You Can't Legislate Morality?

Of course you can.

While the attention of our political class is exclusively occupied with the party conventions, a completely unrelated but no less relevant movement is afoot.  The Cleveland Leader reports:

Last week a group of more than 100 university presidents - including those from prestigious schools such as Dartmouth and Ohio State - made a proposal to lower the legal drinking age from 21 to 18. The effort is being led by former Middlebury College President John McCardell, who argues that the 21-year-old drinking age has had disastrous consequences on college campuses, including giving rise to a culture of dangerous binge drinking..."Prohibition doesn't work. Why not make it available earlier as a way of preparing young people to deal with alcohol responsibly?" said McCardell in a recent interview.

For a policy experiment personally remembered now only by residents of nursing homes, the lessons of Prohibition crop up in the news surprisingly often.  Prohibition is the shorthand term for the period between 1920 and 1933 when the 18th Amendment to the Constitution banned the manufacture or sale of alcoholic beverages in the United States.  This draconian change had been hotly pursued for decades by social reformers, good-government activists, and what would nowadays be referred to as the Religious Right.

It didn't work.  Rather than obey the law, vast numbers of Americans disregarded it using any means necessary: bootlegging, speakeasies, moonshine stills, and all manner of American ingenuity and disingenuity.  The tremendous sums of money available to those who defied the law gave rise to nationally-powerful organized crime and gangsters still famous today, Al Capone being merely the most notorious.  After thirteen years of heavy combat, President Roosevelt first diluted and then Congress and the states eliminated national prohibition, putting us back pretty much where we were before except for having funded the Mafia to the point that they had a good start on their road to national prominence.

From this failed experiment came the famous saying, "You can't legislate morality."  The issue of drinking alcohol, so the argument goes, is a moral issue not a legal one; you may think it is a sin, but I see nothing wrong with it.  So it is inimical to freedom for you to ban me from doing something I don't see anything wrong with.  This argument has been used against all manner of "moral" laws over the decades following, taking down legal bans on adultery, pornography, and homosexuality to name a few.

A mere moment's thought reveals this statement to be meaningless.  All laws reflect the morality of the people who enact them.

Why do we have laws against murder, theft, and perjury?  Because, as a people, we consider those things to be immoral.  The tribes of Papua New Guinea and elsewhere never established laws or even social sanctions against cannibalism because they did not think it was wrong; only with the coming of Christian missionaries in the 1800s were they, slowly, persuaded that cannibalism was wrong.

Slavery was thought to be a perfectly natural state of affairs throughout all of human history until the arguments of William Wilberforce and his allies persuaded first England, then America, and ultimately the entire world of its immorality.  The banning of slavery was entirely based on moral considerations; does that make banning slavery invalid?

The lesson of Prohibition is not that you can't legislate morality; we do that every day.  The real lesson, and one which we don't seem to have learned, is that it's dangerous to outlaw things that most people, or even a very sizable minority, in practice think are just fine and intend to do them regardless of the law.  Unfortunate consequences arise when the legislator's morality and the citizen's morality are too far out of step with each other.

Consider lying.  Most everyone would say that lying is wrong.  Yet lies, no matter how bold, are not illegal.  Only if you lie under oath to a court, is a lie illegal - and then, it's called by a different name: perjury.

If you tell a lie to someone in order to get money from them, it's illegal, but again, it has a different name: fraud.  The lie itself is perfectly legal; and yet, it's no less immoral for being lawful.

Does immorality stop people from lying?  How many lies have you heard today?  How many have you told?  Only a fool would seriously argue for outlawing all lying, even though all major religions (and no few economics analyses) stand very strongly opposed to lies.

Prohibition stands as the great example of what happens when you ban something that many, or most, people insist on using regardless of what the law says.  Making alcohol illegal did reduce consumption somewhat, but mostly it just drove drinking underground and the profits into the hands of gangsters.

Trying to legally ban something that a lot of people are bound and determined to do anyway leads to bad consequences today, just as it did in the days of Al Capone.  Ask yourself: are we winning the War on Drugs?

There is no shortage of people who think the legal drinking age ought to stay just where it is, at 21.  One of the more prominent is the National Transportation Safety Board, whose Acting Chairman Mark V. Rosenker issued a press release:

"Age 21 drinking laws have been proven time and again effective in preventing deaths and injuries," said Rosenker. "Repealing them is a terrible idea. It would be a national tragedy to turn back the clock and jeopardize the lives of more teens."  Through 2006, the National Highway Traffic Safety Administration estimates that age 21 laws prevented more than 25,000 deaths.

Let's assume the NTSB has its numbers right - we have no reason to think they don't.  A lower legal drinking age may very well lead to more deaths from drunk driving.

But 25,000 lives saved in the quarter-century since the law was enacted is nothing.  That's only 1,000 lives saved per year.  For comparison, American traffic deaths recently ran around 40,000 per year.

With the stroke of a pen, we could eliminate almost all of these deaths.  Think of it!  40,000 lives saved!  Who wouldn't want to?

Well, when I tell you the way to do it - lower all speed limits to 5 mph and enforce them - you won't want to.  Each and every one of us knows perfectly well that getting in the car and driving to work is the most dangerous thing we'll do all day - and yet we do it anyway, because the rewards outweigh the risks to us.  And we're not just risking our own lives when we drive, we are risking the lives of innocent pedestrians, other drivers, and our kids in the back seat.

How can government allow this?  That's the wrong question.  The correct question is, what right has government to prohibit people from making choices if they accept responsibility for their actions?

So we return to the argument for lowering drinking ages.  Since the college presidents floated this idea, it's been met with shock and horror by all and sundry.  Yet their opponents fail to answer a deeply relevant argument:

In those countries where parents introduce teens to alcohol and model how to drink it, drunkeness occurs only in 1 of every 10 drinking sessions. In the US, where teens typically learn about drinking from peers, drunkeness occurs about half the time.

What is the purpose of parents?  It's to teach their children what they need to know: how to survive in society, how to take care of themselves and others, how to know right from wrong, how to make wise decisions.

Every parent knows that every child will, at one time or another, suffer the penalty of a bad decision.  Every kid is going to burn his little hand on the stove, maybe more than once.  Every kid is going to fall down the stairs at least once.  Every kid is going to catch a cold from playing out in the rain without a raincoat.

It's inevitable; it's the stuff of life.  The job of parents is to make sure the kids don't die from their mistakes, not to prevent them from making mistakes entirely.

As parents, we devoutly hope for our children to learn the lessons of their little mistakes so they don't go making the big, life-destroying mistakes when they are older.  One thing that makes parenting extremely difficult of late is that we taxpayers have funded scores of social workers whose job is to second-guess parents and remove their kids if they can persuade a judge that the parents aren't up to snuff.

Now, some parents believe that drinking alcohol, at all, is inherently sin, and to them this discussion is irrelevant.  The overwhelming majority of American parents, in contrast, fully recognize that, sooner or later, their beloved little baby is going to take their first drink - just as, sooner or later, they'll lose their virginity, start their first job, suffer their first layoff, and endure all the rest of life's stages and steps.

Is it helpful to have laws set up in such a way as to entirely remove from parents the ability to teach their kids?  How many kids still live with and listen to their parents at age 21?  By then, it's too late for Mom and Dad to teach them about drinking.

What would be the result if we made dating illegal until 21?  You can make a very strong argument that the vast majority of sexual relationships begun by minors end in disaster, but attacking teenage sex with the full force of the police would be an even worse disaster.

By their actions, Americans have already demonstrated that we should indeed lower the drinking age: the law is constantly flouted despite aggressive prosecution.

What's the difference between national Prohibition of alcohol for all, and national prohibition of alcohol for all under 21?  Both didn't reduce drinking very much; both drove it underground where there were no societal controls or limits at all.  What most 20-year-old drinkers need is not a cop busting down the door and hauling them off to prison; it's a responsible bartender - or even, Mom or Dad? - saying, "One beer's enough - you've got class tomorrow."

There's nothing wrong with saying that stores shouldn't sell kegs to minors, but it's stupid and counterproductive to ban responsible adults who are acting in loco parentis giving it out under controlled conditions.  Government makes a lousy parent.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Society.
Reader Comments
Right on! I've been reading a lot of columns on this subject and this one hits the head on the nail!
September 2, 2008 11:54 AM
"Morality" has become some kind of stigmatized, conservative thing. Not sure when that started, but this article is dead on - we can and DO legislate morality constantly.
September 2, 2008 2:32 PM
"All laws reflect the morality of the people who enact them. Why do we have laws against murder, theft, and perjury? Because, as a people, we consider those things to be immoral."

I don't know that it's because "we consider those things immoral" rather than those things (a) infringe on the rights of others, and (b) impair the basic functioning of a free society. Sometimes, it's hard to tell.

One problem with attempting to legislate morality, of course, is determining whose morality to legislate. But a worse problem is that, when legislating on a moral basis, results and consequences are no longer an issue.

A perfect example of this is the "war on drugs". We, as a country, have determined that the use of certain chemicals is inherently wrong, and thus have made their possession, use, and sale illegal. We have legislated this based on a moral position, not based on any particular evidence or logical reasoning.

As a result, the illegal drug trade has flourished, much as bootlegging did under Prohibition. And this illegal drug trade has financed a large number of criminal enterprises, both here and abroad, in the same way that bootlegging financed the mafia.

Our response, having not learned from Prohibition and having decided to take a moral position, has been to increase penalties on not only the sellers, but also on casual drug users. This has filled our prison system with people who could otherwise be productive, contributing members of society*. And in order to keep them in prison "where they belong", we end up letting out violent criminals in order to make space for the drug offenders.

The "War on drugs" has financed violent gangs in this country and brutal militias in others. It has cost this country billions of dollars. And it isn't working. But just HINT at the idea of legalization, and you will end up on the recieving end of a tirade of moral outrage. All those consequences don't matter - it's WRONG to use drugs.

(Of course, let us, for now, totally ignore the blatant hypocrisy of that position, given that alcohol, caffiene, and tobacco are legal)

Congress can pretty much pass whatever laws it wants, assuming it has widespread support among the populace. But ultimately, legislating morality simply doesn't work. It doesn't really prevent the "immoral" behavior, and it ties up our judicial system with prosecution of "crimes" that haven't harmed anyone.

Also, when you legislate morality, you have to choose a moral code. My moral code may differ from yours, so by legislating to your moral code, you are FORCING me to adhere to your morality. To anyone who supports this, I ask: Is it MORAL to FORCE someone to follow your moral code against their will?

So, although maybe we CAN legislate morality, a better question to ask is: SHOULD we?
September 3, 2008 1:20 PM
"infringe on the rights of others"

Why is infringing on the rights of others wrong? Because it's immoral.

If you trace everything down to its most basic roots, morality is the net result.

(I agree that the War on Drugs is a lost cause and hurts far more than it helps)
September 3, 2008 1:37 PM
Tony said, "So, although maybe we CAN legislate morality, a better question to ask is: SHOULD we?"

SPOT ON. As usual, the wrong question is being asked in the mainstream political discourse.
September 3, 2008 1:46 PM
"Why is infringing on the rights of others wrong? Because it's immoral."

Infringing on the rights of others is wrong because if any individuals rights can be infringed, then nobody has any protection. The end result of this is anarchy. There is no "morality" about it, only practicality.
September 3, 2008 2:13 PM
We might be arguing minutia here, but I think those are still moral issues. Morality is just about determining right and wrong. Anarchy is wrong, thus any actions contributing directly to it are immoral. The left co-oped the term immoral to mean something religious and thus stigmatize conservatives, but I think the proper definition of it keeps it relevant.
September 3, 2008 2:20 PM
"Why is infringing on the rights of other wrong? Because it's immoral."
To truly answer this statement we need to define a "right" and who grants them. According to our Founding Fathers, "rights" were "Inalienable" and were granted by our "Creator". So in our country, our Founding Fathers developed their concept of Rights based on what they believed about their "Creator", which means they read it in His Word. The State does not grant rights, it enforces them. God grants rights. If the state granted rights, they would not be "inalienable". And we would not want that anyway because what the state grants, the state can take away. If we chose to define rights outside of this perspective, then we are not defining them as our Founding Fathers did. Our concept of rights, and consequently our concept of "wrongs" are based on this principle. Furthermore, the concept of Moral and Immoral stems from the same place. So if a person says it is their right to be immoral, are we infringing on their "Right" to be "Immoral"? When we trace back the concept of "rights" to its roots, the question is easily answered: We do not have the right to be immoral.
The question may then become "What then is immoral". Once again, for the right answer we need to go back to the source, the Word of God, to determine what is moral and what is immoral.
Without the ability to decide what is moral and immoral, and a standard which we can use for that determination that is higher than man, we will simply have anarchy. "In those days there was no judge in the land, and every man did that which is right in his own eyes".
September 3, 2008 8:41 PM

Is it possible to contact administration?
Hope for answer

December 16, 2010 12:11 PM

Hi WikiFunna,

Yes, use the Contact Us form link at the bottom of every page.

Here's a direct link:

- The Editors

December 16, 2010 12:23 PM
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