Legislative Judgments of Morality

Randy Barnett has an interesting post up at the Volokh Conspiracy, giving a persuasive argument about why legislative judgments of morality are not a particularly good basis for legal punishments or restrictions. Barnett makes the very interesting initial assertion that: “A legislative judgment of ‘immorality’ means nothing more than that a majority of the legislature disapproves of this conduct.” Responding to a critique of this position by Rick Garnett, Barnett then elaborates:

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.

32 comments for “Legislative Judgments of Morality

  1. Adam Greenwood
    February 12, 2004 at 11:54 am

    Randy Barnett’s comments are ridiculously unpersuasive, Kaimi. If legislative decisions must have rationales, those rationales will always have some stopping point, some ultimate end, that is as much a moral statement as anything else. There are no objectively rational laws separate from some moral stance.

    Even if there were any weight to his objection, its absurd to outlaw moral views that have a long pedigree in our society.

    Finally, what about those of us whose political views and votes are based entirely on our ideas of what is moral? Should I be disenfranchised?

  2. February 12, 2004 at 12:07 pm

    According to Garnett, Barnett is also concerned because legislating “solely on the basis of morality would recognize an unlimited police power in state legislatures.” Exactly!!! Legislatures used to have this police power and it was recognized by the courts. Isn’t this the basis for prohibiting indecent and obscene speech, a community standard of morality. There are restrictions on the exercise of this police power however. For instance, a majority could not vote to allow public torture of convicts because that would violate the Constitutional prohibition against cruel and unusual punishment. But there is no reason why a legislature cannot determine moral issues. To suggest otherwise, merely because one does not like the exercise of such judgment, casts doubt on the entire system. Every law involves some element of moral judgment, whether we are talking about welfare legislation, environmental legislation or marriage legislation.

  3. February 12, 2004 at 1:03 pm

    In our system of government, a legislator is a representative of his constituency’s views. As morality is, at least in a practical sense, a community-defined entity, it stands to reason that if a majority of legislators vote on moral issues, then the majority of the populace–and thus society–agree with them. If that’s not the case, those who disagree on moral issues should be more politically active and elect a representative who agrees with them on the moral issue in question!

    I agree with Brent that if the legislature was not supposed to legislate on moral issues (and how many legal issues are there that aren’t related to moral issues?) there would be a Constitutional prohibition of it.

  4. Matt Evans
    February 12, 2004 at 1:09 pm

    To answer your question, Levi, the number of legal issues that aren’t based in morals is zero.

  5. Nate Oman
    February 12, 2004 at 1:25 pm

    Kaimi: Do you actually subscribe to Barnett’s interpretation of the Privleges and Immunities Clause?!?! I happen to be pretty sympathetic to Barnnett’s position, but by most standards I am also probably a certified libertarian wacko. I have always taken you, on the other hand, to be a good post-New Deal liberal committed to the shibboleths of the Warren Court, etc. Are you really prepared to sign off on the neo-Lochnerism inherent in Barnett’s argument?

    Since I suspect that you are not, in what sense to do you consider his arguments to constitute a persuasive argument against the allowing legislative judgments of morality to constitute good basis for legal coercion. You have to realize that one could make the same argument about something like the progressive income tax.

    I suspect that Barnett would be willing to entertain such an argument. Are you?

  6. February 12, 2004 at 2:13 pm

    I find it curious that the issue of homosexuality, which is the example specifically cited by Barnett, is what is causing us to cast aside so many traditions and customs(social, moral, political, etc.). I guess it isn’t just homosexuality, but the whole spectrum of sexuality outside of marriage. Shouldn’t that cause us just a little pause?

  7. February 12, 2004 at 2:41 pm

    I’m not sure I’d go so far as Matt and say all legislation is tied to morality. I think that say some standards are largely arbitrary or tied to efficiency.

    But beyond that I suspect I largely agree with Matt. I think the main difference between the constitution and regular legislation is the degree of consensus it requires. But I have a hard time seeing the exact date of an election as a moral issue, for instance.

  8. Adam Greenwood
    February 12, 2004 at 2:59 pm

    Good qualifications, Clark. I accept Matt’s position as you restate it.

  9. February 12, 2004 at 3:13 pm

    Brent, I think if it was just an issue of activities there would be far less of an issue. The problem is that church and state have been inexorably mixed the past 250 years (or more) over the issue of marriage. Because of that mixing changing the legal definition of marriage has religious implications even if not *practice* implications.

    As I’ve said many times the ideal situation would be to completely divorce marriage from the state. But I think it is too late for that.

    As an interesting aside, I think Joseph Smith tried to do that. If you recall fairly early on there was a big controversy about whether Mormon Elders could marry people independent of state licenses. (This was prior to polygamy) Without looking it up, I seem to recall that Joseph thought marriage was purely a religious issue. But clearly the state does not.

    Of course the ideal situation would be to talk about legal unions and completely remove reference to marriage in all laws.

  10. Matt Evans
    February 12, 2004 at 3:25 pm

    I admit it’s conceivable that a there might be a legislative decision that was truly arbitrary, but I don’t know what it would be.

    The date of an election, for example, is not arbitrary. The date of an election is something that legislators would debate; some would argue that some dates are *better* than others.

    The framers didn’t pull “the first Tuesday after the First Monday in November” out of a hyper-arbitrary hat. They didn’t want the election on the Sabbath, so that ruled out having it on a fixed date every year. They wanted it at a slow time for farmers, so they scheduled it after the harvest. They wanted to reduce the likelihood of large storms, so they didn’t want it in winter. They didn’t want the election to sneak up on people, so they ensured wouldn’t be the first day of the month.

    If legislators can argue that one course of action is better than another, that means they are striving for a particular ideal, and all ideals rest on moral assumptions.

  11. February 12, 2004 at 3:50 pm

    Matt, by arbitrary I don’t mean arbitrary in the sense that people don’t care about the date. I mean arbitrary in that it doesn’t seem tied to any moral value.

    Certainly there are practical matters of efficiency and so forth. Ideals and morality are not the same thing. If you are saying that they are, then I’d proably disagree with you.

  12. Matt Evans
    February 12, 2004 at 4:41 pm

    Clark, I don’t believe there are any ideals that aren’t undergirded by moral premises. An ideal is a standard of what *should be*, and all conceptions of what *should be* rest on moral assumptions. Can you think of a counter example?

  13. February 12, 2004 at 4:55 pm

    I have an ideal of what my shelves I’m building should be like. Unless you go platonic and think Beauty and Good are the same, I just don’t see how they are related.

  14. Matt Evans
    February 12, 2004 at 9:00 pm

    The ideal isn’t the moral imperative, the ideal is the standard, the goal. In the case of shelving, your ideal might be beautiful, functional, cheap, durable, wood, etc. Those attributes aren’t the moral imperative. The moral imperative is what you appeal to when you suggest that your shelves *should* be beautiful, or *should* be durable or *should* be wood. It is implicit in your explanation of why you *should* build shelves at all.

    Let’s imagine that your ideal for the shelving you’re making is “beautiful.” Now we can recast your first sentence as, “The shelves I’m building should be beautiful.” Even though that sentence is itself a moral statement, it’s probably not your moral axiom (though it could be). More likely, this moral statement is premised on a different moral axiom, like “shelves should be beautiful,” or “I should use my talents to build beautiful things,” or “I should find ways to express my love to my wife, who enjoys beautiful shelves.”

  15. February 12, 2004 at 9:16 pm

    Matt, once again I fear we meet over the abyss of very, very differing philosophies. I don’t believe there are such things as moral imperatives.

  16. Matt Evans
    February 12, 2004 at 10:44 pm

    Clark, you use moral imperatives in your posts, so I don’t know what you mean when you say you don’t believe in them.

    You haven’t limited your blog comments to describing the world, you’ve said how it should be. You’ve offered moral imperatives along the lines of “husbands should help their wives,” and “people shouldn’t jump to conclusions,” so I’m totally confused when you say you don’t believe in them.

  17. February 12, 2004 at 11:17 pm

    Matt, my complaint is that I think you are make “moral” equal to “motive” which in my mind dilutes the meaning of the word “moral” so that it is near meaningless.

    Basically the way I look at the meaning of “moral” is so radically different from how you do, that we really don’t even have a common vocabulary. All you are doing is, within the structures you think in, try to say what I am doing. But that’s not really my point.

  18. Matt Evans
    February 13, 2004 at 1:17 am

    Clark, unfortunately I don’t have a lot of time to dedicate to the discussion, but I have been using “moral” in two ways, which is understandably confusing.

    The first “moral” is the moral ends to be achieved (justice, love, mercy, peace, etc.) and the second “moral” is the moral duty one has to achieve moral ends (one SHOULD do justly, thou SHALT love, BE peaceful, etc.). This second definition is the “moral imperative.”

    When we use the word *should* we are stipulating the second meaning and implicating the first. (Because moral imperatives point to moral ends, we can deduce moral ends from every moral imperative.) Both meanings are, or depend upon, moral axioms.

  19. February 13, 2004 at 2:18 pm

    Matt, thanks for clearing up your use. The problem is I don’t see how either applies to my example of shelves. My imparitive to my ideal of shelves isn’t a moral one (implying something independent of my desires) but something intrinsically created by me.

    That’s what I’m getting at. You seem to confuse “moral duty” with personal desires. Now if there is a way of distinguishing them (as I’d hope you’d acknowledge) then I don’t see why that doesn’t apply to the law.

  20. Matt Evans
    February 16, 2004 at 11:28 am


    *Should* is always a word of moral judgment. Every time the word *should* is used, the speaker is overtly or implicitly recognizing alternative possibilities and saying that one or some of those possibilities are better than others. It is only possible to suggest some possibilities are better than others by referencing a moral standard.

    By using a word of moral judgment in your statement, “my bookshelf should be type-X,” you implicitly invoked a moral standard. There are countless moral standards your particular *should* could ultimately rest on. Some of them could be:

    – a world with an extra type-X bookshelf is a better world than one without it, therefore my bookshelf should be type-X

    – a world in which Clark fulfills the desires of his wife is better than a world in which they’re not, and Clark’s wife wants a type-X bookshelf, therefore Clark’s bookshelf should be type-X

    – a world in which Clarks desires are met is better than a world in which they’re not, and I want a type-X bookshelf, therefore my bookshelf should be type-X

    Now if you change your statement from, “my bookshelf should be type-X” to “I want a bookshelf of type-X”, then you have removed the explicit moral judgment. However, many speakers imply (and listeners infer) the unspoken moral premise “a world where a my wants are met is better than one in which they’re not met” (therefore my bookshelf *should* be type-X because I want a type-X bookshelf).

    It is possible to say “I want a bookshelf of type-X,” not imply the unspoken moral premise, if you limit it to a descriptive and factual statement. You can disavow the assumed moral standard that a world where your needs are met is better than one where they’re not, along the lines, “I want a bookshelf of type-X. I don’t claim that my wants *should* be fulfilled, yet I want what I want.” That is a non-moral statement. It is a statement of fact.

    But facts CANNOT persuade. Descriptions cannot persuade. Facts and descriptions only have persuasive value if they are tied to moral judgment. Descriptive and factual statements like, “My constituents are clamoring for services of type-X,” or “the amount of mercury in the water is 20% higher than it was last year,” have no explicit moral standard, so they can only persuade people if the listener ties an unspoken moral premise to the facts (a world that meets the desires of clamoring constituents is better than one that does not; a world with higher mercury in the water is worse than one with low mercury, etc.). The reason people think facts are persuasive is because they inject moral premises without realizing it.

  21. lyle
    February 16, 2004 at 11:41 am


    Facts cannot persuade…nor descriptions? Is this a linguistic debate? Personally, I find facts and descriptions very persuasive. WHY I find them persuasive might be m(im)moral, prescriptive, preventative, prophylactic, (dis)incentivistic, retributive, etc…but that is different?

  22. Matt Evans
    February 16, 2004 at 12:23 pm

    Hi Lyle,

    If a factual statement persuades you, it’s because you inject a moral standard. Absent a moral standard, facts can’t persuade.

    (If this isn’t clear, post a factual statement that you find persuasive, and I’ll find the implicit moral premise.)

  23. Grasshopper
    February 16, 2004 at 12:50 pm


    I think there may be another use of “should” that doesn’t fit with your analysis. If we understand “my bookshelf should be X” to *mean* “I want my bookshelf to be X”, I think we could do away with the implicit “and a world where my wants are met is better than one in which they’re not met”. In fact, I may even think that a world in which a specific desire of mine is met would be *worse* than one in which it is not met, and yet still say that my desire “should” fulfilled, merely because I desire it.

    I think there is also some equivocation in the term “better”. I don’t think “better” must always mean *morally* better. For example, I may think that vanilla ice cream is better than chocolate ice cream, but that doesn’t mean that I think vanilla ice cream is *morally* better than chocolate ice cream.

  24. Matt Evans
    February 16, 2004 at 1:32 pm

    Hi Grasshopper,

    You are right that someone may not think a world that meets their wants is better than one that doesn’t. I meant that only as one possible moral standard upon which Clark’s use of the word *should* could rest, not that it was, in fact, his moral standard. My point is only that every use of a word of moral judgment, like *should*, invokes any of a countless number of moral standards.

    Your flavor of ice cream question fits right in to the question of whether morality is independent or subjective. Many philosophers think that _all_ expressions of moral judgments are merely stating personal preferences, like vanilla being better than chocolate. According to them a world where Jews are respected isn’t *actually* better than a world in which they’re slaughtered, the reason we think that is merely because lots of people prefer one view of Jews over another. But the important point of this theory that there is no *right* answer, only expressions of what people like and don’t like. Morality, as we speak of it, doesn’t exist. Morality, as we practice it, is socially constructed.

    I was using my “one world is better than another” to express a moral premise, and if you have a more elegant formulation to express a moral statement, I’ll gladly adopt it. Mine is cumbersome.

  25. Grasshopper
    February 16, 2004 at 4:08 pm

    Matt, you said: “My point is only that every use of a word of moral judgment, like *should*, invokes any of a countless number of moral standards.”

    And my point is that this is not necessarily the case. You assert this, but I gave a counterexample in which the use of “should” is not a moral judgment at all, but merely another way to express “I want”. And I think this is exactly the kind of thing Clark was saying about his use of “should” with regard to his shelves — that it was merely a reflection of his desires and does not reflect a moral judgment.

    And the question of whether morality is subjective or not is irrelevant to this point. It would stand whether morality is subjective or subject-independent.

  26. February 16, 2004 at 6:15 pm

    Actually my point was that Matt’s use entails everything moral in a sense that dilutes the meaning of morality so much that it becomes rather pointless. Saying that all laws have morality thereby loses the weight of any implication of that statement.

  27. Matt Evans
    February 16, 2004 at 7:06 pm

    Hi Grasshopper,

    I haven’t seen your counter-example of a sentence with *should* that doesn’t entail a moral judgment. Please post it again so I can comment on it.

  28. Matt Evans
    February 16, 2004 at 7:12 pm

    Clark, is is-ought distinction doesn’t dilute morality, it merely shows that every persuasive argument rests on moral premises. Or do you mean that if there are too many moral axioms, it dilutes the value of the big moral axioms?

    Point me to a law, even a fictitious yet plausible law, that the legislature could debate, and I will find the moral premise that undergirds it.

  29. Chris Goble
    February 16, 2004 at 7:48 pm

    Matt, just a question about the two types of moralities you defined earlier – moral ends (result?) and moral imperative (motivation?). Does it still make sense to use the issue of morality for decisions that are “invisible”. In other words as I am typing this document, I am making hundreds of moral decisions as to which keys to type. While message may be characterized by ends and imperatives, does it make sense to do so with the keys I type. To me this action has been repeated so many times I am not conscious of it. Thus I am not sure if an appeal to standards applies. What if my brain has gotten wired so that when I think of “k” my finger just hits the key. I don’t even apply to a decision center part of my brain. What happens if I don’t even think in terms of letters, but of whole words. I may make a decision as to which word to type, and invariable I type the letters. I have thought of words, but not letters.

    If this is a view I use on morality, does it not make sense to reserve the use of the concept of morality to decisions that require conscious rather than sub-conscious thought?

  30. Grasshopper
    February 16, 2004 at 8:16 pm

    Matt, my counterexample was “My bookshelf should be X”, where we understand this merely as an expression of desire: “I want my bookshelf to be X.” A similar example would be:

    “I should have vanilla ice cream for dessert tonight.”

  31. February 17, 2004 at 3:28 am

    Matt, you’re still missing my point. All you have done is equated morality with all teleological causes. That’s fine. But to me it is so broad as to render morality of that sort rather useless.

    Put simply, I certainly agree all intelligent acts have intentions in terms of some ends. But so what? When people speak of morals in law, it isn’t the overarching sense of the term you are using.

    When we speak of legislative *judgments* of morality we aren’t speaking of “sought ends” so meaningless as ideals of shelves. Rather we are speaking of such things as our views of right or wrong in sexuality, in violence, in press. Put an other way, it is morality in terms of what we believe to be objective for all as opposed to what is immediately expedient.

  32. Matt Evans
    February 17, 2004 at 10:22 am

    Hi Grasshopper,

    If you ask someone, “You say you *should* A. Why *should* you A?,” they offer one of two possible responses: “Because A is a moral standard,” or “Because B.” If B, ask them why they *should* B. They will answer Because B is a moral standard, or Because C. If C, ask them why they *should* C. They will answer Because C is a moral standard, or Because D. Keep going until you find the moral standard that animates their *should*. It’s always there.

    For example: Why *should* you have vanilla ice cream tonight? Because I want it. Why *should* you have something that you want tonight? Because I worked hard today. Why *should* you work hard? Because it is right to work hard. (Working hard is a moral standard.)

    EVERY legislative act follows that same train back to a moral standard, a definition of right and wrong. This is because every piece of legislation is proposed by someone as a *should* — we *should* pass law X. Then someone asks why we should pass law X. Either Because X is a moral standard, or Because Y. Follow the steps outlined above until the representative reveals the moral standard that gives meaning to his legislation.


    Of course they don’t speak of morals in the law. That’s the whole ruse! They’ve tried to narrow the “legislation of morality” to be the legislation of morals they dislike. That’s why we encounter absurd statements from otherwise intelligent people like Randy Barnett that, “”A legislative judgment of ‘immorality’ means nothing more than that a majority of the legislature disapproves of this conduct.”

    Well what does Barnett think a legislative judgment that a 20% sales tax is ‘poor public policy’? It’s no more than a majority of legislators disapproving high sales tax rates or their consequences. In other words, because sales tax rates, or their consequences, are contrary to a moral standard.

    Here’s how their argument works: “The moralists are trying to preserve the traditional family; I’m trying to preserve the natural environment. They’re trying to legislate morality; I’m writing sound public policy.”

    Or “They want to criminalize pornography distribution because they think pornography is wrong, but we should only criminalize acts that directly violate the harm principle.”

    Now ask this person why we *should* criminalize acts that violate the harm principle, and follow the chain backwards, and they will ultimately give you a moral standard equivalent to “pornography is wrong.”

    There is no objective reason to prefer their teleological moral standards over those who say pornography is contrary to a teleological moral standard.

    Their argument ultimately reduces to: my vision of morality is better than your vision of morality. To avoid admitting this, they resort to a parallel of, “Horses sweat, men perspire, Mrs. Orwell glows.”

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