Archive for the ‘Legislating Morality’ Tag

Legislating Morality   2 comments

Above:  Principles of the Prohibition Party, 1888

Image Source = Library of Congress

Reproduction Number = LC-DIG-pga-07977


You can’t legislate morality.

That argument is objectively false.  First, a review of law-making reveals many examples of explicit appeals to morality in legislative proposals, many of which have become laws.  I argue that if someone has done something, doing it must be possible.  Second, all acts of legislation are examples of legislating morality.  One might legitimately question many of the moral codes informing much legislation, but the existence of those moral codes is objective reality.

In the United States of America perhaps the example most frequently cited to support the objectively false claim that one cannot legislate morality is the prohibition of liquor (1920-1933).  (Interestingly, the Eighteenth Amendment (1920) to the Constitution barred the manufacture, sale, and transportation of liquor, but not the consumption of it.  One could theoretically drink it legally so long as one did not purchase, manufacture, or transport it.  There were also exceptions in the law for sacramental wine, a large loophole.)  The failed experiment of Prohibition, rooted in morality, nativism, and xenophobia, actually serves best as an example of the law of unexpected consequences more than anything else.  I posit that, in the 1920s and 1930s, the most enthusiastic supporters of Prohibition were the bosses of organized crime, men profiting beyond the most extravagant dreams of avarice from opportunities the law created.

The real questions, then, are when legislating morality is more effective, when it is less effective, and when it is ineffective.  One might point (correctly) to the formal end of race-based chattel slavery via the Thirteenth Amendment (1865) to the Constitution of the United States of America as both necessary and morally correct.  Likewise, one might also point to all expansions of civil rights, from women’s suffrage to the Civil Rights Act of 1964 to the Voting Rights Act (1965) to fair housing laws and beyond.  Whenever discrimination is part of the law, part of the remedy must also be part of the law.  But to what extent?  The answer to that question can be difficult to discern.  Furthermore, although laws by themselves cannot change attitudes, they can change actions.  The change in actions can alter attitudes eventually.

Ultimately we in our societies–especially in the global West–need what the Reverend Doctor Martin Luther King, Jr., speaking on April 4, 1967, called

a radical revolution of values.

We need to value people more than property, wealth, and, for lack of a better word, things.  We need to move beyond lip service to that proposition and change attitudes for the better, and therefore improve society.  If we do that, the need to legislate morality will decrease.