Can we legislate morality? Yes and no

(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… [They] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce…The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. [Emphasis added] (Federalist 45)

Finally, legislating morality at the national level is highly imprudent: Rather than achieving what we all so desire, it makes likely the worst of political consequences. This is the most complex (and counter-intuitive) of the arguments; let me just sketch out its most salient points: 1) It is of the essence of government to be nearly unmanageable- tyranny, not liberty is the historical norm and the general trajectory of all governments, including our own; 2) An art of legislation compatible with keeping government in check is extremely difficult to achieve- passing laws out of a passion to solve problems is far more likely to be destructive than helpful; 3) Legislating virtue has the unintended and opposite effect of undermining limited government while failing to achieve the virtue desired; 4) Almost all legislation over a large territory of diverse peoples is incompatible with political liberty- if necessary, local government is the proper jurisdiction for such matters; and finally, 5) The safest and most effective means of cultivating virtue is through free associations— cultivating virtue nationally would require either divine intervention or a complete transformation of our political order and way of life.
As I close, consider Montesquieu and Tocqueville on these points.
First Montesquieu:

… it seems that human nature would rise up incessantly against despotic government. But despite men’s love of liberty, despite their hatred of violence, most people are subjected to this type of government. This is easy to understand. In order to form a moderate government, one must combine powers, regulate them, temper them, make them act; one must give one power a ballast, so to speak, to put it in a position to resist another; this is a masterpiece of legislation that chance rarely produces and prudence is rarely allowed to produce. By contrast, a despotic government leaps to view, so to speak; it is uniform throughout; as only passions are needed to establish it, everyone is good enough for that. [Emphasis added] (The Spirit of the Laws, Part I, Book 5 Chapter 14)

Now Tocqueville on renewing the heart and mind:

A government can no more suffice on its own to maintain and renew the circulation of sentiments and ideas in a great people than to conduct all its industrial undertakings. As soon as it tries to leave the political sphere to project itself on this new track, it will exercise an insupportable tyranny even without wishing to…. Sentiments and ideas renew themselves, the heart is enlarged, and the human mind is developed only by the reciprocal action of men upon one another…. And this is what associations alone can do. (Volume II, Part II, Chapter 4)

It would be valuable to turn towards the practical implications of this position, but I’m out of time. Instead let me referencing my second favorite curse, this time courtesy of the Scottish. Whatever our final conclusions and disagreements with respect to these genuinely pressing issues, may this curse serve as a cautionary reminder of the high stakes involved, as well as of the dubious results of our past efforts, in legislating morality at a national level. After all, we should never forget that the entire nation rallied around the Progressive movement in the name of virtue, and that our greatest political ills today stem from that movement. We are now certainly in the clutches of “interesting times”; my sincere hope is that we escape the clutches of this second curse: “May you get what you want.”

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