Soylent Green, the Flaw of “Strict Scrutiny”, and “interest” versus “capability”

It’s no coincidence that the word “interest” consumed US case law around when “Soylent Green” was in theaters.

Once you assume government employees are an all-knowing mind with the vision to solve any problem, the only question left is whether a particular government decision is profitable. Meaning whether its visible benefit in one place exceeds its visible harm in another place; Whether it is maximizing profit by producing benefits with the “least” intrusive cost.

The assumption that government employees can make profitable decisions, using their discretion to calculate the cost and benefit of those decisions to individuals and strangers, is what the USSR was based on.

When a prosecutor tells a judge to hold someone before trial in US v. Salerno, this is based on the assumption the prosecutor has the information, wisdom, and virtue — the capability — to know the cost and the safety benefit to society, from holding the individual. This is no different from letting a government employee in the USSR choose whether to use steel to make a train. Or choose in “Soylent Green” to use people to make food.

The question is not whether society benefits from — has an “interest” in — profitable transactions reducing the freedom of an individual. People lock themselves in office cubicles every day, because it is profitable.

The question is whether the local lawyers faction — rather than an adversarial process where juries measure facts against legislation — has the “capability” to make such decisions profitably.

It’s not whether society has an “interest” that everyone has a nice house. It’s whether government employees have a “capability” to provide everyone nice houses.

Strict scrutiny should be a scrutiny of capabilities, of incentives and information. Instead it begins with generous assumptions about virtue and wisdom of government employees.

The assumption that government employees have the capability, predetermines the answer. Once we assume government employees under social regulation choose profitable transactions — better or more cheaply than inanimate procedures involving prices and laws — the answer is we should give the decision to government-employee discretion.

The idea that executive administrators under social influence have the capability to replace bankers, jurors, middlemen, and private businesses, and find more profitable transactions at lower decision-cost, is the assumption entire nations were being based on, at the time the US Supreme Court was inserting it into case law.

Once you assume government-employee discretion under social regulation has the capability to make every decision, the only question is whether they are making decisions to maximize profit. This is similar to the way Soviet central planners scrutinized local factory managers.

Of course society has an “interest” in finding profitable opportunities to reduce crime and increase police safety, in Terry v. Ohio. The question is whether giving more power to police discretion versus legal review, really has the capability to find more profitable transactions. Or whether their myopic agenda will produce decisions that on balance are unprofitable for society.

The real question is not whether society has an interest in doing good. The question is whether government employees have a capability to process information and weigh costs and benefits, and make profitable decisions. Only once you begin by assuming the capability exists in some imagined collective mind, is the problem reduced to that collective mind weighing the interests to find the profitable transaction.

The real question is what institution or process has the competence to make decisions most profitably. The interest of the public, is to give the “right” to make the decision, to whoever has the best capability. By changing the question from whether government has an “interest” to whether police have a “capability”, you more correctly answer whether police or some other decision maker is best able to find the most profitable balance.

Can Congress create a federal cop, with the capability to decide who is on each state’s President ballot, without corrupting the decision to his own agenda? Congress did not create this capability because they cannot. There is no single mind that can calculate how to serve the national “interest” by choosing President candidates. Not better than a “patchwork” of state decision-makers, and their sum as the outcome of an inanimate process controlled by no one.

But the Supreme Court said in Trump v. Anderson, that states cannot produce benefits as the unconscious sum of their decisions, because Congress needs to create a single visionary mind. The fact that Congress did not create a central means to decide who should be on state President ballots, is because there is no nationwide capability that can serve the same function. There is no collective national “interest” with a matching cognitive “capability”.

The correct question that should be answered by strict scrutiny, is does a government employee really have the information and incentives to make this decision profitably. Not assuming police and prosecutors are wise and virtuous, do we have an interest in giving them more power to do good.

It’s because government administrators under social influence make terrible myopic decisions, that we give decisions to jurors, businessmen, and other expensive and time-consuming “patchworks” of distributed decision-makers.

The author of the book “Soylent Green” was based on, understood the popular belief at the time that government administrators can decide tradeoffs profitably to serve urgent “interests”, leads to people being treated as farm animals in unprofitable decisions.