What do we mean when we say, “You cannot legislate morality”?
Surely, legislation should not be ambivalent to right and wrong. Law builds upon the concept of justice. Is not justice derived from morality?
Sometimes, people simply mean that government cannot force us to be good. In other contexts, the statement signals a distinction between what is objectively wrong, like killing someone, and what is subjectively wrong, like swearing in public.
Yet much of the time it can be hard to discern exactly what someone means when they say morality cannot be legislated. The term is used on both the Right and the Left, by social conservatives and social liberals, by people on opposite sides of the same issue. On the one hand, you might have a conservative who uses the term to argue against redistribution of wealth while standing opposed to gay marriage and abortion. On the other hand, you might find a leftist who uses the term to argue in favor of gay marriage and abortion while seeking to seize money which they did not earn.
What gives? Does the term prove completely subjective? Does any given person simply want their sense of morality enforced while the other guy’s sits ignored?
It shouldn’t surprise us to find confusion whenever morality is invoked. People’s sense of right and wrong certainly varies and will affect their public policies. Perhaps recognition of that fact fuels the notion that morality ought not be legislated. Perhaps we think, “In a free country, we have the right to decide right and wrong for ourselves.”
Of course, that sentiment fails upon its first application. A murderer might think he is right, as might a thief or a rapist. Hitler thought he was right. Perhaps then, morality by whim is not a pillar of true freedom.
Upon acknowledging that some kind of morality must inform legislation, a most uncomfortable question arises. Whose? Should the morality informing legislation be dictated by the church? Should it be a consensus of “experts”? Should it be put to a purely democratic vote? Who has the right, and by what authority, to tell another what they may or may not do?
Historically, governments have derived their authority and their sense of morality through entirely subjective and arbitrary means. The king is so ordained by God. Better men should govern lesser ones. The majority should get their way. These approaches are united in their disregard for individual rights.
America’s founding fathers employed an experimental model based on the notion that government ought to protect rights. Yet even that greatest of political achievements was predicated upon a moral condition, most famously expressed by John Adams:
Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
What did Adams mean? Self-government, a term which has lost some of its meaning over the course of history, surely refers to autonomy. To self-govern is to live in political independence without subjugation to tyranny. But Adams and his contemporaries saw more. To them self-government demanded self-control, the ability to restrain ourselves from the thoughtless indulgence of every whim. In his time as throughout history, religion was widely regarded as the only institution aside from government capable of restraining men’s base instincts. Even today, many still hold to Adams’ view that the Constitution is inadequate to govern an irreligious people.
Certainly, it is true that the Constitution is wholly inadequate to the government of an immoral people. However, the morality which men need in order to coexist in peace need not come from religion. A Russian immigrant to the United States who spent her life decrying the evils of communism also discovered an objective morality derived through reason, a morality which references the facts of reality in its demand that each individual live free.
Ayn Rand’s theory of rights is based upon the observation that life is the ultimate value. In other words, life makes all values possible and all values serve a thriving life. For example, let’s say you want a new car. Without life, there would be no you to want the car. Further, you want the car in order to improve your quality of life. The same proves true of any value you may choose to pursue. While particular values can certainly be subjective (I like onions while my wife hates them), the concept of value is not. No matter what you prefer, you can value it only because you live, and you pursue it in service of your life.
Further noting that human beings conceive of and pursue their values through a process of rational thought, as opposed to the instinctual nature of lower animals, Rand concluded that man’s nature endows him with the right to act upon his own judgment. That right is necessarily bound by the same right in others, so that you cannot rightfully act to harm or restrict another.
In a world where this objective morality was recognized and observed, government would look very different than it does today. It would most resemble the early United States as originally intended, though it would differ remarkably even from that. Let’s tick through some issues and consider how they might be addressed.
Consider drug-control policy. As previously noted, this is an issue where critics of prohibition lament the “legislating of morality.” The argument against prohibition typically takes one of two paths. Drug abuse may be portrayed as something not worth moralizing about, the “no big deal” defense. More common is the notion that drug abuse is a “victimless crime.” That term implies a division of morality into the realms of self and other, asserting that government should only concern itself with the latter.
That’s generally the right direction. Objective morality does not condone drug abuse. A rational pursuit of happiness does not seek short-term pleasure at a severe long-term cost. However, the immorality of drug abuse does not violate the rights of another individual. And since government informed by objective morality would exist only to protect rights, it would not act to prohibit drug abuse.
What of gay marriage? In civil terms, the union of two people is a contractual arrangement which should not be subject to the review of third parties. Society does not get to ratify contracts. If two people want to live together, combine assets, and grant each other agency, it remains their business.
That said, the movement to redefine marriage through the force of law seeks far more than contract rights. What gay marriage proponents are after is the affirmative action currently granted to married couples, preferential treatment which however well intentioned is still a violation of rights. The uncomfortable truth surrounding the marriage issue is that heterosexual couples have long been subsidized by their unwed neighbors. It is that state endorsement which homosexuals covet, along with the social sanction it implies. Under government informed by objective morality, marriage contracts would be just that, conveying no special benefits beyond the terms agreed upon. As a result, religious individuals and institutions with conscientious objections to homosexuality would never be forced to violate their conscience.
How about foreign policy? Can war ever be moral? It can according to the case made in Winning the Unwinnable War: America’s Self-Crippled Response to Islamic Totalitarianism by Yaron Brook, Elan Journo, and Alex Epstein. Brook explains:
As we argue in the book, the principle that should guide our foreign policy is the same principle that should guide all governmental action: Our government should protect the individual rights of Americans. That’s our government’s only proper function. Deriving from that same purpose, our foreign policy should work to protect the lives and the property of individual Americans—from threats that are initiated outside the borders of this country. Clearly one major threat that the government must be on guard for—and retaliate against—is that of countries or groups launching a war against us or sending out terrorists to cause the mass slaughter of Americans. Other kinds of threats include threats to the property of Americans: Think of the pirates off the coast of Somalia taking ships for ransom. It is part of the government’s job to secure our right to property, to protect our ability to trade freely, and to prevent our property from being stolen by thugs on the high seas.
As agreeable as that summation may seem, realize that foreign policy is not guided by the principle of individual rights. Journo expounds:
From examining the intentions and actions of our military in the field, it becomes obvious that what animated Bush’s policy was the notion of bringing elections and social services to Iraq and Afghanistan—not protecting American lives. And while Obama wants to be seen as the anti-Bush, his approach is animated by a similar goal. In his high-profile speech in Cairo [in 2008], he promised to fund and create “centers of scientific excellence in Africa, the Middle East, and South Asia.” What’s common here is the moral idea behind these policies—the idea that America must serve the meek and needy of the earth. We argue in the book that this conventional outlook on morality has shaped American foreign policy, and that the effect has been inimical to our liberty and security.
Peacemaking takes on a different character under objective morality. Whereas the current sense of the word evokes diplomatic ploys and decades-long, blue-helmeted occupations, the objective sense looks more like the nuclear bomb. That is not to say that war should be sought or engaged in lightly, but that it should be waged as if actual war, with its end being the utter annihilation of an enemy state. There is no obligation to rebuild foreign infrastructure, reform foreign government, or win foreign hearts and minds. The proper obligation of a government at war remains the same as when it enjoys peace, to protect the rights of citizens.
The objective moral approach to public policy may be uncomfortable to the religious, such as my Christian brethren. A world where drug abuse and gay unions are tolerated while innocents are killed in foreign wars fails to meet righteous biblical standards. Even so, are we commissioned with crafting a righteous world? At what time and in what manner has government made men holy? Justification and sanctification are the work of God in the lives of his elect, not the purpose of civil law. Under government which protects our rights, the faithful are free to exercise their religion and pursue a kingdom not of this world. That should more than satisfy.
See more of Walter Hudson’s recent articles at PJ Lifestyle. Some of the subjects he focuses on include religion, technology, culture, economics, and the Tea Party: