Isn’t all Legislation Morality?

There’s a lot of discussion in the comments from the post the other day on a Virginia lawmaker’s attempt to outlaw oral sex for minors (but not regular sex). I used to be in the “Don’t legislate your morality on me!” camp as well, but the more I’ve thought about it, the less I think there’s any such thing as law that isn’t imposed morality in some way or another, so I no longer find that line of argument all that persuasive.

I also tend to agree with originalist thinking which suggests the Constitution and Bill of Rights was never understood to be any barrier to laws that today are generally regarded as being unconstitutional. This is evidence by the number of states who had laws barring such practices, and even going so far as to establish religion. But that’s not to say I think in the modern era I think such laws are just fine and peachy.

I believe criminal law should generally reflect widely held societal values. We nearly universally agree that crimes like armed robbery, burglary, theft, fraud, murder, etc, are moral wrongs and deserving of legal punishment. Regardless of what the social consensus in 1782 Massachusetts was in regards to church attendance, or what the consensus was in regards to sodomy in 1779 Pennsylvania, the consensus today is not even close to universal. When laws fail to reflect a broad consensus, it undermines respect for the law as a whole. Prohibition is a great example of a moralizing law that failed to achieve any broad social consensus, and is widely regarded as a failure.

Randy Barnett, in his book Restoring the Lost Constitution, has interesting ideas about how incorporation of the 9th Amendment through the 14th Amendment brings about constitutional limits on the state police power, offering a more originalist theory for how anti-sodomy laws could be held unconstitutional. While I find this personally appealing, there’s a lot that I think could be criticized on originalist grounds. But regardless of whether a law is constitutional or not, I do think we wade into dangerous waters when we criminalize behavior there’s no broad social consensus for criminalizing. That is the root of “Don’t impose your morals on me!” I’ve often though that perhaps we should require a supermajority to create criminal laws, and leave bare majorities for matters like budgets, civil procedure, and other internal governmental matters. If government wants to create a crime with penalties, it should be on something most everyone agrees ought to be a crime.

53 Responses to “Isn’t all Legislation Morality?”

  1. HappyWarrior6 says:

    “Widely held societal values.” Whose values? Who says?

    • HappyWarrior6 says:

      So every law should be passed after a national/state poll is taken? Who conducts the poll? I just don’t understand how your line of thought applies to prudent lawmaking.

      • Matthew Carberry says:

        The super-majority requirement leverages representative democracy in determining the “will of the people” on given issues. No need for polling. If a super-majority of elected officials, who in theory represent a majority of their constituents, are willing to vote for a criminal sanction then that is about as accurate test of the “will of the people” as you can get.

        If it turns out to be wrong the represented will let them know to vote to repeal (as in Prohibition), or will vote in others who will.

      • Sebastian says:

        That’s why I was speaking of a supermajority requirement. I don’t think there needs to be a poll, but if you required 2/3rds vote of each legislative body to create criminal laws, I tend to think those laws would reflect a pretty broad consensus. Not that I think that’s perfect, because lawmakers often have their own agendas, but Republican government isn’t ever perfect.

        I’m also speaking pretty theoretically. I’m not optimistic it would fix much starting where we are now. But if one were designing a new government from scratch, I would consider such a requirement. I wouldn’t mind, though, a constitutional amendment which gave Congress and every state legislature 5 or 10 years to re-certify every federal and state criminal law with a 2/3ds majority, or have it stricken from the books.

        • HappyWarrior6 says:

          Where does one start when one beings down this path? What of the current set of laws? Does this same philosophy apply to repeal of those laws as well?

          Note I am not necessarily disagreeing with the super majority rule you mention, but I just wonder how this would ever apply practically to the myriad of useless laws on the books that have been passed in the last 100 years.

          • Sebastian says:

            Like I said, you could give a certain amount of time for the laws to be re-certified with the new requirement. That might keep legislatures busy enough in the intervening years to not have too much time or energy to screw up other things :)

        • The sunset provision would be fine with me. But when judges decide that some laws are unconstitutional using the magic lamp approach to the Constitution, that is simply judges deciding that majorities of millions are incompetent bigots, but majorities of five Supreme Court justices know what they are doing.

  2. Andy B. says:

    I have to be my cynical self and open with, morality is just the excuse for laws; the purpose of law is mostly to establish a mechanism for control of one class over another.

    You may recall in George Orwell’s Nineteen Eighty-Four scenario, society had advanced to the point where there were no laws; it was simply accepted that Big Brother could and would do as he saw fit, and that was the natural order of things. However there was still a vestigial need for people to make justifications for what was done. O’Brien said “We are the first party in history to pursue power solely for its own sake,” but of course that wasn’t really true. They were just the first party without a need to justify it.

  3. aerodawg says:

    The law is or at least should be, about punishing those who step out of line and harm others. Which I guess if you pick nits is based in morality, but is a principle that precludes so much crapola that the gov’t bans just because some nitwit or another doesn’t like it, regardless of whether it harms someone else or not.

    • Sebastian says:

      That’s John Stuart Mill’s philosophy, called the harm principle. I think that’s a pretty good guiding philosophy, but it’s a theoretical construct rather than a something that represents a real limit on how government can exercise its lawmaking power. The other shortcoming I see is that it would never really settle debates like abortion, where you’re arguing over things like personhood.

      • Echo says:

        Yeah. Different people using the same harm principle can end up arguing right past each other if they don’t understand that they have different interpretations of the facts.

        Combine that with our uncharitable natures, and you get a culture war of “democrats eat the unborn with quiche!” vs “republicans want to make rape mandatory!”.

      • aerodawg says:

        There are always going to be some gray areas in places where definitions are not generally agreed upon, like abortion vis a vis personhood and similar. But even then it gets into the weeds ie we’re arguing over exactly when a fetus becomes a person. Typical gestation period being 38 weeks, people generally agree that you have a person at say 36 weeks. The weeds is at what point you hit that.

        When I talk about the harm principle, I’m more talking about broad general terms of interactions between adults, not the specific instances where terms are not well defined and agree upon though.

        The subject most pertinent to this blog is gun ownership. There is no firearm that my ownership of it harms any person in any way, therefore the law should say nothing about it even absent the 2nd Amendment. The misuse of said firearm which does harm someone is what should be strictly prohibited.

        Weaponry that could be regulated under the harm principle, are things like explosives, which something as simple as improper storage could end up leveling your home AND all your neighbors homes. There’s a verifiable endangerment harm of another person there.

  4. NUGUN Blog says:

    All laws by definition are a legislation of morality. I’ve argued this repeatedly. Glad to know I am not alone in this realization.

    Which is why I believe no law should be implemented, except those that directly prevent harm of others. (Murder, rape, robbery, fraud, etc.)

  5. Sigivald says:

    To answer the post’s question, “yes”.

    Happy: I think his point is mostly that nobody should pretend laws are anything but “morality enforcement” – and that if we don’t want to descend to pure authoritarianism and erode respect for the law as such, laws need to have the consent of the legislated, and thus conform to “widely held” values.

    (Make raising your own children outside of a State creche illegal, and you’ll get a revolution, because “nobody”* thinks that’s “good”, and rather vehemently.

    Make murder illegal and you’ll get as close as human variety and madness allows to universal agreement and – outside of criminal subclasses – voluntary aid to the enforcers of that law … because “everyone” thinks that’s a good law.

    * Oh, a few College-age utopian Communists, maybe. But any one irate parent could kill them all with their bare hands in this case, so they’re, er, “outvoted”, so to speak.)

  6. Aaron says:

    Rational prohibitions can be composed of these three:
    1) assault – physically harming a person or their property.
    2) theft – taking property without permission.
    3) fraud – lies of comission and ommission, contract violations, including entering into contract with someone incapable of informed consent, such as a child or a mentally handicapped person.

    If you can’t show how an act is one of these three, or a combination of them, then prohibition of that act is not rational and should be struck down. All of the above require two parties, and therefore no prohibitions involving a single person could stand.

    This would be a better place if the federal, state, and local governments were constrained by these 3 prohibitions.

    • Why are so sure that a child is incapable of informed consent? That’s just an assumption.

      And what age constitutes a “child”? 17? 16? 12? 8? The decision about majority is completely arbitrary (and varied depending on activity). For most of our history, the arbitrary age was 21, with 18-20 occupying an intermediate stage of non-juvenile minors.

      I love the intellectual elegance of libertarian ideas. They just don’t have much to do with real societies, which is the reason that they have never been wildly popular. Particular implementations often catch on, especially when the propaganda is extremely one-sided, but as a general rule, not so much.

      • Aaron says:

        The age of informed consent is a detail that can be worked out. That I didn’t propose an age in my very brief post doesn’t negate the post itself. Presumably we can agree that a child of some age can not be expected to know all of the risks taken in what may be a perfectly reasonable adult situation, where an adult knowing the risks can reasonably decide to take that action despite those risks.

        Of course, not every child is the same, and not every adult will know all of the risks of living and interacting with others, but it’s not unreasonable to set some guidelines, which, as I said, is a detail of implementation.

        Tell me a prohibit act in real society that isn’t covered by one or more of the three I mentioned.

        • TS says:

          Drunk driving. No crash, no injuries, just a guy who got pulled over drunk off his gourd. What do we do with him?

          I’m with you Aaron, but it’s these kind of things I scratch my head on the best way to handle. When you allow drunk driving to be a crime, it opens the door for all kinds of criminalizing of behavior for being “dangerous” when no one was hurt, and criminalizing it in the name of “prevention”.

          I’m thinking infractions have lower standards than crimes, and ultimately drunk driving by itself cannot be a crime. You could fine them, revoke their driver’s license, etc., but you can’t put them in jail UNLESS they hurt someone (or damage property). Then it becomes criminal. It’s a tough one for me, I’m not sure what the best way to handle it is.

          • Aaron says:

            Yes, it’s a difficult question. I can make it more complex too – what about sleepy drivers, or sick drivers (unmedicated), or drivers who are otherwise putting less than their full attention on the road? A study by the USDOT indicated almost 30% of crashes involved inattentive drivers (the items I mentioned above), while about 18% involved alcohol.

            If there’s a decision rule for age, maybe there can be one for increasing risk as well? I don’t know. It may be able to be worked out, but as I said in another post, I am not really optimistic.

            I wonder if DUI laws have actually saved any lives? CDC estimated in 2010 about 10k car accident deaths involved alcohol or other chemical impairment. Are there pre DUI law statistics?

  7. Sebastian says:

    So in a society based on the harm principle, could you do something like make dumping pollutants into the atmosphere illegal? What about drunk driving? None of those cause direct harm (though in the case of pollutants, you could envision cases where there was direct harm). Drunk driving is illegal because it’s considered so reckless a behavior and likely to cause direct harm that it’s unlawful. Dumping pollutants into the atmosphere is illegal because it causes indirect harm to a large number of people who are affected by the pollutant.

    But then how to you apply the harm principle to those who would argue that guns are a type of pollutant? Or is risky like drunk driving is risky. What about those who would argue that say, heroin use, has very strong external effects that extends beyond those who are strung out on it. I think the harm principle is fine, but I doubt in a diverse society with representative government people are going to stick to it, and once you wander off the harm principle reservation, then what is your limiting principle?

    • One of the first hints to me that the Libertarian Party had a few too many ideologues was when I found myself reading campaign literature from candidates arguing that drunk driving laws should be repealed. Only if you crash, should you be responsible to the law, and only for crashing — not for driving drunk.

      • Sigivald says:

        Note that other libertarians disagree, and per Nozick’s argument for mandatory insurance for imposing risk on others, support at least notionally some sort of penalty for drunk driving. (I am in that camp.)

        Also, many libertarians dislike such laws for reasons specific to implementation; “.08 means you’re drunk even if you’re not particularly impaired” is facially unjust, even if it has some practical utility.

        MADD and other crusaders have probably pushed DUI laws farther than they ought to go.

        (And I say this as someone who rarely drinks and never drives with even a hint of intoxication, precisely because of both those draconian laws and the dangers to others such driving may create.)

        • Sebastian says:

          I’ve heard libertarians argue for an impairment standard… in other words if you’re swerving all over the road and generally being a hazard, you’re busted. I’d be fine with that, but the upside to bright line rules like BAC is that there’s no room for judgement. I wouldn’t necessarily want the standard to be “It is my judgement as an officer that the man was impaired. He was swerving and I smelled alcohol on his breath.” Because that will automatically become the standard line to get a conviction whether the person was guilty or not, and whether or not the officer really smelled alcohol on his breather or not, and whether or not he really swerved.

          We had a friend involved with this aspect of the criminal justice system. The cop lied through his teeth. They are trained to lie. He testified parked cars were almost being hit, when there was “no parking” on the street in question. The judge was willing to play along with this charade. No mercy for drunk drivers. Tough on crime, etc, etc.

          • Matthew Carberry says:

            Dash cam, personal cam on officer to record interaction, actual physical impairment test on video.

            Remove the subjectivity on both sides.

    • TS says:

      Ah, we were on the same page with the drunk driving. I posted before my question to Aaron before I read this.

    • Aaron says:

      In all cases I put the burden of showing the applicability of the proposal on those doing the proposing. Whether or not increased unnecessary risk (drunk driving, polluting in rivers or in the air) constitutes real harm is probably all demonstrable with statistic.

      But in the end, you’re right, governments and people won’t stick to the harm principle. To do so they’d have to believe it and they don’t. Most people believe in force, plain and simple. They believe they are right and everyone who opposes them is wrong, and initiating force against others is acceptable.

      To paraphrase Spooner, “either the Constitution authorized such a governnment or failed to prevent it…”

      Can any paper constrain a government? Can any paper constrain some people from desiring to control other people? I don’t think so. It has to come from people first. Ultimately what we are doing while discussing these issues is postulating that people become better people.

      I’ll cross my fingers but won’t hold my breath.

      • Sigivald says:

        Also, as an aside, polluting a river can be addressed with property rights for the downstream users, as well.

        Likewise air quality, especially assuming a “real pollutant” rather than CO2.

        That’s old hat in libertarian theory; not perfect, but it’s a mechanism. And by God the thing it’s competing with is not remotely perfect either.

    • Aaron says:

      Come to think of it, adding an applicability rule along the lines of “does the use increase risk to others” isn’t so bad, even in the context of protecting our right to arms. Because USE of arms does increase risk to others under certain circumstances. Now of course that doesn’t in any way imply that use of arms should be illegal, but shooting up in the air for new years increases risk of very real harm, and that particular use, when applying the harm principle and inreased risk rule would then be deemed illegal.

      Seems to work. :)

      Still pessimistic though. I need to go watch “Good People” on youtube. ( )

      • Sebastian says:

        You could compare potential harms to Russian Roulette. It’s just a matter of how many rounds fit in the cylinder. At what point is it OK to legislate against the potential harm? I think all would agree one in six. But one in 100,000? Now what’s the line if Russian Roulette had a practical purpose? I don’t think it’s that clear.

        Then you have things like the Pure Food and Drug Act, which if you really boil it down are meant to prevent fraud before the fact. Does that violate the harm principle?

        • Aaron says:

          Well that’s a bit different and would require more discussion. The PFDA was basically a labelling mandate, right? Mandates are kind of the opposite of prohibitions, but insofar as the PFDA is concerned, the also prohibited lying about the ingredients, which would cause harm and certainly violated the contract to the buyer.

    • aerodawg says:

      Pollutants are a direct harm, whether airborne or otherwise. Put it this way, it’s a pretty cut and dry fact that you are not allowed to dump toxic sludge onto your neighbors property right? It’s a violation of their property rights, ie a harm to them.

      With that pretext in place, assume you own a plot of land with factory and also assume you “own” the air over that land, which is not 100% accurate but close enough for the discussion. The air that you “own” is not static, unless you’ve built a gigantic biodome (bonus points if Pauly Shore is hanging around). If you dump pollution into the air you “own” it will migrate and end up in the air someone else “owns.” In all likelyhood, some of it will filter out and land on their property. Either way you’re again violating their property rights, just like in the first example.

      Operating a vehicle while impaired, is a blatant and obvious endangerment to those around you. It’s a rather easily defined harm.

      As far as heroin goes, what exactly are the actions that cause strong external effects that are not already considered a harm to someone else and thus illegal? Mugging someone to get your next fix? Neglecting your children in favor of being strung out? Every “strong external effect” I’ve ever seen argued is something that in of itself is a harm and already illegal. Making things double illegal doesn’t change anything.

  8. There is a strong argument that criminal laws should have some supermajority requirement: they should reflect some very general agreement that this is wrong. But you can do a lot of damage with civil law that does not require this supermajority. For example, the laws to punish businesses that don’t want to make gay wedding cakes.

    I am far less keen on libertarian utopia than I was when I was younger, but it would be a big improvement over the homosexual activist model which is libertarian about sex, but thuggish totalitarianism about disapproval of homosexuality.

    • HappyWarrior6 says:

      Right. I share this concern. I would be worried about a thuggish totalitarian majority just as much as government when it came to forcing businesses to comply or be shamed as bigots under the new, fabulous, “enlightened” law.

      Conscience protections need to be kept, probably even strengthened even under the supermajority rule.

  9. mike says:

    “We nearly universally agree that crimes like armed robbery, burglary, theft, fraud, murder, etc, are moral wrongs and deserving of legal punishment.”

    Yes, and those actions involve one person harming another. In the example from the other post – teens consensually performing oral sex on other teens – the harm only exists in some peoples’ minds. In fact, the only real harm comes about from making them into criminals.

    We may not all agree on what morality is, or whose is the correct morality. But I think we can agree what is and isn’t harm. Some may suggest that there’s a harm to society by teens acting like teenagers, as in the previous example, but isn’t there a greater harm to society by turning them into criminals or have them fearing big brother at every turn?

    Allow me to break down the left/right paradigm:

    Folks on the left want to tell us how to live because they think we’re too stupid to look out for ourselves, and folks on the right want to tell us how to live because they think we’re too stupid to stay out of Hell.

    • “In the example from the other post – teens consensually performing oral sex on other teens – the harm only exists in some peoples’ minds. In fact, the only real harm comes about from making them into criminals.”

      You are assuming that there are no harms that may come from immature kids engaging in sex. There is pretty general agreement in this country that there are emotional harms, and in some cases, physical harms. The laws treat two kids of similar age quite differently from the situation of a 25 year old and 15 year old, but not because there is no harm.

      • mike says:

        Which emotional and physical harms should the government to protect children from? Where do you draw the line? Bullying? Bad breakups? Contact sports?

        None of these things comes without cost. If we say that children can’t play sports because of the physical and emotional harm it may subject them to, then sure – we’re protecting them from harm. But we’re also preventing them from gaining any positive experiences too.

        Bear in mind, the people making these decisions aren’t making them based on empirical research. They’re making them based on their beliefs – although perhaps they massage some study or another to confirm those beliefs. In the same way others have “proven” that the CO2 I exhale is actually destroying the planet instead of helping to sustain it.

        Government and parents are distinctly different things, with distinctly different roles. It would be spectacular if everyone figured this out someday.

        • HPV as a risk of oral sex is real enough, and not religiously based. The emotional hazards of premature sexualization, while not as precisely measureable, are still real enough that most people understand them. Oral sex (and for that matter, vaginal sex) are in about the same category as smoking: real risks, although most people will not suffer any immediately lethal consequences. That doesn’t make the risk imaginary.

          Part of the problem here is that sex gets very special treatment. Some people regard it as especially hazardous, and will go to great lengths to discourage it. Others insist on seeing sex as something so intrinsically good that anyone who points to risks of premature sexualization is automatically labeled a Puritan. The worship of the orgasm as the highest good of mankind is a bit over the top.

          • Sebastian says:

            For me, I just don’t think imprisoning teenagers for something teenagers are wont to do is really going to help anything. Nor is ruining their lives by having them labeled “sex offenders.”

            I’d prefer families and churches operate in the realm of enforcing that kind of morality. That’s speaking specifically of teenagers. I don’t have any problem suggesting that, say, someone under 13 can’t meaningfully consent to anyone, and that if someone 14-15 being with someone over a certain age is more likely to be predatory than consensual. Generally by 16 I think they generally know enough about what they are getting into, which is probably why most states set age of consent at 16. Though it would be interesting to know the history of that.

            Though I do think for any minor child, that is under 18, their parents ought to be able to get a restraining order against an unwanted suitor, with legal sanction applying for violation.

          • mike says:

            And herpes (and, heck, HPV) can be transmitted by kissing. Did you know that herpes is also the most common infectious cause of corneal blindness? Surely we can protect teens from themselves by outlawing kissing, right? I mean, you don’t want teens to go blind, do you?

            So, are you for or against outlawing kissing for teens on the basis of preventing herpes (and, heck, HPV) transmission? It might even help stave off premature sexualization and all the emotional hazards that go along with it.

            Once we’ve outlawed teen kissing, we can then outlaw teen straw/ glass/bottle/utensil sharing for the same reasons.

          • benEzra says:

            If HPV is such a grave threat that it could rationally justify making oral sex a felony, then it would be hard to oppose lesser measures like vaccination…


            I’m not arguing for or against mandatory vaccination here, just pointing out that the SoCons can’t really push for vast overreaching government when it suits them and simultaneously complain when government does something that doesn’t suit them. A government intrusive enough to compel what they want is intrusive enough to compel what they don’t want.

            (And I’m not ragging on you here because you’ve said elsewhere you don’t support the oral sex ban, just pointing out the problem for the SoCons who support big government for other people and small government for themselves.

  10. benEzra says:

    The philosophy of the founders was that governments derive their just powers from the consent of the governed.

    In 1790, people in certain portions of the country consented to rules that we think are pretty outrageous today (and keep in mind that Massachusetts Bay Colony laws were considered by many to be extreme even for the time—one reason Rhode Island was founded, and why some people went to the frontier to get away from the busybodies). And we consent to some things in the financial and regulatory realms that they’d have been similarly outraged at. I do believe there are universal human rights, but I acknowledge sometimes we see violations of them more clearly at some times than others.

    Generally speaking, “the governed” in this country most emphatically do NOT consent to being told which days they may worship, or who they may worship, or that they may not do recreational alcohol, or that they may not own guns, or that they may not have sex with other adults by mutual consent, or that they must notify the police if they have a miscarriage. This jackbooted statist approach to sexual matters being pushed by a few Virginia SoCons would not even get “consent of the governed” in a typical mainstream Baptist church, never mind Virginia (or the country) at large, which makes it all the more outrageous that this idiocy keeps getting brought up by one legislator after another.

    • benEzra says:

      And mike is right that the most problematic of legislation is that which aims to enforce morality for morality’s sake, rather than that which seeks to restrain people from violating the rights of other people.

      • You might want to read some of those laws. The secular basis for adultery laws was that it led to divorce, children being raised away from both parents. Similarly, the argument for that law about requiring a Bible in every household was to promote positive morality in the society. The similarity to mandatory school attendance laws is pretty obvious — both are based on a belief (one probably true) that certain things may be neutral for an individual, but good for a society.

        • benEzra says:

          “based on a belief (one probably true) that certain things may be neutral for an individual, but good for a society.”

          A statist law does not become less statist simply because it seeks to accomplish some social good. Almost all statist laws do exactly that. As William Pitt the Younger famously stated, “Necessity is the plea for every infringement of human freedom.” There are few if any statist overreaches, whether left or right, that can’t be justified by that rationale that what is good for society should be compulsory.

          The idea that responsibility for the good of society overrides individual choice is the mantra of the Third Way movement within the Democratic center-left, and is the reason why traditional ACLU individualism has largely been overrun by Bloomberg-esque nannyism within that party. That argument is the one used to justify all sorts of tyrannies both left and right—gun control, alcohol prohibition, soda bans, media censorship, blue laws, and every other imposition of the nanny state. And it appears to me as an outsider looking in that conservatives are just as eager to embrace coercion for “the greater good” as once-liberals have been.

          I’d also point out that pragmatic secular justifications for “Biblical” morality-code laws apply equally well to Sharia as they do to Torah or to Fundamental Baptist tradition. And in fact, some of those things (i.e. being committed to your spouse) undoubtedly *are* good for society. But to make overall social good the mandate of the State rather than of the church, family, and individual—thereby making it coercive rather than voluntary—is to create tyranny, since there is no statist overreach that cannot be somehow justified by “it’s for the good of society”.

    • Echo says:

      Are there universal human rights? I’m starting to come to the conclusion that certain populations have renounced them quite willingly.
      In an extreme form, we could imagine a population that happily submits to lobotomies to prevent thoughtcrime. Would those beings then have any more claim to universal human rights than would a pig?

      Perhaps they’re more like “rights that are inalienable without giving up some part of your human nature”?

      • benEzra says:

        Any right is the right to *choose for oneself*.

        In your hypothetical example, individuals may happily choose to submit themselves to lobotomies, as long as it is *their* choice. Freedom is the right to choose badly just as much as it is the right to choose well. But if soldiers/police show up with guns and *force* people to have lobotomies (or permanent sterilization, or genital mutilation, or whatever), then yes, human rights are violated.

    • “In 1790, people in certain portions of the country consented to rules that we think are pretty outrageous today (and keep in mind that Massachusetts Bay Colony laws were considered by many to be extreme even for the time—one reason Rhode Island was founded, and why some people went to the frontier to get away from the busybodies).”

      Actually, the rest of the country was just about as busybody as New England. Rhode Island was founded a century and a half before, and Rhode Island was about as busybody as Massachusetts in 1790. When Roger Williams left first Plymouth and then Massachusetts Bay Colony, it was not because he was driven out for live and let ive. He was driven out because he was too darn certain that he was right and all others were wrong. He cooled off a bit after some time away, but even Williams’ Rhode Island did not have a place for atheists.

      • Andy B. says:

        “even Williams’ Rhode Island did not have a place for atheists…”

        As I recall, it had damn few places for Catholics, either. Rhode Island’s Catholic population was close to non-existent until the early 19th Century. After all, there were Christians and then there were Christians, and idolators just didn’t make the tolerance cut.

  11. Richard says:

    ” But regardless of whether a law is constitutional or not, I do think we wade into dangerous waters when we criminalize behavior there’s no broad social consensus for criminalizing.”

    I tend to agree though I have similar caveats to some of those addressed above. Not really on moral or ideological grounds but because the law becomes unenforceable and has all kinds of negative consequences because of that unenforceability. Think Prohibition or the War on Drugs.

    In the meantime, there are about 100,000 regulatory criminal laws that not only don’t have a broad consensus but don’t have a broad knowledge of their existence. There is some guy out there doing hard time for importing short lobsters. This is not even a violation of American law but a treaty obligation to enforce the law of a Central American country, which denies the law even exists.

  12. Al says:

    If forcing people to do things at gunpoint is moral, sure. Anyone who looks to the state for moral
    Instruction should seek help.

  13. WhiskeyWasOnceMoney says:

    Malum in se laws get at the idea of legislating morality: they outlaw things that are wrong because they are believed to be wrong. In any sensible system, malum in se laws are few and limited to that for which there is near universal agreement (don’t ask me to try to draw one an Utopia — I won’t take that bait).

    Malum prohibitum (wrong because prohibited) laws, those that make up the vast majority of our current three-felonies-a-day legal system, are another matter.

  14. ctd says:

    Some laws are simply organizational, recognizing that adherence to rules saves everybody a whole lotta trouble. Prime example: “stay right” traffic rules – there’s nothing inherently “moral” about driving on one side of the road or another, it’s just that staying out of the way of oncoming traffic saves everyone the consternation (and crash, injury, death) of not knowing who’s going where in every vehicular encounter. Another: a governmental definition of “fish stick” lets everyone know what is being discussed without the absurdly laughable/malicious misapplication of the term we’d have without such a legal definition.

    Those are sensible and a reasonable exercise of governance. It’s the “leave me alone to do what I want…until I have enough power to _force_ you to do what I want” that’s the problem.

  15. As someone once put it, if the church demands that the state criminalize sin, the state will in turn demand that the church turn treason into heresy. It’s a bad bargain for the church. There are some things that ought to be crimes and subject to repression by the state. Not all sins need to be crimes, however, and the church should avoid making a devil’s bargain with the state.