As J.S. Mill noted in his work On Liberty, “the practical principle guiding opinions on conduct is each person’s feeling that all should be required to act as he would like.” Because of this, as Mill notes, “Men very rarely chose a side because of a consistently held opinion about what is fit to be done by government.” This tendency extends across the political spectrum and is not an ill specific to any ideology.
As an example of inconsistent application of principles, consider the principle of local rule, which is lauded by conservatives when the locals are doing what they want them to do and rejected when they are not. To illustrate, consider the matter of fracking. When local governments move to ban fracking in Republican controlled states, the same Republicans who praise the principle of local rule quickly violate that principle in favor of the oil companies who want to frack.
While liberals do not use the talking point of local rule as much as conservatives, they are also inconsistent in their view of the matter. When the federal government is doing what they like (such as legalizing same-sex marriage) they are fine with local rule being overruled. When the state or federal government is not doing what they want (such as cracking down on sanctuary cities or limiting abortion access), then they favor local rule that matches their views.
As another example of inconsistent application of principles, consider the matter of executive orders. When Bush was issuing executive orders, conservatives argued in favor of the President’s right to do so while liberals often argued that this was an overreach of presidential power. When Obama took office, their positions reversed on this matter. This showed that there was not a principled view of executive orders, just that people think it is okay when their guy is doing what they want and not okay when the other guy is doing what they do not like.
A principle is consistently applied when it is applied in the same way in relevantly similar circumstances. For example, if a person consistently held to a principle of local rule, then they would apply that principle whether they liked what the locals were doing or not. So, if the locals decided against fracking or in favor of allowing bakers to refuse to sell wedding cakes to same-sex couples, then they would apply the principle of local rule to these equally.
At this point some readers might be worried that following the principle of consistent application could lock people into supporting terrible things. For example, if a person had a principle that supported local rule, might they thus be obligated to support the locals if they voted to legalize heroin or cannibalism? Fortunately, the principle of consistent application is not an absolute principle and can be overridden by other moral principles, such as principles against cannibalism. Another key consideration is the principle of relevant difference. In general terms, a principle can only be applied differently in situation A and situation B if there is a difference between A and B that justifies the difference. For example, a person may favor local rule regarding fracking bans while opposing a local rule allowing cannibalism based on a relevant difference between the two. In this case, they still hold to a principle of local rule consistently—it is simply overridden by the relevant differences between cannibalism and fracking bans.
One rather obvious problem is sorting out what counts as a relevant difference that justifies applying a principle differently. As would be imagined, people will tend to find what they think are relevant differences whenever they wish to not apply their principle in the same way. For example, a conservative might claim that while local rule is fine when a locality wants to allow local bakers to not sell wedding cakes to same-sex couples they might think there is a relevant difference between that and allowing locals to ban fracking. As another example, a liberal might favor restrictions on hunting because they oppose killing living things, while claiming that there is a relevant difference between these restrictions and restrictions on abortions.
One limiting factor on relevant difference is consistency: if a relevant difference is claimed between two things to justify a difference application of a principle, then that same difference would apply in all relevantly similar cases. Naturally, people can engage in ever finer distinctions in the differences in efforts to justify applying their principle in different ways, thus making the battle over relevant difference quite contentious. However, consistent application is still important—which leads to the subject of why it matters.
One reason why consistent application matters is that it is critical to being an ethical and principled person. After all, a person whose “principles” are too flexible does not really have principles—they simply do what they want. This can, of course, be countered by arguments against being principled and in favor of simply doing what one wants. One example of this approach in ethical theory is ethical egoism.
Another reason why consistent application matters is logical—if a person uses a principle to justify something and also acts in a way that violates the principle, then they have engaged in inconsistency. This means that they cannot be right in both cases—they must be wrong at least once. For example, if a person justifies state laws that allow greater pollution than federal laws allow by appealing to states’ rights and then opposes state laws that are more restrictive than federal laws by arguing that the federal government should set the regulations, then at least one of their arguments must be flawed. This is because if the principle of states’ rights justifies states in having weaker regulations than the federal government sets, then states’ rights would also justify states in having stronger regulations than the federal government sets. Naturally, an appeal can be made to the principle of relevant difference—the challenge of doing so will vary. In the states’ right example, it would clearly be challenging to argue that states’ rights only apply to states that want weaker standards and not to those that want stronger standards.
From a logical and moral standpoint, showing that a principle is being applied inconsistently is a strong criticism—it shows that those applying the principle are wrong in at least one case. From the standpoint of persuasion, it tends to be far less effective—people who like the inconsistent application will probably not be swayed by the charge of inconsistency and those who dislike it will tend to not need and additional reason. That said, one interesting tactic might be to use a recording of the person being inconsistent and use their own word to argue against them. Then again, while this can be amusing, it would probably still lack persuasive power since people want what they want, consistency be damned.
I don’t believe that there is inconsistency in the examples you give. I would refer you to the statement in James Madison’s Federalist Paper #51:
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
This concept, which I believe is a driving force behind our constitution and our view of the rule of law, asks for a continued evaluation of the balance between the autonomy of the citizens and the authority of government. It does not require the hard-line consistency that you outline in your essay, but rather, bears an understanding of the give-and-take and monitoring of government activities as they impact the freedom of the governed – while allowing for the necessity of a certain (undetermined) amount of government.
The US Constitution, in Article I, Section 8, lists eighteen specific powers of the US Government, the tenth amendment specifies that “”The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Clearly, the powers of the federal government have expanded greatly since 1787, but the balance between the rights of the individual states to exercise local rule and the authority of the federal government to override those rights has been a struggle and a subject for philosophical debate for the last 230 years. It is a fallacy to assume that the answer to the question is in any way “all or nothing at all”, or that Conservatives and Liberals are equally inconsistent based on whether or not they like what the government is doing. I suppose that there is some of that in practice, but I think the question is larger than that – and extends to what kinds of laws and their application ought to be within the purview of the individual states, and what kinds need to be within the purview of the federal government.
A good, and rather innocuous example of this might be illustrated in speed limits. Under ordinary circumstances, this is the kind of power that would be held by the individual states – the less populous states with little traffic and large distances between cities might choose to set speed limits high – at 75 mph or more – whereas states with different demographics might limit highway speeds to 55 or 60 mph. However, this authority of the states was superseded in 1974 by the National Maximum Speed Law (NSML), which was passed by Congress and signed into law by Richard Nixon. While this law faced much opposition, the circumstances surrounding it (the 1973 oil crisis and its projected effect on the economy and security of the US), arguably became a concern of the federal government.
The point is that it was not an “all or nothing” debate – it was a move based on a specific global situation, where the argument for federal overrule had a solid basis.
Any lawmaker has the responsibility to evaluate this balance based on given situations, and it is incorrect and somewhat specious to excoriate them for “inconsistency” because they do their due diligence and set the balance based on their principles and those of their constituents.
The debate over executive orders, and the power of the executive branch, is another good example of where the concept of “consistency” is incorrectly applied. One cannot merely consider the number of orders issued by a president, but must evaluate the circumstances under which these orders were issued. In 2014 in The Washington Post, Jonathan Adler writes,
“if we want to know whether a President is engaged in “lawless” or “unprecedented” action, we have to look at the substance of regulatory action, and consider whether agencies are acting within the scope of the authority delegated to them by Congress.
…the real objections to the President’s use of executive authority are not to the frequency of EOs, signing statements, or regulations, but to the substance of specific actions and decisions that have been made.”
It’s true that Obama signed fewer EO’s than his predecessors – but that’s not the point. The POTUS enjoys a relatively wide latitude in issuing EO’s, but this latitude is governed by several guidelines and restrictions. The power of the president to issue EO’s is not specifically mentioned in the Constitution, but defined and outlined peripherally in Article II – and as such (from Wikipedia),
“executive orders are subject to judicial review and may be overturned if the orders lack support by statute or the Constitution. Major policy initiatives require approval by the legislative branch, but executive orders have significant influence over the internal affairs of government, deciding how and to what degree legislation will be enforced, dealing with emergencies, waging wars, and in general fine-tuning policy choices in the implementation of broad statutes. As the head of state and head of government of the United States, as well as Commander-in-Chief of the United States Armed Forces, only the President of the United States can issue an executive order.”
The acceptance of Bush’s executive orders (not entirely, of course, but in general) was based in part on the passage of the Homeland Security Act and the fact that Bush was a wartime president. This clearly fell into the description of “emergencies and waging wars”. Still, there was much objection to his use of the EO and its implications on the powers of the executive branch.
Obama was a different story. He made no secret of his disdain for the Constitution, declaring it to be a “flawed document” from which we must break free. He criticized the document, calling it “a charter of negative liberties. It says what the states can’t do to you. Says what the federal government can’t do to you but doesn’t say what the federal government or state government must do on your behalf.”
His statement, his presidency, and many of his executive orders represented a conceptual break from the tricameral system of government checks and balances, attempting to place greater power in the executive branch – saying on more than one occasion, “If Congress won’t act, I will”. He did not understand that when Congress did not act that was largely as it should be – that the representatives of the people of the United States did not or could not agree, and that policies faced strong opposition by a large enough bloc of voters, and that it was not up to him to bypass this process to exercise his own will – regardless of his infinite belief in his own rectitude.
It is not “inconsistent” to view the executive orders of one president, regardless of their number, as being acceptable because they fall within previously established guidelines – and strenuously object to those of another, because they represent a fundamental change in the structure and distribution of power within the government itself.
Again, there are times when executive orders are perfectly acceptable, there are other times when they may be considered an overreach but are situationally necessary, and still others where they are either a bold test of authority or patently illegal. It is not “inconsistent” to evaluate these orders on that basis – and it is an oversimplification to say that “Executive Orders are OK when our guy is issuing them, but not when the other guy is”.
Of course, that’s a pretty “Pollyanna” look at government; I think the reality lies neither in this ideal nor in the accusation of inconsistency or hypocrisy made by you and others – but rather in the abject self interest of politicians, and the backroom “quid-pro-quo” that takes place behind the closed doors of individual offices. The cynic in me believes that Republican lawmakers accepted Obama’s executive overreach either because they were offered some kind of legislative bribe or threat – and because they believed that this expansion would soon serve their own ends upon the change of administration. Maybe this is more in line with your own thoughts – and I can’t really disagree.
The other, more practical side of this is that executive orders have no teeth once that executive has left office. They are not laws, they have not been passed by Congress, and (as we are seeing today) can be easily undone by the next president. As such, it is natural that EO’s should be applied as described – procedures and methodologies of the Executive Branch, interpretations of laws, government actions that have the tacit approval of Congress, emergencies, and acts of war. Beyond that, they are little more than a power grab. While Donald Trump has been the object of much criticism for “undoing what it took Obama years to accomplish”, his actions are well in line with the tradition of the Presidency, and go back as far as John Adams and Thomas Jefferson. His actions in “undoing Obama’s legacy”, are the true measure of the limits of presidential power.
“if a person justifies state laws that allow greater pollution than federal laws allow by appealing to states’ rights and then opposes state laws that are more restrictive than federal laws by arguing that the federal government should set the regulations, then at least one of their arguments must be flawed.
Agreed. On the other hand, one cannot be accused of inconsistency when they support states’ rights in one situation but not in others. The principle here is a general one, with circumstance, rather than uncompromising adherence to a single entity being the driving force. Your discussion about “relevant difference” is particularly salient on this point, although I would argue that the larger argument still applies – that in general we must be very careful in granting authority to the federal government – and be willing to accept certain negative consequences in favor of the larger whole.
Very nice comment, DH.
Mike, it would have been easy to find better examples. For example, the current budget makes a mockery of the idea that the Republicans are in favor of fiscal restraint. Also, the ho-hum attitude of the Dems toward the abuse of the FISA court tells us that they don’t really care about civil liberties.
Local rule is a particularly bad example.
Michael LaBossiere says
True, those are better examples. I went with local rule mainly because it is a matter of special contention here in Florida.
There is a great example of “Inconsistent Application” in the news these days. I’m sure you’ve all read about it, and are familiar with its connection to the topic at hand. Sarah Jeong was recently hired to the New York Times editorial board, and as this information began to seep out around the Internet, some of her Twitter posts began to surface:
…“Oh man it’s kind of sick how much joy I get out of being cruel to old white men,”
“White people marking up the internet with their opinions like dogs pissing on fire hydrants,”
One headline (in the Washington Post) states the issue very clearly – “Is It OK to Make Fun of White People Online?”
Part of the clarity in this headline is maybe not so clear – reading between the lines, is “Making Fun” a fitting and proper description of her words? Would they use the same description for the same tweets, with simple substitutions?
…“Oh man it’s kind of sick how much joy I get out of being cruel to gay people,”
“Black people marking up the internet with their opinions like dogs pissing on fire hydrants,”
I have no doubt that those tweets would have been called “racist”, “intolerant”, “hate-speech” and worse – and Jeong would have been out on the street in a heartbeat. So would anyone describing them as “Making Fun”.
While one might dismiss my conjecture as merely that – can we make any kind of comparison to the New York Times’ recent firing of Quinn Norton? Norton’s tweets were not about white people, but about gay people and African Americans, and she was fired before she had been on staff 24 hours. There’s also another interesting twist to this – Norton, an expert (or at least well-known writer) in the area of the behavior of online communities, used the words in the context of writing about racism, and in quoting others – while Jeong was expressing her own true racial animosity.
Also in the news recently is the tale of John Schnatter, who had to make a public apology and was forced to resign from his position as CEO of Papa John’s Pizza for using the “N” word in a conference call with shareholders. According to the story, Schnatter wasn’t even expressing his own thoughts, but rather referring to his perceived opinions of Colonel Sanders, a fast-food competitor. Like Norton, Schnatter’s comments were not his own expression, but rather a reference to that of others – but his choice of words is what got him in trouble.
(I do realize that Schnatter’s problems are deeper than what transpired in this conference call, but it was the call that triggered them, and his comments are what are being discussed in the forefront of the media).
So, are we intolerant of racism, except against white people? Or is racism OK, as long as we don’t use certain words? Can white people have a word too? Can everyone?
The laws are very complicated on this issue – in the United States speech, even hate speech, is Constitutionally protected – at least for now. But as a society, and as consumers, employers, public figures – are we being inconsistent in our selective application of shunning, excoriation, and moral outrage?
The country is coming around, though – more and more we see the idea of “protected class” emerging. Hate speech, by some definition, is punishable when it is used against a protected class of people. Is “protected class” any different than “White Privilege”?
It all seems rather Orwellian to me.
One topic being currently discussed on some talk radio shows is the expansion of the LBGT community – it recently evolved into LBGTQ, and even more recently is starting to be referred to as “QUILT BAG” – “Queer/Questioning, Undecided, Intersex, Lesbian, Trans (Transgender/Transsexual), Bisexual, Asexual, Gay/Genderqueer”. Reminds me of playground bullies going around picking their friends while simultaneously turning their “team” against those they don’t like. It occurs to me that rather than having to continually add to this alphabet soup of gender identity and having to come up with more and more complex acronyms, it would be easier to just use “ABS” – “Anything But Straight”.
Gender discrimination is not tolerated, unless it is against straight people.
In your previous essay, your example of “equal treatment” was thus:
“In some cases, it is possible to respond to the charge of inconsistency by dissolving the inconsistency. This can be done by showing that the inconsistency is merely apparent. This is achieved by arguing that the claims/principles are consistent. For example, Kelly might present the following reply: treating people equally requires providing special treatment to certain groups or people. For example, allowing equal access to public facilities requires provided some people with special treatment in the form of ramps and special parking. Thus, the inconsistency has been dissolved.”
Can that be somehow reworded to apply to Jeong’s tweets? I think the most strident argument in support of that kind of hatred is to simply deny that racism against white people exists, or can possibly exist, in this country. Those who make this argument will say things like “To be racist, you have to have prejudice and power”; conflating racism with oppression and history. I think that may have something to do with the origin of “reverse-racism”. I’ve never really understood the use of the “reverse” qualifier – isn’t racism just racism? But the qualifier makes a distinction between racism against white people and racism against anyone else, of any color at all – and thus diminishes it.
If we are to say that racism and hate speech are bad things (and we do), but then we are OK with the kind of speech tweeted by Jeong, there is an inconsistency there, and one of those concepts must be wrong.
Further, if we are to say that we cannot tolerate what was said by Quinn Norton or John Schnatter, but we can tolerate what was said by Quinn Norton – I would like to hear an explanation of why, and what nuance or circumstance makes one OK and one not. If it is about power and history, then we need to redefine our terms.
Andrew Sullivan in fine form:
One simple rule I have about describing groups of human beings is that I try not to use a term that equates them with animals. Jeong apparently has no problem doing so. Speaking of animals, here’s another gem: “Dumbass fucking white people marking up the internet with their opinions like dogs pissing on fire hydrants.” Or you could describe an entire race as subhuman: “Are white people genetically disposed to burn faster in the sun, thus logically being only fit to live underground like groveling goblins.” And then there’s this simple expression of the pleasure that comes with hatred: “oh man it’s kind of sick how much joy I get out of being cruel to old white men.” I love that completely meretricious “old” to demean them still further. And that actual feeling: joy at cruelty!