Lecture #3: Virtue & Morality: Freedom’s Prerequisites

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Lecture #3: Virtue & Morality: Freedom’s Prerequisites
Last time I told you I would next talk about Federalism, but in view of the fact that one member of the audience spawned a discussion of libertarianism versus conservatism after I delivered my lecture on the origin and meaning of Liberty, I decided to talk about the necessity of virtue and morality in sustaining liberty. She argued that government has no place in trying to “force morality,” which seems to be a libertarian approach.
If one were to examine our entire body of human law, there would be very little found that was totally devoid of any moral base. So the vast majority of all human law promotes some notion of morality. So the big question is: “What moral base should be applied?”
I think people in most of the differing political camps would tend to agree that human laws should prohibit people from injuring other people. They would recognize a sphere of individual rights possessed by everyone that should not be invaded by others, so they would favor anti-intrusionary laws concerning those rights, the most obvious of which would be laws against murder, rape, robbery, etc. They might disagree as to what should be included in that sphere of protected rights, but would probably universally agree that at least murder and rape should be included in that protected sphere.
But it is a completely different thing to use the force of human law to make people be affirmatively good to one another. I think both libertarians and conservatives would generally disapprove of such laws, while liberals/progressives would tend to favor such laws. An example of this would be our anti-discrimination and affirmative-action laws.
I think the person who raised the issue said she was against using human law to “force” morality. If what she meant by that was trying to force human conscience and make people believe a certain way through the threat of official punishment administered by the government, I think both libertarians and conservatives would disapprove of such an approach.
If she meant that it was inappropriate to use human law to “encourage morality” or “forcefully prohibit the encouragement of immorality,” here is where I think libertarians and conservatives tend to part company. An example that could be used here would be attempts to prohibit the publication of pornography. I think libertarians would tend to oppose such laws whereas conservatives would tend to favor such laws.
Knowing the vital importance of public and private virtue in sustaining liberty, our founders would see no problem with prohibiting the public dissemination of materials that would tend to destroy that critical moral base. They would not have viewed such attempts as being violative of the 1st Amendment’s freedom of speech or freedom of the press clauses. At least that would most certainly be the case at the state level, since as we will see in a future lecture, the federal Bill of Rights did not serve as any sort of handcuffs on any actions by the states. But even at the federal level, I don’t think the founding generation would have viewed pornography as “speech” within the meaning of the 1st Amendment. It was the 20th century Supreme Court that expanded the notion of “freedom of speech” to mean “freedom of expression” as they came up with a rule about pornography that made it virtually impossible to regulate or prohibit.

Joseph Story was one of the first Supreme Court Justices. He was born in the middle of the Revolutionary War. As a young man studying the law, certainly he would have a keen sense of the founding era – what the moods, intents and philosophies of the people were, how the history shaped the times, etc. He became the generally recognized expert on American Constitutional Law and was commonly referred to as the “American Blackstone” – Blackstone being the recognized expert on English law.

At the time Story wrote his Commentaries on the Constitution of the United States, the U.S. Supreme Court had not yet ruled on any Bill of Rights cases. Hence there had been no official interpretations of any of the Amendments, including the 1st Amendment’s coverage of religion, speech or the press. Therefore, he simply described the prevailing view of the drafters and the majority of the people regarding those rights. Concerning the freedom of speech in the 1st Amendment, he said the following:

“That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefore, is a supposition too wild to be indulged by any rational man. This would be to allow to every citizen a right to destroy, at his pleasure, the reputation, the peace, the property, and even the personal safety of every other citizen….Civil society could not go on under such circumstances….It is plain, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert government.”1(emphasis added)

Concerning freedom of the press in the 1st Amendment, he said that to look at that right as some sort of absolute right that allows the press to print whatever it wants without any liability for what it does, would mean that “the liberty of the press is incompatible with the permanent existence of any free government.”2 Again, he emphasized the freedom from prior restraint as the key component but then said:

“Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press. But, if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity….[T]o punish any dangerous or offensive writings, which, when published, shall, on a fair and impartial trial, be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public of bad sentiments, destructive of the ends of society, is the crime, which society corrects. A man may be allowed to keep poisons in his closet; but not publicly to vend them as cordials.3

He also quoted with agreement Blackstone as saying: “So true will it be found, that to censure the licentiousness, is to maintain the liberty of the press.”4
So it is clear from these explanations that freedom of speech and freedom of the press cannot be viewed as absolute rights which are immune from all potential legal accountability. Society can choose to hold anyone accountable through the force of law for the misuse of those freedoms in ways that tend to destroy civil society.
But even if the founding generation would not consider pornography to be protected “speech,” to stay true to my later discussion on federalism, where in the Constitution is the federal government affirmatively delegated the power to regulate something like pornography? If it doesn’t fall within one of the enumerated powers, then the federal government doesn’t have any authority to regulate it. Be that as it may, I think as per the 10th Amendment, it is irrefutable that the founding generation would not hesitate to conclude that the states could regulate the topic however they wanted to and would think it wise to do so for the reasons discussed here. But as we will see later, due to the U.S. Supreme Court’s misinterpretation of the 14th Amendment, it has effectively prohibited the states from legally holding anybody accountable for publishing pornography.
As the various quotations in this lecture will indicate, liberty cannot be sustained long term without widespread virtue and morality in the people. In the opinion of our founding generation, it is very easy to destroy a society’s virtue and morality and it is very difficult to create and sustain it in adequate amounts to ensure that the widest degree of liberty can be enjoyed by the people. Effectively, they believed it takes several institutions working in unison to produce the desired result. Not only does it take religion, but they believed it also requires support from families, communities, and even supporting efforts in public education and government. As the following quotations will indicate, they would not try to punish people for disbelieving such encouragements, but they would certainly have no hesitations making very clear and favorable general theistic statements. I tend to agree with our founders on these points and thus favor the conservative approach.
Although it may bore some of you, as usual in these lectures, most of what I will share with you will be quotations from other people. I will do this for at least two reasons. First, I want to give credit to them since they thought of the ideas before I did, and second, I think they expressed the ideas better than I can.
My hope is that you will pause many times over the course of this recorded lecture to ponder the various points made. If you are not willing to do that, I think you will tend to get bored and tune out which will be very unfortunate since the principles are so important. Moreover, a particular quote might carry subtle nuances and implications that are not necessarily included in the similar quote making the same major point but coming from a different person. While I do not have the time discuss all these nuances, I think they are also important for you to consider on your own.
You might tend to get bored when I quote more than one person to make the same basic point. However, the value of the repetition lies in the fact that when more than one great thinker independently comes to the same conclusion regarding the particular idea being discussed, that enhances its credibility.
So I hope you will intellectually engage in the discussion and become an active participant instead of just trying to be a passive sponge. I hope that along the way you will pause and ask questions like: “Is that really true?”; “If so what are its implications?”; “If it is not true, what are the implications of that conclusion?” In doing so your attention span and intellectual stamina will naturally expand, which are very good things.
If you feel like you need a break part way through, go ahead and take one, but please be willing to return later on to seriously consider the rest of the discussion. The same request applies to all of my lectures.
So let’s get started with today’s lecture.
Natural Law
From time immemorial, people have disputed whether or not there is such a thing as natural law which governs the affairs of men. “Positive law” is man-made law. “Legal positivists,”in their most extreme sense, believe that there are very few, if any, natural laws regarding right and wrong, good and evil, etc. They believe that we are free to define these things however we want.
Natural law theorists believe that just as there are natural laws regarding physics, chemistry, etc., there are natural laws or basic truths regarding good and evil, right and wrong, etc. that are independent of our ability to properly discern them and which carry natural consequences for obedience or disobedience to them. They believe that to the extent societies can properly discern and implement these laws, such societies prosper politically, economically, and culturally, and produce more peace, safety, and order relative to other societies which don’t similarly conform their human positive laws with the natural laws. However, natural law theorists don’t think there are natural laws for everything and believe that there is a hierarchy of natural laws with some being more fundamental and important that others. They would also tend to believe that the more fundamental and important a particular natural law is, the easier it is to discern through logic, reason, and experience. They would also tend to believe that many can be discerned with the help of Divine revelation found in the Bible and other scriptural texts.
In the words of Robert Frost:

“Most of the change we think we see in life

Is due to truths [or in the context of this discussion—natural laws] being in and out of favor.”5
Phillip E. Johnson, a law professor at U.C. Berkeley, has written some excellent books criticizing the weakness in logical argument behind the theory of naturalistic evolution – i.e. evolution proceeding without any sort of intervention by an intelligent, guiding hand. In one of those books he observed:

“Our logic cannot supply its own beginning. Logic is merely a way of reasoning correctly from premises to conclusions. The premises must come from elsewhere. Rationalism is inherently self-defeating, because the rationalist must pretend to derive his first premises by logical reasoning, which always rests on other premises. Empiricism faces the same dilemma when it becomes a total system because the empiricist always needs to know more than he can observe. Premise-evading philosophies like logical positivism or scientific materialism last only until the dilemma becomes too evident to be concealed, and then they wither. That is why the guardians of such systems when under pressure often become fanatics who try to impose authoritarian control. Forbidding examination of the premises is the only way they can continue to rule....My problem is not with presuppositions as such, but with concealed presuppositions, which come disguised as facts.”6

Natural law theorists tend to start from the premise that “God created man – not vice versa”7 – and that our natural human rights derive from God and that we owe certain duties and obligations to Him which we can ignore only at our peril. Such duties form the basis of our civic duties which people need to respect and honor if they wish to protect and sustain the enjoyment of their liberties. Legal Positivists start from a different premise or faith.
Consider what the preeminent English legal scholar William Blackstone said about the matter: "This law of nature, being coeval with [equally as old as] mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”8
James Wilson, U.S. Supreme Court Justice and signer of the Constitution, wrote:

"Human law must rest its authority ultimately upon the authority of that law which is divine....Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other."9

The founding of America itself is a good example of this fundamental premise of divine natural law. After using the phrase "the laws of nature and nature's God," the Declaration of Independence (known as the first of our "organic laws") observes:

"We hold these truths to be self evident that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights governments are instituted among men deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”

So the idea, as expressed by our own founders in that document, was that natural laws (dealing with rightness, wrongness, fairness, equity, justice, etc.) pre-dated governments, our civil law, and politics and that the latter mechanisms were designed after-the-fact to protect and secure these natural, God-given laws and rights. If God and religion were now to be taken out of the political equation, wouldn't that be "putting the cart before the horse" or even worse, unhitching the horse from the cart entirely?
Before unhitching the horse, Jefferson's quote inscribed on the walls of the Jefferson Memorial in Washington D.C. should be considered. There he is quoted as saying:

"God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are a gift of God?"

Why Did Greece Fail?
After gaining our independence in the Revolutionary War, we had to decide how the country was to be governed. As the greatest American political minds searched world history for ideas, they paid a lot of attention to ancient Greece – the cradle of democracy. They liked the idea of self-government but were troubled that the Greeks were not able to sustain their form of government permanently. As they sought the reasons why, they considered the idea of virtue and concluded that the efficacy of democracy depended upon the level of virtue within the people. If they were going to call themselves a free people and preserve themselves as a free people, they had to successfully foster the notion that every individual within such a society must be a good self-governor. In other words, rather than depending upon external legal constraints and force to maintain order and peace, they had to rely upon individual self-restraint and self-control. But they realized that it is only reasonable to expect people to act that way if they have a strong virtuous and moral base.
Our founders saw religion as the most powerful civilizing institution which could provide and sustain that moral base upon which our republic could be successfully built and without which, it would ultimately collapse like the Greeks before them. Consequently, they believed it to be imperative to encourage and support religion and did not see any 1st Amendment problem with governmental support of religion as long as it did not go too far. Joseph Story explained this further.

Original Intents Regarding the Establishment Clause of the 1st Amendment
Here is what Joseph Story said about the intents behind the 1st Amendments coverage of religion:

"Probably at the time of the adoption of the constitution, and of the first amendment to it, now under consideration, the general, if not universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as it is not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.

[As a side note, isn’t this the very approach being thrust upon us today?]
"It yet remains a problem to be solved in human affairs, whether any free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in any assignable shape....
"But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which they believe, their accountability to him requires....The rights of conscience are, indeed, beyond the just reach of any human power....
"The real object of the amendment was, not to countenance, much less to advance Mahometanism [sic] or Judaism or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government...."10
“...the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the State constitutions.”11 (emphasis added)
We unabashedly considered ourselves to be a Christian nation even though we allowed everyone to believe as his or her individual conscience dictated. Contrary to most, if not all, of the rest of the world at that time, and contrary to many countries even today, America made great political advancements regarding religious tolerance. While there would be no religious tests at the national level, nevertheless, the founders and framers clearly saw the need to promote general Christian values and morality throughout society.
Charles E. Rice, a law professor at the University of Notre Dame, observed:

“The view of the Supreme Court today, which forbids even the posting of the Ten Commandments in public schools, would have been utterly rejected by the framers of the First Amendment. The Northwest Ordinance, adopted by the Constitutional Congress in 1787, provided public support for religious education [it said]: ‘Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of learning shall forever be encouraged.’ [Rice continues:] This enactment was reaffirmed by Congress in 1789. After the new constitution was ratified, the First Congress, on September 24-26, 1789, did two things. [First,]They approved, and sent to the states for ratification, the First Amendment. And [Second] they called on President Washington to ‘recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God....’ [Rice continues:] Can you believe that the Congress intended the First Amendment to forbid the sort of prayer it recommended on the same day? Nor was this a result of inadvertence. Representative Thomas Tucker of South Carolina objected that the call for a day of prayer ‘is a religious matter, and, as such, is proscribed to us.’ [But Rice continued:] Congress passed the resolution, thus overriding with full awareness the argument the Supreme Court has adopted as doctrine today.”12 *(emphasis added)

Separation of Church and State: Jefferson Coined The Phrase But What Did He Mean By It?
In trying to denigrate religion as an appropriate basis upon which to render political judgments, people use a "separation of church and state" argument. This is an extreme and incorrect interpretation of the 1st Amendment. As Story just expressed, all that was meant by the establishment clause of the 1st Amendment was (1) to prohibit a particular religious sect from becoming the official national religion like the Church of England was at the time of the Revolution and (2) to prohibit the forcing of individual conscience on religious matters. Moreover, it only applied to the federal government and not the states. The founding fathers would have laughed at the proposition that their work would de-legitimize religion as an appropriate moral basis for forming political opinions and government policies.
Thomas Jefferson drafted The Statute of Virginia For Religious Freedom. He also coined the phrase “wall of separation between church and state” in a letter he sent in 1802 as the U.S. President to the Danbury, Connecticut, Baptist Association.13 Contrary to what many believe, it is not a phrase found anywhere in the 1st Amendment. Initially one might suspect that he would be in favor of strict separation, but what did Jefferson really mean by the phrase? In contrast to what the phrase is used for today, consider his proposals as the Rector of the University of Virginia regarding sectarian religious instruction on campus—he said:

“It was not, however, to be understood that instruction in religious opinion and duties was meant to be precluded by the public authorities, as indifferent to the interests of society. On the contrary, the relations which exist between man and his Maker, and the duties resulting from those relations, are the most interesting and important to every human being, and the most incumbent on his study and investigation. The want of instruction in the various creeds of religious faith existing among our citizens presents, therefore, a chasm in a general institution of useful sciences.”14

To remedy this perceived deficiency in the educational instruction of the students, Jefferson proposed to open up the campus facilities to the clergy of the various sects and to arrange the secular and religious teaching schedules so as not to conflict with one another. However, the secular and religious instruction were to be independent of one another. Jefferson continued:

“Such arrangements would complete the circle of the useful sciences embraced by this institution and would fill the chasm now existing, on principles which would leave inviolate the constitutional freedom of religion, the most inalienable and sacred of all human rights....”15

In follow-up, two years later (1824) he said:

“Should the religious sects of this State, or any of them, according to the invitation held out to them, establish within, or adjacent to, the precincts of the University, schools for instruction in the religion of their sect, the students of the University will be free, and expected to attend religious worship at the establishment of their respective sects, in the morning, and in time to meet their school in the University at its stated hour.”16 (emphasis added)

Obviously the one who coined the phrase “separation between church and state” did not intend to take the concept anywhere near the extremes espoused by those who invoke it today.
Some people today argue that the fact that freedom of religion is the first right mentioned in our Bill of Rights indicates the primacy of its importance in the minds of our founders compared to the rest of the rights enumerated thereafter. Jefferson’s reference to freedom of religion as “the most inalienable and sacred of all human rights,” tends to support that argument.
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