Legislating Morality

Legislating Morality

A continuing debate in America revolves around the concept of legislating morality. With moral and social concerns taking a back seat to economic and international concerns, those who desire to eliminate moral issues from the public square are pushing their views with renewed intensity. Unfortunately, they are currently winning the battle. Can we and should we “legislate morality” and if so, how should it be done? Let’s consider some underlying information that should guide the debate.

1. The Basic Concepts presented in The Declaration of Independence.

The Declaration of Independence, adopted by unanimous consent of the United States Congress on July 4, 1776 is the most significant of our nation’s founding documents. It laid the groundwork for our U.S. Constitution. Among other statements, it declares that all men (people) are created equal. Thus it acknowledges equality for all, rooted in God’s work of creation. The Declaration further asserts that men are endowed by their creator with certain unalieanable rights. They are unalieanable because they are God given, not man given. Life, liberty and the Pursuit of Happiness are listed as being among the people’s God given rights. Then the Declaration affirms that governments are instituted among men to secure these rights, noting that governments derive their just powers from the consent of the governed.
These basic concepts are extremely important. Morality and immorality are related to the issue of rights. For instance, in the continuing debate over abortion, the issue boils down to the rights of the woman versus the rights of the child and whether government should play a role in that debate by passing legislation regarding those rights. Government should not ignore the issue as some suggest, because rights are at stake and government has the responsibility to secure those rights.

2. Governing Principles of the U.S. Constitution.

On September 17, 1787 the U.S. Constitution was signed by 39 delegates to the Constitutional Convention and on December 15, 1791, the first ten amendments, known as the Bill of Rights, were added through the ratification process. The Constitution was written in an attempt to express in law the concepts set forth in the Declaration of Independence. While some issues were initially handled very poorly, an amendment process was included in the Constitution, which has, since the first 10 amendments, provided another 17 amendments to the Constitution. This document, as amended, is the law of the Land.
The Constitution begins with the well known statement from the Preamble, “We the People”. This statement makes it clear that the government has been established by the people and therefore government is ultimately responsible to the people.
Article I, Section 1 declares that, All legislative powers herein shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. By this article the people give to an elected congress the authority to pass laws for the country, though the powers of Congress and Limitations of Congress are clearly stated in Article I, Sections 8 & 9. But the critical point is that according to the Constitution, every law must be passed by both the Senate and the House. Neither the Executive or Judicial branches of government have been given legislative powers.

3. The Role of the Judiciary.

Judicial Review is considered to be a part of constitutional law, though the Constitution no where explicitly provides for it. It has undermined the Constitution as much as any practice of government. Judicial review is an assumed power of the courts to rule on the constitutionality of laws and treaties, and to rule on whether regulations established under law are consistent with the Constitution.
Judicial Review was practiced in some measure among the states before the Constitution was passed and the practice was discussed during the Constitutional Convention. This power of the courts was generally agreed upon, but the arguments from each side are significant. In Federalist Paper #78, Alexander Hamilton stated, “The courts were designed to be an intermediate body between the people and the legislature, in order among other things to keep the latter (the legislature) within the limits assigned to their authority.” Hamilton went on to say that that there was no supposition of superiority of the judicial to the legislative power, but only that the power of the people is superior to both.
Thomas Jefferson had no time for Judicial Review. In a letter to William Charles Jarvis in 1820 he wrote, “You seem… to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” He went on to point out that federal judges are more dangerous than the legislature, because they are appointed for life and cannot be held accountable to the people.
Our day has seen the rise of the judicial despotism spoken of by Jefferson. Not only do the courts declare laws unconstitutional, but they have gone on to establish law, overriding state legislatures as well as the U.S. Congress. The courts have not proven themselves to be advocates of the people in protecting them from an over reaching legislature. Instead, this relatively small body of people who are afforded lifetime appointment and have no accountability to anyone, have in many cases foisted their own political and ideological views on the nation, claiming the power to make final decisions on the meaning and message of the Constitution.

4. The Significance of “We the People”.

The question of legislating morality hinges on the answer to the following question. Do “We the People” as a nation have the authority to establish any standards of morality? For instance, regardless of the rationale, can the people declare that in their society stealing will be considered a crime and therefore appropriately punished? The obvious answer is yes. The people have a right and responsibility to regulate their own nation. Anarchy cannot be tolerated. The question then turns to how such law can be justified and properly established. All people want some measure of legislated morality, but as has been asked by many, whose morality do we legislate?
As noted above, our Constitution begins with, “We the People”. If we are going to enact any moral standard, even as simple as outlawing stealing, the legislation should reflect the conscience of the people and represent the will of the people. Let’s remember however, that even “We the People” cannot do everything we want to do nor pass every law we want to pass. Thankfully, as expressed in the Declaration of Independence, the people of our nation have acknowledged there is a Creator who has given to each individual certain rights that cannot be taken away, even by the people as a whole. Among those rights are Life, Liberty and the Pursuit of Happiness.
All law establishing a moral code should be governed by two concepts. A law should express the will and conscience of “We the People”, but no law should abridge the rights of “We the People” – which rights have been given by God and delineated in our Constitution.

5. Protecting the rights of “We the People”.

The Declaration of Independence states that governments are instituted by the people to secure the God given rights of the people. The Bill of Rights was proposed by Congress and ratified by the states as an initial effort to secure those rights. Other amendments have been added to clarify the national understanding of those rights and to more firmly secure them.
But let us consider statutory law. When a bill is proposed, who has the responsibility and power to be sure the law protects the rights of the people and is in harmony with the constitution? As noted earlier, the courts have assumed that power under the heading of Judicial Review, but the courts have demonstrated themselves to be as politically and ideologically motivated as the Legislature. When the courts make a decision there is limited opportunity for appeal and no way to hold judges (or justices) accountable for their actions. Yet, who is foolish enough to think they are above human passion, political perspective or the pleasures of power when they render judgment?
The best hope for protecting of the rights of the people will be afforded by those in government who are most accountable to the people. The marvelous design of the U.S. Constitution put those who propose and pass laws accountable to their constituents regularly. Congressmen along with one third of the Senate face re-election every other year. If the people feel betrayed by their legislators they can fire them at the ballot box. If the people feel betrayed by the courts, and that has been the case, they can do virtually nothing.
We readily acknowledge that many delegates to the Constitutional Convention supported the basic concept of Judicial Review, which allowed federal judges to declare a law unconstitutional. We fear that few foresaw the dangers of which Jefferson cautioned. He warned of the despotism of an oligarchy and we have lived to experience it. The courts not only render judgment on the constitutionality of a law. Their decisions often rewrite legislation so they now establish law from the bench. This is a direct violation of Article I, Section 1 of the U.S. Constitution which says, as quoted previously, All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. The courts, which Hamilton saw as protectors of the people, have become their masters.
A vigilant citizenry will hold Congress accountable for the constitutionality of the laws they pass. If they fail in their duty to uphold the constitution, or twist it for personal or political gain, they will be dismissed at the ballot box. Only in a closely scrutinized congress can we hope for protection of our rights. If that protection is left to the courts, we have little hope.

6. Expressing the will and conscience of “We the People”.

We live in a Constitutional Republic. That means our Constitution is the basic law of the Land, and all statutory law must be in harmony with what the Constitution says and means. The rights of the people must be secured. Our Constitution is our first line of defense against unjust law. Secondly, living in a constitutional republic means that we have a representative form of government. We are not a pure democracy. “We the People” rule through our representatives. We endeavor to elect people to serve, who believe what we believe and value what we value. We expect them to represent us and we demand them to be the voice of our will and conscience when they enact legislation. If they do not properly represent us, as noted previously, they will be and should be voted out of office. Of course, if we do not put people in office who hold our beliefs and values, and who will eagerly serve to express our will and conscience, shame on us.
Let’s go back to the issue of stealing. Stealing is against the law and is punishable in a variety of ways. Why are their laws against stealing? Some might argue that stealing violates the rights of the victims. Some might argue it is morally wrong. Some might consider it sin before God. When all is said and done, the law stands as an expression of the will of the people and a reflection of the national conscience. As a nation we believe stealing is wrong, we want laws to reflect that opinion and we do not believe that laws against stealing are a violation of the God given rights of people. People in Congress know the nation believes stealing is wrong and want laws to punish the thief. We do not expect any legislator to offer a bill that would allow stealing.
As simple as it seems, all laws should be measured and evaluated by these simple concepts. Does the nation believe a certain practice to be right or wrong? Does the nation want a law dealing with the issue? Would a law dealing with the issue violate the God given rights of the people?
Every issue can be evaluated by answering the three questions. Whether it is to legalize the use of drugs, permit abortion, legalize bigamy, be able to carry concealed weapons, or wear helmets when riding a motorcycle?
Does the nation believe the practice to be right or wrong? The nation will tell us by the people they put into office. Does the nation want a law dealing with the issue? The nation will communicate with the people they have put into office. Would the law violate the God given rights of the people? The legislature should wrestle with that issue before sending it to the President for signing. If the legislature misreads the will and conscience of the people, or misreads the constitution, let them change their ways or be voted out of office.

7. Affecting the will and conscience of “We the People”.

According to the polls, most people think Congress is doing a very poor job, but how did our leaders get into office. “We the People” went to the polls and elected them. I heard one detractor of President Barack Obama say that the scariest thing about his election was that while his term will expire, the people who elected him are still here. Are our leaders truly representing our will and conscience? If we have put the wrong people in office, shame on us. But what if they do represent the will and conscience of the nation? That is perhaps a greater shame. Without a doubt the will and conscience of America have changed. Our roots were buried deeply into the Judeo/Christian ethic and we held to strong moral values. God was honored, life was sacred, public virtue was extolled, and our laws reflected the national conscience.
The nation has been under attack at her roots. Humanism, with its branches of Atheism, Liberalism and Secularism have employed religion, education, politics, entertainment and the media to undermine our moral and spiritual foundations, and our changing laws reflect the new national conscience.
Now we move toward legislating immorality. For instance, it was the courts which first overstepped their bounds and from the bench legalized gay marriage. Their actions were a violation of the Constitution. More recently, the New York legislature enacted law to permit gay marriage. From a moral and spiritual standpoint I believe marriage is a union between one man and one woman, but let us test the New York law with our three questions. Do the people of New York believe that gay marriage is right? Do the people of New York want a law to legalize it? Does such a law violate the rights of the people? The final answers to those questions may only be answered by the next New York elections, but the law as enacted may in fact represent and express the will and conscience of the people of New York. The people will tell us in the next election.
What happened? I assure you there was a time, not so long ago, when New York legislators would have never passed a law permitting gay marriage. Some how the people of New York had their will and conscience changed. Who got to them: educators, entertainers, religious leaders? Some one over time reached them.
Many still believe gay marriage is wrong, but they failed to affect the will and conscience of their peers and the “wrong” people were put into office.

8. Enter “or Exit” Christianity

There are some who believe the Church was given a cultural mandate by Jesus Christ. You would have trouble finding scripture to indicate that the Church was sent out to change the world. At the same time, the presence and involvement of God’s people have had tremendous impact on nations, not the least of which is the United States. Our founders were wise enough to see the danger of a State Church and would have none of it, but they were also wise enough to uphold and advocate Christian values in law and practice. Christians were instructed to be salt and light in order to have impact on a dark and rotting world. Unfortunately the churches and their members are weakening in their stand for what is right and losing their impact on the will and conscience of the people. If Christians do not have strong lifelong marriages, how many others will be faithful to their mate? If Christians fail to raise children who respect the law and other people, who will see the value of appropriate training and discipline. If Christians lower their moral standards, who will advocate public virtue? If churches become mere centers of entertainment, who will be moved to trust and honor God?
If we fail to impact the will and conscience of “We the People”, we can expect the populace to put people into office who lack strong values. They in turn will legislate morality, for it cannot be avoided, but it may well be the “morality” of the immoral.
In Matthew 5:13, the Bible records these words of Jesus Christ, Ye are the salt of the earth; but if the salt have lost its savor, wherewith shall it be salted? It is thenceforth good for nothing, but to be cast out, and to be trodden under foot of men.”
Unless Christians rise up in renewed devotion to God and His Word, and thereby begin to have impact on America again, we will see complete destruction of family life through, gay, bigamous and polygamous marriages. We will see illegal drugs made legal. We will see assisted suicide permitted. We will see all restrictions on abortion removed. We will see children become the property of the government. We will see public acknowledgement of God outlawed.
Laws will continue to be passed by every congress. Those laws will deal with morality and they will ultimately express the will and the conscience of the people. If Christians continue to exit the battle for morality through declining standards or lack of witness, the nation will collapse from within.