Of Morality and Legislation

Laws can be immoral.

Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.

- John Adams

Last week a somewhat (if not entirely) liberal friend and I had a discussion about health care.  She brought up the notion that we have a moral obligation to provide health care to those who cannot provide it for themselves.  A week later, President Obama used the same argument with religious leaders across the country saying that providing health care to all was a "a core ethical and moral obligation."

The argument my friend made, and that I agreed with for most of my adult life, was that all legislation is the legislation of morality.  Her point, as was Mr. Obama's, was that providing health care is a moral obligation and is therefore a suitable aim of legislation.  Leaving constitutional arguments aside, let's look at the idea of legislating morality.

Growing up, I often heard the phrase "You can't legislate morality."  Usually, it was uttered by those who wished to engage in illegal behavior.  If morality, broadly defined, is what is right and wrong, then legislation is the codification of what is considered to be right and wrong by society as a whole.

Legislation simply tells people what they can and can't do.  Of course we legislate morality - all legislation is legislation of morality by its very definition.  Or, so I thought.

My conversation about health care caused me to think about about this long-held idea and I realized that it was only partially correct.  I realized that legislation could be immoral and there was only a limited amount of moral legislation.

The rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted.

- James Madison

If we take a look at the fundamental legislation of western societies, we find that it is all centered on the protection of natural rights.  The most basic laws forbidding murder, theft and lying are examples of moral laws.  All three of these deprive others of their right to life and property.

These rights have been upheld by virtually every form of government, tyrannical nor not, for most of human history.  Even murdering a slave was frowned upon - if it was not a deprivation of another person's right to life because slaves had no rights, it was seen as destruction of property.  Almost all societies frown on destroying property even if you own it.

Until the Bill of Rights, however, most other natural rights weren't protected as strongly as the right to life and the right to property.  The Bill of Rights established that there are additional natural rights: speech, conscience or religion, association, defense against a tyrannical government, etc.  All of these rights can be exercised without infringing on anyone else's rights to do the same.

As a society, we have decided that our natural rights are worth protecting and have made it illegal or immoral to violate those rights.  Government is always the party most likely to violate our natural rights, so government was specifically forbidden from violating these rights.  The courts are set up to help sort out violations of those rights.  We the People are in the business of enforcing morality through the power of our government.

Social Morality

What about "social" morality?  For a long time sexual behavior was legally regulated by laws against adultery, sodomy, prostitution, etc.  One might argue that this was legislating what consenting adults could do with their own bodies and that such limitations were a violation of their natural rights.

However, another way to look at this is that even this type of legislation was an attempt at protecting natural rights.  With regard to sexual behaviors, relationship contracts such as marriage had been entered into, children may have been born, and these other parties had rights which had to be protected.

Using adultery as an example, there are at least 3 individuals involved, possibly more.  A mother having an affair with another man has violated her contract of fidelity with her husband.  Should that marriage end in divorce, the husband's rights have been abridged.

Should there be children in the marriage, their right to a two-parent family has been abridged.  Consenting sexual activity between a man and a woman can have far reaching consequences that impact more than just the two parties involved.

We no longer have laws against most sexual behavior on the books.  Dr. J. D. Unwin's research has shown that the decent into sexual permissiveness portends social collapse.  It is unfortunate that our society has determined that the rights of individuals to engage in whatever sexual activities they wish is more important than trying to protect innocent bystanders from the potential consequences of such actions.

Laws against this type of behavior are an effort to protect the rights of others more than they are an effort to regulate the behavior of individuals.  The "social" moral laws may have been the product of a particular religious thought process, but they evolved over time as a method of protecting individual rights and promoting a healthy society.  The constitutional protections against the establishment of religion weren't placed to prevent the legislation of morality but rather to prevent the establishment of a particular religion and its doctrine as having the force of law.

Granted, some legislation was more about enforcement of particular religious doctrine than it was about protecting natural rights.  Laws against dancing weren't about protecting rights as much as they were about the idea that dancing leads to sexual immorality.  While sexual immorality may not be good for society, legislating against dancing clearly stepped over the line of protecting rights.

Over time, this type of legislation gets corrected.  Society is stopped from legislating social behaviors and government goes back to protecting natural rights.  At least that's the way it's supposed to work.

Clearly, there is a link between social morality and individual rights.  The more personally moral members of society are, the greater they value individual liberty and freedom.  Certain behaviors become socially unacceptable, not as an enforcement of religious dogma, but rather as a way of keeping liberty and order.

As society becomes less moral it begins to impose its sense of a false morality on others.  Political correctness is an example of this in the realm of free speech.  We're no longer free to think or say what we like because offending someone else is now considered immoral.

My natural right to free speech is being infringed by a created right to not be offended based on false morality.  This type of moral enforcement does become law.

Society: Not The Same As Government

The mistake we often make is equating government with society.  Governments are established by societies for the primary purpose of protecting individual rights within the society and protecting society against individuals violating those rights.

Government is not supposed to take care of things we can and should do for ourselves. When we abdicate our own personal responsibility of self-government and instead hand those responsibilities over to formal government, government stops doing what it's supposed to do and becomes incapable of doing what it must do.  Thomas Jefferson said:

I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.

For example, when we abdicate our responsibility to take care of the elderly or stop saving for our retirement years and expect others to take care of us or our aged relatives, the government steps in.  This is what happened with Social Security.  It was seen as a socially moral obligation to take care of the elderly.  This moral obligation was passed on to government from society because individual members of the society had refused to fulfill this obligation to their elders.

Today, many people expect Social Security to be their retirement (which it was never intended to be).  In order to meet this "moral obligation" government must violate our right to property by taking money from us to give to someone else.

Government fails in its duty to protect our natural rights, in order to perform a duty for which there it has no authority.  Not only that, but the government is incapable of administering the program sustainably so it's failing there, too.

The same thing will happen with health care administered by the government.  In fact, with Medicare, it's already happened.  We transferred our personal and community moral obligations to take care of the health concerns of the elderly and poor to the government.  In the process, we created a program that doesn't work and distorts the economics of our health care system.

This distortion has made the cost of health care go up for everyone.  It's not just the poor who have a hard time paying for it.

Education, retirement, health care, food stamps and the list goes on.  All of these things were created to transfer responsibility from individuals and communities, or what we call "society", to governments.  This happens under the banner of moral obligation.  In doing so, government actually becomes immoral.

It is not possible to protect natural rights while creating and enforcing positive rights.  John Adams' statement about our Constitution and individual morality was prescient.  As we've transferred our religious (or social, if you prefer) and moral responsibilities to the government, we've become less moral and less religious, expecting government to do both for us, when increasingly it can do neither.

The reason government cannot take the place of individual and social society is because it is fundamentally not the function of a government to do that.  We have human history to teach us that when governments expand beyond their true functions, nations eventually implode under the weight of bloated bureaucracies.

As we continue to discuss health care and governments' proper role, maybe we need to look at the moral obligation of government differently.  Government needs to protect our individual rights and provide incentive and opportunity to exercise our personal moral obligations to those who can't afford their own health care.  The object of all legislation should be the protection of natural rights.  Any other object of legislation is immoral.

But limiting government too much would prevent us from functioning as a society.  There is a careful balance.

For instance, publicly served roads generally serve us better than networks of private roads.  Even the Constitution provided the federal government with the ability to regulate interstate commerce.  As we've observed, it's a fine line between for the "public good" and "for the public's own good."

First we go from government providing and paving the roads, to limiting how we drive on the roads, to limiting what we drive on the roads - all in the name of the "public good."  Again, history teaches us that going down the well intentioned road of "public good" rapidly becomes a very slippery downhill slope ending up in crash of lost liberty.

Fortunately, our Constitution provides some help, at least on a federal level with the 10th Amendment forbidding it from doing anything not explicitly granted the authority to do, the Supreme Court's misreading of the Constitution notwithstanding.  It would be wise to keep that principle in mind on a state level, too.  The recent budget issues in California show us that even states can start sliding down the slope of getting government involved in areas it can't afford.

In our federal republic we have a system for making the decisions needed to set the balance point at any given time - it's called "democracy."  The recent debate about health care shows that democracy gets, well, somewhat messy from time to time.   As Winston Churchill said, "Democracy is the worst possible form of government - until we compare it to everything else we've tried."

Fennoman is a guest writer for Scragged.com.  Read other Scragged.com articles by Fennoman or other articles on Society.
Reader Comments
One thing I neglected to add to the article is the idea that when governments become corrupt, so do societies (Nazi Germany) and when societies become corrupt, so follows government (ancient Rome). Interestingly, the Old Testament of the Bible chronicles this very thing happening. This means if a government is corrupt, it won't belong before society follows and it all falls apart. If society can't maintain its morality and passes it off to government, it won't be long before government cannot maintain morality, either.

The statement by John Adams at the beginning of the article applies: Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
September 2, 2009 8:41 AM
It is in no way moral to take from the productive and give to the unproductive. There have been times when one of my brothers needed help. I gave it to him because he works and can usually make ends meet.

When another of my brother asks I tell him no, because he is capable of working but chooses to be lazy.

As a private citizen I am capable of giving my money to worthy causes, the government is incapable of making such decisions.
September 2, 2009 1:12 PM
Yes, that would be an example of legislating IMmorality.
September 2, 2009 3:08 PM
http://online.wsj.com/article/SB10001424052970204731804574387010241108256.html tries (I think unsuccessfully) to link society with government and telling us government IS responsible for our health care.

Murky reasoning at best from Mr. Frank. However, he is correct with the headline. He's also correct in that the government has distorted the health care marketplace.

In an effort to enforce morality, you must become immoral. Any enforcement of moral choice requires the removal of individual liberty. Removal of liberty is slavery. And this the type of slavery that shackles us by degrees.
September 3, 2009 8:35 AM
The Thomas Frank article entirely misses the issues that libertarian minded people have. It isn't that I want to be an island on to myself. Its that I don't want to be told how interact with society beyond basic rules which keep me from directly harming another person.

I have no issue working with friends to create something, a business, a game, or a house. I have no issue working with people I don't know and will never meet for an agreed upon purpose that will be mutually beneficial. I do have an issue being told that this is to my benefit or to someone else's benefit and being told that I must participate.

I enjoy society and long for an era when society can work on great things together, through choice not mandate.

I have some factual issues with the the Frank article. For example the epidemics of the middle ages (I presume he's referring to the Black Death, which may or may not have been the bubonic plague). Health care could not have hoped to deal with problem. Fixing the public filth problem may have. However my neighbor having untreated sewage on his property would be something that a local government would have the right to step in and address since that has a real and tangible negative effect upon my life, health and otherwise.

Secondly, I am a bit confused on how medicare and medicaid have saved the American health system. Great statements require great facts to back them up. It is, perhaps, possible that the weight of the uninsured using the emergency room so frequently would cause such a great weight that our system couldn't function. However, since that weight is caused by the government rules requiring hospitals to take all comers it hardly is an indictment of the private system that the government must save private industry from government action.

Perhaps the government should simply let people live their lives as they see fit, helping society as they see fit and sitting out as they see fit. As long as they aren't hurting anyone that is well enough for me.
September 3, 2009 1:25 PM
Another thought comes to mind: People, particularly liberals, use the Preamble, particularly the "promote the general welfare clause" (also found in Article 1, Section 8). It's interesting thought that the actual language is "promote the general welfare" but "provide for the common defense". Clearly "provide" and "promote" are words with wholly different meanings. Even today, "promote" does not mean "provide".
September 4, 2009 12:03 PM
Yes, Fennoman. One Promotes something by setting up an environment so it can happen. One Provides by spending money on it. Would that more besides you understood the difference!
September 5, 2009 3:58 PM
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