TCS Daily

Law and Morality in America

By Stephen Bainbridge - November 4, 2004 12:00 AM

Reflecting on President Bush's victory, libertarian journalist/blogger Megan McArdle wrote:

"The most destructive trend of the last four years has been the left's resort to ever-more-tenuous conspiracy theories to explain their political failures.

"This is certainly not a unique vice of the left. Libertarians have it in spades. I've sat through approximately 8 zillion heated conversations about how the reason libertarians don't have more power is that the electoral system is stacked against us, when it's crystal clear to me that the reason we don't have more power is that a clear majority of Americans don't agree with us. They like middle-class entitlements, drug laws, mortgage tax deductions, farm subsidies, and most of the rest of it. If we want to see our programs enacted, it won't help us to change the system (proportional representation is the usual magic bullet of choice for libertarians) if we don't first change America -- at which point we won't need to change the system."

Did you notice what's missing from McArdle's list of things on which "a clear majority of Americans don't agree" with libertarians?

Values and morals.

According to exit polling data, moral values were ranked by most voters as the most important issue in their decision. Among those voters who did so, over three-quarters reportedly went for Bush.

In 11 states, proposals to ban same sex marriage were on the ballot. Voters passed all 11, most by substantial margins. In contrast, the Libertarian Party "would repeal existing laws and policies intended to condemn, affirm, encourage or deny sexual lifestyles, or any set of attitudes about such lifestyles."

The American people want their laws to reflect their morals and values. Conservatives get that; libertarians don't.

Law consists in the first instance of a set of doctrinal propositions; i.e, the legal rules derived from statutes, judicial precedents, and opinio juris. Legal reasoning is more than the mere identification and manipulation of doctrinal propositions, however, because doctrine itself is inextricably linked with morality and policy. The doctrinal propositions of which law consists thus rest on a tripod whose legs are: moral norms, which characterize conduct as right or wrong; policy, which characterizes states of affairs as good or bad in light of the general welfare of society; and experience, which teaches us the way the world works. Although all three are important, conservatives understand that moral norms have special relevance to evaluating asserted rights, because it is morality itself that shapes our perceptions of what constitutes an injury for which one has a right to redress.

Conservatives thus agree with Edmund Burke's argument that "Man's rights exist only when man obeys God's law," towards which we admittedly grope feebly and imperfectly. Hence, conservatives believe our laws should reflect the moral norms embodied in the natural law.

Most libertarians refuse to accept the proposition that law can and should be based on moral principles derived from natural law. Some of them know that the American people strongly disagree. Knowing that their agenda of radical individual autonomy therefore cannot prevail in democratic processes, they have turned to the courts. Libertarian law professor/blogger Randy Barnett, for example, has argued that:

"Consider the claim that homosexuality is immoral. I strongly disagree. Now what? In a contest between a majority of state legislators and me and those who agree with me, what privileges the legislature's judgment of morality? In what way are they experts? How does being elected to the legislature qualify them to make these judgments? Do they hold hearings on the morality of homosexuality and offer reasons for their conclusions? Or do they just press a button and register their vote? Most importantly, how can we assess the merits of their claim? If we cannot, then in reality they can prohibit whatever they want (and for whatever reason they want). No matter how objective morality may be, any such doctrine of constitutional law is recipe for tyranny."

Hence, Barnett argues, any attempt to codify morality is unconstitutional.

As long as large-L Libertarians refuse to contemplate the prospect that law may reflect any moral norms other than a radical individual autonomy, they will remain a fringe element in American politics. As long as small-l libertarians insist on using the courts to achieve what they cannot obtain through the vote, they will be on the other side of the culture wars from conservatives.


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