It is better to risk sparing a guilty person than to condemn an innocent one.
Using forensic linguistics as evidence for a search warrant to be issued, which ultimately lead to Ted Kaczynski’s arrest, was never before done in the history of Western law. From a Constitutionalist perspective, if similarities in language, spelling and beliefs are not compelling evidence of a crime, then Ted Kaczynski should never have been arrested. And allowed to continue his bombing activities until evidence that reaches the threshold of the burden of proof be met.
The purpose of this essay is not to argue for shoulds. Not to argue that it is right or wrong to follow Constitutionalism or Consequentialism, only that they are at odds with each other. Any Consequentialist system which has health and safety as two main priorities would allow any police officer to enter your home at any given moment as long as those police officers are well trained (which many in America aren’t) and will not do harm to you or your belongings unnecessarily. We could even establish that the only things which are to be illegal in this hypothetical country be things which directly harm other people – harm being the “bad” consequence we are trying to avoid. Theft, rape, murder, forgery, filming child pornography and so on. Creating a “Libertarian” but non-Constitutional government, where human freedom is valued but not at the expense of even the off chance that you committed a crime because your language is similar to Ted Kaczynski (which is certainly a possibility, albeit an unlikely one).
We must accept that our Founding Fathers were Constitutionalists – not Consequentialists. That they valued human freedom, the right to say, “you will not enter,” more than they valued human life or well-being. Classical Liberalism, such as the kind seen in Kant and Voltaire, is starkly non-Consequentialist. It is not until John Stuart Mill in the 19th century that Liberalism and Utilitarianism are argued to be happy bed-fellows.
But someone could argue that the above quote from Voltaire is a Consequentialist statement – or at least one that is not in stark opposition to Consequentialism. The consequences of a Liberal system with a high burden of proof for convicting criminals is superior than a illiberal system where men can be convicted on hearsay or circumstantial evidence. Regardless of whether this is true, this is certainly a position one can hold. But it is the burden of proof of search and seizures which is starkly non-Consequentialist. For what are the bad consequences of a man entering your home, if, as I previously said, he is cordial and professional. At worst a loss of an afternoon and accusing looks from the neighbors. But what are the bad consequences of not searching a man’s home because the burden of proof is not met? Potentially more murders, rapes, theft, or whatever crime a man can commit can continue.
A Constitution as an absolute document of rights a man has is in essence non-Consequential. For the very notion of rights as we understand them is non-Consequential. Consequentialist rights are privileges which can be removed whenever they cease to be convenient for the community that you live in. If the main goal of a Consequentialist system is to promote happiness (as it is in Utilitarianism), and you are saying something that creates far more unhappiness than happiness – then the argument is your voice should be censored.
The Utilitarian will remark that in this hypothetical, although it is true that the Utilitarian does not want the man to speak, because he does not want unhappiness, it is wrong to assume he will then necessarily censor the man. Why is this you may ask? Because censoring a man creates a precedent that produces more suffering than allowing him to speak. This argument has been made on drug use – rather effectively I might add. That though a Utilitarian does not want more suffering, even if he believes drug use leads towards suffering, he can still be adamantly opposed to incarcerating drug users because putting them in jail creates even more suffering. But let’s more closely examine the free speech case again.
John Stuart Mill argues we will all suffer the consequences of ignorance if we don’t allow others to speak and to consider their opinion. And while this might be true in a nation of injustice and ethical insanity, in an absolutely just nation if one speaks out against a theoretically perfect system and convinces others of an evil nature it does not possess it would undoubtedly do more harm than good. In a Technocratic society, where an all-wise machine makes all of our life choices and administers everything for our benefit many will likely rebel and wish to maintain their absolute human autonomy through rebellion. And while this point of view can be sympathized with, it cannot be on Utilitarian grounds – assuming this system does in fact create more happiness than all possible alternatives. To cling to absolute freedom, is to cling to priorities that are non-consequential.
All discontent that exists in this system (and some must if there is rebellion against it) would either be seen as from those who are unable to adapt to the system, as simply those who are different, or as mentally ill people who need to be adjusted. Those who would be seen as not merely different but sick. This is something French philosopher Foucault speaks of that Ted Kaczynski would empathize with. Kaczynski himself wrote that a technological society is eager to label all criticism with it as madness to disinvalidate it without having to make legitimate rebuttals to said criticism. Totalitarian societies such as Saudi Arabia, which labels Atheism as a mental illness clearly is an example of this tactic of authoritarian dismissal of criticism.
As a brief aside, the Technocratic society I outlined is what Hobbes should have been arguing for instead of the Absolute Monarchism of his day. For one can easily argue that it is moral to rebel against the King if his law is unjust, since it is indeed possible to create a more perfect union. Let alone arguments that it is moral to rebel for rebellions sake. Hobbes main retort would be to say that the King creates what is to be determined as justice, that neither justice nor injustice can create outside of the Social Contract, which is an antiquated notion that few social and political philosophers have found convincing.
In conclusion, freedom can indeed be easily supported on Consequentialist grounds, but not the absolute freedom that appears in early Classical Liberal thought and is the starting premise of the American government. Despite the fact that American history is rife with horrendous violations of it.