Wagoner started off by objecting to the idiom, "You can't legislate morality." In past blog entries, I have mentioned that I do not intend to write about what the law is, but about what the law ought to be. Furthermore, what the law ought to be is a moral question. We cannot sensibly talk about the difference between a just and an unjust law, between a fair and an unfair system, or about laws that violate or protect rights without using moral terms.
Ultimately, it is a paradigm example of a self-contradiction for a person to say, "You ought not to legislate morality." This happens to be a moral principle, and it is a principle that the speaker wants embodied in the law. So, while he is telling us not to legislate morality, he is giving us a moral principle which he claims should be used to determine what the law ought and ought not to be.
The fundamental problem with many of the core positions of the religious right is not that they are trying to legislate morality. It is that supporting many of those positions is, itself, immoral.
When these people look into the bible, they not only find more science fiction than science fact, they also find more moral fiction than moral fact. The morality that they are trying to legislate is moral fiction.
Ultimately, these people are using material that was written nearly two thousand years ago. Perhaps that material represents the best understanding of right and wrong at the time. However, we have learned a great deal since then. Going back to these ancient rules ignores everything that we have learned in the past two thousand years.
What they propose for our society makes as little sense as insisting that we throw out all of the medical knowledge we have gained in the past two thousand years and revert to the methods prescribed by Hippocrates. Hippocrates was a genius in the field of medicine for his time. Yet, we are fools if we insist that his ideas embodied a perfect understanding of the field of medicine and refused to accept anything since that time.
The 10 Commandments vs. The 10 Amendments
The most common response to the fiction that our laws are based on Christian principles is to ask, "Where, in the law, do you find the 10 Commandments?"
A complimentary question to be asking is, "Where, in your literally-true religious text, do you find the 10 Amendments?"
The 10 Amendments represent a huge advancement in moral knowledge over the previous 1790 years. As with science, most of that moral advance came in years after 1500, after Europe had shrugged off the mind-numbing idea that biblical truth could not be questioned. They began to look at morality independent of the Bible, and came up with truths that at most merely hinted at using biblical references and, in some cases, contradicted biblical text.
Fortunately, they did this at a time here heretics were no longer burned at the stake.
The clearest example can be found in comparing the First Commandment to the First Amendment. The First Commandment states, "You shall have no other gods before Me." The First Amendment states, in effect, "You shall have whatever god or gods you please, as long as the god(s) you want can handle having you live in peace with others in your community who do not worship that god or worship it as you do.”
The first amendment also states, "You shall not abridge the freedom of speech, or the freedom of the press, or the right of the people to assemble or to petition the government for a redress of grievances."
It would have been great if Moses had brought down a tablet from Mount Sinai with this written on it in clear and uncertain terms. This would have made a great deal of difference in how the next two thousand years would have turned out.
However, the bible does not carry any of these moral principles. People were not able to discover them until they had freed their mind from the need to take biblical text literally and look for moral principles grounded on reason rather than faith.
This change in the way that people looked at moral issues allowed them to discover that there was no divine right of kings. That is to say, political leaders did not get their power from God which they then used to command the people as subjects. Political leaders got their power from the people, and were to use it serving the public interest.
They learned that our moral and scientific progress is hindered by restrictions on a free speech and free press, and that governments exist to serve the people, rather than people existing to serve political leaders.
When the founding fathers passed the Bill of Rights, and even when they wrote the Constitution itself, they were indeed attempting to create a government that embodied a set of moral principles. They were using a set of advanced and enlightened moral principles that more primitive man did not know about. These principles were derived by reason, not quoted out of centuries-old religious text.
I do not know of any biblical passage that says, “In all criminal prosecutions, you shall give the accused a speedy and public trial by an impartial jury.”
To the best of my knowledge, Jesus did not say, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Only by removing obscure text from its context can one find biblical commandments that look anything like the Ten Amendments.
The Religious Right versus the Bill of Rights
If we take the claims of the Religious Right at face value, we are to return to the moral principles accepted two thousand years ago. This was before the Bill of Rights. If we set the clock back that far, then the Bill of Rights itself ceases to exist. They do not represent any set of Biblical commandments.
This may not be their conscious intent, but it is the logical implications of their actions, that where biblical commandment contradicts the Bill of Rights amendments, the Bible wins, and the amendment has no force. The advances we have made in our understanding of right and wrong that provided the foundation to the Bill of Rights are discarded.
We can see this in the policies of the Bush Administration. Clearly, they do not see the principles that lie at the heart of the Bill of Rights as binding moral law. We see this in their eagerness to find ways to circumvent these restrictions. One of the first decisions they made was that Constitutional rights do not apply to foreign nationals.
If these are moral rights, they apply to all people, regardless of nationality. If these are mere legal contrivances, then they can be swept aside for Americans as easily as they were swept aside for foreign nationals. We can see the degree to which a political leader sees these Amendments as springing from a foundation of moral law by the degree to which they feel compelled to apply them to others regardless of nationality.
On this standard, the Bush Administration, and the Religious Right whose values they embody, sees the Bill of Rights as political contrivances to be ignored when convenient, rather than moral principles that create duties and obligations that cannot be ignored.
The Law and Moral Principles
The Constitution of the United States embodies a set of moral principles. They embody significant advances in moral knowledge, most of which had been discovered in the two hundred years before the Constitution was written. Anybody who can read can see that these are not quotes out of any religious text.
The founding fathers were not perfect. There were still some important moral discoveries to be made. They were only starting to appreciate the wrongness of slavery. Many did not yet suspect the wrongness of denying the vote to women, or accept the fact that was wrong to force the Native Americans from their land.
The founders were wise enough to know that, though they had learned a great deal from the moral philosophers of the previous two hundred years, there was a great deal more to be learned. I suspect that they fully expected future generations to “legislate morality,” and to write any new moral discoveries that may come along into the law.
We will make mistakes. No sensible person can say that every change made since 1787 has represented moral progress. However, the trend has been good. Slavery is gone. Women can vote. Children spend their childhood in schools rather than factories. Racism is recognized as a wrong to be fought, even though the victory has not yet been won.
As our understanding of what morality requires of us improves, we will hopefully base our laws on that improved understanding. Hopefully, we will have the wisdom not to throw out two thousand years of moral progress. Hopefully we will not throw out the moral principles written into the Bill of Rights, because these were not taken out of some biblical text, but instead were discovered by men.