December 24th, 2013

Turley: morality and law

[NOTE: In this post I discuss an article by Jonathan Turley about morality and law. In his piece, he doesn't really go into the underpinnings of his argument, but what he's dealing with is a heavy-duty issue that has plagued legal scholars and caused fierce debate for ages. I refer you to two much longer articles on the general subject, which tap into larger issues concerning post-modernist moral relativism in law: here and here.]

Jonathan Turley, a George Washington University Law School professor and the lead lawyer in the recent “Sister Wives” case in Utah, has written a celebratory piece about the verdict.

The court did not, by the way, legalize plural marriage, although in the first few paragraphs Turley seems to imply that it did (he clarifies it somewhat a bit later, but the facts could escape the casual reader). The case merely challenged, successfully, a Utah law against plural cohabitation of a quasi-plural-marriage nature (the “Sister Wives” husband is only legally married to one woman, but lives with three others in what amounts to a de facto plural marriage).

Here’s Turley:

…[T]he Utah ruling is one of the latest examples of a national trend away from laws that impose a moral code. There is a difference, however, between the demise of morality laws and the demise of morality. This distinction appears to escape social conservatives nostalgic for a time when the government dictated whom you could live with or sleep with. But the rejection of moral codes is no more a rejection of morality than the rejection of speech codes is a rejection of free speech. Our morality laws are falling, and we are a better nation for it.

Turley fails to define “morality laws,” but my guess is he is referring to laws about sex between consenting adults, as well as other laws that seem to rest at first glance on a similar conventional “morality.” However, many more laws than that—and, according to some thinkers and legal scholars, all laws—have elements both large and small that involve the enforcement of moral codes both overt and covert.

Turley misrepresents the position of social conservatives and the law. Most social conservatives are not “nostalgic for a time when the government dictated whom you could live with or sleep with.” Social conservatives generally believe that such laws are not something imposed from above on an unwilling populace, but expressive of basic mores and beliefs in our culture, and that these beliefs have been steadily undermined not only by judges, but in more basic ways by the educational system and the press and entertainment industry. The law is only part of that.

Turley writes that rejection of moral codes has no relationship to the rejection of morality. But that seems absurd on the face of it. No relationship? It may not have a one-on-one, directly causative and linear relationship, but it surely has some relationship. The two feed into each other and reinforce each other, with rejection of behavioral rules once thought to be the bedrock of morality sometimes leading the way, and rejection of laws underlining and enforcing those rules sometimes taking the lead.

Turley posits that we are a better nation for the fact that “our morality laws are falling.” I suppose we just have to take that on faith, because it’s not readily apparent and Turley makes no special case for it. Turley finishes his column with a paragraph that aptly states and summarizes the basic attitude of the left and of many libertarians as well towards the issue of law and his still-undefined “morality”:

In truth, 19th-century Americans were no more moral than we are today. It simply appeared that way with the imposition of official morals, including (as Santorum recalls so fondly) being told whom we could love in our own homes. It is not a single moral voice that is heard today but a chorus of voices. Each speaks to its own values but joins around a common article of faith: the belief that morality is better left to parents than to politicians.

Again we have the idea that laws are imposed from above with no input whatsoever from the society that develops them. It’s as though space aliens dropped in to decree what would be allowed and what wouldn’t. And why is the individual morality of parents a superior standard to that of society as a whole? Do those “politicans” make the law in a vacuum, or are they not answerable to the people who elect them?

There’s much more—because this is a huge topic. But I’ll leave it at that for now—and to you.

35 Responses to “Turley: morality and law”

  1. parker Says:

    This is a huge topic indeed. I’m not a philosopher and will refrain for pretending to be one. I will simple say that moral codes develop over a long span of time and those that provide the most stability to society are the ones that stick. However, I also believe the liberty of the individual rules supreme up until it impacts the liberty of others.

    The cat escaped the bag when homosexual marriage poked its nose under the tent. Now, there is no valid reason for the state to restrict polgyny or polyandry marriage. What’s next you may ask? I think pedophilia and bestiality will soon enter the arena of public debate and that will be a rather chaotic discussion. Everyone’s definition of pornography differs, but we all recognize pornography when we see it.

    However, I will say good evening to all and join my wife in the kitchen to begin preparing for the neighborhood Christmas Eve party we are hosting because the kids and grandkids are heading for the in-laws for Christmas. (We had them all home for Thanksgiving.)

  2. Mr. Frank Says:

    Correct me if I’m wrong, but aren’t these people who say morality should not be enforced by law the same ones who want the government to punish hate speech and hate crimes?

  3. M J R Says:

    Mr. Frank, 5:14 pm –

    Nope, not wrong.

  4. Ymarsakar Says:

    If they won’t make a case, then there’s nothing for me to talk about. I certainly make the case for them.

    I think in a society of free and independent individuals, they can pretty much make any kind of relationship work.

    However, we’re not removing old laws and codes of behavior for liberty. Rather, the US is removing the old and putting in the totalitarian new.

    So it’s an artificial claim that “individuals” are somehow going to be able to operate better without the state looking over their shoulders. The State is always going to be looking over our shoulders. Removing a few laws won’t do anything about it.

  5. sdferr Says:

    “. . . a chorus of voices . . . “

    Could be, but that seems an odd use of ‘chorus’ to my ears, since by the term chorus I will usually think of ‘harmonies achieved’ — deliberately — whereas what Turley seems to find pleasing is, I believe, well described by another term from the Greek: kakophonia.

  6. Ymarsakar Says:

    I certainly won’t make the case for them.

  7. expat Says:

    parker,
    I think the gay marriage thing raises another issue with regard to imposed morality. Heterosexuals do have social norms about thing like adultery and, though eroded, to hooking up and visiting prostitutes. The LGBT movement comes out for total freedom. They take on transgender/transsexual issues as though they were based on established science. No one is allowed to question anymore. And they push these issues to the young before they can deal with them. It’s scary.

  8. T Says:

    Neo,

    “. . . many more laws than that—and, according to some thinkers and legal scholars, all laws—have elements both large and small that involve the enforcement of moral codes both overt and covert . . . .”

    It seems to me that this is precisely the distinction to be made between a law and a regulation: That a law arises from some kind of moral foundation whereas a regulation is simply one way (or another) of doing something. Many people believe that we have too many laws in this country, but in fact, I suggest that we have too many regulations. Congress has taken to passing regulations as though they were laws. This serves neither our legal system nor our moral codes well.

    Perhaps this is a topic for another time.

  9. waitforit Says:

    Rather pretentious of Turley to assert plain language and its interpretation does not lead to the expected result but his result. He provides neither evidence or argument. Merely authority. Fuck him.

    And what is his result? What we have today? Well you can keep that and Turley and flush them both.

    What use is language and reason and precedent with Turley? None except deception. He’s a political bitch, worse, a voice labeled as authoritative by bogus standards. His purpose is destructive.

    Let us not impugn but elevate the idea that morals come from above, or better, from outside us. We need the Outside to temper our Inside, the realm where we may often forget, due to changing circumstance, what works and what doesn’t. Because we did not design us or our circumstance. If we had, we would have Utopia and more of what Turley would consider “good.”

    I doubt that Turley could express what “good” is. He is just criticism. What he really hates is free will. “Good” for him is what? Pretty ugly. Merely the feeding and survival of mankind and a complete and crushing anonymity because there is no such thing as an individual.

    There is the Law passed by the Supreme and there is the interpretation of that Law. Acknowledging there is Law, a Law which is absolute and unyielding, is the first step towards freedom. The Law is the Law and has been stated, “I am that I am.” Bringing that Law into the temporal and changing societies of earth, well, that’s our task. If we do it well, we prosper. If we do it poorly, many die.

    Love the Law (Torah); love life.

  10. G Joubert Says:

    Of course for believing Christians and observant Jews these issues have biblical underpinnings.

    But we don’t need to go there. We can stay completely secular, even academic, on their own terms.

    Functionalist theory sociologists say that moral codes develop in societies for the purpose of strengthening society, to promote behaviors that strengthen it, and proscribe those that don’t, all for the purpose of enhancing the prospects of society’s survival. The question really is this: has our society evolved survivability-wise beyond the need for sexual moral codes?

  11. Beverly Says:

    Turley is a fool.

    The Only reason laws exist is to codify our moral codes. They spring from the people’s morality, not vice versa.

  12. Ymarsakar Says:

    This distinction appears to escape social conservatives nostalgic for a time when the government dictated whom you could live with or sleep with.

    It was the damn federal government that forced pioneers to give up the equality they had for women and women’s rights, to join the Federal Union. IN the long ago past, American individuals and explorers had their own individual relationships with women and womenfolk. Those legal implicit and explicit regulations had to be given up, in order to be recognized as a US State.

    The days of yore where the gov told people what to do, were because of snuff noised lawyers in the East Coast telling the individuals out West what was going to happen or else.

  13. Mike Says:

    Laws allowing gay marriage have to count as “morality laws”, no? Or is this another case of the Liberal double standard where “morality laws” are applauded if they are liberal ones, and condemned on principle if they are conservative ones.

    There is truly no greater enemy of humanity than a liberal, and academics are usually the worst of them.

  14. Matt_SE Says:

    “But the rejection of moral codes is no more a rejection of morality than the rejection of speech codes is a rejection of free speech.”

    See? “moral codes” is similarly-named as “speech codes” so their rejection must also be similar!
    WRONG!

    Moral codes seek to establish or reinforce morality.
    Speech codes seek to eliminate or limit speech.

    So, is Turley intentionally trying to be dense here? Or does he truly not see the difference?

  15. Phil Says:

    Back in the late fifties I was a psychology major and wrote a paper where I declared most people’s morality developed through a process of cultural osmoses, since few actually contemplated their morality as such. I believe time has proven me correct since arts and education came under control of progressives and morality today is foreign to most people.

    Our laws have, and are, moving away from enforcing traditional morality as time goes on. The problem, as I see it is about the only thing replacing it is political correctness.

  16. Don Carlos Says:

    1) Turley is actually a fairly complex politico-legal creature; and
    2) he is not a Georgetown Law prof.

  17. Socratease Says:

    Traditional marriage was voted into law in California by the majority of voters when rogue judges and public officials started implementing same-sex marriages on their own say-so. The courts overturned the demand of the voters, so another vote was passed to place it in the state constitution, again by a majority of voters. That vote, too, was overridden by the courts.

    So, who is “imposing” their morals on the population here? The real question is: Do The People have the right to decide what kind of society they live in, or will that choice be imposed on them by unelected judges with no particular expertise in that field, and whose rulings cannot be overridden by the people they claim to serve?

  18. Don Carlos Says:

    While I agree with Socratease, I am compelled to point out the Catholic Church has been similarly charged with a moral imposition despite having “no particular expertise” (i.e. experience).

  19. Ymarsakar Says:

    They’re not going to strip away moral law and speech codes to replace with individual liberty. That’s just their illusion and their deception.

    What they are doing is stripping away the old and replacing it with the new, called Totalitarian Indoctrination.

    The totality of a person, his mind, his meat body, and his soul/heart shall be controlled and enslaved to do the Left’s bidding. They aren’t going to allow old morality or old laws to interfere. They seek to construct a new calendar. 1 AS and -1 BS. After Slavery and Before Slavery. Whereas the Julius calendar was based on the sun and the pagan calendars based on the moon, the Left’s calendar will be based on the efficacy and popularity of slavery.

  20. Mike Says:

    This is really a case of confusing politics with religion.

    Morality is a religious issue. Full stop.

    Social organization is a political question. It’s a technical issue.

    Since the Christian Religion has been outlawed (literally), then the religious people who call themselves secular and probably delude even themselves into thinking they are not religious, have only the devices of politics to impose their religious morality on others.

    The device of politics is ultimately coercion. Politicians pass laws and the political institutions enforce the laws.

    There are some universal moral laws, but I doubt that’s what Turley is talking about.

    Truth is, he’s a Liberal. Liberals are always wrong since their very principles are wrong. Good conclusions do not issue from wrong principles. Bad ones do.

    The only question with a liberal is how wrong they are going to be, and how much destruction they will instigate.

    Anything they say should be attacked at the level of principle. Their conclusions should not be given any respect at all. Not even an ounce. Not even for a minute. It is like giving respect to total black mold. What you do with black mold is first clean it up, then get repair the conditions that led to its growth.

    The condition that leads to the growth of the cultural black mold that is the Turley’s and the other liberal of the world and all of their policies is the outlawing of Christianity. Again, I mean outlawing in the literal sense. Christianity strictly speaking is not “tolerated”. It has not been unconstitutionally outlawed from the public square.
    In such a case, you get what you get.

  21. Mike Says:

    Socratease – The people no longer have any rights, to answer your question. None.

    John Roberts – in my opinion the most notorious Chief Justice in history – removed all doubt when he told us that words mean what he says they mean. In effect, he was our last chance to uphold and defend the Constitution as our protection. He p*&^sed on the Constitution worse than any America Hater ever did since he did it from such a lofty seat of power.

    He took our protection away from us. He stole it. He turned traitor and coward. He is the Chief Judas of all time for America.

    The only way to get our rights back is to fight for them the way the original guys did.

    Sad news. Hard reality. It stinks that it is that way, but it is that way.

  22. Mike Says:

    Don Carlos,

    It is not true that the Catholic/Christian Church has no expertise or experience in marriage or in what ever you were referring to.

    The truth is that the Catholic/Christian Church invented what you think of when you use the term marriage.

    It also invented what you think culture is too.

    Western Civilization is, in actual point of fact, the creation and construction of the Catholic/Christian Church.

    Here is what a neo-Nostradamus can safely predict (although to be honest its an easy prediction to make based on facts and history): First, what you think of when you think of culture and society, insofar as it thinks to destroy Christianity, will instead destroy itself since it is built on and by Christianity and rests on its foundation. It is like an architect who tries to renovate a building by taking out the basement. What an idiot is all one can say!

    Second, Christianity isn’t really going anywhere. What it once built it will build again. only better. That’s its record and form. Look it up.

  23. waitforit Says:

    I’d feel that way too, Mike, except for the history of the U.S. Supreme Court.

    Roberts caved. But he left a strategy for popular and more effective removal of Obamacare.

    Roberts was no Winston Churchill, that’s for sure. His “I shall try and save the Legislation” concern was elevated above the clear meaning of the Constitution. He missed the chance to reverse Wickard and the New Deal, which, the latter, by the way, is increasingly rebutted in its claim as effectively solving the Great Depression.

    http://newsroom.ucla.edu/portal/ucla/fdr-s-policies-prolonged-depression-5409.aspx

    I must apologize for intemperate language. I do believe Neo has kept me out of prison, that’s why I have made her my unofficial mentor and advisor. I can’t afford anything else. Having been raised in violence, I don’t have the normal estoppel against it. (Estoppel is just the fancy legal word meaning one is stopped from making a claim or defense.) In that way, I make a good Muslim or progressive, which is offensive to my deeper principles.

    But here’s the thing: When it comes down to the time to fight, as VDH explicates, no society beats the democratic/republican society. They fight with faith and fervor and fury. The other side: Not so much. They threaten, intimidate and posture, but when it comes time to really commit . . . their comittment is vapid, and like their leader’s pronouncements, turns into shadows. Put superior power onto a bully and he/she presents pusillanimous belly up behavior. The true warrior will not do this. He or she will accept death and fight instead of, like Roberts, caving.

  24. neo-neocon Says:

    Don Carlos:

    Oops, careless error. I wrote “Georgetown” for “George Washington.” Will fix, thanks.

  25. waitforit Says:

    “can impose its own favored social and economic dispositions nationwide.” (the feds can, in other words, thinking of the Utah decision).

    An excerpt of of Justice Rehnquist’s concurring judgment but different analysis where the U.S. Supreme Court disallowed one gender entry to the Virginia Military Institute (UNITED STATES v.
    VIRGINIA et al. (1996) 518 U.S. 515):

    Justice Brandeis said it is “one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U. S. 262, 311 601*601 (1932) (dissenting opinion). But it is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members’ personal view of what would make a “`more perfect Union,’ ” ante, at 558 (a criterion only slightly more restrictive than a “more perfect world”), can impose its own favored social and economic dispositions nationwide. As today’s disposition, and others this single Term, show, this places it beyond the power of a “single courageous State,” not only to introduce novel dispositions that the Court frowns upon, but to reintroduce, or indeed even adhere to, disfavored dispositions that are centuries old. See, e. g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996); Romer v. Evans, 517 U. S. 620 (1996). The sphere of self-government reserved to the people of the Republic is progressively narrowed.

    In other words, the federal gov’t has assumed the powers of the several states and destroyed the unique and wonderful federal system. We are no longer a federation of states, We are ruled by only one Legislature located in Washington, D.C.

    And almost all people are too unsophisticated, despite having a college degree in sociology or psychology, to know the difference.

  26. Don Carlos Says:

    Neo:
    I knew that was a fluke.
    Doncha hate puns?!

  27. Ann Says:

    Maybe Turley is simply making amends with his liberal colleagues — he did, after all, just a couple of weeks ago speak heresy against Obama:

    The problem with what the president is doing [in unilaterally modifying acts of Congress] is that he’s not simply posing a danger to the constitutional system. He’s becoming the very danger the Constitution was designed to avoid.

    That must have caused folks at GWU to give him a few frosty looks, at the very least.

  28. neo-neocon Says:

    Ann:

    Good catch on Turley.

    But I think the points he’s making in his article go deeper with him, and represent a longstanding position. I’m not sure, but that’s my strong hunch.

  29. Don Carlos Says:

    Lawyers as a species are all more or less in league with the devil, since they argue cases whether in litigation or not. Thus, lawyering is about winning and losing debates, which does not mean the debaters need really believe the arguments they are making in the process. It’s just a job… Justice being served? Not primarily, no way.

    The Appeals process is never about right v. wrong, just v. unjust outcomes. It is almost always about the prior litigation process being flawed in its execution, failure to follow the rules.

  30. Richard Saunders Says:

    Remember, Mr. Turley, when you take away all of these silly and obsolete “morality laws,” you are left with humanity’s oldest and most widely practiced law: “The strong do what they can; the weak suffer what they must.”

  31. neo-neocon Says:

    Don Carlos:

    Without writing a post the length of a book to explain what’s right about the adversarial legal system, and why everyone needs representation (although of course not all representation is created equal, and therefore the system of course is not perfect), let me just say that I disagree with you. Strongly. I can think of no justice system that would be better.

    As for appeals (particularly criminal appeals), often I would like them to be able to deal with the issue of “real innocence” with more ability to reverse earlier court decisions. However (and it’s a big “however”) the appeals court cannot retry the case in its entirety, or even mostly—cannot hear the witnesses, cross-examine them, etc.. The entire justice system would bog down and become unworkable if that were the case. So, sadly, it cannot happen.

    Not all lawyers will take all cases, by the way.

  32. Tonawanda Says:

    Just throwing out something:

    Marriage between a man and a woman arguably has a physiological basis which cannot be duplicated either by mechanics or potential outcome.

    The mechanics is the Duck Dynasty pov, and although there was a lot of disgust expressed over the particularity of the anatomical description, it was a pretty good point, which at least needs to be addressed given that the mechanics are “natural.”

    The consequences make me think about the Catholic position, which is that the “unitive” and the “procreative” ought not to be separated. This is also debatable, but it is at least worth thinking about, because of the fidelity and responsibility required by the belief.

    But where does monogamy come in?

    To my mind, this is one of the most humane, thoughtful and realistic advances made by civilization. IMO, one man and one woman is a blessing. But it does not seem to have a “natural” basis.

    It merely seems to comport with an ordering of human life which is fair and equitable, and which brings out the best in men and women.

  33. Tonawanda Says:

    BTW, regarding criminal appeals:

    The strong institutional bias is to keep convictions intact.

    But it goes beyond the inability to re-try a case, or reluctance to second-guess the defense attorney, the court or the jury.

    We have been in a long period where society has lost any appetite for nuance, proportion, distinctions, or mitigation when it comes to law enforcement.

    This simplistic approach does not actually increase security and safety. It is media and ego driven, and a plaything for politicians, in addition to being a psychologically satisfying attitude by the citizenry.

    Among other consequences, we are seeing the increasingly out of control behavior of law enforcement officers, who have learned that there is no down side to unlawful, authoritarian behavior.

    Even appellate judges, who are overwhelmingly thoughtful, savvy, well informed and well meaning, are influenced by the political implications of society’s absolutist “we are without sin and therefore are casting the first, eighth, sixteenth and thirty-first stone” mentality.

  34. lb100 Says:

    Neo,

    I only skimmed the two articles you cite, but I didn’t see any reference to Oliver Wendell Homes adage: “The life of the law has not been logic; it has been experience.”

    Here’s an article by Rod Dreher on the polygamy case from the perspective of Scalia’s dissent in the 2003 Lawrence decision (in which the Supreme Court invalidated Texas’s sodomy laws as an unconstitutional infringement on the right to privacy):

    http://www.theamericanconservative.com/dreher/why-the-polygamy-slope-is-slippery/comment-page-2/

  35. SteveH Says:

    Mr Frank is exactly right. The very people trying to undermine judeo/Christian morals are some of the biggest prosyletising fundamentalist on the planet, with a moral code they shove down the nations throat with the threat of force like no Christian I’ve ever known or met.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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