The constant or determined repetition of an error does not make it true. Errors are errors regardless of their prevalence or the persistence of those who advance them. Indeed, given the egregious foolishness of some of our most widespread beliefs in the recent past, the great popularity or predominance of a notion sometimes is enough to raise suspicions about its truthfulness. We moderns too eagerly and too often live our lives on the basis of insupportable, indefensible, half-true “truisms” that cannot stand up to close analysis. The assertion that you cannot legislate morality is just such a notion. No matter how often one hears that you cannot legislate morality, the truth is that you can legislate nothing else.
All laws, whether prescriptive or prohibitive, legislate morality. All laws, regardless of their content or their intent, arise from a system of values, from a belief that some things are right and others wrong, that some things are good and others bad, that some things are better and others worse. In the formulation and enforcement of law, the question is never whether or not morality will be legislated, but which one. That question is fundamentally important because not all systems of morality are equal. Some are wise, others foolish. Few are still in their first incarnation, nearly all having been enshrined as law at some time or place, often with predictable results. For better or worse, every piece of legislation touches directly or indirectly on moral issues, or is based on moral judgments and evaluations concerning what it is we want or believe ought to be, what it is we want or believe we ought to produce and preserve.
LAW, MORALITY, AND THE FOUNDING OF AMERICA
When the Founding Fathers drafted our original Constitution, they did so on the basis of competing belief systems, competing assertions of right and wrong, which they endeavored to build into the Constitution. One or more of those belief systems permitted slavery, others did not. No side in the slavery debate at the Constitutional convention argued that you could not legislate morality. They all recognized that notion as balderdash. They knew that indeed you could legislate morality, and they intended for that legislated morality to be theirs.
Nor did any side in the struggle to legislate morality at our nation’s founding say to its opponents that trying to legislate morality was a breach of the wall of separation between church and state. Morality, after all, is not a church. They would have laughed at the confusion of mind revealed in one who thought that separating church from state meant separating morality from law. They wanted the nation to be moral. They wanted its laws to be just. But they did not want to give any one church a national legal advantage over the others. They did not want the nation to be Presbyterian, Baptist, or Roman Catholic, which is a far different issue from whether or not to have ethics-driven law.1 Under the Constitution the Founders enshrined freedom of religion, not freedom from religion. In seeking to avoid a state-established church, they were not thereby establishing secularism or separating law from morality.
The very fact that the Founders were creating a new Constitution for their fledgling nation arose because they understood the actions of King George to be morally evil, and politically unjust.2 They all knew quite well that morality belonged in politics, in fact that politics was simply morality applied to the public square, to the public’s business.
The Founders sought to establish what they called an “ordered liberty.” The order they sought was provided in part by the morality they intended to enshrine in law. By seeking ordered liberty, the Founders were not seeking anything new or unprecedented in political thought or in political history. They well knew from reading the ancient words of Aristotle, for example, that morality encoded in civil law helped to provide order, since law inescapably has a teaching function, or pedagogical effect. Law teaches the citizens what is right and good, and it punishes those who cannot or will not learn that lesson. CONTINUED
Adrienne from Adrienne's Corner has a good posting on this subject here. Please go and check it out.