as a surprise to most of the founders who were still even alive at the time. Jefferson was horrified by it.
The Constitution does not explicitly address the issue. Stephen Colbert has referred to originalism as the legal theory that requires us to be time traveling mind readers. That task is no easier than anticipating consequences. The fact is the founders disagreed on many basic principles. A big part of their genius was choosing language that was deliberately just ambiguous enough to achieve the very narrow approval that the Constitution got from the states. They were dealing with the problems at hand not thinking they were fashioning a document to serve as a guide in 2020. That doesn’t mean that it isn’t still a guide worth keeping. It does mean that originalism, like consequentialism, is only one of many important principles we should care about.
Excellent- always nice to see distinguished jurist Stephen Colbert making an appearance!
Just curious what do the originalists have to say about these matters? Can you please summarize?
Originalists generally avoid altogether the issue that judicial review itself was not original when possible. They prefer to avoid that awkwardness rather than bring it up. Instead they prefer to focus on the opinions of the people who agreed with them at the time the relevant law was made and pretend there was more consensus at that time than there really was.
When pressed on the issue they will quote the small minority of founders who anticipated and supported judicial review and ignore the fact that there was no tradition of judicial review in the legal system and precedents they were building on.
“Originalists generally avoid altogether the issue that judicial review itself was not original when possible.”
So, this is false, at least among the originalist texts that I’ve read over the years.
How do you think they might get to accepting judicial review even if it wasn’t completely explicit? What originalist legal tools might they have at their disposal?
Obviously they have to claim that judicial review was implicit since they can’t possibly show where it was explicit.
My point is not to object to the later interpretation that judicial review was implicit. I am OK with that. What I object to is this pretense that there was anything like a clear “original” consensus at the time about it. The ruling in Marbury v. Madison was a big surprise to everyone not something generally expected to follow from the original text of the Constitution even by the founders themselves. It was a very controversial ruling at the time (again resisting the urge to capitalize those last three words).
@Greg G
“ (again resisting the urge to capitalize those last three words)”
Thank you for resisting 🙂 and thanks for your replies.
FWIW – there is more than enough to get there in article 3, section 2. However, you are correct that the originalists rely on judicial constructionism to get to the answer. Does this somehow undermine originalism or make it inconsistent? Are they not allowed to reach conclusions as long as such conclusions don’t conflict with the explicit meanings? Not at all…seems quite reasonable to me.
As an aside, do you know of a better approach?
>—“Are they not allowed to reach conclusions as long as such conclusions don’t conflict with the explicit meanings? ”
Yes, of course judges are “allowed” to use this or any other principle they choose once they receive their appointments. The real issue is what approach is best, not whether or not it is allowed.
I think it is best to admit there are many important legal principles we should value and not to pretend that one or two necessarily trump all others. These principles can, and do, often conflict with each other. Original intent and textualism are valid concerns but the actual text can fail to effectively state the actual intent in some cases just to cite one possible problem. Respecting precedent is another important value. Not getting a result that shocks the conscience or creates some disaster is another.
Cases where important legal values conflict are virtually the only ones that get to the Supreme Court. Nothing is easier than convincing yourself you are deciding the case on principle because there are many legitimately important legal principles.
That why Oliver Wendall Holmes said, ” General principles don’t decide concrete cases.” He didn’t mean that general principles aren’t important. He meant that it’s always a judgment call made by a human. That’s why they call those humans judges.
Original intent and textualism are valid concerns but the actual text can fail to effectively state the actual intent in some cases just to cite one possible problem.
It’s like you’ve literally never read anything that textualists like Scalia wrote about this.
I don’t see where consequentialism plays any part in this, even if consequences do.
The duty of judges is to uphold the law. Your duty as an economist is to evaluate and propose policies, by their consequences.
If the judges consider consequences are important in this case, I assume they can write so in their judicial opinion. I’m not a lawyer and I’m specially unfamiliar with the common law system, but I assume judges can do so.
It is not the job of the judiciary to consider possible adverse policy consequences in striking down an unconstitutional law. It is up to the legislature to consider such matters. Legislatures can, and often have, responded to to judicial invalidations of statutes and to case findings which produced an undesirable policy result. Arnold, your analysis is that of an economist rather than a lawyer.
Yes, Arnold is an economist rather than a lawyer. That doesn’t mean he is wrong. That is the Argument From Authority Fallacy. It is commonplace for specialists to have tunnel vision and miss things that non-specialists see.
In reality all judges care about consequences whether they admit it or not. That most revered of originalists, Scalia, famously justified the Bush v. Gore decision by saying it was necessary to prevent us from being a laughingstock. There was no “laughingstock principle” in the relevant law. Being a laughingstock was a consequence that worried him. They also said that decision should not be regarded as creating precedent (despite that itself being unprecedented). It is obvious they were worried about the…consequences such a precedent being used by their political opponents one day despite the fact that it would have been more originalist not to create new law about precedents.
The best way to get a bad law repealed is to enforce it, good and hard.
The task of the Court is not as a backstop for bad law, merely unconstitutional law. That surely is enough.
This simply begs the question. Which laws are merely bad and which are also unconstitutional is the thing at issue here in the first place. All parties agree that being is unconstitutional is bad.
Understood. However the question was framed in terms of having millions of people lose health coverage. This looks like a straight up “that is bad”, not “that is unconstitutional”.
It sounds like you think it is bad for a law to be unconstitutional. If we pressed deeper into why you think that would be bad I expect you would ultimately need to resort to claiming that bad consequences would follow from not caring at all about constitutionality. If so, I would be inclined to agree with that point.
There are many consequences, both good and bad, from any Supreme Court decision. This is an economics blog. One of the most foundational principles in economics is that every decision comes with trade offs. Millions of people losing their insurance in a pandemic is only one of many possible trade offs in this case, certainly not the whole argument and certainly not the main constitutional argument. Constitutionality arguments are much more focused on the severability issue in the current ACA case.
“I don’t consider myself a devotee of any well-known moral philosophy. There is a reason that the field is still contested.”
Not to state the obvious, but economics is mostly just utilitarianism + fancy formulas.
In other words, hard to see how you’re going to get from analysis to policy recommendations without some moral theory to bridge the gap.
“In particular they are claiming that millions of people will lose their health care if the court strikes down the Affordable Care Act, even if the justices rightly believe the act to be unconstitutional. Therefore, they argue, the right thing to do is to uphold the act.”
But it would likely have bad consequences if the judges decide to abandon any pretense of referring to Constitutionality and simply voted their consciences on what would create a better outcome.
For example, suppose the majority of the justices are personally opposed to abortion. Using the same logic, they could strike down Roe v. Wade and, beyond that, rule that abortion is impermissible, because the consequences of legal abortion are so horrific.
The same progressives making consequentialist arguments for the ACA would, of course, be horrified by this. From their perspective, this would be a bad consequence, but the true bad consequence isn’t so much the end of legal abortion (progressives may think so but that’s certainly not my view).
The problem is, if the Supreme Court becomes just a bunch of unelected policy makers, will their rulings have legitimacy? It seems hard to imagine. And it seems at best very risky for the American government as a whole to lose its perceived legitimacy (as half of the country will dislike whoever the President is and more still will disapprove of Congress).
From another perspective, as Arnold says, consequences are hard to predict. One could reply to the progressives that by nullifying the Affordable Care Act, it would pave the way for something better. For example, millions losing health insurance coverage could create sweeping support for Medicare For All and facilitate its passage. If you’re a progressive, MFA is dramatically better than the status quo. Yet for conservatives, perhaps that would be a worse case outcome due to the colossal financial burden of M4A. Perhaps the consequentially irresponsible thing to do for progressives would be to uphold the ACA and the consequentially irresponsible thing for conservatives to do would be to strike it down.
Progressives have only recently started worrying about that because of an influx of conservative justices. Conservatives have had that concern for at least 60 years. (Remember all the denunciations of the Warren court?)
Why is “consequences of legal abortions horrific” as compared to “consequences of a Congress authorized war (legal I presume) in which 50K military personnel and enemy combatants will die in 2 months of hostilities”?
If a floating ship anchored off the US boundary offers all expenses paid abortion that economically is viable even without insurance coverage (assume that it is a cruise ship that provides some entertainment, counseling and other sundry services for recuperation for the emotional toll on the person undergoing abortion.) what happens? Or if a philogynistic organization foots the bill – for whatever reason. If one can have tax havens, why not such abortion havens?
Loss and Gain
When I compare
What I have lost with what I have gained,
What I have missed with what attained,
Little room do I find for pride.
I am aware
How many days have been idly spent;
How like an arrow the good intent
Has fallen short or been turned aside.
But who shall dare
To measure loss and gain in this wise?
Defeat may be victory in disguise;
The lowest ebb is the turn of the tide.
-Longfellow
This is easy. Should a judge send an innocent cop to prison if the consequence of setting him free is a riot?
No he should not send the innocent cop to prison. There will be many other negative consequences from that decision beyond that riot. This is Arnold’s point. It’s easy to overlook unintended future bad consequences.
I would go so far as to say that all of ethics is consequentialism. Even Kant’s ethics are grounded in the proposition that a person who disobeys the categorical imperative will lose self-respect, which is a negative consequence.
The real differences of opinion are in 1) how to deal with our inability to completely know the consequences of an action in advance (or even in retrospect, sometimes) and 2) how to address tradeoffs when a given course of action has positive and negative consequences.
Another hypothetical (that should definitely not be analogized to current events):
An unnamed virus comes along that is basically inconsequential to 98%+ of the population. Those most negatively impacted are in the final years of their lives with various other health issues.
What is the right ethical approach? How should society respond? What does the consequentialist have to say?
Easy. You should carefully weigh the evidence, balancing the interests of the young, who have little to fear, with the old, with a great deal to fear.
Then, after a careful cost-benefit analysis, you should just lock down the entire country because the aging Boomers who run the country feel nervous.
Most excellent – thank you! I had a much needed chuckle!
Also, just to make it fun (hypothetically speaking), can we label anyone that disagrees with this approach a “kook”?
I am the “reader” mentioned above, and I thank Mr. Kling and the commenters for responding to the question. I would liken the argument over originalism in the judiciary to that over objectivity in journalism, and, to an increasing extent, in academia. I think that we are all biased subjects, and that our subjectivity will always cloud our attempts to describe reality. Thus objectivity remains an unattainable but valuable goal. Likewise it is impossible, as some have noted above, to “read the minds” of the framers of the constitution, the legislators who write laws, and the public as it amends the constitution. I was struck by ACB referring to the court’s efforts to divine the will of the congress viz. the ACA, when some of its authors were sitting before her. Nonetheless, I think the attempt to understand the motivations from which laws and constitutions arise is a worthy place to begin analysis.
On the other hand, if there are cases in which the consequences of a law or a constitutional precedent are currently widely viewed as undesirable, I can understand that a court might change precedent or send a law back to Congress to fix it. But given the nearly absolute dysfunction of our legislative branch, I can understand why even an originalist might want to just fix the damn problem, risking, of course, another round of undesirable consequences.
“Likewise it is impossible, as some have noted above, to ‘read the minds’ of the framers of the constitution, the legislators who write laws, and the public as it amends the constitution.”
Fortunately, we don’t need to read the minds of the framers or anyone else. The key, among originalists, is about original meaning (vs. original intent).
And, what the originalists are doing isn’t particularly controversial – apply contract law theory via analogy to the constitution.
Example: if you write a contract with another party, how would you like to see that contract interpreted should a dispute arise? What does contact law have to say?
In judging policy, evaluation of the actual outcomes of the policies should be among the primary criteria, if not the most primary criterion. The actual consequences.
Our checks and balance system assigns jobs to Legislatures, to make laws & policies and adjust them, based on the actual consequences. To the Executive, to carry out the law. And to judges, to say how the legislated laws relate to specific cases, with the purpose of carrying out the law – tho also ensuring that the law avoids violating the Constitution.
As noted, there are also tradeoff in long-term and short-term consequences.
The judges should rule all unconstitutional laws as ‘unconstitutional’, whatever the consequences of their ruling in the short term. It’s Congress’ job to write constitutional laws to get the right policy, or amend the Constitution (like the lousy 16th Income Tax) to change the Constitution. If the problem is not bad enough to justify amending the Constitution, which is hard but not impossible, then the problem certainly does not justify accepting the consequences of an unconstitutional law.
Well said. I’m frankly surprised this is controversial.
I am of the opinion that:
1. Understanding and predicting the consequences of new laws is the core mission of legislative bodies.
2. Judicial bodies should decide and interpret what the law is, not what it should be. Admittedly, this jurisprudence involves a degree of consequentialism, but the legislature should be primarily responsible for redressing problems that arise from judicial decisions (by amending or creating laws to resolve issues).
In short, I expect the legislature to primarily assess the consequences of their laws, and the judiciary to interpret them as faithfully as possible.
The political issue is whether judges should interpret the laws as written and intended and not on the judges own personal subjective morality. Or should judges make rulings on their own subjective morality and circumvent the laws passed by the legislature to achieve subjectively better consequences.
Judging morality by intentions isn’t really an argument on either side of this issue.
They don’t have any philosophy. One day it’s consequentialism, the next it’s literal interpretation of the constitution (but that is rarer). What matters is they advance their cause. Their true philosophy is Leninism.
I am a little confused by the conclusion of this post. As consequences become more difficult to predict, shouldn’t we worry about them less (in this context) and simply read the law as faithfully as we can? Or perhaps you mean that being unsure of the consequence points in favor of inaction (in this case by allowing ACA to stand)?