The Limits of Legislating Morality

Yes, it is acceptable to legislate morality. But simply passing a law is not the end of the story. 

What do the War on Drugs, the Eighteenth Amendment and abortion practices prior to Roe v. Wade have in common? They’re all evidence — supposedly conclusive — that every time the government tries to “legislate morality,” it fails.

The argument over whether the government should involve itself in regulating individuals’ moral behavior is unusual in that supporters of either side of the argument span both sides of the political aisle. The three examples mentioned above are more often deployed by libertarians or those on the left, but even the more traditional right is prone to adopting such a stance at times.

Justifying his opposition to the Civil Rights Act of 1964, Senator Barry Goldwater (R-Ariz.) claimed that, despite his personal opposition to racial segregation, “you can’t legislate morality,” and thus that he would oppose the bill. More recently, opponents of lesbian and gay Americans’ civil rights have condemned governmental moves to protect their access to basic goods and services as unruly attempts to implement new morals by law.

Nothing obscures political dialogue in quite the same way that a vague truism does, and the debate surrounding legislating morality is no exception. While it is so often used in the defense of socially progressive causes, the maxim against legislating morality is sufficiently vague that it can be used to oppose virtually all government action.

Instead of clinging to this useless and mostly false platitude about legislating behavior as a whole, it makes more sense to consider what kind of morals we can legislate, let alone what kind we should.

It is difficult, if not impossible to think of any public law that doesn’t touch on “morality” in its broadest sense. Morality is nothing more than a system of rules intended to control our behavior — in this sense almost indistinguishable from the law. But of course, not all behaviors are created equal.

A stockbroker on Wall Street considers the pros and cons of breaking federal financial regulations is in a completely different situation and mindset than a woman seven months pregnant in Alabama deciding whether or not to visit a late-term abortion clinic illegal in her state. It’s true that both these scenarios involve public laws dictating a certain moral code sanctioned through legislation. Nevertheless, there’s a wide gap between how the individuals in each situation would make their decisions.

Most immediately obvious is the disparity between the level of personal immediacy — and thus the level of emotional influence — in each of the above examples. The decision to defraud investors is probably never going to be as intensely personal as the decision to terminate a pregnancy. Legislated morality will always be a relatively significant factor in a stockbroker’s decision whether or not to act upon motives of superfluous greed, but it pales in comparison to the impact of abortion laws that can have the immense, lifelong emotional and personal repercussions of an unwanted pregnancy brought to term.

Another situation where laws against certain behaviors appear useless is the oft-maligned “War on Drugs.” According to data from the Department of Health and Human Services and the Drug Enforcement Administration, illegal drug addiction rates in the United States have not only remained steady since the early 1970s, those drugs have actually become cheaper on average.

Drug use — particularly addiction — does not represent a behavior chosen rationally. Legal penalties are insufficient to affect an addict’s irrational behavior on an individual level and obviously remain far from helpful on a societal level. Regardless of whether our moral code approves or disapproves of recreational drug use, it is clear that government intervention will do little to change participants’ minds.

Whether a law deals with morality on the emotional and the private level or the rational and the public more often than not strongly indicates whether that law will be effective. Certainly, there are exceptions — one example that comes to mind is the law on traffic lights, which deals with something very public and ostensibly unemotional, but is regularly ignored.

However, this distinction between behaviors that can and cannot be legislatively controlled holds true for the most part. Historically, movements that recognize the limits of legal power to change behaviors have had the most success in creating social change. Often, the failure to distinguish between public and private, irrational behaviors causes some, like Goldwater in his vote against the Civil Rights Act, to oppose valuable public reform.

Countering Goldwater in a February 1964 interview with the US News & World Report, Martin Luther King, Jr., emphasized the over-simplicity of equating private morals with the public good.

“While the law cannot change the heart, it can certainly restrain the heartless,” King said. “We aren’t trying to legislate love. We are trying to legislate issues that regulate behavior.”

A difficult compromise must be reached. We have to both recognize and respect the unassailability of individuals’ private moral practices and behavior while simultaneously recognizing the existence and importance of our shared social morality. This is why it’s unacceptable and impractical for the federal government to outlaw the use of contraceptives or marijuana, yet imperative for it to legislate on issues relating to the status of racial, religious and sexual minorities in the public sphere.

Yes, legislators can “legislate morality” in the sense that they can and do pass laws in support of a certain moral agenda. But this conclusion is so obvious as to be almost completely useless. Whether legislation will actually affect a change in people’s moral behavior is another question entirely — one which such a simple question fails to address.

Lawmakers and activists should be concerned both with what kind of morality a law backs as well as how effective it would be in practice. Anything else is either wrong, doomed to fail, or both.

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