DISPELLING FALSE NOTIONS OF THE FIRST AMENDMENT
The Falsity, Futility, and Folly of SEPARATING MORALITY FROM LAW
By Michael Bauman
SUMMARY
Because every law springs from a system of values
and beliefs, every law is an instance of legislating Morality. Further,
because a nation’s laws always exercise a pedagogical or teaching
influence, law inescapably exerts a shaping effect over the beliefs, character,
and actions of the nation’s citizens, whether for good or ill. Those
who seek to separate morality from law, therefore, are in pursuit both
of the impossible and the destructive. The question before us is never
whether or not to legislate morality, but which moral system ought to
be made legally binding.
The constant or determined repetition of an error does not make it true.
Errors are errors regardless of their prevalence or the persistence of
those who advance them. Indeed, given the egregious foolishness of some
of our most widespread beliefs in the recent past, the great popularity
or predominance of a notion sometimes is enough to raise suspicions about
its truthfulness. We moderns too eagerly and too often live our lives
on the basis of insupportable, indefensible, half-true “truisms”
that cannot stand up to close analysis. The assertion that you cannot
legislate morality is just such a notion. No matter how often one hears
that you cannot legislate morality, the truth is that you can legislate
nothing else.
All laws, whether prescriptive or prohibitive, legislate morality. All
laws, regardless of their content or their intent, arise from a system
of values, from a belief that some things are right and others wrong,
that some things are good and others bad, that some things are better
and others worse. In the formulation and enforcement of law, the question
is never whether or not morality will be legislated, but which one. That
question is fundamentally important because not all systems of morality
are equal. Some are wise, others foolish. Few are still in their first
incarnation, nearly all having been enshrined as law at some time or place,
often with predictable results. For better or worse, every piece of legislation
touches directly or indirectly on moral issues, or is based on moral judgments
and evaluations concerning what it is we want or believe ought to be,
what it is we want or believe we ought to produce and preserve.
LAW, MORALITY, AND THE FOUNDING OF AMERICA
When the Founding Fathers drafted our original Constitution, they did
so on the basis of competing belief systems, competing assertions of right
and wrong, which they endeavored to build into the Constitution. One or
more of those belief systems permitted slavery, others did not. No side
in the slavery debate at the Constitutional convention argued that you
could not legislate morality. They all recognized that notion as balderdash.
They knew that indeed you could legislate morality, and they intended
for that legislated morality to be theirs.
Nor did any side in the struggle to legislate morality at our nation’s
founding say to its opponents that trying to legislate morality was a
breach of the wall of separation between church and state. Morality, after
all, is not a church. They would have laughed at the confusion of mind
revealed in one who thought that separating church from state meant separating
morality from law. They wanted the nation to be moral. They wanted its
laws to be just. But they did not want to give any one church a national
legal advantage over the others. They did not want the nation to be Presbyterian,
Baptist, or Roman Catholic, which is a far different issue from whether
or not to have ethics-driven law.1 Under the Constitution the Founders
enshrined freedom of religion, not freedom from religion. In seeking to
avoid a state-established church, they were not thereby establishing secularism
or separating law from morality.
The very fact that the Founders were creating a new Constitution for their
fledgling nation arose because they understood the actions of King George
to be morally evil, and politically unjust.2 They all knew quite well
that morality belonged in politics, in fact that politics was simply morality
applied to the public square, to the public’s business.
The Founders sought to establish what they called an “ordered liberty.”
The order they sought was provided in part by the morality they intended
to enshrine in law. By seeking ordered liberty, the Founders were not
seeking anything new or unprecedented in political thought or in political
history. They well knew from reading the ancient words of Aristotle,
for example, that morality encoded in civil law helped to provide order,
since law inescapably has a teaching function, or pedagogical effect.
Law teaches the citizens what is right and good, and it punishes those
who cannot or will not learn that lesson.
To make the point from a different angle, when we pass laws that require
drivers to drive their vehicles at 20 mph or less in school zones, we
do so because we have a value system that rightly puts greater worth in
human life than in vehicular speed. That valuation is a moral judgment.
That moral valuation we properly and wisely seek to translate into binding
and enforceable law.
We propose and pass such laws because we think
it wrong for drivers recklessly to endanger the lives of defenseless children,
who lack the experience, foresight, and physical dexterity to keep themselves
out of harm’s way on the streets. We punish drivers who do not do
as the law requires. No one, in the face of such proposed legislation,
says to the local authorities that those authorities have no right to
impose their morality on others, even though that is precisely what such
laws do. Much less does anyone seriously argue that to propose such values-laden
laws is an effort to tear down the wall of separation between church and
state.
Those objections are not raised in the case of low speed limits in school
zones because all serious-minded citizens are in agreement with such laws.
That these laws are morals-based, or values-driven, creates no problem
when people find the laws agreeable. Rather, people tend to complain that
laws are morals-based only when the law in question is based upon a moral
valuation with which they disagree.
To be consistent, those who object to morals-based
laws would have to raise the same objection to all laws whatsoever, including
the laws they themselves support. But they do not. They never do. When
their own morals are encoded in law, they raise not even the faintest
whimper of protest. Yet when laws are passed that they dislike, they say
almost nothing else. They seem to want a sword that will cut only others,
never themselves. But any sword of objection sharp enough to cut Jack
is sharp enough to cut John as well, even though John might not like it.
Legislating morality, in other words, is not an option; it is a necessity,
an inevitability. Justice, equity, fairness — characteristics that
all thoughtful citizens want from their government and on which they think
government and its laws ought to be predicated — these are all moral
categories. We outlawed slavery, theft, murder, fraud, rape, and so forth
precisely because they are immoral and we wanted them stopped, or at least
radically curtailed. We proposed, passed, and enforced these morals-based
laws specifically toward that end, and in so doing we were right.
Let me make the point still more explicitly. When it comes to prohibiting
sexual harassment or sexual discrimination in the marketplace, feminists
do not complain that the proposed legislation attempts to enshrine morality
in the civil or penal code, even though it most definitely does. No serious
feminist has ever sought to undo or to oppose such legislation because
it was based upon a system of morals. On the other hand, they complain
about legislating morality when it comes to outlawing abortion. They object
to legislating morality only when the morality in question is one from
which they dissent. When the law in question encodes a morality they support,
their objection to morals-driven law disappears.
By the same token, when a civil rights leader supports affirmative action
laws and opposes the Jim Crow legislation of the old South, both that
leader’s support and opposition are based on the moral judgment
that all persons are created equal and ought therefore to be treated equally
under the law. That civil rights leader cannot then turn around and say
to someone else, pro-life advocates for instance, that they are imposing
their morality on others because the pro-life advocates are doing exactly
what the civil rights advocate is doing, and on precisely the same basis,
namely upholding the dignity and worth of every human being. Like the
civil rights advocate, the pro-life advocates are affirming the obligation
of a just nation to insure that all persons enjoy equal protection under
the law.
LIBERTY AND LEGISLATIN MORALITY
Sometimes those who resist legislating morality do so not because they
object to the morality being legislated, but because they value freedom
and wish to defend it. They do not seem to understand, however, that their
allegedly morals-free proposals will be the death of the freedom they
value, not its protection. Without the guidance and constraint of morally
informed law, liberty degenerates into mere license, which is not the
same as political freedom. One simply cannot reject moral authority and
yet live in an orderly world. When a people banish morality from the public
square, they give birth to an outlaw culture, not to freedom.
To live outside the moral law, to live without
the wisdom of the ages and of God, is to court slavery and death. Because
human nature is what it is, without great volumes of enforceable law political
freedom is short-lived, and finally impossible. Indeed, without great
volumes of enforceable law, chaos — not freedom — always results.
Authentic political freedom, if it is to remain true to itself and avoid
the excesses of license, must be exercised according to the dictates of
truth and virtue. Freedom must be limited by the demands of justice and
morality. The most important consideration regarding any action is not
“Is it free? but “is it good?”
Legislating morality is not only inescapable, it works. The proof that
laws change behavior is widely known and not far to find. Almost no one
in the South today argues that slavery is moral, even though many of their
great-grandparents thought it was and, as a result, owned other human
beings as property. What stands between today’s southern Americans
and their slave-owning ancestors is morals-based law, specifically the
thirteenth amendment and the Civil Rights laws of the mid-twentieth century,
all of which helped radically to reshape the behavior and beliefs of those
who grew up in their wake.
Similarly, before prohibition the average annual
consumption of alcohol in America was nearly three gallons per person.
After prohibition that number fell to slightly less than one gallon. In
fact, alcohol consumption did not return to preprohibition levels in America
for nearly 40 years. By the same token, before the Supreme Court legalized
abortion in 1973, about 100,000 abortions were performed in the US annually.3
After Roe v. Wade, however, the number rose to between 1.2 and 1.5 million
a year.4 In short, whether the laws in question are good or bad, law has
an effect. The morality in the law, whatever it might be, tends to become
the morality of the people. Law is always a tutor to morals and a shaper
of national character, both for good and ill.
To digress: While legislating morality is an inevitability, I am
not saying anything so silly as that all sins ought to be made crimes.
No government could effectively enforce laws against lustful thoughts,
gluttony, or so-called white lies, even though such activities are sinful.
If somehow the impossibility of enforcing such laws were overcome, the
immediate result would not be less lust, for instance, but rather the
overcrowding of penal facilities on an unimaginable scale.
Back to the point: When people object to legislating morality, they
fail to recognize or to remember that their own understanding of morality
is the impulse behind the laws they themselves propose and defend. It
is also the impulse behind their opposition to other laws. Yet, despite
their inescapable dependence on their own moral code when designing, proposing,
or opposing laws, they seek to deny that same moral impulse to others
who wish to be heard, and have their own ideas taken seriously, who wish
to have their own beliefs and values prevail. But people must not withhold
from others in the public square what they wish to make use of themselves.
If they would banish the moral basis of the laws proposed by their political
opponents, they must banish it from their own. No one does that, and no
one can.
Furthermore, if such people object to legislating morality, they could
not, for that very reason, raise any effective moral objection to execution
as a punishment for jaywalking, or decapitation for tax evasion or speeding.
Their objection to such penal atrocities and to the laws that permit or
require them is a moral objection, which they say ought to be banished
from law.
Because law is not a substitute for parental authority, one must not therefore
also argue (as some do) that moral education is the function of parents
only and not of the state. The fact that parents teach morality does not
mean that law does not or must not. Parents and law share at least this:
they function inescapably as moral educators, whether for good or evil.
In cases where parents fail to perform this task wisely or well a not
uncommon occurrence law must function in this capacity all the more.
The fact that morality is meant to be implemented by individuals does
not mean that there must be no public morality, no civil, social, or legal
standards of conduct. The fact that morality has a personal dimension
does not mean it can have no social or political dimension. Nor does the
existence of personal morality do away with the need for public morality.
CIVIL VIRTUE NEEDS A VIRTUOUS PEOPLE
The case for morals-based law rests on a wider and more profound basis
than the internal contradictions found in those who oppose legislating
morality but are themselves unable to do as they insist. Those who wish
to banish ethical considerations from legal affairs forget that civilizations
are not founded on considerations of mere personal comfort and pleasure,
or on science and technology, or even on self-expression and self-preservation,
but on virtue — both public and private. A good society, in
other words, depends for its preservation and well-being on the character
of its people, on the virtues that accompany, perhaps even define, good
citizenship. Only on the foundation of courage, self-control, and self-denial
can a good society be found and continue.
Such civic virtues are not natural to us. We are not born into the world
as good and competent citizens. The civic virtues and public responsibilities
that define good citizenship must be acquired. They need to be learned.
In that sense, we all enter this world unequipped by natural endowment
for effective citizenship and self-government. This is why one of the
oldest political insights available to us is that we are always only one
generation from barbarism. Every newly born generation needs to be civilized,
or culturally housebroken, as it were.
Those necessary but unnatural social skills
and civic virtues require nurture and guidance for their growth —
even for their existence. Consequently, moral education is a prerequisite
for a sound and flourishing civil society. The laws of a nation help to
provide for this moral nurture, this aid to character formation, by setting
before the citizenry examples of acceptable behavior and incentives toward
adopting that behavior as their own. Law divorced from morality, law that
poses as morally agnostic, cannot accomplish that task. Instead, morally
evacuated law teaches the citizens that moral conduct is not necessary,
either for their own happiness or for the establishment and continuation
of a good society and civil order.
In short, the rule of law is necessary to a civil society, and a just
rule of law requires adherence to a strict moral code. Perhaps an analogy
will serve to clarify the point: computer programmers employ the acronym
“gigo,” derived from the first letters of the words “garbage
in, garbage out,” a phrase warning those programmers that no bad
program yields good results. One gets back from the computer results that
reflect the worth of the program it employs. And farmers likewise understand
that one could not reasonably expect to gather a harvest of corn from
a field planted with beans.
You reap what you sow; you harvest what you
plant — a principle that applies to law and to culture as well as
to farmers and programmers. Only a legal code counseled by virtue and
rooted in goodness can yield civil justice. Justice cannot be harvested
from a legal system into which it was never planted. Moral outcomes are
not to be expected from a legal system into which morality was never programmed,
never cultivated. Except by the happiest of chances, moral results —
in other words, just results — do not grow from a field in which
those seeds were never planted and nurtured. If a society neglects to
plant morality in the legal code, they must not expect to harvest it in
court, or in the character of those citizens whose moral nurture is provided
partly by the laws of the society in which they are raised.
One of the most distressing facts about America today is that we are undergoing
a deliberate deflation of our traditional ideals and values, both in the
culture in general and in our laws in particular. We are enduring what
Gertrude Himmelfarb called the demoralization of society,5 or what George
Will described as the slow-motion barbarization of America,6 in the wake
of which politics and life have become impoverished, coarsened, and tawdry.
This disaster we deliberately and foolishly inflict on ourselves by insisting,
in the face of history and of clear thinking, that we ought not to legislate
morality. It is reckless to think that governing and government have no
effect on the character of the nation and the persons who constitute it.
We all have a natural penchant for self-seeking and personal satisfaction,
for which we are sometimes sorely tempted to sacrifice almost anything.
In our moments of honest self-reflection, we know that at times of moral
weakness we would have altered both the government and the law to suit
our whims and desires, however perverted they might be, had we but opportunity
to do so. Only enforceable laws based on unchanging morality can obviate
this threat. Civil society requires morality from its legal code for its
very existence, because our natural character does not suffice to constrain
us. We must never forget what thinkers as divergent as Burke and Rousseau
knew: the act of establishing a civil society is identical with that of
establishing a binding morality, something a morally agnostic legal code
is impotent to help produce.
Government does not exist simply to make possible whatever delights and
advantages its citizens might happen to prefer at any given moment, whether
privately or collectively. Because some types of pleasure are better and
more socially and morally suitable than others, one of the purposes of
government is to help educate the citizenry to pursue the higher pleasures
rather than their lower or more base alternatives. Moral education, one
of the functions of law, helps make those right-thinking and right–choosing
citizens — and the culture they desire and seek to preserve —
more likely. Good societies depend on good and decent people. Such people
do not simply happen. They are nurtured, and one of the institutions that
helps nurture them best is well-informed, morally responsible law. Public
institutions, like law and law enforcement, need to be concerned with
the bridling of egoistic motives and actions. If they are not, something
worse than chaos ensues, namely cultural perversity and moral decay.
Put differently, political questions are moral questions. For example,
every government asks and answers, whether knowingly or not, “What
things in life are worth having and preserving, and at what price to the
nation, the community, and the people?” Public policy issues are
simply the political and economic application in the present of the enduring
moral questions. In the public arena and in the marketplace, our policies
are in appropriation of and approximation of the permanent values. To
form wise public policy, and the system of laws under which it is best
pursued and applied, requires not a flight from morality, but a resort
to it, a resort to prudence. This is worlds removed from a legally encoded
moral agnosticism.
Law and morality share the function of governor — morality for those
with self-control and self-restraint, law for those without it. Morality
and law are like the two banks of a river, the river in this case being
human action and the passions and desires that drive it. The banks of
a river run roughly parallel. Where one turns left or right the other
tends to do the same. If they did not, the river would become a swamp
— putrid, fetid, and stagnant. Like the banks of a river, law and
morality ought to move in roughly the same direction in order to help
curb the defects in human nature. If they do not, human action and human
society quickly become a swamp, a morass of polymorphic perversity, something
that always occurs in the absence of public virtue and the enforceable
law that upholds and nurtures it. To protect us from the moral and cultural
swamp that threatens to engulf us, law must take its cue from morality.
Well-framed law helps us make the best use of our freedom by teaching
us to avoid both excess and deficiency. Without the pedagogy of law, we
are deprived of one of our best potentially wisest instructors and are
vastly impoverished, both individually and corporately. Those who are
frightened by the moral pedagogy of law seem not to understand that human
beings can be oppressed by an excess of freedom, which is another name
for licentiousness. Good law leaves room for liberty, not for license.
Good law helps curb human excess, while morality helps curb the law. What
a bridle is to the horse, law is to human nature. And what law is to human
nature, morality is to law. Law helps regulate the people; morality helps
regulate the law.
In that light, some of those who object to morals-based law seem not to
appreciate the great cultural and moral value of shame, guilt, and the
proper fear of just punishment. Beneath this lack of appreciation lies
a distorted view of human nature. Given the overwhelming empirical evidence
undergirding the biblical doctrine of original sin, it is naïve to
assume that human beings can hold together a culture without moral education
and laws.
Morally sound law helps us to distinguish right from wrong, innocence
from guilt, and justice from injustice. If the law from which we learn
is not rooted in true morality, what we learn is misshapen, misguided,
and misleading, because law always teaches. In such cases it teaches error.
In other words, ideas have consequences, and bad ideas have bad ones.
The bad ideas encoded in supposedly morals-free law are corrosive of virtue,
duty, civility, and human fulfillment. One of the disastrous effects of
allegedly morals-free legislation is that it tends to produce deep and
widespread doubt in persons across the culture about what is right and
wrong, which leaves only a resort to power as a way out of our moral dilemmas.
In a moral vacuum, power and doubt rule all. Doubt makes us unsure of
ourselves and our beliefs; power makes those who have it despotic over
those who do not. Without morality in law, we know less well and less
surely what is right. If we are ignorant about what is right and wrong,
we can raise no compelling argument against evil, or even know it when
we see it. Our ignorance makes it so.
A RECIPE FOR CULTURAL SUICIDE
Government and governing involve questions of value, questions about what
is good, and what is good for us, as well as what is evil and what will
do us harm. To instruct us regarding the good, to lead us toward it and
to protect us from evil — whether our own or someone else’s
— are all part of the function of law. Those who wish to exile virtue
from the legal code, who wish to banish virtue from law and to render
legislation a morality-free zone, set these important and valuable functions
of law at nought. Were those persons to succeed, we and they would suffer
incalculable harm, having had one of our most useful moral educators shut
down or censored, as it were. They would stop the moral voice of law.
In so doing they would silence one of our most valuable instructors of
civic virtue and thereby destroy one of our most effective guides to prudent
social behavior, and to the blessings that attend it.
All cultures are expressions of deeply rooted values. Cultures are the
historical outgrowth of those values — the historical human consequences
of those values — values that sometimes lead to compassion, beauty,
war, deprivation, heroism, or degeneration. Law is a function of culture
— all cultures have law — which means that law is a function
of values or morality. Law without values is cultural suicide, which is
what those who wish to separate the one from the other are going to produce,
whether they wish to or not. In our age of increasingly complex moral
problems, where technological advances outstrip moral growth and understanding,
we must do our level best to cultivate the wisest persons, the noblest
motives, and the highest actions of which we are capable. We need to make
far better use of the law as tutor and moral ennobler. We must remind
ourselves repeatedly that the best habitat in which to raise ennobled
citizens is a well-ordered society, one in which law is rooted in morality.
We dare not forget that law is both an expression and shaper of the conscience
of a nation. Consequently, the near-sighted and misguided movement to
separate law from morality is as dangerous as it is impossible. Both for
our nation and for us as individuals, our character is our future. Morality
is destiny.
Michael Bauman, Ph.D. is professor of theology and culture at Hillsdale
College, Hillsdale, MI, where he is also director of Christian studies.
He is research fellow in theology and politics at the Kuyper Institute
and a member of the faculty at Summit Ministries in Manitou Springs, CO.
He has published more than 14 books and 40 articles.
BIBLIOGRAPHY
Arkes, Hadley, First Things: An Inquiry into
the First Principles of Morals and Justice. Princeton, NJ: Princeton University
Press, 1986.
Bauman, Michael, ed. God and Man: Perspectives on Christianity in the
20th Century. Hillsdale, MI: Hillsdale College Press, 1995.
Bauman, Michael, ed. Morality and the Marketplace. Hillsdale, MI: Hillsdale
College Press, 1994.
Bauman, Michael and David Hall, eds. God and Caesar: Selected Essays from
the 1993 Evangelical Theological Society’s Convention in Washington,
DC. Camp Hill, PA: Christian Publications, 1994.
Beckwith, Francis J. and Gregory P. Koukl. Relativism: Feet firmly Planted
in Mid-Air. Grand Rapids: Baker Books, 1998.
Bork, Robert. Slouching towards Gomorrah. New York: HarperColins, 1996l.
Burke, Edmund (1729-1797). A Philosophical Enquiry into the Origin of
Our Ideas of the Sublime and Beautiful. Edited with and introduction by
Adam Phillips. New York: Oxford University Press, 1990.
Cord, Robert L. Separation of Church and State: Historical Fact and Current
Fiction. Grand Rapids: Baker Books, 1988. Originally published: New York:
Lambeth Press, 1982.
Cromartie, Michael, ed. Caesar’s Coin Revisited: Christians and
the Limits of Government. Grand Rapids: Eerdmans/Washington, DC: The Ethics
& Public Policy Center, 1996.
Geisler, Norman L. and Frank Turek. Legislating Morality. Minneapolis:
Bethany House, 1998.
George, Robert P. Making Men Moral: Civil Liberties and Public Morality.
New York: Oxford University press, 1993.
Kirk, Russell. Edmund Burke: A Genius Reconsidered. Rev. and updated ed.
Foreword by Roger Scruton. Wilmington, DE: Intercollegiate Studies Institute,
1997.
Kirk, Russell. The Roots of American Order. LaSalle, IL: Open Court, 1974.
Tocqueville, Alexis de (1805-1859). Democracy in America. The Henry Reeve
text as revised by Francis Bowen, now further corrected and edited with
introduction, editorial notes, and bibliographies by Phillips Bradley;
foreword by Harold J. Laski. New York: Knopf, 1945.
NOTES
1 See Robert Dord, Separation of Church and State:
Historical Fact and Current Fiction (Grand Rapids: Baker Books, 1988).
2 See The Declaration of Independence.
3 For documentation, see Francis J. Beckwith, Politically Correct
Death: Answering the Arguments for Abortion Rights (Grand Rapids: Baker
Books, 1993), 54–59.
4 Ibid.
5 Gertrude Himmelfarb, the De-Moralization of Society: From Victorian
Virtues to Modern Values (New York: Knopf, 1995).
6 This is a paraphrase of something I heard George Will say
on a Sunday morning news program more than 10 years ago.
| Banner Link | Donations| E-Mail | Online Bible | Prayer Room|Site Map|