Opposing View: The Necessity of “Legislating Morality”

“The law in a democracy is never potent in a vacuum. It must work in concert with the people.”

No one likes being told what to do. Especially when people are debating about whether or not the government should prohibit certain conduct, it is en vogue to veer on the side of an individual’s freedom to do whatever they want. This helps explain the popularity of the political platitude, “You can’t legislate morality.” And while this maxim is certainly an easy way to win a debate on Facebook and get your libertarian uncle nodding vigorously, it is used so often and so conclusively that few people stop to think: what does it actually mean?

In contemporary parlance, it is usually invoked to mean that the government is not the right actor to stop people from doing something just because it is “immoral.” However, the simplicity of the maxim obfuscates its nuance. It seems that there are actually two questions at issue: should the government legislate morality, and can the government do it? The first is a question of normativity, and the second is a question of practicality.

Some more liberal authors tend to consolidate the two questions, arguing that the government should only enforce moral laws when it is actually capable of curbing a given behavior. This obviously bolsters liberal social politics, since it skirts the question of whether or not abortion or transgenderism or drug use is actually ethical and simply asserts that the government is inept at regulating such conduct and therefore should not attempt to do so.