Of course you can legislate morality
Posted on October 21, 2011
Earlier this week, I argued on this blog that morality both can and should be legislated. Here are the relevant paragraphs:
It seems obvious to me that morality can be legislated. The amendment discussed by the aforementioned documentary is evidence enough. But the relationship between morality and law runs much deeper than one failed amendment. Indeed, this country’s foundational philosophical concepts — life, liberty, and the pursuit of happiness — are rooted in morality. So are fundamental principles found in the Bill of Rights, such as the right to freedom of speech and belief, the right to assembly, the right to privacy, and the right to a fair trial. This list continues on, from basic crimes like murder, rape, and robbery, to insider trading and so-called sin laws, like cigarette taxes or seat belt fines. Each one of these examples is based on some prior moral notion about what is right or wrong, or what is good or bad.
Still, we have to cross the is-ought gap, and face the question of whether morality should be legislated. My answer is yes.
Broadly speaking, morality is the domain of one’s thinking — beliefs, attitudes, and feelings — about the well being of conscious creatures. It concerns right and wrong, good and bad, questions of how we should act toward one another, and the kind of people we should want to be. The legal realm (whether a piece of political legislation or a court decision) is where these beliefs, attitudes, and thoughts are societally enacted. In this sense, the connection between morality and legality is natural and inherent.
But there is another reason to enforce moral norms. If your conscience tells you some action may be causing great harm to society, you have both the right and, I believe, the duty to try to help or correct the situation, through both social and political means. In this sense, we should not be afraid of moralizing. Instead, we should be afraid of not moralizing. The consequence of not moralizing is unchecked harm. The consequence of moralizing is potentially a safer environment and perhaps even a more virtuous populace.
It turns out I’m not alone in this thinking. Just one day after I published my essay here, I ran across this excellent op-ed by the editorial staff at the Memphis Flyer:
Of course, you can legislate morality. That’s exactly what such linchpins of the American legal corpus as the Civil Rights Act of 1964 and the Voting Rights Act of 1965 did. To be sure, they were based on more abstract precedents — the 14th Amendment and the Commerce Clause of the Constitution, respectively, but at root, those two pieces of watershed legislation were aimed at the hearts and minds of American citizens, at a collective moral center that badly needed course correction. And they worked.
Not every such attempt at legislative morality has been as successful. … But the fact is, whether legislating morality works, and whether it works for better or for worse, it is attempted all the time. Arguably, all legislation is of that sort.