Utilitarianism, in its most basic form, says that an action is good if it has a net gain on the happiness of a society. An action is bad if it has a negative net effect on happiness. As John Stuart Mill put it, ``actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness'' (Mill 36). The utilitarian measurement of good considers the individual only so much as the individual affects the societal net happiness, for ``the happiness which forms the utilitarian standard of what is right in conduct, is not the agent's own happiness, but that of all concerned'' (Mill 38). Proponents of Megan's Law justify its negative effect on the happiness of sex offenders by pointing at the arguably greater gains in the happiness of the community. Since there is a positive net gain in happiness resulting from its implementation, the law must be good. This kind of thinking is quite opposite the one that grounds American government and idealism.
The foundations of American government were designed to guarantee all citizens the full protection of the law. All citizens of the United States have a right to privacy. In 1928, in Olmstead vs. US, Louis Brandeis said that ``the right to be left alone [is] the most comprehensive of rights, and the right most valued by civilized men.'' Sex offenders, like any other criminals, are convicted and sentenced for their acts. They go to prison, they serve their time, and they are released. Yet, though similar treatment is not found for the perpetrators of any other crime, laws such as Megan's Law cause sex offenders to suffer for their acts long after they are released. Public notification attaches a stigma to the released sex offender, making it much more difficult, if not impossible, for him to carry on a normal rehabilitated life. An article by Judith Sheppard in the American Journalism Review tells the story of a man whose house was picketed as the result of community notification. Publicity of this picketing caused the news to reach his employer, who then fired him. The man has since ``been forced to move at least two more times'' in order to escape discrimination (Sheppard 3). Opening up an individual's past affairs to the community, regardless of the social good it may do, is a clear violation of that individual's right to be left alone.
Since its inception, the United States has battled with finding an appropriate balance between laws and rights. As early as 1759, Benjamin Franklin warned of the danger of security through laws that temper freedom. ``They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.'' Many times in its history, the government of the United States has pushed aside personal freedoms in order to protect the majority, and often these instances are reflected upon regretably today. Two example in particular illustrate the folly of a reduction of rights. During World War II the government inprisoned Japanese-Americans under the pretense that they were possible agents of the Japanese and could not be trusted to be left in society. These American citizens were denied the protections offered them by law and carted away during the time of trouble. The 1950s brought Joseph McCarthy and his rabid persecution of those believed to be associated with Communism. Though as Americans these people were gauranteed the right to have and speak their opinions, paranoia of national security implications again caused safety to trump basic rights. Though these actions may have been supported at the time, today public sentiment would likely unwilling to defend and approve of these historical cases.
Given the historical precedent of past rights compromizes and the view now taken of them, it is illogical to argue that in this case an exception has finally been found and rights can be diminished. The mindset of Maureen Kanka, Megan's mother, illustrates perfectly the utilitarian mindset used by proponents of Megan's Law. ``I'm tired of the pedophile's rights being put above our children. We can't protect our children if we don't know where the danger lies'' (Jerome 2). The validity of community notification laws depends on the premise that informing the community is more important than the rights of the sex offender, yet this is simply not the case in American law. The framework of American government sets up fundamental rights possessed by every citizen. It does not make exceptions to those rights for situations where it might be helpful for certain members of society not to have them.
Despite the stringent requirements set up by our system of government, legislation such as Megan's Law continues to be drafted because it appeals to the public psyche. Emotions are powerful, and they can lead to the abandonment of rational thought when it comes to lawmaking. People like to feel safe, and therefore are prone to letting emotional appeals better the more fundamental requirements of justice. If there is a law that will protect citizens from some danger, they are very likely to push for it, regardless of any other implications that law may have. Public opinion is a fickle friend, and is often concerned exclusively with the short-term view. It is the responsibility of lawmakers to counter this with careful reasoning. Law is a powerful thing, and must only be passed after a careful consideration of all its effects. To do otherwise is an abuse of the public trust. The use of legislation as a gesture, whether it be a gesture of support or a sign of being tough, is irresponsible. Lawmakers are elected to preside over the good of the public, and must act accordingly. When a small child cries about wanting a toy, it's common sense that good parenting will not always give the child what he wants. The child may not understand, but the parent has a larger perspective and can see that the toy may not be in the child's best interests. Lawmakers, the parents of our country, must likewise be prepared to make decisions that may be unpopular with constituents not prepared to think about the long-term.
Much of the debate over Megan's Law has been about whether or not the law is useful in preventing crime, but this argument is irrelevant to the fundamental issue at hand. Perhaps there are things that could be done that may save lives, but if they are at the expense of basic rights the cost is far too high to bear. It is a horrible tragedy that events such as Megan Kanka's kidnapping and death occur, and those who commit such crimes should be punished to the fullest extent of the law. However, the fullest extent of the law is where that punishment must stop. The consequence of living in a society that puts the utmost value on freedom is that sometimes people die. A country where freedom and individual rights are protected is not going to be perfect. There will always be those who commit crimes, and in a free society the consequences of those crimes may well at times be more severe. However, the long-term benefits of freedom far outweigh the short-term benefits of reduced crime.
A frightening trend running through the American populace today is the constant exchange of liberty for the promise of another slight bit of safety. America is a nation that feels it is under threat, and therefore will do whatever it has to do to regain its notion of safety. As a nation, the United States is falling ever so slowly away from the ideals upon which it was founded. The erosion of rights is not a sudden thing. It doesn't come all at once. Instead, the erosion of rights is a constant nudging of little wars. The war on sex offenders leads to the new laws reducing the rights of released criminals; the war on terrorism brings new, broader phone-tapping laws. Slowly, but surely, the vaunted freedom of the American citizen fades away. It is because of the infringement of these rights that legislation such as Megan's Law, though arguably usefully in crime prevention, must not be allowed to pass.