Legislation: The Moral of the Story

The controversial Ten Commandments display at ...
The controversial Ten Commandments display at the Texas State Capitol. (Photo credit: Wikipedia)

It feels to me (and Google seems to bear the feeling out) as if not a minute goes by without someone asserting “you can’t (or shouldn’t) legislate morality” and someone else retorting “oh yes you can (and should)!” This is a pet peeve of mine. Please bear with me as I explain why the peeve is important and why it  underlies nearly the entirety of political discourse.

What does it mean to “legislate morality?” Well, let’s break the expression down.

“Legislation” refers to passage of rules or laws by political bodies. These rules are generally understood to apply to everyone within a legislature’s claimed jurisdiction.

“Morality,” per Webster’s, is “the quality of an action which renders it good; the conformity of an act to the accepted standard of right.” Its opposite, “immorality,” would then be that which is bad, or which violates the accepted standard of right.

There are two kinds of legislation: The kind which prohibits some activity, and the kind which compels some activity.

A law forbidding  use of heroin is a moral claim — the claim that heroin use is WRONG.

A law compelling payment of taxes is also a moral claim — the claim that supporting the state financially, whether you feel like doing so or not, is RIGHT.

What looks like a third kind of law really isn’t. Laws that “allow” some activity while subjecting that activity to various regulations are just complex mixtures of the aforementioned prohibitions and compulsions.

There’s a moral claim at the bottom of every law. If you are legislating, you are legislating morality. Every time. No exceptions.

The real question that all this “can’t/can legislate morality” nonsense obscures is “WHOSE morality?” When we reach that question, things tend to break down into arguments over “America as a Christian nation” versus “secular humanism for the win” and so on.

The only political idea offering a plausible resolution to these arguments for a nation of 300 million plus individuals of varying moral persuasions is libertarianism.

That resolution is, oddly, one which can only be characterized with a phrase that most people denounce when it’s applied to politics: “The lowest common denominator.”

Libertarians believe that legislation should only prohibit, not compel, and that the only thing it should prohibit is the initiation of force. So long as you’re not  killing, raping, assaulting or stealing from others, you should be left free to practice whatever moral code appeals to you — and to gain adoption of that moral code by others through persuasion rather than through force.

For a country torn by moral and political conflict, as ours is, libertarianism is the only political idea that lets us answer “yes” to the question “can we all get along?”

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.


Also published on Medium.