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Machan's Musings - Why Rights-Based Political Systems Are Sound
by Tibor R. Machan

In a previous column I noted that the U.S. 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 rather a requirement of a system in which rights are properly defended—but also for various purposes that private individuals pursue, if these purposes appear 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 economic development is really the same as welfare and well-being, but that's not the issue—the court said, in effect, that if the violation of private property rights advances overall welfare, cities may go ahead and violate to their hearts' content.)

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 inalienable and inviolable. So, is this development in American political history—in which the Founders' notions of justice are abandoned and those of John Stuart Mill and other utilitarians are 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. Though 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 discourage them from making mistakes over and over again. Still, the possibility of mistakes and wrongdoing cannot be avoided in a rights-based system, just as, when the right to freedom of speech is protected, there is no way to guarantee that all who exercise it will only say worthwhile things ... or, when the right to freedom of religion is protected, that all those who exercise it will only believe in what is true.
 
But then, why is a rights-based system the sound one? Because, it fits human beings better than the alternative, which would have a legal system constantly promote welfare or well-being in an ad hoc fashion. The fact is, no one can ever devise a legal system and public policies that guarantee good results. Putting people in charge of this massive project will backfire in a big way. Politicians are not gods (or even angels), so their plans are 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 discourage them from doing so (quite the opposite, in fact). So, to entrust the task of promoting economic or any other valuable development to politicians and bureaucrats—for instance, the city of New London, Connecticut, as in the Kelo case—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, Connecticut, or of any other city in the world, are no more equipped 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 of 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 well-being, as well as their own (the two are 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 rights for Americans everywhere, including in New London, Connecticut.


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