Man, throughout history, has been tempted with power. Someone is always ready and anxious to use force over others, both within and outside of government, for his own interest. Some who reject the use of physical power over others and reject the material benefits of illicit power will, nevertheless, use government force to impose their social standards on others. It’s important to recognize that there is a difference between legislating morality and moral law.
The following is a Freedom Report essay written in 1982 addresses this subject:
How many times have you heard it said: “Government should not legislate morality?”
When the liberals push laws mandating quota systems, integration of privately owned property, welfare aid, medical care for the poor, foreign aid to third-world nations or minimum wage laws, they do it in the name morality, claiming the nation as a whole has a moral obligation to fulfill the needs of others.
The conservatives quickly retort: “Government shouldn’t be legislating morality,” claiming it’s impossible to force people to be generous, fair, and tolerant. In attempting to “legislate morality,” the economic and social conditions which were to be improved by the legislation usually get worse. For instance, integration by busing caused white flight and growth of private schools, creating more black ghettos today than existed prior to the mandate for the integration nearly thirty years ago.
The attempt, in the name of morality, to wipe out poverty destroys initiative and causes economic conditions to deteriorate. Minimum wage laws lead to unemployment and third-world subsidies turn out to be nothing more than bail-outs for New York banks and foreign dictators.
It’s obvious: “legislating morality,” as the conservatives claim, is a total failure and should be rejected. The liberal “do-gooders,” although well-motivated, create more problems than they solve -- all in the name of a moral obligation to care for the less fortunate of society. They don’t ask why some are less fortunate than others, and never question whether previous government interference may have been the cause and, therefore, cannot be the solution, no matter how well-motivated the intentions of the do-gooders.
For many decades, the political activism of liberal church groups has reflected this belief in legislating morality. They were, and still are to a large degree, “out-front” on many economic and social issues, requesting and lobbying for social legislation from Medicaid to busing, from foreign aid to food stamps. Promoting these programs in the name of the church and morality carries with it a tone of condescension and righteousness. It attacks the very roots of the conservative conviction that free enterprise and the profit motive are sacred institutions.
The conservatives, angry and frustrated since they lack a consistent defense, respond only with the cliché, “government shouldn’t legislate morality.” The conservative anger exists because the liberals attack the sacred notion of a competitive free market, and the frustration occurs because deep down inside they know that there indeed is a relationship between, morality and the law. It is understanding this relationship which has been elusive, causing consternation in many sincere liberals and conservatives.
Liberals, just as often as conservatives, throw up their hands and condemn positions taken by conservatives by repeating the old cliché themselves: “You have no right to legislate morality.” Conservatives in general have advocated laws prohibiting gambling, pornography, drinking, and certain sexual activities such as homosexuality and prostitution.
The desire – and one not to be criticized – is, of course, to improve individual morality. They rarely question how, if we can’t legislate morality and improve society by forcing integration, we can make an individual a better person by making him an outlaw if he desires to gamble or drink. The conclusion is that if legislation attempts to improve personal conduct it’s okay, but if the aim is to improve economic and social relationships, then it is not.
The failure of those efforts is obvious: prohibition in the 1920’s did little to curtail drinking, but did wonders for the growth of the underworld. It also made “criminals” of many of the American people.
The comparison to the problem we face today with marijuana is not without merit. Personal morality does not seem to improve with interventionist legislation. Laws prohibiting gambling don’t reduce gambling; they just move it to the hands of the underworld figures, limiting it to the bold who break laws and denying it from the law abiders who use it as a form of entertainment.
The strongest criticism directed toward the Moral Majority comes from the pious liberals who condemn it and the like-minded church groups for getting involved in politics and “for legislating morality” on issues involving printed matter, sex habits, and drugs. And yet that’s exactly what they have been doing themselves for decades. When the shoe is on the other foot, they resort to the same cliché. Certainly both liberals and conservative religious groups have a right to be involved in politics. How can it be argued otherwise? It seems that as soon as someone promotes a viewpoint contrary to another’s beliefs, it’s condemned as “legislating morality.” Every piece of legislation promoted in Washington is done with a moral overtone and done in the name of “moral obligation” to either help certain groups socially and economically or to make others better persons.
Personal morality does not seem to improve with interventionist legislation.
If it is true that all good law is based on moral principles, how can this impasse occur? Shall we arbitrarily choose when to use “morality” in legislation, based on our own subjective feelings and personal biases?
I believe that’s exactly what we’ve been doing for fifty-to-sixty years, and it has led us to the predicament we face today with most constitutional restraints on government power being removed. It is indeed critical to have a proper understanding of the relationship of morality and the law. Liberals and conservatives can’t both be right, and it could hardly be argued that morality is unrelated to the legislative process. Could it be that they are both wrong and both right?
The case is easily made that good law is law based on morality. Is it not obviously immoral to kill, to steal, to assault another, or to defraud? Is it not clearly a moral right to speak one’s thoughts, to write, and to practice one’s religion, while recognizing slander, libel, breaking of contracts, inciting to riot, and using force to compel one to follow a certain religious belief to be immoral and thus within the scope of the law?
If this is the case – that all worthwhile law is clearly based on a moral code – how can it be correct that liberals should not “legislate morality,” use government to feed the poor, and compel intolerant people to reject prejudice and bigotry, as sincere conservatives claim? Likewise, how can the liberals be correct when they chastise the conservative moralists for legislating morality or personal conduct such as gambling, drinking, pornography, and sexual behavior?
Indeed all law, if decent and just, is moral. Morality must guide legislation or it has no meaning whatsoever. Immoral law is law written by dictators, detractors of freedom, and disciples of ignorance. All good law is based on the moral principle of God-given rights – that our life and liberty are natural and endowed to us by our Creator. All law must be written to protect against any adversary of life and liberty and can never assume that life and liberty somehow have been granted out of graciousness from the state. If this rule were followed, all law would have a correct relationship to morality. This precludes the use of violence or force or the threat of such by individuals, groups, or governments to implement change or to correct less than perfect conditions as perceived subjectively by some. Moral law is law which protects freedom and the right to retain the fruits of one’s labor and punishes those who commit violent acts against life or property.