Moral Objectivity and the Legislature: A Comment On Prof. Barnett's Quote

Rick’s February 11 post (“Legislative Moralism”) asks his fellow bloggers to comment on Professor Randy Barnett’s assertion that “a legislative judgment of ‘immorality’ means nothing more than that a majority of the legislature disapproves of this conduct.” (from Barnett’s working paper, “Justice Kennedy’s Libertarian Revolution”).

This quote seems to assume that the rightness or wrongness of certain actions is measured only by the subjective tastes and preferences of private individuals and groups. And, if morality cannot be judged by objective criteria, then we are hard pressed to justify vesting the majority with the authority to impose its own subjective morality on society through legislation.

There are several practical problems with this approach. Who counts as a rights bearer or a member of the community entitled to equal respect and dignity? An African-Americans held in slavery? A three month old fetus? An eight month old fetus? A two month old child? My elderly father? A dog? And, how do we decide who counts? Can (or should) the majority impose its own view of who counts on the rest of society? Also, what constitutes “amoral” harm that would justify majority interference with the preferences of the minority? Is adult incest “harmful?” What about beating a dog (assuming the dog is not a right’s bearing individual)? What about adult-child sex? People will and do disagree about what constitutes harm. If there are no objective criteria for preferring one person’s moral vision over another’s, are there objective criteria for preferring one person’s conception of membership or harm to another’s?

At a deeper level, underlying Barnett’s quote are liberal individualist anthropological assumptions. A Catholic perspective proposes an alternative anthropology, suggesting that there is an objective reality about the human person, that there are objective rights and wrongs, and that it is sometimes the responsibility of the state to step in and restrict objectively wrong or “immoral” behavior. To quote and paraphrase Rick, “in the Catholic tradition of moral realism, … ‘immorality’ has been thought to signal more than (mere) disapproval.” Calling something immoral means that is it is objectively disordered; that it will not and cannot lead to our own good or the good of the community. In other words, while the immoral act might lead to a short-term and deep-felt gratification, it will not lead to our long-term or true happiness.

So for example, a parent spending much needed grocery money on alcohol (to numb the pain of financial worry) or lottery tickets (to indulge the fantasy of relieving the financial stress) is acting in a way that is destructive to a) the parent, b) the children, and c) the community.

Whether we ought to legislate to restrict the immoral act is a separate question, one that depends on the prudential judgment of the legislator. The legislative majority might decide against legislation to restrict the objectively immoral act because the legislation would be hard to enforce, because it would involve the state in policing the elusive boundary between legitimate and illegitimate expenditure of a family’s funds, and/or because leaving the individual free to make his own decision (for good or ill) will more likely lead to his own moral growth. But, the legislature might decide, for instance, to ban the lottery in a particular state so as to relieve certain members of vulnerable populations of the temptation to indulge the get rich quick fantasy at the expense of their families. Whether or not the legislature acts in this hypothetical, the community can rightly judge the behavior as immoral - and this is more than a signal of (mere) disapproval. It is instead, a signal that the individual is acting in an objectively disordered way.