America Has Two Systems of Governance
Fairness is a moral concept, not a legal one. If fairness is a consideration of the state, morality must also be a consideration.
In the perpetual debates about who gets what, when, how much and who decides, there is always a significant amount of discussion about the concepts of “selfishness” and “fairness”. These are items that are clearly open to debate and are fair discussion points considering the ongoing political and economic policy differences.
There will be those who say that fairness is enshrined in the Constitution. My argument would be that fairness is provided for, not specifically mandated, or even defined. The Constitution speaks of fairness and equal treatment with respect to governance, not societal fairness. The words “fair” or “fairness” are not present in the text of the U.S. Constitution. Even in the Declaration of Independence, you will find the express concept that “all men are created equal”, not “equality is guaranteed for life”.
Neither selfishness nor fairness are legal concepts, there is no enshrinement of a manmade law that says being selfish is illegal, neither is there one that dictates that everything must be fair. These two are moral concepts, not legal ones.
And that means we must consider morality when we consider fairness and selfishness and if those two are a consideration of the state, morality must also be a consideration.
In natural law, there is no such concept as “fairness” – the cougar is stronger than the rabbit, and the very success of the food chain – and the survival of the cougar depends upon it. The cougar also does not know how to be “selfish”; it hunts and eats when it is hungry, consuming as much as it is able to catch…but animals are not burdened with morality or a soul.
The recognition of both “selfishness” and “fairness” are human constructs, based on individual and societal points of view and an established value system, one that is typically and historically based on religious beliefs. We seek to create these concepts as a matter of social interaction and civilization, essentially to protect society from the barbarity and savagery of natural law.
In this instance, I am not defining “religious beliefs” as adherence to a specific spiritual dogma (i.e., Christianity, Islam, Hindu, Buddhism, etc.), rather that religion can be defined as a certain set of beliefs concerning the cause, nature, and purpose of life and the universe. From these belief systems, people derive morality, ethics, religious laws, or simply a preferred lifestyle from their ideas about the cosmos, human nature, and our role in it.
Secularists and atheists may not believe in God or other deities, and they will say that logic is their guide – when, by definition, logic then becomes their “religion”. Secularists in our modern political arena proudly trumpet the clarion call of “separation of church and state” yet seek to inject moral concepts like “selfishness” and “fairness” as a matter of legalistic fiat – but the problem here is that when the state legislates “fairness” for one party, it does so by being unfair to another party.
Perhaps the greatest wisdom of the Founders included the recognition that morality could not be legislated because it rested on the character and the belief system of the individual and to regulate morality would be an unacceptable breach of individual freedom. Therefore, it is my opinion that the Founders saw that two systems, one moral and one legal, were necessary for the maintenance of the American experiment in freedom and that they expressly constrained government through the Constitution from encroaching on the province of the moral.
No legal system is capable of constraining the acts of an amoral or immoral society; therefore morality is a governing necessity whether secularists believe it or not.
To my friends on the right who believe that Christianity should be an express component of our government: I am a Christian; I grew up in the Methodist faith and later in life became a Southern Baptist. While my life is informed by this and guided by God, in my own reading and understanding of our founding documents and the correspondence among the people who created those documents, a specific admonition to include any specific religiosity as a direct component of government. I do strongly believe that both the Declaration and the Constitution were greatly influenced by Judeo-Christian tradition and that there are many enduring Judeo-Christian ethics enshrined in these documents. It is also clear to me that they contemplated that just governance requires the existence of a moral society in parallel and that no government can overcome the consequences of an immoral society.
While there is an undeniable bias toward the exclusion of Christianity from the public sphere (several years ago, I would have used the term “religion” instead of Christianity, but we now see the active protection of Islam and its tenets under the guise of “diversity”, “tolerance” and “multiculturalism”), these concepts have a greater root in Judeo-Christian tradition than in the legalism of man.
It seems counterintuitive, but I believe that the evidence of a Judeo-Christian influence exists in the very absence of a specific reference to the majority Judeo-Christian religions of the day.
I also believe that the Founders were very wary of the dangers of a monarchy, or a legalistic government made up of Philistines, and our founding documents were written to protect INDIVIDUAL freedoms. They realized that legalism is a response to an amoral or immoral society, and legalism only begets more legalism.
Their minimalist approach to government is a tacit recognition that when one makes a law, then they often must make more laws to control the consequences of that law, and so on and so on. Legalism is the reason for the massive government agencies and the promulgation of endless rules and regulations. Attempts to codify morality are futile, largely due to the infinite number of interactions and unique challenges in our individual lives, there can never be a law or rule for every situation and eventually, a legalistic society is crushed under the weight of all the laws made in that attempt.
I believe that this realization by the Founders is the most significant aspect of our unique systems of government.
And a morality born of religion is a critical part of those systems.
Lacking a moral code (from religion or wherever) to guide one's actions, an individual will attempt to get away with whatever he might not get caught doing or prosecuted for doing or found not guilty of doing in a court of law. This is how legalism spreads, to "cover all the bases" as each instance of criminal wrongdoing must be re-defined, and new boundaries set. CS Lewis, in "The Abolition of Man" posits there is a fundamental law or Natural Law that guides all humans in understanding right from wrong. But in a society that specifically obviates the concept of even a "Natural Law" there is nothing left to guide anybody's actions. The Law becomes simply "what I can get away with". And that's where we are today.