Can We Legislate Morality?
We pride ourselves on being a nation of laws, perhaps too many laws. Much as we try, we can never translate moral obligations or prohibitions into legal ones. Moral codes differ with time, culture, and religion. Our Constitution enshrines the diversity of moral codes, but demands consistency in the enactment and enforcement of our laws.
Unfortunately, Congress and state legislatures sometimes make law that appeals to voters to whom they are beholden. The judiciary is supposed to put a check on this, but they, too, may be beholden to those who appoint or elect them. Citizens must be vigilant about the differences between morality and law, reminding ourselves that we can’t legislate the former.
The Vermont legislature recognized this when they amended their own Child Protection Reform Bill (S.9) to delete the failure-to-protect language.
In our families, neighborhoods, and communities, most of us feel a moral obligation to watch over the wellbeing of all children. But when does our oversight constitute a moral intrusion on the ethics or philosophy of another? Congress and legislatures grapple with this tension when they confront issues like abortion, gay marriage, Good Samaritan laws, and vaccination.
The free-range kids controversy in Maryland over whether or not the Meitiv’s should allow their ten- and six-year-old children to walk home together from a neighborhood park made international news.
As a first-grader in Morrisville, I walked the mile home alone from first grade on, as our house was just outside the busing perimeter. The Meitiv children were reported and picked up by Child Protective Services and their parents confronted at work and later in the media for letting their children walk home together. Mr. Meitiv was arrested and they are now on probation for five years under social work regulations.
The Crimes against Children Research Center at U.N.H. notes that crime rates, in general, and specifically child abductions, are down. The Center’s Director, David Finkelhor, adds, “Most of the worst things that happen to kids are at the hands of their own family members — murder, sexual assault, abuse.”
Legislating the moral imperative to protect children will be as difficult as writing laws that protect us from extremes of human behavior or the vicissitudes of existence. Such well-meaning efforts have only contributed to the fact that close to seven million Americans are now under correctional supervision.
We must differentiate between morality and law and understand that difference. We can never legislate a perfectly safe world.