"As powerful as the concern over [the economy and Iraq] is, the introduction of cultural themes -- specifically gay marriage, abortion, the importance of the traditional family unit and the role of religion in public life -- quickly renders them almost irrelevant in terms of electoral politics at the national level."
Many of these voters . . . see the Democrats as weak on national security, and on cultural and moral issues, they view Democrats as both inconsistent and hostile to traditional values. "Most referred to Democrats as 'liberal' on issues of morality, but some even go so far as to label them 'immoral,' 'morally bankrupt,' or even 'anti-religious,' ".
. . . . "No matter how disaffected [voters] are over Republican failures in Iraq and here at home, . . . a large chunk of white, non-college voters, particularly in rural areas, will remain unreachable for Democrats at the national level."
Somehow we must resurrect the idea that there is a difference between morality and legality. Morality is a private matter. It is the code of conduct that individuals apply to themselves. Legality is a public matter. It is the code of conduct that government imposes on all of us. We get into trouble when we try to turn our own personal moral code into a legal code that applies to others. For, in so doing, we deprive others of that which we would never surrender ourselves: the right to decide for ourselves what we believe to be right and wrong.
The fact that something is considered immoral by many or even most people is not alone sufficient basis to make it illegal.
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police power
Related: Law
in law, right of a government to make laws necessary for the health, morals, and welfare of the populace.
For what it is worth.
The above quote represents a typical definition of the police power. N.B. the reference to "morals" . This definition seems to incorporate morals into the definition of legitimate legislative action--- as a time honored American tradition. I would suggest that the use of the word "morals", suggests that a moral value is one which has some transcendent meaning over a legal one. That is, a moral value is something that is right in and of itself, without the ratificaion of some legal body . The most obvious moral value is the one against murder, which easily transfers to a legal probition. Religious folks will be quick to say that morality comes directly from God, secularists will agrue for a "secular" ethic, or morality derived from a sense of humaness.
But, in any event, the point here is that morals are something a bit higher than laws, and that "morality", becomes the underpinning of "law"---for what else is there to separate the laws of the Third Reich from those of these United States.
What is troubling about the "new" sense of "morality" in the public debate, for me, is its unrelentless drive to religify public life. The Christian Right is quick to declare a view as "moral", therefore "right", and ergo undebatable. There is no recognition of the "grey area" of morality, and the so called right is quick to criminalize, or prohibit that which they fine immoral, where others don't.
True enough. The government's police power has long been assumed to include the power to legislate on moral grounds. But the question is: should it be that way. Should the government be in the business of legislating morality? I think much of today's kulturkampf centers on that question, although surprisingly few of the participants seem to be aware of that fact.
I doubt if many people would give an unqualified "yes" to this question. Most would agree that lying is immoral, yet I doubt if many would argue that it should be a crime. Same with the seven deadly sins: Pride, Envy, Gluttony, Lust, Wrath, Greed and Sloth are all considered immoral by most people; yet I suspect that few would be willing to criminalize any of these. More concrete examples include drunkeness, drug use, adultery, fornication, heterosexual sodomy, homosexual sodomy, pornography, abortion, assisted suicide, euthenasia, polygamy, beastiality, etc. Again, most people would probably agree that all of these are immoral in some sense, yet you would get a wide divergence of opinion (to say the least) as to which, if any, should be crimes.
So, even those who argue that morality is an appropriate goal of legislation have to concede that this is so only some times. And, therein lies the problem. If morality can be a basis for law some times but not others, where do you draw the line? Everyone will have a somewhat different answer to this question. Thus, the kulturkampf.
My sense is that morality, as such, has no role to play in law. This is not to say that morality is unimportant to me. Far from it. My sense of morality is the code by which I want myself to live and against which I judge myself. And the morality of others with whom I come in contact is an important (though largely unarticulated) criterion I use in deciding which people to associate with and which to avoid. But, when it comes to the question of what the givernment should madate or proscribe for all people, I tend to accept J. S. Mills' "one simple principle":
[T]hat the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
Bill
PS: If you want to see where an utter rejection for Mills' principle leads you, read Robert Bork's "Slouching Toward Gommorah." If the only alternative to Gommorah is Bork's militant Puritanism, I'll take Gomorrah.
My original comment was intended to make the point that at least jurisprudentially, in the United States, the police power does extend to morals, and it has been the basis for our civil and criminal law.
As to the question of should morals be the basis of the law,that it is far too deep for me to resovle. But allow me to venture in, on a more philosopical basis, at some risk.
There is a case to be made that in a deeper sense, "good" law is based on a notion of morality. Where else can the idea of civil disobedience to unjust laws come from, if not from some independent moral conceptual plane. For instance if a legitimate government passes a fundamentally unjust law, from where does the impulse , obligation,or decision to disobey it derive, if not from sense of morality. Just off the top of my head, I think we all agree that it is appropriate to prohibit "cruel and unusual punishment". This is part of the constitution, that most, but not all people agree with. Well, why is it the case that cruel punishments should be prohibited? My opinion is that this "sense" derives from some type of moral code--on one hand the prohibition against these punishments may be religious based, but on the other, as Eco would probably say, the ultimate human aborhorance of torture, derives from our common human experiences--the fact that when we see a person on the "rack", we can identify with the pain. This view, is a very short way to make the case for "secular" ethics, or morals--i.e. a moral system, without a God figure.
But either way, the sense of morals, either religious or secular, has worked its way into
the law.
I don't think this is bad thing, in and of itself. The real clash of concepts occurs when large groups of people diagree on wheter a particular act is indeed moral, and one group attempts to force a view on another. Think of the debate on slavery--morally abhorant to some religious people it the north, and morally correct to some in the south.
My current concern,and perhaps yours, and indeed getting bigger all the time, is that there has been an ever increasing tie of "morals" to politics and indeed legislation. But the public discussion in this regard as been an extreme pushing of the morals of the right, or fundamentalists. We are now told by opinion pollsters that it is important to appear religious to get elected.(acually an incredible misuse of religion). While Ron Reagan professed a belief in God, he did not wear it on his sleeve. In the case of JFK, he had to run from the fact that he was Catholic, because of the heavy Protestant bias, at the time. Amazingly, just 45 years later, John Kerry wasn't goddam Catholic "enough". Clinton gets attacked for girl friends, and Newty boy gets away with it.
These kinds of examples give "morals" a very bad name, becuase they are transparent situations in which morals-in this case religion- is used for any purpose--and indeed the most cynical one --political purposes.
One cannot disagree that morals are fundamentally a personal matter,and that the use of the moral motive by political forces, as seen today, is a bad and usually hypocritical development. Perhaps my world is more grey than politically correct to admit, but I am not, theorically, concerned about a tie between morals and legislation. In practice, though, American politics is moving quickly from the acceptable grey of twilight into relative darkness . In the context of modern America, the constant attempt to blend of one version of morality into prescriptive law, is a bad thing.
Stay Strong for America.!!!!!!!
I do not disagree that there is a fair degree of congruence between law and morality. That is, most of the most obvious legal prohibitions (e.g. against murder, robbery, rape, etc.) outlaw things that virtually all agree are immoral as well as illegal. I also agree, as you point out, that a large part of our moral code comes from our identification with victims and/or dis-identification with perpetrators: we oppose lying becuase we don't want to be lied to; we oppose robbery becuase we don't want to be robbed; we oppose torture becuase we don't want to be tortured; we oppose homosexual sodomy becuase we find it disgusting. Over time, individuals tend to recast as immoral all of those things they personally don't want have done to them and/or don't want to do themselves. (The religious, of course, buttress this conclusion with a claim that such actions violate divine guidnace or mandate. But, I think most people would recognize if they stopped to think about it, that the human conclusion that something was "bad" gave rise to the commandment rather than vice versa).
Communities do the same thing: over time those things that most of the people in the community do not want done to them or do not want to do themselves become parts of the what the community as a whole tends to think of as immoral. But it is here, at the community level, that morality becomes a problem as a basis for law. Within any large community there will inevitably be people who DO want to do things that most of the rest do not. In a totalitarian society, all actions that depart from the community morality could be made illegal. But in a society that is trying to balance liberty with order, some mechanism other than morality has to be found to distinguish what "immoral" acts should be criminalized and which should not. That is, we have to find a principle that allows us to distinguish homosexuality from murder. Both may be very much contrary to the community's moral code. Yet, I would argue, only the latter should be illegal. I tend to think that Mills' "one simple principle" provides the only reliable way to distinguish the two.
Perhaps I am missing something, but it seems to me that there is a disconnect between your argument that morality is a legitimate basis for legislation and your discomfort with what is going on in America today. The Religious Right is doing exactly what you seem to say is OK: pushing to have their own moral code encted into (or preserved in) law. Yet, you despise the outcome. Why? Proabaly becuase their moral code is not yours. I think that sort of tension is the inevitable consequence of accepting morality as a basis for law. One can't (logically at least) say that legislating morality is OK so long as it is my morality that is being legislated.
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