Legislating Morality

I’m sure you have heard it: “we can’t legislate morality.” It’s frequently used as an excuse for doing nothing in the face of a social ill of some sort. And, of course, it could not be farther from the truth. There are countless examples of legislation that dictates moral behavior and I will simply note a couple. But first I need to say what “morality” is.

Every moral system I am familiar with recognizes the respect due to persons. I would even go so far as to say that respect for persons is the backbone of morality. It underlies our condemnation of “discrimination” that has become commonplace: it is wrong to deny any persons regardless of how they differ from us the respect that is due them. To do so is to discriminate against them. And this is just wrong. Respect for persons also gives rise to fairness which is recognized by any child as central to morality. Just try giving one of your kids a smaller piece of cake at a birthday party and you will see what I mean!

In any event, I can think of several examples of morality that have been legislated, starting with the Supreme Court decision in 1954 known as “Brown vs. Board of Education” that legislated against segregation in 17 states, determining that all public schools should thenceforth be integrated. I was a high school student in Baltimore at that time and Maryland was one of the 17 states. But we had an advanced program in our high school that attracted a number of black students so when the protests started after the decision was announced (by adults standing outside the school), we had no idea what all the fuss was about. In any event, by 1957 there were no more legally segregated schools in this country. And that was a good thing as segregation is clearly a violation of the principle of respect for persons. It has not stopped racism, of course, but we need to take things one step at a time. Attitudes cannot be legislated out of existence.

And then there was the “landmark” civil rights legislation pushed through under Lyndon B. Johnson in 1964 that ended segregation not only in the schools but also in voting and the use of public facilities. I worked with two black men while in high school who used to tell me how painful it was for them and their families when they were traveling to stop for relief only to see the signs “No Colored.” Those signs were clearly wrong, and they were removed by federal legislation. A number of Southern states, especially, are currently working assiduously to re-introduce “Jim Crow” laws which are designed to deter minorities from voting, but these can be readily seen to be a violation of respect for persons.

I would go out on a limb somewhat and argue that the Affordable Care Act, also called “Obamacare” is an example of legislated morality. Under this law we are already seeing thousands of people who would otherwise be denied health care who can now afford to see a doctor when necessary. Clearly, this is an example of a good thing. Denying a person the health care they require is obviously an example of disrespect for them as persons. It is also grievously unfair. The fact that so many people oppose the law simply shows that their priorities are skewed: money means more to them than morality.

So when we hear the cry “you can’t legislate morality” we can rest assured that this is false on its face. Morality cannot only be legislated; it should be legislated. James Madison was confidant that those we selected to govern us would have the wisdom to do so in accordance with the “common good.” That may have been a pipe dream, but there have been cases when legislators and courts did the right thing and we can hope that this will continue in the uncertain future.


7 thoughts on “Legislating Morality

  1. Good post. Makes you think. Emancipation Proclamation comes to mind as well. How about the Lilly Ledbetter Act? This is a concern I have for a full bore Libertarian view. We need someone to legislate a sense of fairness otherwise the haves will take advantage of the have-nots. Well done. BTG

  2. So true, Hugh. I hear that all the time. Aren’t murder laws legislating morality? Drunk driving laws? And isn’t that just what we want our elected officials to do? Great post, Hugh!

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