Disclamer: These are pretty much just my thoughts as anything but an expert in the fields I'm talking about. It's a mix of half-baked thoughts about utilitarianism vs rights-based ethics and the sociological effects of preferring one to the other. If any philosophers or sociologists would like to read this and tell me exactly how and why I'm wrong about this stuff, I'd take it as a compliment.
Black People Are Remarkably Like Bushels of Wheat
Recently I've been listening to More Perfect, WNYC's podcast focusing on the Supreme Court, some of it's more controversial decisions, and the reasoning behind them. It's a good listen - it approaches legal issues from a decidedly liberal/progressive point of view, but goes out of its way to reach a point of understanding and appreciation of the other side.
It's touched on advocates deliberately seeking out or creating legal disputes in order to challenge laws they don't like (think both Rosa Parks and rejected applicants suing schools to end affirmative action), and the legal precedents that lead to police officers being routinely acquitted in the shootings of unarmed people.
All this is pretty interesting, but it's the subject of the most recent episode that got me wanting to write this post. At least, it provided a real clear example of something I've been chewing over for at least a year now. It details how the Civil Rights Act of 1964 - the landmark, crowing achievement of the black civil rights movement led by Martin Luther King, Jr. - was justified only in part based on the 14th's Amendment's guarantee of equal protection under the law.
Sure, the 14th Amendment made it clear that the federal government in particular couldn't rightfully discriminate based on race (and by clear I mean we're still arguing over it 150 years later), but the idea that this extended to state governments or private citizens was tenuous at best. You see the same sorts of arguments around the 1st Amendment today - Twitter, YouTube, Facebook, Reddit, etc. all defend censoring people on their platforms based on the idea that the 1st Amendment only restricts the federal government, not private businesses.
Soooooo, despite the systematic discrimination and exclusion of black people from American society at large, the federal government didn't feel that the 14th Amendment alone granted them the power to tell private businesses that they needed to desegregate. Nope, for that power, they'd have to turn to the same justification that allowed them to fine farmers for growing too much wheat - the power to regulate commerce between the states.
Y'see, back during the Great Depression/Dust Bowl, in order to prevent farmers from flooding the market with wheat in desperation to try and make whatever money they could, the Government passed the Agricultural Adjustment Act of 1938 which guaranteed a minimum selling price for wheat and other agricultural commodities, but also restricted the amount of wheat that a farmer could grow in order to prevent oversupply. This restriction extended to (and was successfully legally defended to include) wheat grown for use in feeding a farmer's own animals, never intended for inter-state or foreign trade.
The government argued that because a farmer wasn't buying the wheat to feed his animals from another, potentially cross-state grower, he was producing a knock-on reduction in demand for wheat that had inter-state commercial effects which they were entitled to regulate. The same argument was used to support the individual mandate passed as part of the Affordable Care Act, as well as the end of private discrimination on the basis of race.
The government argued that it was because restaurateurs, hoteliers, and whatever the fancy word for people who own theaters is were openly and routinely discriminating against black people that they so infrequently traveled across state lines and did any kind of business. Therefore, because it had the same kind of knock-on inter-state commercial effect as a farmer growing his own wheat, the federal government claimed it had the power to regulate such activities and prohibit that kind of discrimination.
There's a whole lot to unpack in that argument, but for me, the key here is that the Civil Rights Act was passed principally not because the discrimination against black people violated their rights, but because of the effect it was judged that this had on the economy.
I Learn My Place
This distinction is subtle, and for most people I imagine it seems kind of academic. I mean, who cares which clause of the Constitution was used to justify a particular piece of legislation?
Except that I think how we answer this question plays a large and overlooked role in the separation of social classes in America.
I had a conversation with an MBA student a few years ago that stuck with me because he was coming close to ending his time in grad school just as I was starting mine, and so naturally I asked what he was planning to do afterward. (At the time I wasn't yet settled on a PhD, and was considering maybe doing an MS/MBA, so I was curious what options that might open up.)
He responded that he and a few other MBA students were putting together a "search fund" to look for potential companies. It seemed quite weird to me that an MBA job search would require any kind of funds - I couldn't imagine what kind of research they'd be doing, nor how the upside of finding the right job could be worth pooling your money together to conduct such a search. After a few minutes of confusing back and forth, it eventually clicked with me that a "search fund" wasn't searching for companies to work for, it was searching for companies to buy.
I imagine to some people, I look like quite the fool in that exchange - I certainly felt like one at the time. The MBA student had referred to a search fund the way I might refer to a make or model of car if someone was asking for buying advice - it was simply one of the normally available options one might pursue, but the thought of evaluating companies for the purpose of purchasing them as a career was mind-blowing to me.
The simple fact that someone principally thought of companies as a thing you bought instead of worked for - an asset rather than an institution - has stuck with me for quite some time. It fundamentally alters the set of expectations one has about such institutions, why they exist, and what they should or should not be either allowed or required to do.
After all - an asset exists solely for the benefit of its owner, exercises its power and capacities at the owner's sole discretion and can be freely modified or discarded if it so suits the owner.
Institutions must pay at least some heed to the effect they have on the society around them, can be held accountable by the public, and are typically in some way necessary to the functioning of the society they operate in.
Most organizations in society have attributes of both, though they may lie close to one of the extreme ends of the spectrum. Hedge funds are close to pure assets (though they may catch some bad PR if they invest heavily in pharma companies which jack up prices) and the government is close to a pure institution (though in foreign policy the phrase "advancing American interests" is typically used to gloss over activities that benefit American enterprise which foreign parties might like to push back on).
Most organizations we deal with are actually pretty close to the middle. Most private companies, non-profits, schools, etc. have a Board of Directors, shareholders, or private owners who have pretty broad discretion to do as they like with the organization, but the organization is dependent on continued interaction with the public for its continued survival. Thus, this dependency introduces a need to consider the effects of the organization's behavior, and the potential reaction of those for whom the organization does not primarily exist to benefit.
Thus, tension arises between the owners/directors of an organization, who want to protect their right to pursue their own benefit, and the people around that organization who want to ensure that the net effect of the organization is beneficial to society at large.
Investors want companies to pursue whatever maximizes shareholder value - the public wants companies to provide good jobs and not commit too many human rights violations. University directors want to admit classes of students who are most likely to make and donate lots of money later on - the public wants universities to provide equitable access to education (or really whatever best guarantees their kid a spot). News outlets owners want to maximize eyeballs on screens/ads - the public wants unbiased, factual reporting.
If you're in the elite class, and you've got a lot of resources/access/insider info, and benefit mostly from being unfettered in what you can invest in, you're gonna see the role of government as protecting your right to do that. Rights based ethics has a lot going for it - the fundamental right of a person to be treated equally seems a lot better justification for the Civil Rights Act than the idea that Michelin is missing out on sales because black people aren't wearing out their tires fast enough. At the same time, just as you'll want your rights to be taken for granted, it can be difficult to embrace the full responsibility for the effects of your actions. You can't see the future, and neither can anyone else, so it seems unreasonable that you should be entirely held to account if there are some side effects you didn't forsee or intend. Limit your liability for damages through incorporation, and if you're challenged on it insist that you (or really your economics professor) read Adam Smith and he promised that the invisible hand would guide things to a happy ending.
On the flip side, if you're a poor/marginalized/paycheck-to-paycheck worker dependent on a well-functioning society, you'll mostly think the government is there to ensure that whatever effects the institutions around you have on your life, they're organized to produce the most benefit possible. Frankly, this kind of utilitarian thinking is almost irresistible - most ethical systems ultimately seem to justify whatever arcane set of rules to live by they proscribe with, "... and this will result in a better society/people." If you give much though to whether or not anyone has a right to behave in a way that isn't maximally beneficial to everyone involved in the system, you'll probably just think that guy's an asshole who needs to realize we're all in this together. The government should use whatever coercive force it has available, and if providing the effects you want isn't economically sustainable, it should just tax the right people more and more until the books are balanced - there's plenty of rich people and their pockets are basically infinitely deep, right?
This class separation stems from economic interests - do you make your money by selling your labor and thereby not have much power to influence these institutions directly, or do you make your money by investing and controlling institutions and therefore don't want to allow the public to encroach on your right to do so via government action? We tend to treat our choice of an ethical basis of what's right and wrong as a fundamental, very personal, very philosophical choice, and think that our political positions flow as a consequence from those principles. In fact, I think it's quite the opposite - our socioeconomic class inevitable influences, if not dictates, which basis for the idea of right and wrong we end up choosing.
John Steinbeck's lament that the people of America see themselves as "temporarily embarrassed millionaires" is a complaint that so many people in America think that someday they'll ascend to the rich investor class, and therefore are willing to embrace the idea that the rights of the individual are the most important aspect of a civilized society, without considering the actual effects those choices have on them. The irony is that we've actually twisted that quote to focus on the wealth itself rather than how it was accumulated. Steinbeck originally called them "temporarily embarrassed capitalists".
Sympathy for Mitt Romney
So how does this play out in day-to-day, or election-to-election politics?
It's tempting to say, "Ah - the Republicans are rights-based capitalist favoring, and the Democrats are effects-based worker favoring!"
After all, we remember when the Republicans nominated a private equity fund manager to the Presidency, and he made the argument that corporations are just assets without much societal responsibility:
And we remember when the Democrats rallied around an avowed socialist calling for the government to use overwhelming power to provide free college tuition:
And yet the Republicans now find themselves with a President promising to revive the coal and steel industries in America and who just authorized a $12 billion aid package for soybean farmers. And the Democrats didn't nominate Bernie, did they? Ultimately they (and the popular vote of the nation) went with a someone who had far, far more ties to the elite classes of America than the labor classes.
There's been a lot of analysis since the 2016 election on how and why Donald Trump won. Lots of focus on racism, nationalism, and elitism. To me it seems that at least part of the shift was that Trump (and Bernie) simply started selling effects to effects people while party elites on both sides were trying to sell rights. This seems to cut to the heart of what made their particular brands of populism so infectious.
Most Republican politicians talked in terms of ensuring the right to access a free market, where as Trump directly offered to revive the failing industries most dear to his base, whatever it took.
Most Democrats talked about ending racism and sexism in order to level the playing field in the struggle for institutional control. Bernie simply offered to pay for you to go to college.
I don't mean to over simplify or suggest that this was the only unusual thing about the 2016 election - merely to point out one of the dimensions along which political discourse is now evolving. Where as much of the latter half of the 20th century revolved around rights-based debates (racial civil rights, women's right, LGBTQ rights, global human rights movement, animal rights), today's debates seem most heated around whether institutions are providing the desired effects (Wall Street/capitalism generally, police brutality, value of education). There are still vestiges of the rights-based framework, sure - women's abortion rights seem to be up in the air again with the supreme court now solidly 5-4 conservative, and we're still haggling over immigrant rights even though the massive influx of migrants from Mexico reversed itself a few years ago, but those fights are just the ones we started, but couldn't finish before the shift.
If I can take it for granted that this shift is real and not just my imagination, the triggering event was probably the Great Recession. It shook a lot of effects people's confidence in the idea that a rights-based framework would eventually and inexorably lead to their uplifting, and national leadership failed to restore that confidence. Party elites on both sides missed the shift partly because they themselves are rights-based people, and most of their donors are rights based people, and they've been raised and educated to see rights-based frameworks as the natural ideal of political discourse. On the right people were shouting, "I don't give a damn whether the market is free or regulated, I just want my job back", and on the left people were shouting, "I don't give a damn if the 2nd Amendment is clear or not, I just want nutjobs to stop shooting my kids".
Mitt Romney's message probably would have worked great on both Republicans and Democrats if he had been running in say, 2006. And, while I might disagree with him, he was at least arguing in the same tradition as the debates which produced the strong individual rights we enjoy today. He just failed to notice that this particular recession had been bad enough to make a good number of people stop caring about that.
So, laying my cards on the table, I'm a pretty big fan of rights-based-frameworks, and the idea that even if you can see a massive potential benefit from a policy decision, it doesn't make it okay to use the force of law to violate someone's rights.
That seems like a no-brainer to me, but I'm finding that it increasingly divorces me from people I once stood shoulder to shoulder with on politics. Old friends are calling for censorship of voices they disagree with, looking for short cuts around constitutional issues because passing an amendment just doesn't seem realistic, or ignoring the consequences to people who aren't them of making institutions run the way they'd like.
On the other hand, rights-based advocates seem far too often to ignore the possibility that our current state of recognized rights isn't perfect. It certainly wasn't perfect in the 18th, 19th, or 20th centuries, so shouldn't we be surprised to find that there need to be some significant changes made in the 21st century as well? As such, things that seem to me like obvious human rights violations - the treatment of immigrants, police shootings of unarmed people, or parents refusing to vaccinate their kids - are inactionable because it's difficult to point to a specific, pre-enumerated right of the victim that's being violated.
Maybe I'm over-complicating it, or seeing a pattern where there isn't one. It's possible that everyone are really effects people and simply pick up rights arguments when they can't make the argument that the effects of the policy they want will actually make the world a better place. Maybe there's a separation between individual rights that it is beneficial to society to recognize, and those which have been enshrined or argued for simply to favor one special interest group or another.
Either way - I think we spend a lot of time talking about the role of government in society, but not the role of rights. I'd appreciate hearing any thoughts you want to share on the subject.