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Legislating Morality
One of the favorite themes of liberals, at least when Republicans are running things, is that it is wrong to "legislate morality". On one level this is absolutely true. Morality is a private attribute, not a public one. On the other hand, I know of no law that seeks to legislate what individuals deem to be right and wrong, good and bad. Well, maybe except for that darling of liberals and progressives everywhere - Hate Crimes laws. Laws do not seek to control individual moral outlook, but they do seek to discourage certain forms of behavior in accordance with the moral norms of the society. When liberals decry legislating morality, they generally mean that they do not wish to have certain types of behavior (especially sexual behavior) circumscribed. They want to do what they wish without the law casting its stern judgement on them.
When one steps back and takes a clear look at the function of law – be it common law, tort law, democratic legislation or Constitutional law, it becomes obvious that the primary function of all law is to enforce social moral norms. Some may argue that law has its roots in utilitarian practicality – that society implements laws primarily for protection of its citizens and their properties. This is an important corollary effect of law, but the reality is that the primary reason we prohibit theft is not because we wish to minimize theft (which we do), but because we as a society consider it to be morally wrong behavior. We do not throw people in the slammer in order to prevent them from committing additional crimes (although that is one of the reasons the crime rate has been dropping) but in order to punish them. You break the moral rules, you get punished.
If one starts from the premise that the root of law is morality rather than utilitarianism, several themes become clear that are very useful in understanding current events.
The first is that effective laws require the overwhelming concurrence of the citizenry. If 90-95% of the population believes a certain behavior to be morally out of bounds, it will be proscribed by law. Those numbers are arbitrary, but I think they are close. There were times in this country when the percentage of the population that believed homosexual behavior to be morally abominable was close to this threshold, and in especially strong pockets it resulted in laws proscribing sodomy. Today, although my guess is that a majority of people still feels this way, there is a sufficient balance of people who disagree to render such laws archaic and useless. (Incidentally, that is exactly what we mean when we refer to a law as "archaic". It simply means that the moral consensus has shifted). This also helps to explain the abject failures of such experiments as prohibition, the 55-MPH speed limit, and the War on Drugs. If only 5% of the people were drinkers, prohibition would have worked just fine. These are all examples of law being imposed on the people from above rather than the law naturally coalescing out of society’s moral consensus.
The second is that law-making entities, including the judiciary, implicitly understand and usually follow this rule. The best example of this is desegregation. In theory, Jim Crow could have been killed any time between 1870 and 1954, but it wasn’t. Why not? Because there was a significant lack of social consensus regarding the immorality of racial segregation, a lack so meaningful that not even the inherently anti-democratic Supreme Court dared to force the issue. It was not until the social changes brought about by WWI & II and the mass migration of blacks to the north that a critical mass was developed for desegregation. Once society got close enough, in the ‘50s and ‘60s, the Court was able to force the issue and drag the recalcitrant minority along. The same can be said for Roe v. Wade. Although this decision was a Constitutional horror on many levels, it reflected rather than forced changes in America’s moral consensus. Although many Americans still considered abortion criminally wrong in 1970, the consensus was no longer strong enough prevent the activist justices from changing the rules.
Third, this theory acts as another good argument for Federalism. Although we live in an increasingly uniform society, there are still legitimate differences in moral norms in different parts of the country. It is natural and right that those differences be reflected in the law. The nationalization of law that is occurring in this country strangles the ability of peoples to make and enforce rules that reflect their particular set of moral norms.
Lastly, this theory makes it obvious that too much law is a bad thing. The number of issues that have a clear 95% consensus are very few – basically the Ten Commandments, and a few sexual perversions. The natural tendency of law making bodies to produce ever more laws is a serious threat to the meaning and rule of law, and a corruption of democracy. To be effective, laws need to be simple, few and completely in synch with society’s moral compass. The practical consequence of having too many laws is that everybody becomes, at some level, a criminal. Democratic society cannot operate like that.
It is clear that the viability of our democracy is based on this notion of the law. It may sound odd, but my single favorite part of The Wizard of Oz is when the mean old neighbor lady gets an order to confiscate and destroy Toto. Dorothy is absolutely distraught, but wise, sad old Uncle Henry just shakes his head and says, "It’s the law Dorothy. We can’t go against the law." That notion of respect for law, of the rule of laws and not men, is in serious peril if we lose the connection between law and moral consensus. Respect for the law becomes impossible when a minority is able to jam its laws down the throat of the majority. And that, sad to say, is where we seem to be heading.