Moral vs. Legal: How Society Self-Governs

Thomas Paine said "society is produced by our wants, and government by our wickedness."

A couple of weeks ago I wrote about the left's abandonment of any sense of propriety. Propriety, or the conformity to conventional standards of behavior or morality, is a key element of society because it is how society is self-governed.

The fact is that society has both a duty and responsibility to set limits, especially for those who are not equipped to make decisions for themselves - children under the age of majority, the mentally compromised, etc. - as many have noted, freedom doesn't mean nothing is forbidden.

We do such things, not to increase our own power, but to protect those who cannot protect themselves until they are equipped to make those decisions for themselves.

The trick is always how to accomplish those protections in the least restrictive ways.

In “Common Sense”, Thomas Paine wrote:

“SOME writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness POSITIVELY by uniting our affections, the latter NEGATIVELY by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher.

Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise. For were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.”

I strongly believe the Founders understood that two systems, one societal (moral) and one governmental (legal), were necessary for the maintenance of the American experiment in freedom. I believe that the 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.

The mistake our friends on the American Left make is to attempt to blend the authority and responsibilities of society with the legalism and control of government. Attempts to create “fairness” via legal means are never all encompassing and create a climate of unintended consequences that fosters even more inequality and unfairness. There will be those who say that fairness is enshrined in the Constitution, but my argument would be that fairness is provided for, not specifically mandated, or 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”.

The Founders were very wary of the dangers of a legalistic government made up of modern Philistines, resulting in foundational documents that were written to protect INDIVIDUAL freedoms. They realized that legalism is a response to an immoral society, and it 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 to control the consequences of that law, and on and on.

The American left has it wrong; it isn’t the separation of church and state that is important, it is the realization by the Founders that the separation of society and state (morality vs. legality) is critical to the preservation of our Republic. It is the most sacred aspect of our unique system of government and one that is in the most danger today from the ever-encroaching tide of progressivism and “big government” liberalism.