Legislating Morality in America

Legislating Morality

The ideas of Thomas Hobbes, the influential English philosopher who lived in the late 1500s to middle 1600s, are still considered important today. Hobbes is best remembered for his ideas on political philosophy. While Hobbes throughout his life championed the idea of absolutism for the sovereign he also is responsible for many of the fundamentals of Western political thought such as equality of men, individual rights, and the idea that all justifiable political power must be representative of the people (Edwards, 2002).

Hobbes also believed that human nature was such that people acted out of selfish-interests and if left to their own devices would do anything to get what they wanted or to acquire more power at the expense of others. Governments are then formed to shield people from their own selfishness; however he understood that even a King left unchecked would also act in a selfish manner at the expense of the people. Hobbes believed that a group of representatives presenting the issues and dilemmas of the common man could prevent monarchs from acting in their own self-interests. The basis of Hobbes's ideas have help form the major ideologies of Western democracies and his premise that governments are formed to protect the interests of the group and benefit all at the expense of limiting certain individual rights is still taught in elementary schools today (Edwards, 2002).

Governments based on the tenets of democracy have a moral obligation to act in the best interests of the people, or so one would think. Moreover, in a representative democracy or republic, the actions of government should reflect the will of the people (or of the majority of the people). However, it is clear from history as well as certain actions of the government recently that indicate that the legislation of morality by the government is not always in line with the wishes of the majority of the people. Interestingly for many the notion of morality conjures up images of the religious right, the ideas of conservative thinkers, and a host of other rather arcane impressions in many. Just what does the term "moral" represent?

Definition of Morality

The word "moral" or morality is taken from the Latin term moralitas, meaning character or proper behavior (Superson, 2009). This paper will use Shaw's (1999) definition of ethics as the branch of philosophy that deals with what is moral and answers questions about morality and the terms "ethical" and "moral" will be used interchangeably. Given its root word one might be tempted to believe that defining what is moral or ethical is actually rather straightforward. Nothing could be further from the truth. Entire texts are written on the issue. Rachels (2002) in his classic text discusses the minimum conception of morality which provides the basics of what it is to be a conscious moral agent: Morality is at the very least, the effort to guide one's conduct by reason-that is, to do what there are best reasons for doing-while giving equal rate to the best interests of each individual who will be affected by what one does. (p. 10). Rachels points out that not everyone accepts this minimum conception of morality, but those that do not run into serious difficulties explaining their reasoning. Therefore, for the sake of brevity this paper will accept this minimum conceptualization of what constitutes "moral behavior" or "ethical behavior" or however one wishers to phrase it. Thus, according to Rachels the differentiation among intent, decisions, and actions between those that are right or wrong indicates morality.

Luce (1999) eloquently outlined the tenets of Universal Morality, morality that is invariant to personal opinion, time, geographical boundaries, or creed. These tenets include truth, honesty, justice (the desire to render to everyone that which is his due), courage, compassion, duty, responsibility, loyalty, and honor.

Moral Reasoning

The next question concerns how a person or group comes about making a moral or ethical decision? According to Shaw (1999) whatever falls outside the sphere of moral decisions are nonmoral decisions. Thus deciding whether or not to eat chocolate or vanilla ice cream for most of us is a nonmoral decision, it does not affect others (not to be confused with an immoral decision, the opposite of a moral decision). Moral decisions/standards affect others and have the potential to be beneficial or harmful to others, take priority over self-interest, and their soundness depends on the adequacy of the reasons that support them (Shaw, 1999).

Rachels (2002) cautions strongly against solely relying on one's feelings as a basis for making moral decisions. Strong feelings may often be signs of moral issues, but feelings or emotions are often irrational and often feelings can lead to opposite conclusions in different people (or even the same person). Moral judgments must differ from expressions of one's personal taste, even though feelings can be guided by arguments. Rachels makes the point that in order to understand the truth (or what is right) one must be guided by arguments that are opposite from one's feelings or from one's position on the subject. Moral decisions are a matter of consulting reason. In order to reason properly one must get the facts straight (hence the consideration of both the opposing and subjective points-of-view) and one must be impartial. By being impartial one concludes that the interests of all of those who are affected by the decision are equally important; no one person or group is privileged over another on the basis of who they are. Thus, moral judgments must be backed by good reasons. However, as simple as all this sounds, not all reasoning or arguments are sound and moral reasoning must differentiate sound from unsound, good from bad, right from wrong arguments.

Where do Moral Standards come from?

At this point many people would split of where we get our moral standards. One group would say that moral standards all come from religious views; others, especially in today's postmodern ethically relativistic climate, would state that right and wrong are functions of what society deems them to be. Shaw (1999) provides three reasons as to why moral standards do not come from religions:

(1.) People often act morally out of habit and immoral acts such as stealing are not within our personal conception of ourselves.

(2.) The moral dictates of religions are not precise, (e.g., Thou shalt not kill) and do not relieve us of the necessity of moral reasoning such as to when killing is moral (war, capital punishment, etc.).

(3.) The notion of divine command, that something is moral (or immoral) just because God says so is incorrect. God may command something because it is moral; it is not necessarily moral just because God says so (Shaw uses the example of the "Golden Rule" here to demonstrate that even in cultures with disparate beliefs regarding God, this axiom is considered a sign of morality).

With respect to ethical relativism Shaw (1999) points out that if this point is taken as valid then we cannot say that slavery in the south before the 1860's was immoral, nor can there be such a thing as ethical progress, nor should we criticize beliefs from our own society or subcultures within our society or other cultures (e.g., the treatment of females in Muslim cultures). Obviously many so called relativists cannot abide by their own assumptions.

Can the Government Legislate Morality?

Thus, morality is not necessarily determined by religion, culture, society, personal interest, or government. We often hear "You cannot legislate morality" from those protesting the attempts by certain more conservative groups to pass laws denying homosexual marriage or repeal current statutes such as legalized abortion. The question becomes of course can the government legislate morality? The answer to that question is a simple yes it can and yes it does. As citizens we even encourage the government to legislate morality. We can readily admit that the prohibitions against stealing, murder, child abuse, polygamy, and a number of other laws can be thought of as legislating moral principles. To state that morality cannot be legislated is simply to reveal an ignorance of what many laws actually are. In essence laws proclaim one particular behavior as being right and another behavior wrong, which is very close to out earlier definition of the minimal conception of morality. When certain groups pronounce that morality cannot be legislated, what they most likely mean is that the particular law is in conflict with their opinion and that legislation cannot change what they feel in their hearts. While this certainly may be true, changing someone's feelings is not the purpose of passing laws. Laws are passed for the better good of all concerned, regardless of one's personal convictions. Laws and statues encourage a certain type of behavior by citizens. It is impossible for nearly all types of legislation to be divorced from morality. Nearly all laws mandate morality. The question is not one of can the government legislate morality, but whose morality does the government legislate (Geisler & Turek, 1998)?

For example, a real hot and controversial issue that often evokes the argument that morality cannot be legislated is that of legalized abortions. The Supreme Court claimed that when upholding the Roe vs. Wade decision that they were not legislating morality by making abortions legal. However, it is clear that in their decision by legalizing abortion the Supreme Court has essentially declared that abortion is right. As such, this is certainly a statement of morality and legalized abortions represent an example of the legislation of morality. Many government officials argue that legalizing abortions represents the government's way of remaining neutral on the issue of abortion; the government is not actually forcing anyone to go out and get an abortion nor is the government stating that having abortions is good, but instead the government is recognizing a woman's control over her body and are allowing women to exercise their options in the case of an unwanted pregnancy. Similar arguments could be used for other activities like prostitution or the use of illicit drugs. For example, if the government passed a law legalizing killing someone in self-defense as in the old west, it would be endorsing killing human beings under certain circumstances. Legalization of any activity is in a sense a government endorsement of that activity as making an activity illegal is not endorsing it. If this were not true why would we need any laws at all? The thing is that by legislating morality, the government endorses or opposes a particular activity. In the case of abortion, has this changed the way general public feels about abortion?

Turek (2009) states that people believe that whatever is legal is also moral. Laws actually help implement changes in attitude and behavior. He cites two examples as to how the law changed attitudes and behavior: slavery and abortion. Regarding slavery, no one will doubt that after the Civil War acts of slavery decreased dramatically, but there is no data on attitudes. Socialization has resulted in the current attitude change. Regarding abortion, Turek states that the Roe vs. Wade decision in 1973 led to a change in the national attitude regarding abortion stating that in 1973 the vast majority of Americans believed that abortion was immoral, although he cites no source for this observation. He goes on to state that the number of abortions "exploded" to 16 times its previous number (again no source) and that legalizing abortion drastically changed that attitudes and behaviors of the American people regarding abortion. Interestingly, Reagan (1997) performed a detailed analysis of American attitudes towards abortion and included the effects of the Roe vs. Wade decision and found American attitudes towards abortion were stable for over two centuries including the time before and after the 1973 decision. Shaw (2003) reviewed results of public opinion surveys regarding legalized abortion that were collected from the late 1980s through 2003 and found very few changes in Americans' views regarding abortion over that time period. The percentages of Americans favoring or against legalized abortions does not appear to have changed much since abortion was legalized (hovering above 60% of Americans polled favoring abortion in the first trimester of pregnancy); however, public support regarding the types of motivations and circumstances of women seeking abortions did change. There was been an increase in support for abortions for women whose health or life are threatened by the pregnancy compared to woman motivated to have an abortion by the prospect of fetal defects, financial difficulties, or not wanting to have children. Thus, in the case of abortion, the legalization of abortions does not seem to have influenced public opinion to a significant extent, despite what religious conservatives believe or stay. However, compared to 1972 the annual number of deaths in women having abortions decreased by 70% in the late 1990s and the number of abortions in the United States increased from the 1970s until the late 1990s when it peaked and then fell and leveled off through 2008 (Pazol et al., 2008). Thus, it appears in some cases "legalizing morality" does not lead to the effects that many claim. Again, referring to the earlier discussion regarding moral arguments, we must get our facts straight and maintain an impartial attitude. The question of "is abortion moral" is quite different from the question "has legalizing abortions changed the beliefs and attitudes of Americans" are two different questions. The facts regarding the second question appear to be leading us to concluding that the answer is a resounding "no." The first question is an issue that will continue to be debated.

Yet Wolfe (2009) makes an interesting point regarding the legislation of morality. He agrees with many liberals that virtue cannot be obligated by legislation. Virtue is a matter of free will and therefore attempts to coerce it by means of legislation are a contradiction. Coercion does not reach into the soul of a person, but affects one's external behavior. Being moral or virtuous (which Wolfe seems to equate) is a matter of personal habits and choices. However, this does not imply that the government does not legislate morality. Wolfe makes a sound case for legislating morality.

Wolfe (2009) goes on to explain that legislation prohibiting certain acts (sand in essence promoting moral conduct) reduces their frequency. As discussed above, laws prohibiting abortion did reduce the frequency of abortions (although laws allowing abortion did not result in skyrocketing rates of abortions that continued to climb in the present era). Wolfe believes that such laws as restrictions on pornography, affect the behavior of the majority of people who are neither firmly committed nor firmly against the behavior by giving them guidelines as how to behave and instilling good habits. Such legislation does not affect those who were already firmly against the viewing of pornography on moral grounds nor does it affect the behavior of those who are so willing to engage in the behavior that they will attempt to find the means to evade the law and view or make pornographic materials. The case for legislating morality with respect to its reduction of the frequency of certain acts according to Wolfe is in its indirect effects. Making pornography illegal reduces the availability of such materials and some people then do not regularly indulge in it, form the habit of indulging in it, and do not form other habits associated with regularly indulging in pornography such as viewing women as sexual objects, engaging in impulsive sexual behaviors, and so forth. While Wolfe admits that there will always be some people who will ignore the law and find a way to engage themselves in illegal activities we do not repeal laws on rape or murder because some people break them. Thus, legislating morality is a valid endeavor.

A second reason Wolfe (2009) gives for legislating morality is that law contributes to the formation of moral ideals. Humans are not beings with an innate knowledge or sense of morality, but instead are social creatures whose abilities need to be developed by means of learning and instruction. He cites Aquinas and de Tocquevillie in putting forth the notion that people are not capable of producing their own comprehensive ethical standards. Like Hobbes he subscribes to the notion that people, if left unchecked, will act in accordance with their own selfish motives at the expense of affecting or harming the rights of others around them. The major instructional institutions for the development of moral behavior are the family and churches, but he ignores the substantial effects of peers, schools, and the media (although he does mention the media briefly) which have profound effects on attitude development (e.g., Arnett, 1995; Kandel & Andrews, 1987). Basically Wolfe states that laws state society's opinions. Society cannot help but to legislate morality in the sense of encouraging certain ways of living. These include having only one spouse, not stealing, paying taxes, etc. Thus, legislation cannot avoid creating and promoting morality as well as creating certain vices and reason should be exercised at directing the laws and not leaving then to chance (Wolfe, 2009).

Legislation and laws are inherently aimed at presenting themselves as moral (Appel, 2004; Wolfe, 2009); however, we can cite numerous cases where laws are overturned as being unjust or immoral. The issue becomes one of the government legislating morality as opposed to legislation being "moral" in the opinions of some. Again the issues surrounding abortion serve as an example. By legalizing abortion the government has legislated morality; however, many still view the act of abortion as immoral. Nonetheless, based on the poll data the government is acting in a moral fashion by bowing to the wishes of the majority. The issue of abortion as murder is a belief based on the refusal to accept certain defining standards as to when a fetus is considered a viable human being. These standards are based on scientific evidence and scientific conclusions as well as legal definitions. In effect, those that disagree with these standards are stating an opinion which denies these so-called facts, whereas those that accept this stance accept the conclusions as factual. The abortion issue is a good example of how the "facts" can be vague and open to interpretation. There is an answer to whether performing or having an abortion is immoral or not; however, working from the human perspective does not allow one to develop conclusions that will satisfy everyone. Thus, the common term of "whose morality" should legislation abide by is used. What "facts" are valid? Are those from secular science and law valid, or those "facts" that are derived from religious sources valid?

The Christian right views natural law as the laws of God and the foundation of morality. As discussed earlier in this paper, morality is a condition that can be thought of as separate or mutually exclusive from God's dictates, that is that God can command something because it is moral as opposed to something being moral because God commands it. Appel (2004), much like Turek (2009) and other Christian apologetics believes that natural law dictates that abortion is immoral. America is a constitutional republic and the people elect the representatives that make and pass laws. The majority of people, in the case of abortion, teaching evolution and not creationism in schools, etc. favor these "immoral" acts. Therefore it is easier to legislate immorality than morality and legalized abortions are immoral. But again, does Appel have his facts straight? Based on the earlier definitions of morality and moral reasoning it appears as if such legislation is indeed moral.

So when the left says "you cannot legislate morality" they are endorsing a form of moral relativism, whereas the right endorses the notion that morality comes from God. Both views are wrong. In fact both views represent extreme views that Luce (1999) would consider immoral. The government can and does legislate morality. But there are instances when legislating morality are not met with favor by the citizens of the United States.

Prohibition and the "War on Drugs"

In contrast to abortion, the classic case of the government imposing a nationally unpopular law on citizens is the Prohibition era in the United States. Prohibition today seems surreal, but it was a Constitutional ban on the manufacture, transportation, and sale of alcohol that lasted from 1920 until 1933 and was mandated by the Eighteenth Amendment to the Constitution and the Volstead Act (Vick & Rhoades, 2010). Spurred by the earlier Temperance Movement, the ban of alcoholic beverages and attempts to enforce prohibition were hotly debated in this country. Prohibitionists touted it as a triumph for "morals" and public health, whereas anti-prohibitions sharply criticized the law as an invasion of rural, white, Protestant ideals on the lives of others. Effective enforcement of the alcohol ban during this era proved to be very difficult as the law was very unpopular and quite costly and led to extensive breaking of the law even by politicians, law enforcement officials, and other public officials in addition to citizens. Lack of support for Prohibition also led to the development and growth of sizable criminal organizations, including the American faction of the Mafia, as well as various other criminal factions. Prohibition ended with the ratification of the Twenty-first Amendment on December 5, 1933 which repealed the Eighteenth Amendment. However, the consumption of alcohol remained below pre-Prohibition levels well after the Eighteenth Amendment was repealed.

Today many draw parallels to Prohibition and the situation with illegal drugs such as marijuana, cocaine, and even heroin. According to the figures on U.S. prison populations over half of all the prisoners incarcerated in federal prisons are serving sentences for drug-related offenses and 20% of the prisoners serving sentences in State prisons are serving sentences for drug-related offenses (Gideon, 2011). Huge criminal organizations have developed in this country and other countries devoted to the manufacture and distribution of illicit drugs that generates revenues in the billions of dollars. The United States spends a massive amount of money not only to house drug offenders, but to finance the "War on Drugs." Over 54 billion dollars was spent on enforcement of drug laws in 2011 alone by the federal and State governments (Action in America, 2012). Many believe that efforts to enforce the laws against the use of illicit drugs have failed. The number of people incarcerated for drug related violations, the development of large criminal concerns to distribute drugs, and the massive amount of money spent on enforcing drug laws has led to an outcry from several groups to legalize these drugs and control their distribution. The similarities between the Prohibition of the 1920s and the current "War on Drugs" are indeed worth noting, although public opinion for the legalization of drugs like cocaine and heroin is not as strong currently as opinion for the legal use of alcohol was during Prohibition. However, as seen with the current movement to legalize medical marijuana use there has been some movement towards tolerance for drug use.

When Legislating Morals is Ineffective

Nonetheless the examples of the Prohibition of the 1920s, legalized abortions, and to a lesser extent the "War on Drugs" provide an illustration of how the legislation of moral values by the government can either be accepted by the public or harshly rejected depending on the public's beliefs concerning the validity of the legislation. When the government uses coercion to legislate the morality of unpopular special interest groups as in the case of Prohibition the results can be costly and ineffective.

Wolfe (2009) recognized that the greatest historical exponents of political moralism were moderate moralists. Wolfe recognizes several factors that advise moderation in the use of legislation to promote morality: