A Million Bucks to Support Two Already Existing and Quite Safe Constitutional Provisions?

 

Among the large number of extremely weird occurrences that peppered the recently completed Presidential election in the U.S. was the creation of an unusual lottery. Elon (or "Leon" as Trump first called him) Musk started giving away a million dollars a day to randomly chosen registered voters who pledged to support freedom of speech and the right to bear arms. 

This was seen by some Democrats as an inducement to register, and lawsuits were duly filed claiming that such incentives are prohibited by election laws. I have nothing to say about the legality of the scheme here but will note that it seems a particularly cuckoo and wasteful way to try to affect an election. Obviously, it's chump change to our new hyper-efficiency devotee and future deregulation tsar, so it may not give a clear sense of the many ways he can benefit his and his fellow oligarchs' businesses by mucking around in Federal regulations, eliminating agencies and firing scientists.

That's not what I want to write about here though. What fascinates me now is his choice of the first two items in the Bill of Rights as provisions that are in need of support by perhaps a few thousand likely Trump supporters who may have been encouraged to register to vote for the first time. I mean, those two Amendments seem like they are pretty safe at present, especially given the present composition of the U.S. Supreme Court.

To be honest, I don't know what Musk's particular interest is in guns. Maybe he's got big ones on his space ships or wants to make some cool James Bond weaponry available to every Tesla buyer. Maybe he just wants people to be able to bring rocket launchers and bazookas to their local Walgreens without getting hassled by anybody. I really don't know. But I do think the NRA has had all that kind of thing pretty well in hand for at least a generation.

On the other hand, I believe I understand his interest in the First Amendment. It's about one more sort of absolute immunity now being sought by the right--the ability to make stuff up and disseminate it as widely as any really rich and powerful person can manage to do. 

Some people may remember the old Rothbard/Rand/Nozick libertarians who, perhaps reluctantly added "fraud" to the single other item (force) that they said it was appropriate for laws to prohibit. In their heart of hearts, the old libertarians didn't think anything really ought to be unlawful except, you know, murder or theft of one's beemer. Other than that, people should be LEFT ALONE to do their things (i.e., make the world lovely for poorer people). The problem was that lying, which doesn't seem particularly forcey, could nevertheless mess up contracts. Even a small con could be bad for corporations as well as as well as common shmucks considering some nootropic supplement or a lightning rod for their house (see Melville), so it might be necessary to allow prohibitions of lying too.

Well, Musk at X as well as Trump at Truth Social do NOT want to be prevented from disseminating  falsehoods, including absolutely cracked conspiracy theories. They want to be able to publish deep fakes and to insult any adversaries with absolute impunity (though, of course, Trump reserves his right to sue people--and maybe turn off the lights at media outlets--whenever he feels they are being mean to him. After all, consistency isn't really his thing.) But Musk doesn't seem particularly interested in suing detractors; he just wants never to be hassled for pushing whatever nonsense might benefit one or more of his businesses or those of his buddies, if he thinks those lies might be believed by a bunch of gullible fanboys.

To be honest, this is a very difficult problem. On the one hand, free speech, especially political speech, has a lot of good things going for it--even if J.S. Mill was a bit too optimistic about the benefits that he thought must follow from it. At the very least, democracy seems to depend on it. Furthermore, nobody really has any terribly good ideas of how to prevent dangerous lies from being disseminated. (We will surely have more of them emanating from RFK Jr.'s exciting future tenure as head of FDA, NIH, and CDC.) 

But again, I don't have any marvelous proposals regarding how to handle these problems, which have certainly been exacerbated by inexpensive and broadly available AI. I really don't think anybody does. I have discussed this matter in several book reviews and prior blog posts. Here, here, here, here, and here, for example. As you can see, I have struggled with the tensions between free speech and disinformation. It's extremely tricky and may well just be too difficult for me.

It's not too sticky a wicket for Musk, though. He knows precisely what he wants--to be able to spray any sort of bullshit anywhere he likes without impediment...and to be free to do so in ways that will ensure that these lies will be seen by millions, whether they have chosen to follow him on X or not. That's his idea of speech freedom, and he'll give you a chance to win a lot of money if you agree with it.

I Review One of the Late William Talbott's Books on Human Rights

 

The book I have most recently reviewed for 3:16 AM Magazine is Which Rights Should be Universal, by William J. ("Bill") Talbott. It's a very solid book, and for me was also quite educational. Most importantly, it's both a work that I think is worth careful study by anybody interested in political philosophy yet not something that is unapproachable by non-scholars.

Only after I sent off my review to my editor did I come to find out that Bill had died in May of last year, after a four year battle with cancer. In addition to being an excellent philosopher, he was a celebrated teacher and beloved family man. Like me, Bill fathered two precious daughters. I learn from his obit that he was a conscientious objector during the Vietnam war. He didn't luck out with a high lottery number like I did. And he made no bogus claim of bone spurs like a certain Presidential candidate. In return for his courage and honesty, Bill was forced to provide two years of non-military service. 

When he passed, he was only 74 years old. Seems to have been an absolutely beautiful man.

Here is my review of his fine book. It's the only one of them that I've read, but I have little doubt that the others are good too.

The Sacred Song of the MAGA

For those who are interested, here is the real MAGA theme song. Anti-gay/trans, anti-welfare, xenophobic--even a bit anti-new tech. Sung by the original king of anti-wokeness, Archie Bunker, along with his hapless and long-suffering wife, Edith. Archie was created to be something of a laughing stock 50 years ago. Watching his obno antics was thought or hoped to be maybe a bit educative. And maybe it actually was for awhile. But today Archie's views are in the ascendancy, not just here, but around the world. MAGA is having the last laugh, I guess.

OK, here's the song, a fairly disturbing reminder of where the U.S. is as a country these days. But how did Archie Bunker emerge from his status as prince of the dumbasses to become our top dog? I leave you with that question.

Happy Halloween

Louis Menand's New Yorker Piece on Two New Books About the U.S. Constitution

 

As a result of my frequent (and shameless) self-promotion (which practice, to be fair, was urged on me by my publisher), I suppose that most people who chance upon this blog know that I have written a book on democratic theory and that I write reviews of other books on democracy for 3:16 AM. 

The latter fact of course entails that others are or have been also engaged in the writing of books on democracy. But did you also know that other people write reviews of democracy books too?!? No? Well, believe it or not...they do!! In fact, in the most recent issue of  The New Yorker, Louis Menand (of The Metaphysical Club fame) has provided his take on two new ones, Erwin Chemerinsky's No Democracy Lasts Forever: How the Constitution Threatens the United States (Liveright), and the Paul Pierson/Eric Schickler offering, Partisan Nation: The Dangerous New Logic of American Politics in a Nationalized Era (Chicago). 

Menand recognizes that neither of these works is particularly good and says so. He points out, with some amusement, that while Chemerinsky used to blame democratic failures in the U.S. on the Courts and formerly lavished praise on the Constitution, he now blasts both as terrible. Menand also suggests that Chemerinsky hasn't got a single workable proposal for fixing anything. Meanwhile, Pierson and Schmickler are derided for seeming to think that it is the Constitution ("America's software") that should be blamed for the extreme polarization in the U.S. today. Menand points out that both hostile segmentation and an almost complete lack of trust in government seem to be global, rather than domestic problems nowadays.

It's a little disturbing that these are the sorts of books that tend to get reviewed when there are so many democracy books coming out nearly every day, some of them quite good. Menand even lets us in on the fact that neither of his subject books is elegantly written. So, I suppose one may wonder why Menand and/or the New Yorker picked these two particular duds to promote...if only in Menand's negative fashion. (Indeed, Michelle Goldberg recently indicated in the NYT that she wasn't much more satisfied with the new Levitsky and Ziblatt book she reviewed there.)* 

Whatever.  What I want to talk about here is what Menand himself gets wrong about democracy in his review of these two mediocre books.

He writes, "Political decisions can't be entrusted entirely to the will of a bare majority of voters, in part because voters tend to be relatively uniformed about politics, but, more important, because nothing prevents majorities, once in power, from oppressing minorities." And he warns that Madisonian factions that are "actuated by some common impulse of  passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community" may cause us to end up with "either a movement led by a man on a white horse or a  tyranny-of-the-majority regime." I.e., either a Trumpian autocrat or a French Revolution-style terror.

Back in 1993, this "liberal" way of looking at the matter was brilliantly rebutted by the Harvard Constitutional scholar Richard D. Parker in a passionate article entitled, "Here, the People Rule." Parker there wrote of that sort of Menandian thinking that it is basically "grandiose puffing" that relies on the assumption that only "better-than-ordinary-people" can make decent laws. Parker noted that when we hear "the best people" conceding that, in spite of their obvious superiority, sometimes they must nevertheless"defer" to the majority, we should understand just how "haughty" the remark is. And he explained that an apparent desperation to "get out of the way of a big, vulgar group" is how we can tell that the condescending (and twee) narrator of Mann's Mario and the Magician should be placed with his fellow hapless liberals. Finally, he says that such attitudes are why that (perhaps intentionally) feeble group prefers the august judgments of those who have been elevated to "the bench" to what they might discover on the street. For, when one is troubled by anti-populist fears, one is likely to consider judges to be "so very superior to political actors, that they can represent our 'better' selves."  

Parker is at pains to point out (as I was also, both in my book and in this paper) that "to attribute much past or present oppression to 'majorities' is...a ridiculous exaggeration. Majorities rarely rule at all. Certainly, they almost never rule directly. When believers in 'majority tyranny' imagine their worst fear, they aren't thinking of a New England town meeting." And he notes, quite rightly in my view, that "[m]ost oppression...is the work of minorities. And much of it is the work of elite minorities--refined and well-educated--whose hands tend in real life to clutch the immediate levers of power." It is a very compelling paper, and one that I recommend everybody read.

In any event, I will sum up here by saying that, while Menand's review is surely better than the two books covered in his piece (or than the above-mentioned release recently discussed by Goldberg in the NYT), in the immortal words of Skip James regarding The Cream's take on I'm So Glad, "It's slick, but it still needs a little more grease." 

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*Among terrific recent books on the subject, one could mention those by Rosalyn Fuller and Jan-Werner Muller. But nevermind: the sublime mysteries of how some books get a ton of publicity and others almost none are certainly far beyond my humble ken. 

What a 1927 Novel, Made into a 1932 Boris Karloff Horror Movie, Can Tell Us About Current U.S. Politics

 

Just this (from the character, Margaret regarding the tycoon, Sir William): 

[S]he was troubled by a vision of factories and ships and crowded offices, and against this background there stood out the figure of this man, no, this huge resentful boy...someone lost, now smiling, now crying.... She stared at him. He had never really grown up. Were they all like that, these men who grabbed power, who wrecked whole countrysides, who sent other men flying all over the world?

--J.B. Priestly, Benighted

Paine and Bentham on Democracy and "Natural Rights"

 

Not long ago, at a social media site I frequent, I was discussing (OK, pontificating on) the nature of “natural rights” and pondering whether, if all one has available is some sort of consequentialism, it’s possible to fend off things like involuntary organ donation or murders on trolley tracks. An interested participant contributed this comment:

It's interesting that you had a difficult time with the idea of mandatory organ donation. I thought about it very little but the answer seemed quickly obvious. If you will indulge me: Natural rights exist or they don't. If natural rights of the individual don't exist then no one is wrong if he violates the claimed rights of another….The problem is: If natural rights of the individual don't exist then neither do natural rights of the society. Society doesn't have the right to take my kidneys. It only has the power.

I will not give my loyalty to a party that sees me only as a resource from which to harvest my labor and my parts. I will immolate myself before I surrender my organs.

 Now, I agree with a couple of assertions there. I think it’s true that either natural rights exist or they don’t; also that if individuals don’t have natural rights then societies don’t either. I also admire the defiant, lionhearted attitude found here, as well as the ease and certainty with which this discussant believes he can untie philosophical knots that have stymied brilliant knottologists for centuries. But there are also a few things in that comment that seem wrong to me.  For example, it doesn’t seem to me to follow from the assumption that there are no natural rights, that no one is in the wrong if she violates something that is claimed to be a natural right of somebody else. And for related reasons, I also don’t find it obvious that if there are no natural rights, societies no one can object if a society runs off with one or more of my kidneys when I’m not looking.

Is my position internally coherent? Well, it’s intriguing that two first rate political theorists who had wildly contrasting views regarding the existence of natural rights, Thomas Paine and Jeremy Bentham, had numerous nearly identical views, not only about the importance of democracy, but about why and how various government structures are likely to produce a happy citizenry. In addition, looking their work indicates that while Paine (a staunch natural rights defender), might agree with my FB interlocutor that without an assumption of natural rights it might be difficult in certain circumstances to demonstrate the evil of a country making off with a citizen’s kidneys, it is easy to see how both Paine and Bentham (an acerbic natural rights disparager) might agree that kidney theft, even by one’s own country, is simply not OK. 

This being a very interesting subject, I thought I would consider the convergent/diverrgent views of these two thoughtful observers of the French and American Revolutions. I will also shove a few relevant quotes from the blokes into an endnote area. 

Let me begin by listing some of the many points of agreement between the two firebrands.  

Unicamerality

Both advocated for a single legislative body. For Paine this was in the context of the Pennsylvania Constitution, which actually prescribed one of the very few unicameral legislatures ever seen in the U.S. for about a decade. Both philosophers believed that a unicameral system would be more democratic and less prone to corruption and aristocratic influences.  In Bentham’s "Plan of Parliamentary Reform," he criticized the complexity and inefficiency of bicameral systems, advocating for a simpler and more direct form of representation.

Recall of Officials

Both supported mechanisms for holding public officials accountable, including the recall of officials. 

Disdain for Monarchs

Both were staunch critics of monarchy and hereditary power generally, believing that such ideas were outdated and unjust  and made for governments that perpetuate inequality and oppression. 

Inappropriateness of Binding Future Generations

Both complained bitterly about the idea that some constitution-writing generation has the right to bind future generations with its laws. Each believed that each generation should be able to decide what it wants–including what laws it wants, for itself. Society’s needs and knowledge evolve, and both men believed that laws should be able to as well. In his “Plan of Parliamentary Reform,” Bentham wrote that “The Constitution…shall never impede the amendment of its own errors.” And Paine wrote in “Rights of Man” that “Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it.”

French Revolution

Both (in the case of Bentham, eventually) came to support the cause of the French Revolution. For Paine, it was a fight against tyranny and a movement towards establishing a government based on natural rights and democratic principles. Bentham, who was extremely partial to the writing of detailed and explicit legal codes, saw it as creating a wonderful opportunity to implement rational and utilitarian principles in governance.

Constitution Writing and Democracy

Paine supported the idea of written constitutions as a means to safeguard natural rights and ensure a just government. He believed constitutions should reflect the will of the people and be subject to amendment as society evolves, advocating for the sovereignty of the people and the importance of representation. Bentham believed that democratic systems, where officials are elected by the people, ensure greater accountability. Elected representatives are more likely to act in the interests of their constituents to secure re-election. He argued in his "Plan of Parliamentary Reform," Bentham that representatives in a democracy would be more attuned to the needs and desires of the majority, as their political survival depends on popular support.

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But, as said above, Paine was a strong advocate for natural rights, which he believed were inherent and inalienable. On his view, these rights were derived from nature and reason, and they included life, liberty, and property. In fact, in Rights of Man he argued that governments are established precisely to protect those rights and that any government that fails to do so is illegitimate. On the other hand, among the most famous remarks Bentham ever made was his calling the idea of natural rights “nonsense upon stilts.” He was confident that observance of the principle of utility is all that is needed to ensure the excellence of any government. So, while both men called for roughly the same sorts of public policies, they couldn’t have been farther apart with respect to their conception of what grounds democratic principles. Natural rights for Paine, group well-being for Bentham. Can this “identity in difference” be explained, and if not…who was right?

Straightforward Benthamic hedonism isn’t particularly popular these days, largely because piling up pleasures for a bunch of people doesn’t seem to most  commentators to make up for the pain that might be involved in doing it. So, for example, most of us  don’t think it’s OK to steal a bunch of organs from some poor schmuck sitting in a hospital waiting room to pick up his wife after her colonoscopy, even if those organs would be used to save five (possibly “more important” or “useful”) people’s lives. 

The thing to note about our intuitions here is that they are about morality: what seems right or wrong to us. But we can talk about how governments ought to be set up, without taking the “ought” there as an ethical term. We can take all the talk of “should,” “ought,” “right,” and “good” to be about another sort of value altogether, the prudential kind. Prudential values aren’t about what is good or right or ought to be done; they are about wellbeing–what is good for some person or group. So some act might be good for me or my family and still be horribly wrong to do. Say, I need a kidney, it might be good for me for one to be illegally taken from the guy in the waiting room, but that wouldn’t make it ethically appropriate.

One of the interesting differences between moral and prudential values is that the latter do seem capable of being summed in a way that the former can’t be. If some action would increase the wellbeing of a bunch of people in a group and lower the total wellbeing in that group by a smaller amount, it seems correct to say that total prudential value has increased. At least it has increased up to that date, for it may be that future wellbeing will be decreased if actions of that type are regularly undertaken. So, while (moral)  goodness doesn’t seem summable in that way, prudential values do. 

My suggestion for my readers is to now take all the recommendations of Paine and Bentham and think of them as being exclusively within the province of prudential values. Do you agree with me that the differences no longer seem so profound? 

On the other hand, if moral claims are intended, reconciliation seems to me much more difficult. For in the area of ethics, the two thinkers begin with very different axioms. 

I hope this helps. Either way, I may pick the matter up in a future blog on moral (and other) axioms.         

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A few relevant quotations

Form a constitution with such distinctions of rights, as shall expel the poor, or cause them to draw off into other states, and the rich will soon supply their places by becoming poor themselves, for where there are none to labour, and but few to consume, land and property is not riches…..Men who either do not, or by some fatality cannot penetrate deep enough into consequences, may please themselves with an idea of a distinction of rights in point of fortune, but it is the worst policy they can pursue. They will decay under it…..[T]heir assumed distinction of rights cease to exist, from the want of objects to exercise it over.

Rights are permanent things, fortune is not so; therefore the uncertainty and inequality of the latter cannot become a rule to the certainty and equality of the former.

The toleration act in England, which granted liberty of conscience to every man, in religion, was looked upon as the perfection of religious liberty. In America we consider the assumption of such power as a species of tyrannic arrogance, and do not grant liberty of conscience as a favor but confirm it as a right. And in so doing we have in point of justice exceeded every part of the known world.

There are some points so clear and definitive in themselves that they suffer by any attempt to prove them….

[These are all from Paine’s, “A Serious Address To The People Of Pennsylvania On The Present Situation Of Their Affairs”]

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The principal defect in the constitution of 1776, was that it was subject in practice to too much precipitancy, but the ground work of that constitution was good. The present constitution appears to me to be clogged with inconsistencies of a hazardous tendency, as a supposed remedy against a precipitancy that might not happen. Investing any individual, by whatever name or official title he may be called, with a negative over the formation of the laws, is copied from the English government, without ever perceiving the inconsistency and absurdity of it, when applied to the representative system, or understanding the origin of it in England.

It is from [an] assumed right, derived from conquest, and not from any constitutional right by compact, that kings of England hold a negative over the formation of the laws; and they hold this for the purpose of preventing any being enacted that might abridge, invade, or in any way affect or diminish what they claim to be their hereditary or family rights and prerogatives, derived originally from the conquest of the country. (2) This is the origin of the king of England’s negative. It is a badge of disgrace which his parliaments are obliged to wear, and to which they are abject enough to submit. But what has this case to do with a legislature chosen by freemen on their own authority, in right of themselves? Or in what manner does a person stiled governor or chief magistrate, resemble a conqueror subjugating a country, as William of Normandy subjugated England, and saying to it you shall have no laws but what I please? The negativing power in a country like America, is of that kind, that a wise man would not choose to be embarrassed with it, and a man fond of using it will be overthrown by it.

This negativing power in the hands of an individual ought to be constitutionally abolished. It is a dangerous power. There is no prescribing rules for the use of it. It is discretionary and arbitrary; and the will and temper of the person at any time possessing it, is its only rule.

The complaint respecting the senate is the length of its duration, being four years. The sage Franklin has said, “Where annual election ends tyranny begins:” and no man was a better judge of human nature than Franklin, nor has any man in our time exceeded him in the principles of honor and honesty.

When a man ceases to be accountable to those who elected him, and with whose public affairs he is entrusted, he ceases to be their representative, and is put in a condition of being their despot. He becomes the representative of nobody but himself. “I am elected, says he, for four years; you cannot turn me out, neither am I responsible to you in the mean time. All that you have to do with me is to pay me.” — The conduct of the Pennsylvania Senate in 1800, respecting the choice of electors for the presidency of the United States, shews the impropriety and danger of such an establishment.

The senate is an imitation of what is called the house of lords in England, and which Chesterfield, who was a member of it, and therefore knew it, calls it “the hospital of incurables.” The senate in Pennsylvania is not quite an hospital of incurables, but it took almost four years to bring it to a state of convalescence.

The Pennsylvania convention of 1776 copied nothing from the English government. It formed a constitution on the basis of honesty. The defect, as I have already said of that constitution, was the precipitancy to which the legislatures might be subject in enacting laws. All the members of that legislature established by the constitution, sat in one chamber and debated in one body, and thus subjected them to precipitancy. But this precipitancy was provided against, but not effectually. The constitution ordered that the laws, before being finally enacted, should be published for public consideration. But as no given time was fixed for that consideration, nor any means for collecting its effect, nor were there then any public news papers in the state but what were printed in Philadelphia, the provision did not reach the intention of it, and thus a good and wise intention sank into mere form, which is generally the case when the means are not adequate to the end.

The constitution of ’76 was conformable to the Declaration of Independence and the declaration of rights, which the present constitution is not; for it makes artificial distinctions among men in the right of suffrage, which the principles of equity know nothing of; neither is it consistent with sound policy. We every day see the rich becoming poor and those who were poor before becoming rich. Riches, therefore, having no stability, cannot and ought not to be made a criterion of rights. Man is man in every condition of life, and the varieties of fortune and misfortune are open to all.

Had the number of representatives in the legislature, established by that constitution, been encreased, and instead of their sitting together in one chamber and debating and voting all at one time, to have divided by lot into two equal parts and sat in separate chambers, the advantage would have been, that one half by not being entangled in the first debate, nor having committed itself by voting, would be silently possessed of the arguments, for and against, of the former part and be in a calm condition to review the whole. And instead of one chamber, or one house, or by whatever name they may be called, negativing the vote of the other, which is now the case, and which admits of inconsistencies even to absurdities, to have added the votes of both chambers together, and the majority of the whole to be the final decision. There would be reason in this, but there is none in the present mode.

The fundamental principle in representative government, is, that the majority governs; and as it will be always happening that a man may be in the minority on one question, and in the majority on another, he obeys by the same principle that he rules. But when there are two houses of unequal numbers, and the smaller number negativing the greater, it is the minority that governs which is contrary to the principle

While Royalty is harmful from its very nature, hereditary Royalty is, in addition, absurd and disgusting. Just think of it! Yonder is a man who claims that he has a hereditary right to rule me! Where did he get it? From his ancestors, he says, and from mine. But how could they give him a right they did not possess? No man has power over posterity. I can no more be the slave of those who went before me than I can of those who now exist. If we

returned to life, we could not rob ourselves of the rights acquired in a second existence; still less could we rob posterity of their rights.

A hereditary crown! A throne to be handed over to a successor! Why, it is to treat our posterity as a herd of cattle who are entirely destitute of either rights or will. No more infamous and indecent illusion ever disgraced humanity than that the people is a herd which may be transmitted from one king to another.

[These are all from Paine’s “TO THE CITIZENS OF PENNSYLVANIA ON THE PROPOSAL FOR CALLING A CONVENTION–1805]

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The supreme operative body should act without division.

2. It should not act in so many as two bodies: even though

the members were located by the best compounded set of locators

-i.e. Electors,-much less in more than two.

2. Much less should it be composed of two or more independently-

operating bodies-each taking cognizance of the same

measure after the other.

3. Still less should enter into the composition of it a body of

men located by a Chief Functionary, or set of Chief Functionaries,

established for the purpose, sitting for a long term of years

or for life.

The will of the people is determined by the interest of the

people: so far as that interest is understood by them.

It not being understood, is not to be presumed: for if not by

them by whom else is it understood?

The greater the number is of its seats of authority, through

which a useful measure must pass before execution and effect can

be given to it, the greater the number of stages at which sinister

interest may apply itself to encounter and obstruct it.

[7] Q. What can have been the cause or causes why a second

chamber where the members are located on the same principle

has been added to the first.

Answers-I. The supposed probability or fear of precipitation,

and the hope of obviating it. 2. The principle of imitationauthority-

begotten prejudice.

Q. The evil of precipitation (its degree of probability taken

into account) does it seem to be of such a magnitude as to warrant

the application of such an institution in the character of a

preventive remedy.

A. Hardly. For 1. the evil of additional delay is an evil that

applies itself to every measure-2. So does the evil of complication-

in every individual case the existence of every one of

them is certain.

As to the good, the only case that affords an inlet to it, is that

in which a pernicious measure, which would have passed had

there been but one Chamber for it to pass through is prevented

from passing by being thrown out by the Second Chamber. To

be on sufficient grounds assured that in this case preponderant

good has been the result of the operation-if this instrument has

had preponderant good for its results, these two distinguishable

points must be established-viz 1. that the law or measure if

carried into effect would have been pernicious-2. that had there

been no second chamber it would not have been thrown· out in

the first. For, as to this latter point, a state of things not incapable of 

being realized is that, in being assured that the measure

will not pass the second· Chamber, many of those who would

otherwise have opposed it in the First Chamber, are by one consideration

or other kept back from meddling with it.

In proportion as the result of the division or rather multiplication

of barriers that must be passed through ere a measure

reaches the end of its career, is favourable to factitious delay, factitious

delay is resorted to in preference to argument. But it is in

the nature of argument, on the supposition that the end pursued is

the universal interest and not particular interest : that the farther

from being preponderantly beneficial a measure is-the more

likely it is to be put aside by argument; the more highly beneficial,

the less likely to ~ thus put aside: whereas factitious delay contributes

according to the length of it-c:ontributes in the same

proportion in the one as in the other, to put aside the best and the

worst.

If, in consequence of precipitation, a measure the effect of

which is upon the whole preponderantly evil receives the sanction

of law, the evil is not incapable of being removed by a subsequent

law: whereas whatever is the sum of the delays produced in all

measures without distinction by the dilatory system remains for

ever uncompensated.

True it is that where by reason of precipitation, a measure

productive of a balance on the side of evil receives the sanction

of law--so long as the law remains unrepealed, the evil continues

on the increase. But, by the supposition, being, as it is, indebted

for its existence to precipitation and nothing else-being such that

had it not been for the precipitation, it would not have passed but

would have been rejected-rejected before the evil had begun to

show itself--still more surely will the system be rid of it, and now

that the correctness of the general anticipation judgment has been

demonstrated by experience.

For the formation of a well-grounded and well matured

judgment in relation to this subject, take the body of experience

already obtained in the Congress of the Anglo-American U. S.

Take any year or number of years : take an account of the whole

number of laws passed & rejected within that time, and say

1. Total number of laws introduced into the Senate from the

House of Representatives so many-

2. Whereof passed, so many

3. Rejected, so many

Then take in hand the number of those rejected & say

4. Introduced & passed in a subsequent Session, so manyOf

these, unless some special & adequate reason to the contrary,

it ought to be assumed that they have upon the whole

been & continue to be of a beneficial natures.

Of those rejected, pernicious, upon the whole, upon a present

view, if any, so many-

6. Of those rejected, pernicious, as above, but which had it

not been for the existence of the Senate, would it is now

supposed have been rejected by the Chamber of Representatives,

so many-

7. Of those rejected, deemed now upon a maturer view of the

Subject, beneficial upon the whole, so many.

Such is the plan recommended to each individual for the formation

of his own particular opinion.

Supposing the balance, in this account of aptitude, of good &

evil in all other shapes to hang exactly even, the consideration of

expense will suffice to turn it, & the scale with the Second Chamber

in it will kick the beam.

[These are all from Bentham’s ANTI-SENATICA of 1830]