Who Said the Federal Government Could Legislate Morality?

Jack Shields | @Jack_Shields20

This week the Senate failed to pass Ben Sasse’s (R-NE) bill which prohibited infanticide and mandated that babies born after a botched abortion receive proper medical care. When this happened, I found myself in a weird position. Though I disagree with the reasoning the Democrats had to vote no, and I am extremely pro-life, I would have voted no too. This is because although I believe it is a great moral issue that must be solved, it is not a federal issue. It is a state issue, and we would be wise to remember that just because it is morally good, does not mean it should that all levels of government should do it.

Ever since the beginning of the Progressive Era, we have begun to look at the federal government more and more to solve our problems. Save the planet? The government will do it. Give us healthcare? The government should do that as well. Bring back jobs? Don’t worry, the government will do it. Ensure moral truths are upheld? You guessed it, the government will do it.

The Partisan Arbitration of Morality

It’s not just Democrats or Republicans that are bad at this. Both sides are doing it plenty. The Democrats have promised to save the environment with the Green New Deal, while the Republicans have promised to bring back coal mining jobs with tariffs. The dirty little secret that they refuse to share is they won’t do either. Democrats could get their wish and cut U.S. carbon emissions by 100%, and it wouldn’t make a dent in global warming. The United States is just one of the many nations producing carbon emissions with China and India outpacing us by a greater margin each and every day. Republicans are not going to magically bring back jobs that have been automated by infringing upon the principles of a free market. They are just going to make goods more expensive. But nonetheless, we have a natural urge to want solutions to our problems and to want security. The government is in a position to promise us both, regardless if they can actually deliver.

This has been most true with moral issues. We have begun to think every moral issue is an issue the federal government should have a say in. We did this with gay marriage with the Defense of Marriage Act in the ‘90s, and now we are doing this with racial issues and abortion issues. 

Just before the infanticide bill, the Senate passed a bill that banned lynching at the federal level. When it comes to the moral principle of the bill, there is nothing wrong with wanting to ban lynching even though it is no longer a problem in the United States. The problem comes from the fact that there is no part of the Constitution that grants the federal government the power to regulate such crimes. While banning infanticide is certainly a good idea, there is not a single clause in the constitution which provides the mechanism by which the federal government may do so. Yet, not once have I heard a Senator on either side of the aisle, for or against these bills, bring up this issue.

The Public’s Lack of Respect for the Constitution

The reason politicians are able to get away with their disregard for the Consitution is due to America’s loss of obedience to the Constitution. We enjoy the Bill of Rights, but the lack of federal authority for universal healthcare is ignored. We have chosen to be a nation of disobedient men and not a nation of laws.

Those who are fine with this must recognize the inherent harm of such a state. With a nation based on the wills of men and not the words of the law, the ignorance and tyranny of the majority will not be checked. While things may be going well for you now, you won’t always be in the majority, and at that point, you will be helpless if the majority chooses to infringe upon your rights. When the once minority party becomes the majority party, they will just be able to undo everything done by the past party with no restrictions on their power to impede their goals.

Some may counter this by claiming that society is gradually getting better and that we have no reason to think that future generations would do anything but ensure more equality, justice, and fairness. This simply isn’t true. I don’t think anyone would argue that Nazis Germany was more moral than the Weimar Republic, nor that the USSR was more moral than the Russian Empire, yet the Nazis came after the Republic, and the communists came after the Empire. There is just simply no certainty that society will always get more moral. Humans, after all, are capable of quite evil things. 

This is why having and upholding the principles of a constitution is so important. The evilest desires of men will find their way into government, and they will attempt to implement them. A constitution checks those desires, protecting the rights of all people and ensuring the powers of government are limited. While it in no way ensures that tyranny will always be prevented, it certainly blocks many of the pathways to tyranny.

Obviously, some constitutions have failed to do their job, and all constitutions are made by men and are therefore flawed. But they are undeniably better at protecting us from tyranny than a nation of men. Now when it comes to their flaws, the Founding Fathers knew that they were flawed, and they knew the constitution was flawed, which is why they included Article V.

Is Article V the Solution to Our Problems?

Article V allows for the constitution to be amended, as we have done so 27 times throughout our nation’s history. It allows us to handle moral issues, such as the protection of our rights, as we have done with the first ten amendments known as the Bill of Rights. It allows us to change the layout or procedures of the federal government as we did with the 17th Amendment allowing a direct election for Senators, and the 27th requiring an election to take place before members of Congress get a pay raise. It has allowed us to grant the federal government say in an issue previously reserved for the states, as we did with the 13th amendment banning slavery, and the 18th amendment prohibiting alcohol sales.

There is no reason we can’t do this today! If you want to ban lynching or want to regulate abortion, good for you! But don’t ignore the constitution to do it, use the constitution to do it. Either attempt to pass a constitutional amendment or have the issue be decided at the state level. That’s how federalism is supposed to work.

Though they’re by no means perfect, ensuring we are a nation of laws based on a Constitution and not a nation of men is the best way to prevent tyranny and ensure we have a limited government with decentralized power. Because of this, we should uphold the constitution, even if it means we will not immediately be able to do what we want such as ban lynching. As the risks of allowing the will of men to determine our rights and policies far outweigh the benefits, and that is why we must either work through the process laid out in the constitution to make the issue a federal issue, or we may handle the issue at the state level. The constitution has given us freedom, prosperity, and all other things we take for granted. It will be our demise if we forget that, even for noble goals, and it’s about time both sides of the aisle remembered this.


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