Legislating Morality


Until 1789, morality in the United States was entirely the dominion of the churches and its ministers.  Until our Constitution became the law of the land, we were a common law nation, born in England and brought to these shores.  Common law is law derived from custom and judicial precedent.  With the adoption of the Constitution, the United States became a statutory law nation.  The original statute in the United States, therefore, is the Constitution.  With the enactment of the 1st Amendment, however, legislators became required to decide issues of morality as church law had no standing in the new American courts.  The infamous Salem witch trials are the most cogent example of how common law embraced church law to dictate what was permissible in a person’s actions.

The temperance movement is probably the first instance of the peculiar American desire to legislate morality.  In 1808 New York, the first temperance movement in the United States was founded.  Soon afterward, other U.S. cities had movements of their own.  The movement was mainly headed by women which meant hard drinking men felt little to fear of such groups.  After all, they couldn’t vote!  In 1840 the temperance movement was co-opted by Elizabeth Cady Stanton and her suffrage movement.  Women activists were easily moved from temperance to suffrage.

By the 1850s, however, the hot button issue of the day was the Abolitionist movement.  This movement attracted the very same people who were behind women’s suffrage.  Stanton herself felt the abolition of slavery the more important issue and dedicated her energies in that direction.  The framers of the Constitution believed slavery would be abolished in their lifetime, and if not, then shortly thereafter.  What America learned from this is how slowly reform comes to this country, and never easily.

Once slavery was eradicated, suffrage re-emerged.  But it lacked the energy of the early days when the movement was founded in Seneca Falls NY.  America had to first rebuild from its great civil war.  Then it had to deal with large numbers of immigrants and industrialization.

In 1910, however, congress passed what is known as the “Man Act.”  The stated purpose of this law was the ending of child pornography.  It was also the first attempt at eliminating interstate prostitution.  But behind the act was the desire of politicians to keep sex behind closed door and out of the public discussion.  It was used to make the dissemination of birth control information illegal via the US Mail, and it was on this point that Margaret Sanger, head of the birth control movement, was found guilty.  She had made up fliers about sex and birth control which she sent through the mail to the women of New York City.

The period 1912 to 1919 saw suffrage and temperance merge into an unstoppable force.  Each movement had attracted wealthy and well-placed women, and with them came their powerful husbands.  The first hint that women, even without the vote, held sway, came in the form of Helen Taft, wife of President William Howard Taft, when she brought the plight of the children of poor families in Lawrence Massachusetts during its great textile strike of 1912.  Anemic, malnourished, and poorly clothed children arrived in New York City in February 1912 from Lawrence.  The socialist IWW (Industrial Workers of the World) Party had seen to it that their arrival was well-covered by the New York press.  Their desire to stir a moral outrage by the public at large succeed beyond even their dreams when Helen Taft intervened and asked her husband to look into the problem.  Taft quickly assembled a congressional committee to look into the working and living conditions of the Lawrence workers.  In March 1912 those congressional leaders held open hearing at which these same children attended.

When the 18th Amendment was enacted in 1919, it also brought an end to legal prostitution and gambling in the United States via the Volstead Act.  The women of the Women’s Christian Temperance Union used stories of drunkenness, and with it whoring and gambling, to stir a moral outrage and gain the moral high ground.

Prohibition brought forth the idea of “the law of unintended consequences.”  That is, Prohibition gave rise to the large crime syndicates.  Prohibition’s target of lawless drunkenness brought out even worse evils, and in 1933 it was finally repealed.  It is no coincidence that two years later, 1935, Bill Wilson and Dr. Robert Smith founded Alcoholics Anonymous.  Their stories show that America’s attempt to sober up its citizenry merely pushed the problem underground.

On June 13, 1934, the Production Code Administration was founded.  At its head was William H. Hays, a well-connected Republican who thought the American public was being scandalized by increasingly racy movies.  From July 1, 1934 onward all movies had to adhere to a set of standards.  One of its first victims was the cartoon character Betty Boop who was forced to trade in her flapper girl attire, above the knee dress and cleavage, for a more respectable neck high dress that reached below her knees.

Vaudeville and movie star Mae West took exception to such censorship, and her movies of the era are replete with sexual nuances she specifically wrote into the scripts to thumb her nose at censorship.  Her famous line, “is that a pistol you’re packing or are you just glad to see me” went right over the censor’s heads.  The 1934 release of the movie “It Happened One Night” titillated audiences when Clark Gable removed his shirt, a first in any movie, and with co-star Claudette Colbert, shared a bed, also a first, albeit divided by a sheet hung so it divided the bed in two.

The 1930s had its own set of sex stars with Mae West leading the way.  By today’s standards not only was she not particularly attractive, she was rather overweight, but she was in her mid-40s already.  The much younger, and prettier, Jean Harlow graced American screens her unfettered breasts obvious beneath her minimalist clothing.  We unfortunately do not have a full accounting of her ideas as she died at age 26 in 1937.  Still, for decades to follow, all films printed the disclaimer that the film had passed the board of review.  The failure of dictating what a person could ingest was followed up by what a person could see or hear.

In 1966 the US SJC attempted to define what was pornographic.  What they came up with is as follows:  be “utterly without redeeming social value” and “patently offensive because it affronts contemporary community standards relating to the description of sexual matters.”  If you think this definition is vague then you understand perfectly the intent of the law.  The federal government pushed the issue entirely out of federal hands and, seemly, straight through state hands, down to individual communities and that the issue had to be decided at that level.

Inn 1973 the SJC decided the Roe v Wade issue, deferring to the states in part, but stating a women did indeed have a right to control her body.  The US SJC routinely returns issues to lower courts or, in its decisions, gives the individual states great discretion when it issues its findings.  In Roe v Wade, while the SJC did state a woman has the right of final say over her body, it demurred to the states what the boundaries of the issue were.  Those who favored abortion on demand desired the SJC to rule that abortions in the 3rd trimester be allowed nationally.  But the court recognized that the sentiments of the state of Texas, where the issue originated, could, and probably would, differ greatly from community attitudes in Northeastern states.  And so, as in the pornography case, it left the final design to community values.  That the decision went as it did came as a surprise to the conservative community as the SJC had a decidedly conservative flavor to it as most of its members had been appointed by Eisenhower and Nixon.

For the most part, the entirety of the original Volstead Act have been reversed either nationally or, in the case of prostitution, locally by statute.  There are only a few states which do not participate in some sort of state-wide lottery, gambling.  And many states have opened casinos, once the sole domain of Las Vegas Nevada.  Many states are now allowing the use of the once illegal substance marijuana.  Does this mean other street drugs will be decriminalized and possibly legalized?  Maybe, but that is a tough issue at this time.  Still, it does point to the changing moral values of the United States and the grow resistance to legislated morality.

In the United States today there are a fair number of religions which consider the consumption of alcohol to be immoral.  Other religions extend such morality clauses to things like caffeine, shell fish, and pork.  But unlike some countries, the United States has to look at itself as anything but a homogenous society.  The Society of Friends, the Quakers, considers all sorts of war to be immoral but recognize that theirs’ is a minority view and do not attempt to extend it beyond their own community.  There are other Christian religions who share this view but these religions may also believe owning anything which shines to be immoral as well.  The point being, the fabric of American society is so diverse as to defy any and all attempts in define universal moral ideals and identities.

It would do Americans well to take a step back when championing any issue and ask themselves if what they are espousing is a moral issue.  If the answer is yes, which it frequently is, then they are better served championing the issue through their own actions.  It is quite well for them to say “this is what we practice and we believe you would do well to do the same.”  But it is always wrong for such groups to say, “and we are going to force you through the law to do the same.”

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