Why Morality is the Only Thing We Should Legislate

SellwynThumbby Selwyn Duke5/30/16
“You can’t legislate morality!” is a common battle cry today. It’s thought to be a quintessentially American idea, even though the Founding Fathers never expressed such a sentiment. Nor did the early Americans who would unabashedly enforce a biblically based code of morality in their localities, both via social pressure and governmental laws, with transgressors sometimes spending time in stocks — or worse. No, our common battle cry is a modern idea, and one of modernism. It also betrays a fundamental, and dangerous, misunderstanding of law’s nature.

In reality, the only thing we should legislate is morality. The only other option is legislating whims or immorality.

One problem with addressing this issue, which I have done several times, is that many readers have a reason-clouding emotional reaction induced by the assumption that I’m advocating big government. So I’ll preface what follows by saying that even if we enact just one law — let’s say, prohibiting murder — we have legislated morality. The only people who could credibly say they wouldn’t legislate morality are those who wouldn’t legislate at all: anarchists.

I’ll start by putting this simply. Could you imagine a legislator saying, “This law doesn’t prevent something that’s wrong, but I’m going to impose it on you anyway”? What if he said, “This other law doesn’t mandate anything that is a good, but I’ll compel you to adhere to it simply because I feel like it”? Would you suppose his legislation had a sound basis? Or would you think that, unlike a prohibition against murder or theft, the imposition of something lacking a moral foundation (“rightness” or “wrongness”) was the very definition of tyranny?

Generally speaking, a law is by definition the imposition of a value (which can be positive, negative or neutral), and a just law is the imposition of a moral principle (good by definition). This is because a law — with the exception of laws for naming post offices and such (which don’t constrain us and which won’t be included henceforth when I speak of “laws”) — states that there is something you must or must not do, ostensibly because the action is a moral imperative, is morally wrong, or is a corollary thereof. If this is not the case, again, with what credibility do you legislate in the given area? There is no point imposing something that doesn’t prevent a wrong or mandate some good. This is why there will never be a powerful movement lobbying to criminalize strawberry ice cream or kumquats.

As an example, what is the possible justification for speed laws? Well, there is the idea that it’s wrong to endanger others or yourself, and, in the latter case, it could be based on the idea that it’s wrong to engage in reckless actions that could cause you to become a burden on society. Of course, some or all of these arguments may be valid or not, but the point is this: if a law is not underpinned by a valid moral principle, it is not a just law. Without morality, laws can be based on nothing but air.

One cause of the strong negative reaction (generally among libertarian-leaners) to the above is the word “morality” itself; as with “capitalism” in liberal circles, the term has taken on a negative connotation. Yet this is partially due to a narrow and incorrect view of what morality is. Use the word, and many imagine the Church Lady or a preacher breathing fire and brimstone; moreover, reflecting our libertine age’s spirit, people’s minds often automatically go to sex. “Stay out of the bedroom!” we hear, even though the only side legislating bedroom-related matters today is the Left (e.g., contraception mandate, forcing businesses to cater faux weddings). It’s almost as if, dare I say, some people are worried that others may ruin their fun.

Morality encompasses far more than sexual matters, however. Yet it is narrow in one way: it includes only correct principles of rightness. And, again, when these are not the stuff of laws, elements of wrongness will be.

Speaking of which, everyone advocating legislation seeks to impose a conception of morality or, as modernists are wont to put it, a “values” set. For example, the only justification for forcing bakers to service faux weddings is the (incorrect) notion that it’s “wrong” to deny such service. ObamaCare could only be justified based on the idea that providing medical care for those who can’t afford it is a moral imperative. And “transgender” bathroom laws would have to be based on the fancy that it’s wrong to disallow someone from using facilities associated with his “gender identity.”

A common argument I’ve heard in response to the above is “No, I don’t legislate morality; something should only be illegal if it harms another.” Other arguments are that we should merely prohibit “force” or protect “property rights.” Leaving alone the deep matter of what constitutes “harm,” these assertions are, with all due respect, dodges. Is it “wrong” to harm another, use unjust force against him or violate property rights? If not, why trouble over it?

People making the harm, force or property-rights argument are almost universally sincere, except with themselves, as it’s self-deception. It’s a way of preserving a mistaken ideological principle (“Don’t legislate morality”) by obscuring what it is you’re actually doing when making law. It’s also dangerous because it keeps things on a more superficial level. It’s a way relativistic moderns can avoid dealing with something they consider inconvenient, messy and divisive: determining “What is good?” But when you don’t work hard to settle what is good, you end up with what is bad.

Another reason many people are oblivious to the values/morality underpinning their conception of law is that many moral principles are now woven so seamlessly into our civilization’s fabric that we don’t recognize them as “morality.” Yet a moral does not cease to be a moral because it becomes a meme. Consider that while we take for granted that theft, murder and slavery should be governmentally prohibited, most pre-Christian pagans would have found such an idea foreign. Pillaging for a living, Viking-style, was common and accepted; might made right. And while you might not murder or enslave your fellow group members (one problem Athenians had with Spartans was that the latter enslaved other Greeks: the Helots), outsiders were fair game. In fact, if there had been such a thing as a libertarian Roman, he just might have said to Christians endeavoring to outlaw the brutality of the arena, “You can’t legislate morality!”

There can be no such thing as a separation of morality and state. That is, unless we want to regress to man’s default, the immoral state.

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19 Responses to Why Morality is the Only Thing We Should Legislate

  1. Timothy Lane says:

    One thing I will point out here is that in 2002, Bob Ehrlich ran for governor of Maryland suggesting (among many things) that gun-control laws that don’t work should be scrapped. This sounds obvious to us, but his opponent, Kathleen Kennedy-Thompson, attacked him for it. This was a good example showing that controlling crime is merely the excuse for gun control, reducing freedom being the actual purpose.

    Another point is that it was said of the Puritans that they opposed bear-baiting not because it was cruel to the bear, but because people enjoyed watching it.

  2. Kung Fu Zu Kung Fu Zu says:

    This is a theme we at ST have been pushing for some time. I have personally used the example of laws against murder when countering silly people who spout, “We shouldn’t legislate morality.”

    One cause of the strong negative reaction (generally among libertarian-leaners) to the above is the word “morality” itself; as with “capitalism” in liberal circles, the term has taken on a negative connotation. Yet this is partially due to a narrow and incorrect view of what morality is. Use the word, and many imagine the Church Lady or a preacher breathing fire and brimstone; moreover, reflecting our libertine age’s spirit, people’s minds often automatically go to sex. “

    Nicely said. And our age is not only libertine, it is also ignorant.


      Agreed, KFZ. And while Selwyn didn’t direct this article specifically at Libertarians, they’re the first ones who come to mind as saying “you can’t legislate morality,” although the self-described “fiscal conservative, social liberal” probably comes in second. Both groups have been completely useless in fighting the Democratic Left.

      Meanwhile, did you hear about the Libertarian Convention which I believe ended today? Some guy stripped almost completely naked and it was all on CNN – I wouldn’t be surprised if he were elected Party Chairman. Meanwhile the candidates were questioned on such issues as should the U.S. have gotten involved in the two World Wars.

      I understand they nominated Gary Johnson and Bill Weld as expected. I myself wondered if Johnson smoked enough – and I don’t mean tobacco – to qualify for the top spot in the eyes of the delegates, but I guess he did.

      Like you always call them, they’re still the party of sex, drugs, and rock ‘n roll.

      • Timothy Lane says:

        And some Libertarians were unhappy about the male striptease precisely for that reason. They have some serious points to make (which would be easier if they didn’t have a solid liberal like Weld as VP), but people like that simply confirm the image.

      • Kung Fu Zu Kung Fu Zu says:

        I think the Libertarian party is mainly composed of juveniles, libertines, deviants, anarchists and cranks.

        And as to that guy stripping naked, do you recall a year or two ago, I gave a theoretical example of how a libertarian would walk naked down the street and say it was his right? Nothing is too outrageous and obnoxious for these people and their fellow travelers, the Left. Mental illness only begins to describe their psychological state.

        • Lucia says:

          In Ashland, Oregon, home of Southern Oregon University, a woman rode a bicycle naked in the summer right through the middle of town. When families complained, she said it’s not against the law, it’s her right.

          • Brad Nelson Brad Nelson says:

            The male (perhaps pragmatic) part of me in regards to this Lady Godiva is whether or not she offends the eyes less than the sensibilities.

            Being an avid bicyclist (but not an obnoxious one…roads belong to cars), all kinds of things can get caught in the moving parts. And if you wipe out, you need some protection on the skin. Riding a bicycle Au Naturale is not recommended.

            The cult of nudity is part of the cult of the Left. This stool of the three-legged triumvirate (Marx/Darwin/Freud) belongs squarely with Freud. Progressive culture has taught us (particularly women) that coyness or any sense of privacy regarding the body is to be viewed as an unhealthy “repression.” Besides abortion, one of the sacraments of the Left is to get naked. And if you can offend conservatives and decent people at the same time, that’s a twofer as far as they’re concerned.

            • Kung Fu Zu Kung Fu Zu says:

              Here is a further example of Libertarian taste in dressing; or not.


              This is more proof that many many of these people are narcissistic nut jobs who must be kept in their place. Their message to the rest of us is, “Fuck you! We will force ourselves upon you and your children and you can do nothing against us.”

              • Timothy Lane says:

                Well, at least he did it at the convention, and anyone who doesn’t want to watch it an generally arrange not to (as I have so far). There were complaints that this validated the image of Libertarians as weirdos.

              • Kung Fu Zu Kung Fu Zu says:

                “Today the convention, tomorrow the world!”

              • Brad Nelson Brad Nelson says:

                There were complaints that this validated the image of Libertarians as weirdos.

                LOL. Yep.

                I always had a slight soft spot for the idea of libertarians as more restrained weirdos. Yes, stupid but better-dressed and perhaps a little smarter. Well, that performance shot that idea all to hell. Explain to me again the difference between “libertarian” and “liberal.”

              • Timothy Lane says:

                Well, libertarians are generally still fiscally conservative, which certainly doesn’t fit any liberals. They also oppose over-regulation of business, again unlike liberals, and also gun control. When you get much beyond that, they’re liberals — and I get the impression that increasing numbers are, at the least, more concerned about social liberalism than economic conservatism.

          • I remember that incident, Lucia. I’m just up the road. Ashland can be such a silly place — beautiful, but silly.

  3. Brad Nelson Brad Nelson says:

    Isn’t Selwyn a great guy? Is Western Civilization creating this type anymore? If so, in small amounts only.

    “Liberal” (or libertarian) has come to mean “No limits as imposed by any moral notion prior to 1967 (the “Summer of Love”) and/or they are to be morals derived from any notion rooted in a reaction against adulthood, Christianity, and traditional moral notions.

    This is, of course, an unworkable plan. Most tie-die liberals who grow up and buy a home don’t want squatters and they don’t want their neighbor parking his car in their driveway.

    But the dream lives on in the guise of supporting liberals “causes,” especially ones that are “out there” (not in my back yard) and “paid for by someone else.” As Rush Limbaugh and others have noted, many people live very conservative-value lives. They teach their kids not to lie and steal. They work hard. They pay their mortgage. But when it comes time to vote or support a cause, they go with Utopia. The dream lives on. It’s especially useful in order to try to hide the fact that they’ve been wrong all this time about their ideas. And by supporting the boutique liberal causes (gay marriage, whatever), they can pretend they haven’t sold out and the dream is still alive and workable.

    The Progressive/liberal/hippie vibe is to be “open” to all things, to not make judgments, to kumbaya, to put behind such “divisive” things as moral notions which tend to “exclude.” Of course, we know that moral notions don’t go away just because we deny them and that they can’t help but exclude one thing in preference for another. They just, as is the pattern of the Left, get re-named. “Political correctness” is essentially the moral notions of the Left. It’s what they perceive as correct thought and behavior — aka “morals.”

    Libertarians are particularly daft (and dishonest) as they try to pretend the no morals at all are necessary. But, again, it’s not that they don’t have them (even anarchy or legalizing all drugs is a moral conception of society). Just like the liberals, they have decided that “morals” are bad things, so what they have they simply call by another name.

    So this inevitably comes down to whose morals and why, if we are honest (and few people are these days). Some morals are so self-evident and long-lived they become “common law” and “natural law.” But there is nothing common or natural about good morals. The history of the world has been written by people with particularly bad morals.

    Which brings to mind a central point: Good morals don’t tend to be the ones that we come to by rolling out of bed in the morning. They require thought, work, discipline, and honesty…perhaps even a shot of inspiration. Most bad morals derive from dishonesty. It’s perfectly understandably why people would create laws and morals to favor one group (themselves) over another (everyone else), but the good we have found in our traditional Western laws and morals is the universality of them. They apply (in theory) to kings as well as to subjects.

    But good laws and morals are much more than just universally applied, for even bad laws and morals could be universally applied. They must be grounded in something that is not corrupt. All politics is corrupt which is one big reason why the Left is corrupt. Political ideas are always a hash of deceit, very narrow self-interest, and demagoguery. To ground morals in one’s politics is like building a house upon sand.

    The West has traditionally grounded its morals in the Bible and a conglomeration of freedom- and rights-oriented thought. But the Bible comes first. It says that man has a soul, that each is a miracle of creation, and life is about more than screwing over your neighbor for short-term gain. In the Christian conception there is an inherent and inescapable element of delayed gratification which means when it comes to laws and morals he can, and does, have a vision longer than the site of his own nose. And there is a notion of good and right in this Biblical/Western conception that has nothing to do with mere consensus or even pure reason. Central is the idea that man has a moral nature that he can abuse, corrupt, and twist. Thus Western thought inevitably leads to the idea that this moral nature needs to be refined, and certainly not denied (one reason atheism cannot help but be corrupt and lead to destruction).

    This Christian/Western conglomeration of ideas (particularly refined in America and known as “American Exceptionalism”) holds great promise for good to come out rather than corruption. Man is special and not a mere cog for government, kings, or tyrants to use for “pragmatic” purposes.

    But the trick of the Left has been to set us against our own moral intuitions. Not all our intuitions are right all of the time. Fair enough. [See: the need to refine them.] But what the Left has done is get us to distrust them at every turn. We are actually at this bizarre point where they have been so successful at alienating us from our moral conscience that many are afraid to state the obvious, such as that there are men and there are women and anything else is just an opinion or fashion statement.

    We have also learned to become beggars, thieves, and apologizers for fraud and corruption by calling it “social justice.” Christianity itself is deeply corrupted by the Left. And it’s not just that people don’t learn this set of traditional moral as opposed to that one (as important as that is). It’s that they haven’t developed their moral conscience so they are not up to even making this choice which is why it is so easy for them to fall back on bumper-sticker slogans (“black lives matter,” etc.) With no moral conscience developed and nothing solid to base them in, all you have left is politics. And politics is not only corrupt but the notions are fleeting and, at best, based on fads of the day.

    And so we come to this place where it is convenient for many reasons to say “Morality is all about those bad, uptight Christian fundamentalists trying to control our sex lives.” And if we are honest, we will understand this for the deep lie that it is and as a sign of how successfully the Left has corrupted people and alienated them from developing a moral conscience.

    • Timothy Lane says:

      I think one reason many ordinary people, living basically conservative lives, nevertheless vote liberal is the ignorance that stems from political apathy. They pay as little attention as they can to politics and policy, so what they think they know is what they pick up osmotically from their cultural involvement.

      Not all libertarians support legalization of drugs because they want to use them without risk. Note that Ron Paul and Gary Johnson both supported legalization in 2012, but Paul was a non-user who didn’t advocate their use — perhaps because he’s a doctor, and knows the dangers. I suspect most libertarians resemble Johnson rather than Paul, but there are exceptions, obviously.

      • Brad Nelson Brad Nelson says:

        They pay as little attention as they can to politics and policy, so what they think they know is what they pick up osmotically from their cultural involvement.

        I think there’s no question this is true, and the Left is very cognizant of this fact. It’s why Katie Couric lies. It’s why they try to indoctrinate in government schools and higher education. It’s why they politicize movies. It’s why they are enemies of free speech. It’s because they know if they create a swamp they will breed lots of alligators.

        It is difficult to overcome the conceit of the low-information voter that he already knows all he needs to know. He’s been indoctrinated into a cult that has many of the classic elements of a cult, including an inflated idea of one’s righteousness and, in particular, a thought process that keeps any contrary information from getting in.

  4. Steve Lancaster says:

    There are 10 pretty good suggestions for living a moral life and 10 rights to make that possible, everything else is commentary.

  5. David says:

    Great article Selwyn.

    It has never been my position that “you can’t legislate morality”.

    One definition of morals is “standards of behavior that are and are not acceptable to the group”.

    Recorded human history illustrates that all groups have had their particular set of standards and beliefs, and in order to build and maintain a culture, society, civilization, there must be some set of laws or other.

    To “legislate” means to make or enact laws. So to legislate morality is, in fact, a long standing practice in human affairs.

    Beyond the debate about morality, there is one ‘moral’ quality which we desperately need more of, however it is not something that can be legislated as it is an attribute of God.

    That is love.

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