(CCU Faculty) I would like to begin and end my comments this evening rather inauspiciously by referring to my two favorite curses, the first of which has most certainly alighted upon our nation, and the second of which we may yet hope to escape.
Editor’s Note: Dr. Shumaker, who teaches in CCU’s political science department, presented this opening statement on March 10 at the Issue Monday forum on “Can We Legislate Morality: Marijuana, Marriage, and Murder.” We hope to post here soon the Powerpoint presentations by the other two panelists, CCU political scientist Greg Schaller and CCU business professor Kevin Miller, along with further statements on this question by all three.
The former comes courtesy of the Chinese people, who, when provoked, are likely to bow and politely remark: “May you live in interesting times.” And indeed, what would we label our times, if not “interesting”? Between the legalization of marijuana, gay marriage, NSA spying, and the disturbing emergence of a police state, there is no end to what is “interesting”. Our topic tonight of legislating morality is then most relevant, so let me state the question and respond:
Can we legislate morality? Taken in one sense we not only can “legislate morality”, but we must. The mere protection of life, liberty and property constitutes nothing less than legislating according to a moral standard and against immoral acts.
But what if we define “legislating morality” as requiring positive moral conduct of American citizens through federal legislation? I will argue that legislating morality in this precise sense is neither moral, nor constitutional, nor prudent.
First, then: Whether we consider reason or revelation, requiring positive moral conduct through Federal legislation is immoral for the simple reason that just political rule requires genuine consent of the governed. Such genuine consent cannot be merely formal in nature; it must be substantive. It must involve real alternatives and real choice. Although we have a formal elective process for our national leaders which might suggest consent, it has become overwhelmingly clear that what happens in D.C. does not in any substantive way reflect the genuine consent of the 350 million diverse citizens of our nation. And how could it? I do not wish to be disrespectful, but what we have in D.C. is essentially what some of our Founders feared: A rogue imperial city, independent and immune to the voice of the American people.
Second, legislating morality nationally is also clearly unconstitutional. According to the wisdom of our founders, the Constitution deliberately makes no provision for the virtue of its citizens, nor does it provide the national government with any jurisdiction over such matters. The fact that our government has assumed to itself powers and prerogatives that would make it unrecognizable to our Founders does not alter the Constitution. The national government was to have almost no substantive influence on the daily lives of its citizens. Here’s Madison:
The powers delegated by the proposed Constitution to the Federal Government, are few and defined…