Volume 11, Issue 4, Fall 2001
A Symposium on Legislating Morality
Can Legislation Solve Our Moral Problems
Much of the consternation over John Ashcroft's appointment as
Attorney General centered around the fact that, as a conservative
Christian, he believes that government has not only the right but
the responsibility to legislate morality. "I think all we should
legislate is morality," he told the religious magazine Charisma
in December 1999. "We shouldn't legislate immorality." He has
also said that in order to make moral decisions, he relies
primarily on God, Scriptures, and his faith.
Such a reliance on religion, liberals believe, is typical
among those who seek to connect morality and law, and they
say this is precisely the problem with asking the state to
handle moral decisions: any effort to legislate morality
will inevitably appeal to a set of beliefs that are meaningful
only to a few. In a pluralistic culture like ours, that means
any such effort amounts to a kind of cultural tyranny and is
therefore bound to create more problems than it solves. Witness,
they say, the example of Prohibition. There, too, a vocal minority,
acting on its religious beliefs, attempted to force a broad moral
consensus where there was none to be had. The disastrous results
were, they believe, a foregone conclusion. The sentiments of conservative
Christians like Ashcroft only serve to reinforce their longstanding concerns.
Liberals aren't alone in expressing these concerns. Many of Ashcroft's fellow conservatives also dispute
the idea that government is the proper means for addressing moral questions. While many are deeply concerned
with the moral condition of our society, they argue that the institutions of American civil society--families,
neighborhoods, and congregations, especially--are the best means through which we can effect change. Indeed,
many conservatives argue that our contemporary problems flow from the fact that these very institutions have
been undermined by an all-too-pervasive government. Thus, both liberals and conservatives hold that pursuing
morality through law is a bad idea; if we desire to fashion or refashion a more moral society, we will have
to look elsewhere.
I think both lines of reasoning--amplified at least in part by Americans' overwhelming cynicism towards
contemporary politics--greatly overstate the matter. While I grant that a good, moral society must be built
upon more than the letter of the law, I want to dispute the more basic and, I believe, misguided notion that
government should not try to legislate morality. In fact, I want to argue something almost exactly the opposite:
that it is extremely difficult and rare for government not to legislate morality. Therefore, the connection
between legislation and morality ought not to be affirmed by conservative Christians alone. Any American who
worries about the moral condition of their society cannot responsibly ignore this question. And that means
they cannot responsibly ignore politics, nor can they deny the moral duty of the state.
Martin Luther King, Jr. and the Legislation of Morality
To make this case, I want to focus first on another Christian American, Martin Luther King, Jr. In the 1960s,
many Americans were arguing that the legal strategy of the civil rights movement was fundamentally flawed.
These Americans maintained that all the civil rights laws in the world were not going to change white people's
attitudes toward African Americans; no changes in the law would make the races love each other. If such a
thing were to happen at all, it would come about only through the actions of congregations, parents, and
teachers, and by changes in the countless little interactions that take place between the races each and
every day. Because racial attitudes lay deep within the human heart, and because questions about race
relations were profoundly controversial, the issue was beyond the pale of legal redress. The legislative
agenda of the civil rights movement was, at best, beside the point.
Martin Luther King, Jr. admitted that the ultimate solution to "the race problem" was beyond the reach of
law. He even agreed with the proposition that morality cannot be legislated. But King also argued that the
legal agenda of the civil rights movement was not pointless. His famous and most piercing response was that
while the law could not make the white man love the black man, it could make him stop lynching him. Enactment
and enforcement of the relevant legislation would, King insisted, portent more than a trivial change; lynchings
were not beside the point.
But King went on to offer a more descriptive and expansive account of the relationship between law and morality.
While he acknowledged that the issue of race relations was controversial, he appealed to a more fundamental point
of moral agreement: he centered the debate about civil rights around the fundamentally moral, and fundamentally
American, principles of equality of opportunity and equal justice for all. When King spoke to fellow Christians,
he was more than willing to frame the moral argument in exclusively Christian terms. But in the public square,
King felt compelled to make the moral argument by appealing to principles that he and all Americans shared.
"The American dream," King said, "reminds us that every man is heir to the legacy of worthiness." The treatment
of African Americans contradicted--indeed, belied--that belief, and civil rights legislation would help to overcome
that contradiction. If enacted, it would help Americans live up to their own beliefs--indeed, to the beliefs that
defined us as a people. Passage was not only legitimate, it was essential.
The legacy of Prohibition has led many Americans to believe that legislating morality involves the criminalization
of private behavior. Though King's point about lynching illustrates his belief that the criminal law played an essential
part in the civil rights debate, he also insisted that the moral dimension of legislation far transcended this limited
domain. Protecting the rights and political freedom of African Americans was intimately associated with achieving the
broader notion of human equality. The Civil Rights Act of 1964 and the Voting Rights Act of 1965--and, importantly,
the federal power required to enforce those laws--were indispensable means by which Americans' united belief in this
moral principle could be realized.
These two features of King's analysis--the framing of legal arguments in terms of underlying American ideals and the
extension of the relevant role of the law beyond the criminalization of private behavior--enabled him to posit an essential
connection between the quality of our society's laws and the moral quality of our society. In a 1962 address before the
National Press Club, King said that the "habits, if not the hearts, of people have been, and are being, altered everyday
by federal action. These major social changes have a cumulative force conditioning other segments of life." While the most
important aspects of integration were unenforceable, changes in the law could positively affect the society's moral condition.
If the laws were good ones, if they conformed to the basic truths that Americans hold, they would ultimately foster fundamental
changes in people's social behavior. And, therefore, King believed that such laws could have an important, positive impact on
society's moral condition.
The subsequent years have lent credence to King's position. Race relations remain deeply controversial, of course. But all
would admit that civil rights legislation has made the principle of moral equality more operative within American society.
Most relevantly, tolerance for and practice of mixed-race marriages has risen dramatically over the past generation. Would
anyone deny that this very explicit change in attitude toward love between the races is directly related to changes in the
nation's civil rights laws? Indeed, can one imagine the former happening without the latter?
Legislation and Morality in Contemporary America
The objection will surely be raised that while King's actions were noble and our country is better off
for them, they are of little relevance to us now. The moral issues were strikingly apparent during the
civil rights era, and to our nation's credit, legislation addressed these issues. But now that those
fundamental issues are settled, our problems are different and politics no longer rises to such lofty
heights. What is more, the argument goes, America has changed since the 1960s. Most relevantly, pluralism
has progressed apace; the triumvirate of "Protestant-Catholic-Jew," the term that Will Herberg coined
to describe the most prominent and public religions of 1955, has exploded into a plethora of competing
forms of belief and nonbelief.
The expansion of religious pluralism has no doubt altered the fabric of our nation's ideals and values.
And, therefore, the question of how morality might be expressed through law has obviously been affected
as well. But this expansion does not alter the fact that King's model of public debate remains both
descriptive of, and relevant to, American public life.
A recent survey by sociologist James Davison Hunter testifies to the underlying moral consensus that
still exists in America. Hunter's survey, released in 1996, found that 97 percent of Americans agree
with the statement that "with hard work and perseverance, anyone can succeed in America." 96 percent
agree that "American Democracy is only as strong as the virtue of its citizens." 93 percent agree
that "America's contribution is one of expanding freedom for more and more people." To be sure, the
survey also uncovered deep contention within the American body politic around more specific moral
questions (e.g., abortion and homosexuality). But for all the disagreement, even rancor, that
characterizes American public life, there remains a core set of values and ideals that are properly
characterized as American, and which continue to receive nearly universal affirmation.
It was these values and ideals that Dr. King sought to promote through civil rights legislation.
Unquestionably, the moral issues were drawn more sharply in the civil rights era. Contemporary
debates do not as readily implicate the most fundamental American principles of freedom and equality.
But controversial arguments in the American political arena continue to center around the meaning
and standing of American ideals and values. The procession of those debates into law does not and
never did mean that the law will inevitably be a good one, but it does mean that almost any legislation
will have a moral dimension, and thus either a positive or negative effect on the moral condition
of the body politic.
Consider the example of welfare reform, passed in 1996. The debate surrounding that legislation
turned on a series of moral propositions: that Aid to Families with Dependent Children (AFDC) had
created a culture of poverty; that it rewarded indolence, fostered dependence, and encouraged broken
families. The argument in favor of the Personal Responsibility and Work Opportunity Reconciliation
Act (PRWORA) was, in turn, framed in terms of the moral norms of equality, reciprocity, personal
accountability, and the inherent dignity of work. It is undeniable that the law has brought federal
policy more in line with those deeply held American values. As a result of the new law, many former
welfare recipients have morphed into the working poor, and there are early signs that this change
has left most Americans less prone to stigmatize them--and more disposed to assist them through
both governmental and nongovernmental outlets.
But the moral debate does not end there. PRWORA is set to expire in 2002. The coming legislative
session will therefore inevitably focus on renewing this legislation, and the very success of
welfare reform has brought with it lingering questions about the standing of other distinctively
American values. After resigning from the Clinton administration over PRWORA, Peter Edelman wrote
that welfare is better understood as disability insurance, because for many recipients, some form
of physical or psychological impairment stood in the way of their getting and holding a job.
Recent studies by Sheldon Danziger at the University of Michigan and others confirm Edelman's
point. Those who remain on welfare (roughly a third of the former welfare population nationwide)
are those with the most significant barriers to employment, including illiteracy, mental illness,
and substance abuse. For others, it is their children who suffer from these conditions. Surely
there are those who needed a push toward self-sufficiency. But the notion that all former welfare
recipients (and their children) can be helped most responsibly through a single, work-based program
strains against the facts, and thereby, against basic notions of fairness and decency. As economist
Nancy Folbre puts it, "If there is one thing Americans agree on, it's the ideal of giving all
children a fair opportunity to succeed in life." The question of how best to ensure this ideal
will surely be a large part of the upcoming debate. And that means that, as it was in 1996, the
coming debate about welfare reform will be deeply and inexorably moral. It will once again be
a debate that is argued in terms of American moral principles.
Welfare reform, like civil rights legislation before it, is merely one example among many. Campaign
finance reform, health care, environmental policies, debates about vouchers and charter schools--all
of these contentious and contemporary debates center around distinctively American values. Indeed,
it is hard to think of a debate that does not involve, at its core, moral questions. Even the most
arcane appropriations battle turns on deciding how much we are willing to pay for some social good
and how much we want it relative to other social goods. In every case, there is no reason to assume
that some speedy and mutually agreeable resolution is on the horizon. But if such a resolution were
to come to pass, it could lead to a better understanding and appreciation of the principles that
informed the debate in the first place. And that means it is also possible that, in King's language,
such changes could positively affect the moral habits of all Americans.
I am not arguing that politics is always laudable. Partisan gamesmanship, log-rolling, and the like--all
of this is endemic to democratic politics, and all too often it undermines the pursuit of the commonweal.
And I am not arguing that Americans are wrong to champion apolitical civic activity. There is much to
admire in the actions of Habitat for Humanity or the quiet decency of a neighborhood watch program. But
I do contend that these and similar actions do not constitute a substitute for politics. Social concern
and civic-mindedness cannot be fully and adequately expressed outside the political arena, and to think
otherwise presents us with a diminished notion of our moral, civic, and social lives.
The belief that we neither can nor should legislate morality rests on a truncated understanding of both
morality and law, and a selective understanding of American political history. Conservative Christians
are correct to see an inherent connection between law and morality, and they are correct in their desire
to realize that connection through relevant legislation. If they err, they do so to the degree that they
infuse their legislative initiatives with a morality that is articulated and understood in exclusively
Christian terms. But the former does not require the latter. As King recognized, political debates in
America are and ought to be grounded in the moral principles that transcend our differences. For those
debates provide us with the unique opportunity to better understand and live out our shared principles,
and thereby make our society and ourselves more moral. All Americans ought to concern themselves with
the political process. But those who are concerned about the moral condition of our society have a
particular obligation to attend to the moral expression that is at the heart of the political
R. Bruce Douglass
The 18th amendment to the United States Constitution was the product of a failed attempt to legislate
morality, and it has come to be regarded as a prime example of why it is unwise to use the
coercive powers of government for any such purpose. But the civil rights movement headed by
Dr. Martin Luther King, Jr. was no less an effort to promote a particular morality through
law, and it succeeded. Not only did the resulting legislation affect people's attitudes and
behavior as intended, but it is now commonly viewed as a prime illustration of the right way
to achieve change in a democratic society. In fact, more often than not, the same people who
dismiss Prohibition as a misguided and even antidemocratic initiative celebrate the Civil
Rights Act of 1964. They view this and related pieces of legislation as essential steps in
America's ongoing effort to realize the promise of its democratic ideals.
But why is this the case? Christopher Beem thinks that the civil rights movement succeeded
where Prohibition failed because the former appealed to ideals that were widely shared by
the American people whereas the latter did not. No doubt that is true, but it is not the
whole story. No matter how much such movements may be able to appeal to what Beem characterizes
as "core" values, they almost always have to contend with the fact that, at the time of the
struggle, people disagree about what those values are and what they mean in practice. King
and his allies had to deal with this problem just as much as the advocates of Prohibition,
and it is mistaken to think that the latter were any less convinced than King was that
their cause was a fulfillment of American ideals. They simply had a different view than
their opponents of what those ideals were.
An alternative explanation is that King and his followers were right in what they claimed
about the meaning of American ideals whereas the proponents of Prohibition were not, and
the American people had the good sense to recognize that this was the case. But surely it
is naive to think that the matter is that simple. Even if it is true that the Civil Rights
Act was more unambiguously a manifestation of democratic ideals than the 18th amendment,
both were the products of overtly political struggles, and their fate was determined as
much or more by the political dynamics at work in the nation than by anything having to
do with the intrinsic merits of the two causes. Prohibition failed because it was championed
by political forces whose fortunes were declining whereas the Civil Rights movement succeeded
because it was supported (albeit cautiously) by forces that were in just the opposite position.
To acknowledge that this is the case is not to be cynical, but it is to recognize that democratic
politics is inevitably driven by the struggles for advantage among competing interests as
well as ideals. What is accepted as legitimate in the use of governmental power depends
very much, therefore, on the balance of power in society. Beem is right to think that it
is impossible to govern well without engaging in some degree of legislation on sensitive
moral issues. But different parties will have different views about which forms of this
activity are appropriate, and what actually happens is usually determined more by their
electoral fortunes--and thus the mood of the electorate--than by any sort of principled
understanding of the role and limits of government.
Both the liberal and conservative forces in American politics today have ideals that
they are prepared to impose on the country by governmental action, and the public seems
to be willing to accept--and even want--some amount of this activity. But there are
limits to what it will tolerate. At present, the majority of Americans seems to be
quite willing, for example, to have the civil authorities take action against forms
of behavior that can be shown to be injurious to our physical well-being--such as
smoking tobacco, using illicit drugs, and not wearing seatbelts while riding in
automobiles--unless the behavior in question has a strong popular following (such
as the use of firearms or gas-guzzling vehicles). But people tend to be wary of
policies that appear to prohibit--much less require--a particular kind of conduct
on the grounds that it is morally right or wrong. Still, even that sentiment can
be overridden: citizens will tolerate moral judgments by the government when, as
Beem shows in his discussion of welfare reform, virtues that are closely tied to
the economic and cultural interests of the middle class, such as the work ethic,
are at stake.
Controversy and Compromise
It is a confusing situation; the ambiguities and even contradictions it involves
are unlikely to please partisans on any of the relevant issues. But this is what
is to be expected in a society with real diversity that is seeking to handle the
resulting conflicts fairly. It is a situation that lends itself, moreover, to just
the sort of compromises among competing values and interests in which communitarians
specialize, and for that reason it tends to be appreciated more by communitarians
than by those with more extreme views. But even communitarians cannot be altogether
happy with the way moral problems are currently being addressed by the government.
What in particular is worrisome about the way such matters are now being handled in
this society is that it provides little room for any sort of vigorous governmental
action that might challenge the more respectable forms of self-destructive and/or
antisocial behavior. After all, only so much can be done to address the problems we
now face by attacking the vices of smokers, drug users, and welfare recipients.
Sooner or later, Americans will need to recognize that the behavior of the rest of
us must also change in certain ways if we are to avoid doing serious (and perhaps permanent)
harm to the social fabric and the natural environment. Communitarians have long recognized
that this is the case, and the specific policies they have advocated go a long way toward
demonstrating that it would in fact be possible for our civil authorities to take action
on the relevant issues (e.g., child-friendly divorce laws, taxes on gasoline, gun controls, etc.)
without imposing a particular "sectarian" morality on the rest of society.
This does not mean, however, that the measures advocated by communitarians are not partisan.
For it is not possible to take a stand on issues as controversial as the ones that are typically
discussed in the pages of this journal without taking sides. But it is one thing to take a
side on a contested issue and quite another for a particular subculture to essentially dictate
to the rest of the population how the matter will be handled. And if there is anything that
characterizes the political style of communitarians, it is an emphasis on inclusion and
ongoing conversation among the many different subcultures that now exist in the United States.
The reason this is the case is not just that communitarians tend to favor persuasion over
coercion as the way to go about influencing people's behavior. It is also that communitarians
believe they can learn from one another and improve their approach to almost any issue if
they are prepared to engage in such give-and-take, and they are convinced that a willingness
to take part in such conversation with people of other beliefs and backgrounds is one of
the more important parts of what it means to be a democrat today.
It is highly unlikely, therefore, that anyone who has really absorbed communitarian thinking
and taken it to heart will ever knowingly try to impose a policy on the rest of society that
can fairly be construed as a power play by one of contemporary American society's different
religious, ethnic, or racial groups at the expense of the others. In fact, if anything,
communitarians can be expected to do just the reverse, doing all they can to ensure that
the laws enacted by our government are not prejudicial to the legitimate interests of any
of those groups. The premium communitarians place on persuasion means, moreover, that they
are unlikely to favor any action by the civil authorities that lacks broad popular support.
Especially is this the case if the law or policy in question is one that would impinge
directly on the personal lives of individual citizens. For all the importance they attach
to community and all the critical things they have had to say about modern individualism,
communitarians recognize full well that individuals have a right to conduct their lives as
they choose, and they understand that there is something precious about the liberties that
enable the inhabitants of this and other comparably democratic societies to experience such
self-determination. Even if they are convinced that a given measure is badly needed, therefore,
communitarians are not about to do anything that would result in the imposition of the policy
in question on the rest of the population if they are unable to persuade a broad cross-section
of their fellow citizens that such a policy needs to be adopted.
The Requirements for Change
Broad popular support is one thing, however, and consensus quite another, and even though
some communitarians have actually spoken in terms that suggest that consensus needs to be
achieved before government action can legitimately be taken on matters that are subject
to any real controversy, surely that is hyperbole. For not only is it unrealistic to
think that any unanimity can ever be achieved in societies of the magnitude and complexity
we now have, but it is also a recipe for just the sort of inaction that communitarians
usually criticize whenever they encounter people who are skeptical about our ability to
solve social problems. Communitarian thinking, as we know it now, is unmistakably a
philosophy of action, and it only makes sense to embrace it if one believes that we
can actually do something constructive about the problems facing us as a nation--and
to do it in part, at least, through the use of public power. But that is not going to
happen if communitarians allow themselves to believe that every affected party needs
to agree before any action can be taken. The only people who are served by a view of
that sort are the ones who want nothing ever to change.
This country would never have achieved anything like the Civil Rights Act that was passed
by Congress in 1964, for example, if the proponents of that legislation had adopted
such a view. For at the time, there was still widespread opposition to any such action
by the federal government (and not just in the South, either), and this sentiment was
represented by some of the most powerful figures in Congress. Many of those figures
were convinced (probably correctly) that their electoral prospects depended on doing
all they could to prevent the passage of any such legislation, and they were well
situated to prevent consideration of the legislation, let alone its adoption. It took
enormous effort, therefore, just to override their opposition, and it is unthinkable
that anything more could possibly have been achieved by Dr. King and his allies in
Congress at the time. It was precisely, in fact, the persistent refusal of the opposition
to change its mind about the merits of racial segregation in the face of an intense,
broad-based national effort to shift public opinion on the matter that made the legislation
in question necessary. There would have been no need for new laws if the defenders of
segregation had been prepared to accept voluntarily the dismantling of the laws and
policies they favored.
The most that communitarians (or anyone else, for that matter) can reasonably hope
to accomplish through their efforts to stimulate conversation and influence public
opinion about the issues that matter to them, therefore, is to persuade a majority
of their fellow citizens to accept, if not actively support, the adoption of the
kind of laws and policies they favor. To be sure, what exactly that means can be
expected to vary from one issue and level of government to the next: getting an
ordinance adopted by a city council is a very different matter from amending a
constitution (especially the federal one), and it is prudent, to say the least,
to assume that the size of the backing one needs to have in order to justify
such action will increase with the magnitude of the issue and the level of government.
But however the relevant majority may be defined, it will always be the endorsement
of some citizens--not all of them--that is used to justify the action being taken.
Even if communitarians succeed in bringing about highly inclusive conversations about
the issues that matter to them, and through those conversations they are able to
achieve the kind of broad-based support they are looking for, inevitably some people
are going to benefit more from the laws and policies they favor than others. Indeed,
some people will not benefit at all; in their own minds, at least, they will be victims.
No matter how much communitarians cast themselves as defenders of the common good and are
justified in doing so, there will always be those who see the communitarian agenda as a
threat and are prepared to fight it. Some will do so out of nothing more than naked self-interest;
others will do so because they have a different understanding of what the common good is. But
whatever their reasons may be, those who react this way (e.g., the NRA) can be expected to do
everything they can to prevent the measures advocated by communitarians from becoming law, even
in the face of broad popular disapproval.
Such resistance cannot be expected to disappear once the legislation in question has actually
been adopted, either. It can be expected to continue in one form or another as long as any
significant number of citizens disapprove of the measure and would like to see it overturned.
Even if the ranks of the disaffected do not grow, therefore, it takes time--usually at least a
generation and often more--for any new law or policy that is an outgrowth of real controversy
to be accepted as a fait accompli. People's hearts and minds, as well as their behavior, need
to change if the same old battles are not to be fought over and over again indefinitely. This
is not something that can be expected to happen overnight, nor can it be expected to happen
automatically. Even the most sensible innovations in policy need to be implemented wisely if
they are to have anything like the desired effects, and even when that happens, they also need
to be interpreted intelligently if they are to win the kind of acceptance that makes for
No matter how strong and principled a democrat one may be, therefore, some degree of "soulcraft"
is inevitable if one is at all serious about effecting significant social change. Communitarians
are right to insist on persuasion as the correct way to go about pursuing such change in a democratic
society and to be wary, in turn, of any innovation that is unlikely to be achieved that way. But
there are limits to how far that commitment can be carried without undermining their ability to help
move the nation forward in the direction(s) they believe to be desirable. The more ambitious their
agenda becomes, moreover, the more evident that is. For it is just not possible to pursue seriously
anything like the aims that Amitai Etzioni (and other communitarians) have in mind when they speak
of "the good society" without doing more than just engaging people in conversation. In so far as
communitarianism is a political movement with a political agenda--which it clearly is--its purpose
is the passage of the right kind of laws every bit as much as the creation of the right kind of
public life. And the laws in question cannot possibly have the desired effect unless communitarians
(and all others who support them) are prepared to see these measures enforced and promoted in ways
that are designed to get all citizens--opponents as well as supporters--not just to behave differently
but to adopt a new outlook. There are better and worse ways to accomplish this, of course, and some
of them are undoubtedly more compatible with communitarian thinking than others. But there is no
getting around the fact that in one fashion or another, hearts and minds need to be changed, and
no matter how this is done precisely, it always entails the exercise of power.
The Bounds of Civic Morality
Thomas A. Spragens, Jr.
It is often said that "you can't legislate morality," yet Christopher Beem argues that "it is
extremely difficult and rare for government not to legislate morality." Civil libertarians
insist that we should not try to legislate morality, but some moralists, both reformers and
conservatives, nevertheless advocate the deployment of law on behalf of the moral principles
they champion. The fact is that all of these arguments can be correct without contradicting
one another because the central terms at issue are multivalent. Just as a recent chief executive
maintained in a celebrated jam, "it depends upon what the definition of 'is' is," the right
way to understand the relationship between morality and legislation depends upon what we mean
by "legislate" and what we mean by "morality."
The claim that morality cannot be legislated is correct if morality is understood in the
Kantian sense of actions motivated by a good will. The difficulty here is that forces of
external compulsion are ultimately unable to control internal states of mind, attitudes,
and desires. That is why Locke famously insisted, in his Letter concerning Toleration,
that not only was the state not entitled to use its powers to achieve religious salvation
for its citizens, but it could not accomplish that end if it tried. For if justification
before God is accomplished by faith and acceptance of grace, as Locke assumed, the determinants
of human fate reside in an inner citadel unreachable by legal mandate or proscription.
Beyond this empirical claim, some warn that it is simply improper for the state to even try
to legislate morality. This admonition rests upon a belief in the moral sanctity of the
soul, not simply upon its empirical impenetrability. It is the moral insistence upon the
freedom and dignity of the human spirit that animates our deepest convictions about human
rights, civil liberties, and the importance of personal autonomy. And those beliefs and
commitments place principled limits upon the legitimate purchase of state and social
power over peoples' hearts and minds.
One last important constraint on attempts to legislate morality in liberal societies is
that attempts to encourage "good morals" or to compel actions dictated by such moral
standards must be confined to norms of civil morality; they cannot properly extend to
norms of good behavior predicated upon controversial "comprehensive" moral and religious beliefs.
The law can legitimately be used--and sometimes should be used--to encourage people to act as
good citizens and to prevent them from acting as bad citizens. It should not be used to
coerce people to be good Christians, good utilitarians, or avatars of political correctness.
As John Rawls has reminded us in his recent writings, we live in a society where people
are committed to different conceptions of the human good. It is beyond our capacity to
adjudicate the competition among these comprehensive conceptions in any definitive
way--and it is certainly beyond the capacity and the right of the state to do so.
We can cooperate fairly and successfully as fellow citizens without trying to
enforce such contestable judgments upon one another.
The Role of Law
These proper limitations on the scope of the law can be overextended and improperly
construed, however. We should not be blind to the ways that law can encourage better
moral character, nor be dissuaded from using the law to improve behavior, even when
it is unable to change attitudes and intentions.
There are at least three ways that law can be used productively and legitimately to
foster good behavior and civic virtue. First, laws can properly compel people to act
in accord with the moral standards that inform our democratic system when they would
be disinclined to do so on their own. No social order is or could be ethically vacuous,
and a liberal and democratic society should not let its commitment to liberty and
tolerance lead it into a genial nihilism that undermines its constitutive purposes.
The classic examples here are the various enactments that protect citizens' civil
rights and liberties against those who would seek to suppress ideas, persecute
religions, or suppress and exclude other racial or ethnic groups. Where some
widespread disposition and commitment to fundamental ethical and democratic norms
is present, moreover, legal enactments can have the significant collateral
benefit of softening prejudice and enhancing intercultural understanding and
mutual accommodation. Second, the law can properly serve as the vehicle for
expressing the moral sense of the community with respect to the social obligations
it recognizes and the moral values it seeks to promote. Draconian strictures are
not the proper mechanism to employ here, but it is the legal recognition of these
obligations and values that provides a valuable and legitimate persuasive effect.
Third, laws can properly be used to encourage good traits of civic character through
the incentives resident within them; conversely, we must scrutinize legally enacted
social policies to ensure that they do not inadvertently induce negative dispositions,
character traits, and behavior patterns.
To summarize the practical imperatives generated by these several considerations,
then, we can say that legislators in a democratic society should not hesitate
to use the force of law to defend the fundamental moral standards intrinsic to
a liberal democratic regime. And they should routinely and carefully consider
the impact of their enactments upon citizens' moral habituation and perceptions--
and thereby upon their character and behavior. But they should also take care not
to overreach themselves by undertaking futile crusades, by engaging too coercively
or intrusively in attempts to refashion citizens' hearts and minds, or by seeking
to enforce on people contestable features of comprehensive moral systems that
transcend the domain of political morality.
Looking at some specific cases may serve both to illuminate these precepts and
to indicate that their deployment can be a tricky matter. Making these casuistic
judgments can be difficult for two reasons: it is not always clear when a relevant
boundary has been crossed, and the several principles may sometimes be in tension
with each other.
The civil rights acts passed by Congress in the years between 1964 and 1968 exemplify
an appropriate use of legal mandates to defend fundamental moral principles that lie
at the heart of democratic values and practices. Opponents invoked the bromide that
"you can't legislate morality" in debates over these acts, meaning that legal enactments
cannot force anyone to like and respect other people against whom they bear prejudice.
That is true, but in this instance irrelevant. For if the law cannot directly mandate
attitudes, it can require people to treat other citizens in a manner commensurate with
their status as rights-bearing civic equals. Moreover, the legal enforcement of
equitable treatment has in this case had a salutary indirect impact upon popular
attitudes and sentiments by affecting habituation and perceptions. Since much prejudicial
sentiment and behavior represents reflexive deference toward established social mores--for
example, the idea that it is simply normal and proper for different racial groups to sit
in different places--laws that force a change in social customs produce changes in perceptions
that in turn lead to important shifts in attitudes and behavioral patterns.
A proper recognition of the role that law plays in moral habituation, and therefore in
shaping attitudes and actions, suggests that American law both misses an important
opportunity and may bolster less than optimal civic attitudes and behavior by the way
it treats--or fails to treat--the moral obligation to assist those in distress. American
jurisprudence has often been reluctant to define as a tort a failure to intervene on
behalf of someone in danger or distress, and there are compelling reasons for this reluctance.
But where someone stands idly by and watches another suffer or perish when he or she could
have assisted without significant self-endangerment, that abdication of basic moral and civic
responsibility should be subject to penalty under the criminal code. A society delivers a
perverse moral message when it provides no legal sanctions whatsoever in cases like the
recent one in which a California college student did nothing to prevent his friend from
sexually assaulting and then killing a child in the restroom of a Las Vegas casino. We
may not be able to demand moral heroism of each other, but we need not accept the moral
cretinism that produces such a breakdown of basic civic responsibility.
It is also both prudent and proper for a democratic society to take into account the likely
consequences upon civic character and social morality of laws and social policies concerning
social support services and reallocation of income. As Michael Sandel has persuasively
argued in Democracy's Discontent, this kind of consideration was quite common for much of our
history. Perhaps because of our deepened moral pluralism and the notion that a liberal
polity must remain neutral vis a vis competing conceptions of the good, we have tended in
recent decades to bracket, ignore, or suppress such concerns. But, as Sandel insists, this
inattention to the impact of social and economic policies is neither required nor prudent.
A democratic society need not ignore and cannot be indifferent to the ways its legal arrangements
foster or discourage attributes of good democratic citizenship such as self-reliance, self-respect,
social responsibility, and public spiritedness. Since the ways we organize our work lives and the
criteria by which we reallocate income can have significant consequences for such components of
our collective civic character, canvassing and assessing these consequences should always be a
legitimate part of policy discussions in this area.
If these last two examples arguably represent lost legitimate opportunities to use law in
support of morality, in other instances we have--by the standards I set out above--transgressed
the relevant boundaries and undertaken to legislate morality in unwise and/or improper ways.
Prohibition was one obvious example. Society had the right to try to protect itself against
the ills produced by alcohol abuse on grounds both of collective prudence and distributive
justice. But outright prohibition of liquor sales was an exercise in futility, and it arguably
was too intrusive in its attempt to regulate private behavior. Moreover, to the extent that it
was animated by a belief that alcohol consumption was intrinsically wrong in some moral sense,
the policy of prohibition constituted an illegitimate attempt to enforce upon recalcitrant
subjects a contestable comprehensive morality they rejected. When it comes to the consumption
of potentially destructive substances such as drugs or alcohol, the wiser and more appropriate
strategy is to avoid enforcing moral condemnation through legal proscription of consumption
and instead to deploy the full force of the law against the collateral social offenses sometimes
produced by that consumption. Rather than, for example, having a high drinking age, it would be
far better to institute stronger and rigorously enforced penalties for public drunkenness and DUI.
Laws that criminalize specific forms of what some consider to be sexual immorality or perversion
are also improper attempts to legislate morality. I refer not to crimes such as sexual assault or
the seduction of children. Here there are victims, real and potential, who are entitled to protection
by the organized force of society. Instead, I have in mind laws such as anti-sodomy statues or anti-polygamy
statutes--both of which criminalize consensual relationships between or among adults. Once again, these
laws fail on all counts: they are largely ineffectual, they are improperly intrusive in people's private
lives, and they seek to impose contestable comprehensive moralities rather than to encourage civic morality.
Singling out for distinctive punishment crimes based on animosity towards a particular group
(i.e., hate crime laws) and making alienation of affection--breaking up a marriage by causing
one spouse to lose affection for the other--an actionable tort represent interesting and
difficult borderline cases in attempts to legislate morality. It is entirely proper for a
pluralist democracy to stigmatize racial/ethnic/cultural hatreds and to discourage violence
or intimidation based upon them. Using the public status of law to express our communal
reprehension of these prejudices, and designating punishment for crimes they engender, is
therefore both reasonable and proper. The question here is how to do so without dragging
the law into quagmires and creating other ethical dilemmas. To prosecute the killers of
James Byrd and Matthew Shepherd for committing hate crimes rather than solely for murder
may express justifiable social condemnation and enhance deterrence. But enforcing such
laws requires the difficult task of determining the killers' motivations, which may prove
more distracting than edifying. And enacting harsher penalties for these genuinely detestable
offenses raises other moral conundrums: Is it morally worse, say, for someone to be animated
by ethnic animosity rather than by undiscriminating sadism? Rather than putting hate crimes
in a different category from overtly identical offenses that might be differently motivated,
it might make more sense to designate "group intimidation" as a distinct and separate offense
with specific sanctions of its own. For example, burning a cross on someone's property may
be categorized and penalized differently than burning a campfire there. This way of dealing
with the problem could produce the desired deterrent and hortatory effects sought by proponents
of hate crime legislation while avoiding some of the attendant difficulties.
Similarly, it might be preferable to change the status of alienation of affection actions,
in jurisdictions that still recognize them, from a civil tort to a criminal offense with
token sanctions. In that way, such suits might not be the morally and evidentially problematic
tactic in bitter divorce cases they generally are today while society could nonetheless signal
its condemnation of those who actively encourage others to abandon their marital commitments.
Reasonable people may differ about the best ways to deal with specific cases like these and with
the issues they present. Sorting out these questions is part of what democratic deliberation
should be about. The important point is that these deliberations need to be conducted whenever
the interplay of law and morality becomes an issue, as it often does. And they need to be
conducted with reference to the criteria and considerations I set out earlier. The opposing
extremes that border these efforts to negotiate the interaction of law and morality are both
unacceptable. It is both improper and self-defeating for a liberal democracy to succumb to
the crippling simplicities of a legal positivism that insists upon enforcing a mutually
exclusionary categorical distinction between law and morals: liberal democracy is not morally
neutral but instead is predicated upon substantive moral commitments it can and should defend.
On the other hand, the epistemic humility, the social pluralism, and the respect for personal
dignity and autonomy that inform and characterize today's liberal democracies make it improper
and dangerous for them to conflate law with morality--something that is possible only for
regimes that seek to become republics of virtue engaged in exercises of comprehensive soulcraft,
not an available option for liberal societies. Instead, the wise and proper course is to use
the force and the legitimating value of law to defend our fundamental constitutive ideals and
to encourage the liberal civic virtues--but to do so subject to the principled constraints
that we must recognize as appropriate upon all public action.
Lawmaking in a Good Society
The issue Christopher Beem's text raises is pivotal for communitarians: Why should we not
be much more willing to enforce the good through law? If one can enact civil rights reforms,
minimum wages, and welfare reforms--why not ban abortions, divorce, and homosexual activities?
Liberals can avoid this issue because they basically hold that there should be no shared
formulations of the good, thereby ensuring that no one will be forced to heed them.
I write "basically" because there are several nuances and qualifications to the basic
liberal position, variations to which liberals attribute great significance--but, as
I see it, these variations do not alter their basic position. Thus, some liberals,
evoking the work of Isaiah Berlin, are willing to define some conduct as beyond the
pale but insist that all other formulations of the good are equally legitimate. Others maintain
that a few virtues (e.g., teaching citizens to think critically) must be promoted by the
liberal state because they are needed to maintain its liberality; Tom Spragens refers to
these as the "traits of civic character." Still others are quite willing to enact laws
that protect civil and individual rights. These laws are considered legitimate because
they protect the individual from the state rather than encompass a morality enforced
by the state. Also, these rights are viewed as truths whose validity any "rational"
person would recognize, or they are considered to be "natural" or self-evident--but
not based on a community's shared formulations of the good.
Beyond the well-known liberal objections to legislating morality, and the already
listed limited exceptions, liberals escape the Beem challenge in a way they are much
less willing to acknowledge: they justify policies based on those substantive values
of which they do approve, with what amounts to a philosophical slight of hand. They
deny that shared formulations of the good inform these policies, instead finding some
other way to endorse them. Thus, some liberals who favor the minimum wage support it
not in the name of a substantive conception of social justice, but either because it
can be said to protect some inalienable right, because poorly paid people will make
inattentive citizens, or in the name of some abstract concept of fairness that "every
rational person" would endorse. Some who favor stewardship of the environment, a
common good par excellence, claim that environmental laws should be respected because
individuals choking on polluted air cannot conduct themselves as citizens of a liberal
state must, and so on. But such links are not found for those additional substantive
values that others hold dear.
Spragens helpfully narrows the issue by pointing out that not all legislation is coercive.
Some of it is merely expressive, encouraging good traits, honoring good deeds. However,
this is a narrow escape hatch since most legislation--maybe 99 percent of it--has a coercive
element in addition to any expressive one. (Taxing, of course, is included.)
A major difficulty with the liberal position is that it does not deal with the protection
of children. Children do not fit into contemporary liberal formulations, which implicitly
assume that people are born at age 21 with their individualized values fully formed.
(Once one acknowledges that values are acquired through the processes of moral education
that draw on the shared moral culture of the community, one cannot avoid questioning why
one should oppose the influence of such a culture on a person of any age, given that
people's character requires continued communal reinforcement.) Thus to favor legalization
of drugs and drinking underage, as Spragens implies that he does, does not take into
account the effects of such measures on children, who are unable to form responsible
judgments and who, once addicted, tend to remain addicted when they become adults.
Indeed, protection of children, especially those 13 and younger, is a major substantive
value communitarians should endorse (and the state should enforce) unabashedly because
children are a major social good--and a particularly vulnerable group.
(The same is true of older senior citizens.)
Which takes us right back to the Beem challenge. How are we to tell those values that
are to be enforced by the state from those that should be supported only by the
moral voice of the community?
Prudential considerations apply. If a law cannot be effectively enforced
(or if it can only be enforced through undemocratic means) or if it has
major corruptive effects, it has at least one strike against it--especially
if it suffers from both of these faults. Prohibition seems to be everyone's
favorite case in point.
Bruce Douglass introduces another major consideration: a value must have
"broad" political support for it to be properly codified through law.
Some might see this position as majoritarian. That is, as moral differences
in a democratic society that concern public policies must eventually be
brought to a closure, a majority in the legislature should carry the day.
Indeed, this is a very common occurrence in the United States Congress
these days, where laws are enacted by very thin majorities. Civil rights
reforms had such a majority and hence were legitimately turned into laws;
banning abortion and divorce do not, and hence stay off the books.
Another interpretation of "broad" support does not directly concern the political process.
We must, as Douglass notes at one point, put a high premium on persuasion. As I see it,
there are basically two rather different kinds of laws: "bare" ones--laws that have been
somehow pushed through the legislature by a narrow interest group, using trade-offs, campaign
contributions, or some other stealth technique--and "covered" laws, which reflect a shared
moral understanding, reached through a prolonged and well-developed moral dialogue. This
understanding is much wider than a mere majority, often encompassing 70 to 80 percent of the
public, and is much deeper than a mere vote because people's values have been engaged and
changed. (This leads not merely to much stronger support for a law than a majority vote does,
but it also leads people to change their behavior voluntarily and hence minimizes coercion.)
While prohibition is a bare law par excellence, a ban on smoking in public places is my favorite
candidate for a well-covered law. It was enacted after a very prolonged and persuasive dialogue
brought about a law that is widely supported and almost completely self-enforcing--a communitarian
masterpiece. In between these two ideal types, on the bare side of the continuum there is bussing,
opposed by the majority of whites and blacks; on the covered side, laws requiring the immunization
One may say that policies concerning smoking and immunization involve matters of public health and hence
do not rest upon moral commitments but upon self-interest. This is hardly the case. If the matter were
left to self-interest, selfish parents would often assume that they need not accept the very small risk
to their child and the trouble involved in immunizing them because other parents will immunize their
children (what is called the "free rider" problem). To gain broader support for these policies, moral
commitments to the common good are required. Similarly, for those who smoke, not smoking in public is
an act of foregoing some pleasure for the sake of others' health. Though they continue to endanger
their own life through smoking, they have come to recognize that they should not endanger the lives
All this does not mean that any law endorsed by very large segments of the public as morally sound should
be enacted. We have not a majoritarian but a constitutional democracy; all morality enforcing laws that
offend the constitution and its Bill of Rights--for example, those that would force marriage--should of
course not be enacted, despite whatever amounts of support they have (unless it is under the very
exceptional condition that the support is strong enough to pass a constitutional amendment). And
vice versa: enforcement of the Bill of Rights requires no majority votes. (When laws do not directly
seek to violate rights but seem to impinge on them at the margin--by banning hate speech on campuses
that receive federal funds, for instance--it is typically left to the courts to decide whether basic
rights have been offended.)
Moreover, for those laws that are enacted, we can grant exceptions to certain minority groups.
Although the rest of the nation can be expected to follow one law, reflecting one set of values,
those who strongly hold to a different set can be granted a waiver from this particular law,
making enforcement less insensitive to what we have concluded are legitimate value differences.
The Native American Church's use of peyote for religious ceremonies is one such exception. The
criterion for allowing these exceptions is itself subject to the formulation of shared moral
understandings. For instance, some hold that we ought to consider whether the behavior in
question infringes upon a compelling public interest.
Both Beem and Douglas may well ask: Cannot legislation itself be used to form new moral understandings,
and isn't this sometimes appropriate? Before I can get to the core of this matter, I must clear
away some of the underbrush.
Surely legislation can be used to trigger a moral dialogue. Indeed, sometimes laws are introduced--despite
the fact that most everyone realizes that they will not be enacted--to launch or to nurture a moral
dialogue. For instance, some 20 bills to make divorce more difficult were introduced in the last two
decades of the 20th century in Midwestern states. None were vigorously advanced, none were enacted.
But they did help call attention to the issue.
Also, minor matters may be settled through legislation which, once enacted, people will accept as legitimate
although they have not been previously involved or considered in the matter. For example, a legislator
may determine how many hours high school students may work in fast food restaurants. However, this presumes
that the basic matter has been settled: they should be allowed to work there in the first place, even on
school days, and so on.
We should note, though, that there is a tendency to turn even relatively small legislative matters into symbols for
much more significant moral issues. For instance, Germans have refused to change a regulation that requires
chefs to prepare pork for their cooking exam, despite appeals from Turks to allow turkey instead. This
conflict--as in so many "minor" ones--bespeaks a much more important issue: the Germans are not quite
prepared to cease to see themselves as a Christian nation (and as an "immigrant country" in which "foreigners"
come to stay and become members of the community). Thus, without moral dialogues preparing the ground,
often even seemingly small legislative matters cannot be settled, let alone the larger issues that they
What about major matters?
Often reference is made to a military base commander who ordered desegregation of his base prior to the
executive desegregation order of 1948. The rhetorical question is repeatedly asked: Why cannot the
commander-in-chief, the president, follow suit and lead Congress to increase the minimum wage, enact
national health insurance, or whatever else the petitioner favors? I should first note that we know
precious little of what happened in that blessed military base. Was the command to desegregate preceded
by moral dialogues? Did the command merely lead to new behavior, but not to moral endorsement of the
new conduct? We know one thing, though, most assuredly: we do not run a democratic nation the way military bases are run.
To push the point, people who cheer for the law to truly lead on major matters and for moral endorsement to follow--thereby
pushing people rather than merely hastening the pace of their dialogues--presume in the back of their mind that the
legislation will be in line with values they cherish. However, the impropriety of such a reliance on the law becomes
all too evident if we imagine that the law is used to enforce a value we do not share. What if, say, the law required
us all to attend weekly meditation sessions in Buddhist temples? To give 10 percent of our income to a church of our
choice? Of course, one could think of much more troubling examples.
In short, laws can legitimately trigger, nurture, maybe even quicken moral dialogues to some extent, but legislating
a major change in conduct will by itself not lead to moral support; on the contrary, it is likely to provoke well-justified
opposition. It is not merely imprudent to so act, but also a profound violation of our understanding of how a good
(not merely democratic) society functions.
Furthermore, it is legitimate to try to raise or reinforce support for legislation through peaceful demonstrations,
sit-ins, acts of civil disobedience, and strikes. If they successfully appeal to latent values within the public,
generating new public support for a cause, their effect should not be thought to delegitimize the legislation that
follows. However, if violence is employed, the opposite is true because it undermines the democratic process and
because it entails forcing the majority to heed the values of a small group.
So where does all this leave the question Beem's text evokes? A communitarian can readily agree that the basic liberal
line against enacting shared formulations of the good, even if redrawn some, is difficult to hold. There is clearly
room for enacting legislation if it is based on truly shared moral understandings, but only if it follows a prolonged
and encompassing moral dialogue; if it has gained wide support, well above a mechanical majority (say, 70 to 80
percent of the people); if it does not offend the Constitution; and if it can be effectively enforced. Banning abortion,
divorce, and homosexual activities fail to meet all these criteria. Stewardship of the environment does not, and--
I would argue--neither does better protection of young children from violent material, abusive marketing (e.g., of Alcopops),
guns (e.g., through mandatory locks and gun-free zones around schools), and pedophiles (Megan's Laws), among others.