Ethical Principles in U.S. Government Policy and Law

The Source of Valid Democratic Governmental Ethical Authority

In modern society, societal ethical values are codified in the formal rules, laws, and regulations administered by local and national governments. However, different contemporary societies uphold very different standards of behavior as well as different ethical definitions and criteria. Throughout human history, dictatorships and autocracies imposed rules of behavior based strictly on the interests of government authorities with little regard for any objective moral ethics or values. Even in the most democratic societies — where government authorities are elected by citizens to represent their interests — legislation may not adequately distinguish objective ethics from subjective beliefs and values.

In principle, the United States government may represent one of the most democratic systems in human history; nevertheless, even in modern times, various elements of American legislation still reflect questionable philosophical distinctions with very significant real-world consequences. A political lobbying system has evolved in which the euphemistic concept of access to legislative bodies permits special interest groups to influence the development of laws for their benefit and, often, against the interests of society. Even more broadly, formal U.S. laws severely penalize certain private behaviors without justification in any objective ethical principle; conversely, current legislation permits a wide range of behaviors and practices that violate fundamental ethical standards without penalty.

Thesis: Many aspects of U.S. law warrant a complete re-examination of the objective principles they are intended to uphold. That re-examination must begin with an analysis of any demonstrable failure of legislation to apply ethical concepts fairly and uniformly. Ultimately, ethically valid laws must apply underlying objective ethical principles equally and eliminate subjective distinctions incapable of logical justification.

In the most general sense, the source of valid democratic governmental authority is the protection and welfare of citizens (Mill in Taylor, 2002). Ideally, democratic government and the legislation established and upheld under its authority should reflect objective principles that reward, permit, prohibit, and punish comparable behaviors similarly. To an objective ethical observer, a government is only as ethical as its manner of defining legal concepts and in the fairness and uniformity of their application in similar circumstances (Taylor, 2002).

In that respect, the fact that government authorities and legislators are elected through the democratic process is no real guarantee against unethical laws, unethical distinctions reflected in law, or the unethical application of law (Dershowitz, 2002). To whatever extent government authorities establish or apply laws subjectively, government is rightfully open to the ancient characterization of being little more than the enforcement of the interests of the strong over those of the weak (Sekine & Wakabayashi, 2005). Democratic legitimacy depends not merely on the process of election but on the substance and fairness of the laws enacted.

The Principal Role of Government Ethical Authority

The principal role of government ethical authority is in establishing and enforcing formal rules that prevent individuals and entities from causing harm to others without objective justification (Mill in Taylor, 2002). In so doing, an ethical government also has an inherent responsibility to avoid arbitrary distinctions or differential treatment of behaviors that are comparable in their effect or purpose. In the contemporary interpretation and application of U.S. law, the constitutional concept of equal protection ensures that government largely fulfills its obligation to establish and enforce modern law fairly at the individual level (Dershowitz, 2002), but much less so in terms of the specific ethical principles used to distinguish permitted behaviors from prohibited ones.

In that regard, one of the best contemporary examples is the difference in the legislative treatment of so-called victimless vices. Consider the government-sanctioned production, sale, and use of alcohol and tobacco alongside the prohibition of recreational drugs and other controlled substances. It is uncontested that cigarette smoking is responsible for more preventable death and disease than practically any other individual source of human mortality; yet the manufacture, sale, and consumption of cigarettes is permitted subject only to regulation and taxation. Likewise, the manufacture, sale, and consumption of alcohol — which also contributes to thousands of preventable deaths annually — is perfectly legal subject to similar regulation and taxation. Meanwhile, the manufacture, sale, and consumption of marijuana is strictly prohibited in many states and under federal law across all 50 states (Schmalleger, 2008).

The stated objective ethical justification for criminalizing private recreational drug use is that the state has an obligation to protect citizens from the risks posed by certain behaviors, even where the risk falls only on the individual. However, existing legislation regarding alcohol criminalizes only uses that pose risks to others — such as driving under the influence — while imposing no restrictions on private consumption in settings that present no risk beyond those accepted by the individual. Without expressing any opinion on whether all forms of substance use should be permitted provided they pose no harm to others, it is fundamentally unethical for government to apply different standards to behaviors that are identical in their effects. In principle, either paternalistic protection against behavior harmful only to the individual is an appropriate function of government, or it is not (Dershowitz, 2002; Taylor, 2002).

If the ethical basis for prohibiting the private consumption of drugs is the protection of the individual from self-destruction, there is no excuse for allowing approximately 300,000 deaths annually attributable directly to cigarette smoking. Reciprocally, if the autonomous right of the individual to smoke cigarettes outweighs the state's obligation to safeguard the individual, it is difficult to justify the supposed ethical principle behind contemporary drug laws (Dershowitz, 2002; Taylor, 2002).

The Ethical Limits of Governmental Paternalism

Even with a more uniform approach to the discrepancy between the legal treatment of alcohol, tobacco, and recreational drugs, there are considerable difficulties in establishing appropriate boundaries between state authority and individual autonomy. That is because society may have a legitimate objective right to control certain purely private choices because of the way some of those choices burden society completely apart from any issue of direct harm caused to a specific individual (Dershowitz, 2002; Taylor, 2002).

Even if there is no basis for prohibiting tobacco or non-driving-related alcohol use on ethical grounds relating to harm to others, the government may still have legitimate objective ethical justification for doing so. Especially where private medical expenses are borne substantially by public funds, it may be unethical to allow "private" behaviors that increase the strain on publicly funded medical treatment. Likewise, even if the choice not to wear a motorcycle helmet poses no physical risk to anyone other than the rider, laws requiring helmets might be ethically justified by the cost to the general public of providing emergency services and medical treatment when those risks materialize on public roads.

In principle, it may be possible to design laws that recognize the difference between individual harm and societal harm, but in practice this only complicates the issues further. If the state were to require smokers and helmetless motorcycle riders to pay a surcharge to offset the monetary cost of their choices to society, it is not clear why the state would not have the same authority to do so in connection with eating junk food or sun tanning. Obesity is now recognized as a cause of a considerable amount of preventable disease requiring expensive treatment whose costs are borne substantially by public funds. Similarly, the medical community is united in viewing sun tanning as the primary cause of skin cancer, whose treatment is also largely publicly funded.

Without expressing any specific position on whether the state's right to protect society includes the right to regulate junk food consumption or sun tanning, fundamental ethical principles require that any lines distinguishing state-regulated behavior from private unregulated behavior must, at the very least, be uniformly consistent. Perhaps the most ethical approach would therefore be to allow any private conduct that does not pose a risk to others, but to impose restrictions on the right to receive public assistance necessitated by choices to ignore state health recommendations (Dershowitz, 2002).

Conclusion

On one hand, the modern United States might be the freest and most ethical government in the recorded history of human society. On the other hand, current U.S. laws and prevailing conditions qualify as ethical failures in several respects, particularly to the extent that the definition of ethics includes adherence to established formal rules of law pertaining to government action.

Many aspects of modern U.S. law make logically unjustifiable distinctions between behaviors that are equally harmful — or equally harmless — to others. The state's ethical obligation to protect society is applied inconsistently, resulting in the prosecution of conduct that is no less innocuous than other forms of permissible conduct. Individuals may freely smoke cigarettes and drink alcohol but risk criminal prosecution for smoking marijuana in the privacy of their own homes. In several different respects, modern U.S. law also violates fundamental constitutional principles. Deistic language appears on U.S. currency in apparent violation of the Establishment Clause of the First Amendment, and blue laws still enforce a religious morality dating from the Colonial period.

By far, the most serious ethical violations of government in recent U.S. history involve corporate and special-interest political lobbying. This mechanism represents a fundamental violation of democratic principles, and the economic recession that followed decades of financial deregulation is direct evidence of the potential consequences when government neglects its ethical obligation to protect all of its citizens equally. The presidential administration of Barack Obama made considerable efforts to reverse some of the unethical decisions of previous administrations. Whether any administration will analyze its own decisions as critically as those of its predecessors remains an open and important question.

Sources Cited

Dershowitz, A. (2002). Shouting Fire: Civil Liberties in a Turbulent Age. New York: Little Brown & Co.

Schmalleger, F. (2008). Criminal Justice Today: An Introductory Text for the 21st Century. Hoboken, NJ: Prentice Hall.

Sekine, S., & Wakabayashi, J. (2005). A Comparative Study of the Origins of Ethical Thought: Hellenism and Hebraism. Lanham, MD: Rowman & Littlefield.

Taylor, R. (2002). Freedom, Anarchy, and the Law: An Introduction to Political Philosophy. Buffalo: Prometheus.