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Wednesday, January 22, 2014
Rights and Rites and Right and the Right: Part One

I am attempting to reason my way through, first, some basic American principles and, second, their possible applications to some thorny modern questions. Eventually -- not today -- I'll get to the question of same-sex marriage itself.

We're on our way to a discussion of same-sex marriage, but first we have to lay some groundwork. Today's portion considers law, morality, and their intersection in a relatively free society. This particular train of thought leads me to a conclusion you may not like. I have not always liked it. I am interested to learn whether it leads you there, as well.

Moral Principles in Common

In a healthy, reasonably free nation, law is an expression of the common morality. Absolute consensus on any moral point is rare, but we generally concur on some fundamental principles. For example, there is general (if not quite universal) agreement in American society that murder, rape, battery, and theft are wrong and can appropriately be judged and punished by government. So we outlaw these evils and punish the perpetrators as criminals.

In such a nation there is also general consent that we will work through established, peaceful processes to create, repeal, and amend the law. We acknowledge, usually implicitly, that we will accept the processes and institutions of constitutional government in our democratic republic as the official instrument for measuring (among other things) the collective moral will of the people and our collective sense of what behaviors should and should not be subject to the law. Please note that general agreement is much broader and less volatile than simple majority opinion. We routinely and properly protect the rights of minorities against majorities in a variety of ways, but that picture becomes clouded when we consider the small minorities who do disagree with what is generally agreed upon. I certainly would not claim that the general consensus is always just -- only that it is the best we have at a given moment.

Our governmental processes and institutions are designed such that a simple majority opinion is not enough to enact fundamental change in the most important matters. We deliberately subject proposed fundamental changes to slow and complex processes. The cumulative effect of our representative government, the separation of powers, federalism, fixed terms of office, and bicameral legislatures is to make it difficult for a simple, small, transitory majority to make dramatic changes quickly in American government or society.

Why Would Things Ever Change?

You might wonder why we would need to "create, repeal, and amend" the law which expresses and institutionalizes our shared sense of morality. Many people believe that moral principles -- the basic definitions of good and evil -- are unchanging; I myself believe this. So why would the laws reflecting them need to change? Why should we ever allow them to change? Why would we even have mechanisms for changing them?

There are at least two reasons.

First, some change is good and necessary. Sometimes we must modify the law so that it more perfectly reflects our principles. This process in itself can be protracted and grim, but in the long run a closer match between our principles and our behavior is a good thing. We improved our national commitment to the dignity and freedom of individual humans by banning first the slave trade, then slavery itself, on which the economy of a large part of the United States once depended. We improved it further by banning discrimination on the basis of race or creed. We extended our commitment to property rights by adopting laws protecting intellectual property. We improved our practice of the principle of self-government by acknowledging that women, too, have a right to vote. Such changes show the increasing penetration of historically American principles into American society and behavior.

The second reason for modifying our laws is that the set of moral principles we generally share changes. I'm not saying that divine or natural law or moral principles themselves necessarily change, but our sense of what they are and how they apply to our lives certainly does. The set of principles and applications on which we generally agree today is almost certain to be different from the set we had in common ten or twenty years ago. The ways in which we balance our core principles against each other in the face of events and circumstances is also dynamic. Even our sense of which principles are suitable for enforcement through the law evolves. Because we are not God, we must allow room for improvement.

Allowing for things to get better opens the possibility that things may get worse. You hardly need me to tell you that some of the changes in our moral landscape may not be improvements. I'll leave you to list your own examples.

Here's Where It Gets Dicey

Here's the hard part: In what I called "a healthy, reasonably free nation," when a moral principle ceases to be generally accepted in society, the government properly ceases to enforce it, by changing or repealing relevant law. The same is true if we cease generally to think that a principle is suitable for enforcement in the law, even if we still accept the principle.

This is not the same as declaring that the fading principle is not true. This is not the same as saying that people who still believe it must be silenced or compelled by force of law to violate it. We can teach, preach, and persuade all day and into the night. But we must cease to use the law to enforce on society a principle which society no longer generally accepts or no longer believes to be a proper concern of the law. We must do so even when we still believe that principle to be true, and even when we believe that society will self-destruct if we neglect that principle for long. To reinstate such a principle legitimately in law, we must first persuade the generality of society to accept it again, both as a pillar of our civic morality and as something which criminal law should address.

I did not just say that we who have moral principles which are reflected in the law must immediately surrender every moral point. The law is not our only tool for changing or protecting our civilization. It is not even our most powerful tool. If we are consumed by our passion to embody (or protect) our moral principles in the law, one of the sad consequences is that we neglect to use other, better tools.

Society's movement in these matters is rarely linear and steady. But consider, for example, the several states which have recently legalized the sale, purchase, possession, and smoking of marijuana. The general sense in these states is that getting high on weed is not morally wrong, and a growing majority appears now to accept the idea that it is not sufficiently harmful to society (whether right or wrong) to continue to be banned.

Consider another example. There used to be laws against adultery. It's possible (though I don't recommend it) to construe sexual infidelity among married people to be an offense against a marriage licensed by the state, and therefore against the state itself. Even if there is still a general sense among most people -- as I think there still is -- that cheating on your spouse is morally wrong, there is now a general consensus that it is not something society should punish as a criminal offense. So adultery laws are rare, and any that still exist go unenforced. Whether this evolution is a tragedy for morality or a triumph for freedom and privacy is a matter of opinion, I suppose. Perhaps it depends on the relative weight of individual freedom in our personal morality.

It can be difficult to accept that our freedom requires respecting others' freedom, even when we're morally right and they're morally wrong. Yet it is an important test of an individual's commitment to freedom. This is an especially bitter pill, I know, where matters such as abortion and the legal definition of marriage are concerned.

Difficulties notwithstanding, I cannot escape the conclusion that, where there is a proper respect for human freedom and a proper commmitment to limited government, there must also be a general sense that, outside the bounds of our basic, shared civic morality, it is wrong for me to use the force of law to impose my particular moral principles on you -- even if I am still in the majority at some level of government, and even if I'm right, which, of course, I sometimes am.

Perhaps you want all of this to be simple. That is the one thing it cannnot be. There are hundreds of millions of living humans in this picture, not just diverse moral and religious principles intersecting hypothetically in a free society.

The Familiar Pillars of Our Civic Morality

I believe it is important that I don't need my particular principles to come to what I have said; all I need is some historically American principles, which I choose to believe we still have mostly in common.

Our American civic morality is grounded in these familiar words from the Declaration of Independence: "life, liberty, and the pursuit of happiness." We call these inalienable, God-given rights. We declare that they are inherent in each human soul, not granted by government.

Bear in mind that "the pursuit of happiness" means not my right to chase happiness, but my right to live, within the reasonable bounds of legitimate law and of others' similar rights, in the manner which makes me happy -- not the manner which makes you happy or which you think should make me happy. Outside the general moral consensus, as measured (imperfectly, I admit) by our institutions of representative self-government, if you feel it is in your moral, economic, or political interest to adjust my pursuit of happiness in some manner, you must, in deference to my freedom, confine your efforts at reforming me to persuasion and example. You must not resort to the force of law.

It's not yet apparent, but this was never intended to be a purely theoretical discussion. Next time, I'll make it obvious. We won't get all the way to the subject of same-sex marriage in the next post, but we're moving rapidly toward that topic. Stay tuned.

David Rodeback comments (1/24/2014):

Utah State Senator Stuart Reid defines himself as part of the problem -- the problem in this case being that some religious people are hostile to legitimate human freedom -- with these words, quoted in the Daily Herald. They are a formula for tyranny, dressed up to sound as if we're saving humanity. "If a moral society is to be preserved, we must organize and petition all branches of government and other leaders and rulers to protect the moral well-being of the many."

Anyone who thinks that government should protect the moral well-being of the many, rather than reflect the moral well-being of the many, wants government to have far too much power. If moral society is to be preserved, we must persuade society to be moral -- not persuade government to force society to conform to the morals of the majority du jour or the loudest faction.

On a related theme: Anyone who thinks that my religious freedom is infringed if I'm not able to use government to enforce my moral principles on society either hasn't thought things through, or prizes something other than religious freedom.

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