Volume 11, Issue 4, Fall 2001

A Symposium on Legislating Morality

Can Legislation Solve Our Moral Problems
Christopher Beem

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 enterprise.

Democratic Soulcraft
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 lasting approval.

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.

Legislation's Limits

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
Amitai Etzioni

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?

Guiding Criteria


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 of children.

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 of others.

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.

Advancing Dialogues

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 reflect.

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.

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