Column on Obama v. Due Process

Due Process versus Desired Results

Tibor R. Machan

Human justice is directly concerned with process, indirectly with results. This appears to have escaped President Barack Obama, especially during the recent political battle over whether Obamacare may be implemented or is it perhaps in violation of the U. S. Constitution. And was it perhaps enacted without regard to justice, to due process?

I am no constitutional scholar but it seems to me that in America it is perfectly proper to inquire about whether a piece of legislation has been enacted in a way that does violence to due process, the method of making law that free men and women are due. So when during the final hours of the debate about Obamacare Mr. Obama himself derisively dismissed the concern of many about the process by which it was being made into law–for example in his 11th hour interview on Fox TV–the American citizenry gained an important insight into just how his administration plans to govern. What the president was insisting upon is that what matters to him and his team are results, not process. He wanted the bill to succeed, whatever process would bring this about and it is quite likely that this is how he plans to pursue the rest of his agenda.

Now life, of course, is itself a process. Human life in society manifests itself in innumerable processes, aiming at innumerable results. There is only one common result all human life ought to aim for but it comes in a great variety of forms, which is human happiness. This is supposed to be the reward of the morally good life of the individual human being. For this reason a good society has a system of legal justice that protects the processes whereby men and women will not have anyone around them obstruct their pursuit of happiness. It is the protection of that pursuit that is crucial to the law, not the result itself which is the citizenry’s own business, their own task to achieve.

A parallel situation obtains concerning attempts to adjudicate dispute among members of the citizenry. A criminal trial is such an adjudicative process. And here again the result is only indirectly the concern of the legal system, the process is the crucial factor. And this is clear from the fact that the system often leaves the result in the hands of a jury, private citizens with no political and legal office. The system is supposed to ensure that every trial follows sound procedures–due processes of law!

But the tenor as well as the aims of our legal system have been changing. Politicians, including their legal appointees, are focused not on process but on results. The country is in danger of becoming a semi-civilized lynch mob. This could be appreciated from watching the news reports of all the fuss associated with the how dismissive President Obama was toward concerns expressed about the process that finally produced Obamacare.

And all this should not surprise us too much. Although the United States of America was conceived in terms of a legal system focused on due process, in time the government began establishing too many specific goals for us all to pursue. If the proper processes of the law do not produce an educated public, relief for the poor, environmental purity, total racial harmony, decent speech, or health insurance for all, then let’s just drop them and charge ahead anyway.

When such a role is conceived for our government, is it surprising that the people are willing to throw out due process as they protest the ensuing results? What many wanted from the recent debate about Obamacare is to make sure that bringing about the result does not do violence to individual rights (as, for example, coercing people to buy insurance certainly would). Did the American political process manage to abide by the principles to which all political maneuvers must conform? Or did those who wanted Obamacare proceed without regard for the principles on which the government is supposed to rest?

In the eyes of most protesters, for example members of the Tea Party, it could very well look as if due process was tossed to the side. Supporters of Obamacare made it clear they couldn’t care less about how the legislation made it into law so long as it did so somehow, with some semblance of legitimacy. This is a very ominous sign of where the country is headed. Hugo Chavez would find it promising.

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7 Responses to Column on Obama v. Due Process

  1. Unknown says:

    Hello Tibor, I like this article although I’d actually like to comment on something else! You write in ‘The promise of liberty: a non-utopian vision’ chapter one page 35 of your book the following:“First of all, the main argument for free will is no more mysterious than any argument that relies on a dialectical move. If, as turns out to be the case, free will is assumed even as one tries to deny it – in other words the action of attempting to deny free will presupposes that the agent is capable of making free choices – that is sufficient to present a very strong case for free will.” The problem with this argument was clear to my quite young sister, namely that its completely circular and its actually you who presupposes what you set out to prove not the determinist. As you say – free will is true – so you must have it to make the choice to talk about determinism. In the same manner I might add that a Victorian biologist might argue that you must have a vital force in order to be alive and to argue that you do not have a vital force so, vital forces must exist. Or the tooth fairy must exist for you to talk about the tooth fairy existing therefore the tooth fairy does exist. I’m afraid I’m very surprised that a professor of philosophy? Would seriously put this forward as an argument for free will and id love to hear an explanation. As the thing you don\’t seem to be able to get your head around is that one does not necessarily need free will to appear as though they have it, you could read Laplace for help with this. The action of attempting to deny free will does not as you wrote presuppose the ability to make choices because for the determinist it is the case that this behaviour is not free will although it appears to be, but is the result of a mechanistic process like dominoes falling one hitting the next in a line, based on what’s happened before without room for freedom. This is also applied to the manner in which the brain functions, it too being a physical thing for the materialist determinist – who has no reason to believe that it could operate outside of the fundamental laws of physics. You also go on to make a second point that we know we have free will through introspection. “Part of what gives us knowledge of our free will is that we know we often choose.” I shouldn’t need to point out that this again is a circular argument and we can’t know things for certain just because we feel as thought we do. This is very un-philosophical. You go on to say “As I am writing the next few words in this discussion, I know at any moment I could stop, get up, get a soda from the fridge, or continue with my project, as indeed I am choosing to do.” This still claim to knowledge is not rational as it presupposes what it sets out to prove. All you do is say that free will is true, look! I can get up and get a drink or stay here! Without taking into consideration the real argument that perhaps you could never have done other than continue with your project as you were determined by past events outside of your control that made this the only possible event that could take place. These constitute incredibly weak narrow minded arguments and don’t mean to be horrible to you personally but please have a think about it and email me if you fancy –

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