“I suppose persons who mouth the slogan [‘Don’t legislate morality’] think they are saying something profound. In fact, if that is an argument at all, it is so superficial that an educated person should be ashamed to use it. As should be evident to every thinking person, a high proportion of all legislation has a moral base. That is true of all the criminal law, most of the laws regulating family relations, businesses, and commercial transactions, many of the law governing property, and a host of others.” – Dallin H. Oaks
One of the oddest, most harmful political beliefs to emerge in the past 50 plus years is the notion that one cannot legislate morality.
This is nonsense. Man has always legislated morality.
Sir William Blackstone, the central legal mind the post-1787 U.S. courts looked to for guidance, wrote, “The primary and principle objects of the law are RIGHTS and WRONGS.” (Commentaries On the Laws of England, Volume I, Rights of Persons)
Thus, his definition of the municipal law was simply: “A rule of civil conduct prescribed by the Supreme power in a state, commanding what is right, and prohibiting what is wrong.” (Ibid., Of the Nature of the Laws In General)
Which leads us to what was the definition of morality.
J. J. Bulamquie, in his 1748 exposition, The Principles of Natural Law, notes that “LAW being the rule of human actions, in a comparative view we observe that [human actions] are either conformable or opposite to the [law]; and this sort of qualification of our actions in respect to law is called morality.”
Law and morality, therefore, were, and in fact are still chain linked together. Our obedience or disobedience to the law reflects our moral state, and in collective terms, our public virtue.
But law and morality are also joined together by virtue of the nature of man, as contrasted with all other species. Man is a moral agent, endowed with the capacity to rise above mere animal instincts, and choose right from wrong.
This moral agency, or capacity to reason, is taught in Holy Writ as the heritage of man, but nevertheless was understood even by pre-Christian political philosophers like Cicero, who declared it an endowment man holds in common with God.
But what is more divine, I will not say in man only, but in all heaven and earth, than reason? And reason, when it is full grown and perfected, is rightly called wisdom. Therefore, since there is nothing better than reason, and since it exists both in man and God, the first possession of man and God is reason. But those who have reason in common must also have right reason in common. And since right reason is Law, we must believe that men have Law also in common with the gods. (Great Political Thinkers: From Plato to the Present, by Alan O. Ebenstein)
Webster’s 1828 American Dictionary, aware of such definitions in divine and classical texts, said of the law:
In general, law is a rule of action prescribed for the government of rational beings or moral agents, to which rule they are bound to yield obedience, in default of which they are exposed to punishment.
Or to put it another way, man is a moral being, and since he is also a social being (remember, the Lord God said, “It is not good for man to be alone”), it is natural for man to have laws and that his laws involve moral judgments pertaining to his relationship with his fellow man – and so law and morality are intertwined, and ever will be.
Thus the ‘the Laws of Nature, and of Nature’s God’ that we find reference to in the Declaration of Independence, which some moderns have assert came from a secular, non moral position on the law, really are no such things.
Webster, who some have called the voice of the Constitution, informs us:
Law of nature, is a rule of conduct arising out of the natural relations of human beings established by the Creator, and existing prior to any positive precept. Thus it is a law of nature, that one man should not injure another, and murder and fraud would be crimes, independent of any prohibition from a supreme power.
Because these laws pre-existed, and were established by the Creator himself as being as Natural to men, as they are natural to the God who made them in His image, the Founders called this the Higher Law, and out of that same belief declared the reality of inalienable rights, which could not exist if such a Higher Law, and its author, a pre-existent God, did not also exist, and was not widely believed to exist.
Our forefathers were confident He and His laws did pre-exist – and so morality and the law made sense to them.
A modern source of legal insight, Stanford law professor Lawrence M. Friedman, summarizes these facts about morality and the law in his, A History of American Law:
- Of the top three factors that influenced early American law, “the ideological element” – meaning the colonists’ Christian beliefs and religious traditions – was one of the most persuasive. (3)
- In the 1770s, “all crime was looked upon as synonymous with sin. … The typical criminal was not … an outcast from society, but only an ordinary member who had sinned.” (4)
- Control of sin was a factor in all the blue laws. (5)
- “Criminal law … in any period, expresses [among other things] current standards of morality.” (6)
We can pretend this is not so, but it is so.
And besides, what are such concepts as equality but a belief that men OUGHT to treat their neighbor as themselves; or justice, than that men OUGHT to be punished for sins against a neighbor; or representative democracy, than that man OUGHT not to have law imposed upon him without his consent? Or opposition to monarchy, than that men OUGHT not to worship other men?
There are so many “oughts” at the root of our law, whether applied correctly or not:
- In criminal law, men and women OUGHT not murder, rape, rob or lie.
- In family law, men and women OUGHT not abuse, abandon or fail to provide.
- In environmental and conservation law, men and women OUGHT to reverence all forms of life and OUGHT not to neglect the needs of future generations.
- In property law, men and women OUGHT to have the right to buy, sell, trade and control their own property.
- In welfare law, men and women OUGHT to impart of their substance to the poor, unfortunate and disabled.
- In welfare reform law, men and women OUGHT to earn their bread by the sweat of their brows, and the idler OUGHT not to eat the bread of the laborer.
- In safety, food and drug law, men and women OUGHT not to endanger the lives of others.
- In labor law, that men OUGHT to have a day (and now two) of rest, and receive a ‘living wage’ in exchange for their services.
The examples are endless; and sometimes “oughts” clash and men are bound to weigh which “ought” matters most or how to satisfy the demands of both “oughts.” The point is, just what is an “ought” but a moral position? And, honestly, where did these OUGHTS come from but from biblical commands and biblical invitations to men and women of all nations, kindreds, tongues and peoples?
Almost all law returns to basic moral premises, or at least someone’s interpretation (correct or incorrect) of those premises. Some will point to the source of the premise as The Holy Bible, or as God the Father, or as Jesus Christ, or as the Holy Ghost, or as conscience (also known as the Light of Christ), or as love of neighbor, or as reason, or as tradition, or as all of the above – but it is extremely difficult to squarely face the issue of law and say that morality is not involved, that moral judgments of right and wrong are not at the root of the creation of nearly every single law, every single statute on the books.
Even those who cling to reason alone, or the scientific method as their basis for lawmaking may be deluding themselves if they choose to insist that moral judgments aren’t involved in their chosen method. First, because the choice of science as the only or highest source that men must look to is a subjective position, based upon one’s moral view of the universe, one’s trust in the omnipotence of what they see and hear and feel and touch, or what the grant-driven omnipotent scientists they ‘worship,’ see and hear and feel and touch.
Second, because some of the greatest proponents of reason have seen the hand of God in reason, and have believed that true reason leads a man to that true law which originates with God – as did Thomas Jefferson and John Adams.
Returning to Rome’s statesmen, Senator Cicero, we read:
“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it sums to duty by its commands, and averts from wrong doing by its prohibitions. … It is a sin to try to alter this law, nor is it allowable to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will be no different laws at Rome and at Athens, or different laws now or in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst punishment.” (Ebenstein, Great Political Thinkers)
Therefore, reason, or more accurately, right reason and honest science cannot run away from God and morality. They do in fact, run toward them, even, if only by accident.
Finally, the various isms that oppose legislating morality aren’t really serious about their opposition to legislating morality anyway, but admittedly only oppose the legislation of that form of morality that upholds the existing political order, the one they hope to overthrow.
As one modern revolutionary thinker, George Lukács observed: “I saw the revolutionary destruction of society as the one and only solution. … A worldwide overturning of values cannot take place without the annihilation of the old values and the creation of the new ones by the revolutionaries.” (Georg Lukács from Romanticism to Boshevism, by Michael Loewy)
What was needed was a legal and cultural implementation of what he admitted were “demonic ideas,” in what would be known as “cultural terrorism.”
What evolved in this movement was the creation of a countermorality, counterculture that would overthrow a society from the bottom up, as a new set of values would patiently arise through the arts, the schools, the seminaries, and the media, until a change in the laws came naturally, rather than by violence.
As the 1970 bestseller The Greening of America, the manifesto of the counterculture predicts:
There is a revolution coming. It will not be like revolutions of the past. It will originate with the individual and with culture, and it will change the political structure only as its final act. It will not require violence to succeed, and it cannot be successfully resisted with violence. It is now spreading with amazing rapidity, and already our laws, institutions, and social structure are changing in consequence. …
This is the revolution of the new generation.
That the new legal approach to morality is but the replacement of one form of legislating morality for another is self evident. The new morality mandates charity, but punishes student study of the Lord of Charity, makes legal blasphemy, vulgarity, and obscenity (things offensive to people of all faiths), but outlaws ‘hate’ speech that offends favored groups and their political issues, legalizes pornography, even daring to call it ‘art,’ despite its offensiveness and destructiveness to women, marriage, families, and little children, but outlaws the posting of the ten commandments for its lack of ‘sensitivity’ to people of no faith, and above all else the new morality preaches and enforces tolerance – tolerance for everything previously dubbed virtuous, and zero tolerance for anything or anyone that defies this new secularist dogma, by clinging to the old.
Or in other words, contrasting the old system with the new: Christian charity persuades; the new charity demands; Christian morality hates the sin but loves the sinner; the new morality loves the sin itself, legalizes it, sees to it that it is taught in our schools as normal, happy, healthy, and then place the sinner on a pedestal of sorts, proclaiming him or her the beau ideal of progressiveness, courage, and irreverence, who deserves special protections and privileges.
The point is, the new law is still about right and wrong, about legislating morality, only a different, inverted morality, an inverted morality with a revolutionary agenda that all men and women of faith would oppose with vigor, if only they perceived the danger.
The best thing we can all do is admit the obvious, that all law does have a moral foundation, for good or ill, and that, therefore, Christians and the Christian position have just as much a right to compete in the free marketplace of ideas, in public and in private, as anyone else.
Steve Farrell is the Founder and Editor-In-Chief of The Moral Liberal, one of the original and most popular pundits at NewsMax.com (1999-2007), and the author of the highly praised inspirational novel, Dark Rose (Kindle edition now available).