LET ME TRY ONE MORE TIME

Ten days ago, I tried [see THREE CHEERS FOR JEREMY BENTHAM] to provoke a discussion about a question that has long concerned and puzzled me, viz How should we evaluate actions or decisions with large-scale consequences affecting, both positively and negatively, now and in the future, scores or hundreds of millions of people?  I offered a cheer for Jeremy Bentham because he, virtually alone among the great moral theorists, took this question seriously and offered, in Utilitarianism, an answer.  I noted that Utilitarianism has major, perhaps even crippling, logical failings on which professional philosophers have dined out for two centuries.  But the philosophically less questionable alternative moral theories that have been offered fail entirely to engage with and answer this pressing question – and I include Kant’s elegant moral theory in this negative judgment.

Now, my son Patrick has sent me a link to a long essay by Paul Krugman in Rolling Stone evaluating the Obama presidency, and on reading it, I find that it poses the question I failed to make compelling, this time in a manner that may be easier for us to engage with.  Krugman takes Obama’s greatest accomplishment to have been the enactment into law of the Affordable Care Act, now universally known as Obamacare.  [To get some idea of what a bad idea it was for the Republicans to try to destroy Obama’s reputation by tying his name forever to that law, think how it would sound today if every time you got a Social Security check it was referred to as an FDR check, and every time you handed in your Medicare card at the doctor’s office it was referred to as your LBJ card.]  Krugman suggests that the biggest disappointment for liberals with the Obama administration was its total failure to bring to account those who launched the Iraq war and made torture the official policy of the United States of America.  For the sake of this blog post, let us simply accept those two judgments, positive and negative, as true.  If you reject them, then think of this entire post as an example of what Law School professors call a Hypothetical.

Now I am going to make an assumption that I suspect is true, but for which I have no direct evidence.  I am going to assume that in the Obama White House in the early days of the current administration, there was an active discussion about calling Dick Cheney and others before the bar of justice, and it was decided that such an act, thoroughly justified both morally and in law, would be so politically controversial that it would make passage of serious health care reform impossible.  Recall, if you will, just how difficult it was to pass even the deeply flawed bill that finally became the Affordable Care Act.  There was nothing like broad support for a Single Payer system.  The death of Teddy Kennedy and Martha Coakley’s loss of his seat to the egregious Scott Brown forced the Democrats into all manner of compromises to assemble the sixty votes needed to invoke cloture.  Whether or not such discussions ever took place in the inner circles of the Obama administration, I am completely convinced that such a judgment would have been correct as a matter of vote-counting political reality.

Which brings me, once again, to the question that provoked my paean of praise for Bentham.  Assuming all the above [my “hypothetical”], by what process of reasoning should we weigh the benefits of bringing the architects of the Iraq War to justice as against the benefits of passing the Affordable Care Act?  We must remember that while we automatically take into account in such a deliberation the present and future benefits of extending affordable health care to tens or scores of millions of Americans, we must also try to estimate the effect on the actions of future administrations of a successful show trial of Cheney and company.  How many hundreds of thousands of deaths in future unjustified wars would be saved by the chilling effect of the incarceration of Dick Cheney?  [Or his execution, but that is probably just a liberal wet dream.]

I do not have an easy and comfortable response to this hypothetical [which I myself believe to be an actual, if I may put it that way.]  I invite anyone who wishes to do so to weigh in.  But let me issue one caveat:  I am not interested in high-minded condemnations of war crimes from those who are unwilling to say why they would be willing to forego the benefits of extended health care to tens of millions.  Or in political chest-thumping from those who cannot explain where they would get the sixty votes for cloture in the aftermath of a Justice Department indictment of a former Republican President or Vice-President.  Let us recall that every Democratic administration since Harry Truman tried without success to pass health care reform, including the effort by the woman who is almost certain to be our next president.

If you come down on the side of the Affordable Care Act, then you must explain what you would say by way of justification to the next person tortured by the American government.  And if you come down on the side of indicting Dick Cheney, then you must explain what you would say to parents whose child died because they could not get the health care that the ACA would afford.

If that seems like a needlessly provocative way of posing a theoretical question, I will just note that exactly such questions are the daily exercise of anyone who is elected to run the government of a wealthy and powerful nation of more than three hundred million people.

I look forward to some interesting responses.