Imagine a country that is fiercely divided on the definition of personhood. There is a group of contested things that half the country claims are human beings, and have rights like any other. The other half claims they are not human beings, and do not have rights. Therefore, the second half asserts that as human beings themselves, their own rights trump those of this non-human group. The first half of the country passionately disagrees. Fierce arguments arise on a national scale because both parties believe the stance of the other takes away somebody’s rights.
Due to the subject of my last post, most readers are probably envisioning 21st century America’s debate over abortion. But could not this same paragraph summarize 19th century America’s debate over slavery?
Let me be clear that I am not comparing being pro-choice with being pro-slavery. There are obvious differences, and they are not analogous practices. What is analogous is the situation facing government. That’s what I’m comparing; two countries divided on a moral issue pertaining to rights, who has them, what counts as a human being and who is or isn’t a protected member of society. If only half the population believes a certain group has rights, should government protect that groups rights? If so, it would seem I can’t be pro-choice. If not, it would seem I couldn’t have been anti-slavery during the mid-1800’s. What gives? How do I distinguish between the two issues? And beyond those issues specifically, this same situation is bound to arise again; when it does, what is the best solution from a government perspective? My goal today is to answer that question in general terms.
The guiding principle I’ve laid out regarding governance is the standard of universal morality. Without a nearly unanimous consensus that something is more wrong than the force and coercion required to ban it, it should not be banned. But for the majority of human history, no such consensus existed regarding slavery. The implication that seems to carry is troubling. Was it wrong, therefore, to force racial equality on others? Was the Civil War unjust? Was the government ever right to permit slavery? Even entertaining those thoughts seems horrifying by today’s standards.
The root issue here is that moral consensus evolves over time. We all recognize this. But at the same time, we’re uncomfortable with the idea that our rights themselves can change. By definition, natural rights are supposed to be eternal; if it’s my right today, it was my right 100 years ago and will be my right 100 years from now. We prefer to imagine that our consensus has evolved around the rights, not vice-versa; our actual rights haven’t really changed, we claim, we simply have a more wholesome and worldly understanding of them today than we did in the past. The notion that our rights might be different today than they were yesterday or will be tomorrow is unsettling, because we like to think of our current moral consensus as uncontestably sacrosanct. As such, we see no problem with using that perspective to judge who was right or wrong throughout history. We’re comfortable with the notion that the vast majority of people in colonial times were simply wrong about slavery, just as they were wrong on the Native Americans or women’s suffrage. Slavery is something our modern consciences unilaterally object to, so it must have always been immoral, and forcibly preventing it must have always been okay.
This is an easy conclusion to reach now, because hindsight is 20/20. But unfortunately, foresight is not. In the present, dismissing the views of large swaths of the population is far more risky. This is because for every lasting shift in society’s moral consensus, there’s been another temporary fluctuation that didn’t last. Take prohibition, or the Know-Nothing Party, or the Trail of Tears, or Jim Crow laws, or the Mexican-American War, or the Japanese Internment camps, etc. Today, we recognize these things were terribly unfair, but at the time they occurred each received some degree of popular support. Only in retrospect can society detect which moral causes would be fleeting, and which would continue growing until universal support is reached. Had the standard of consensus necessary for government to impose law been higher, the injustice might have been averted. But when the government enforces fickle majority whims on everyone, oppression often ensues.
So what’s a government to do? From my perspective, the most just course of action is to wait until a large consensus is reached before imposing one’s morality on others. This prevents temporary and fickle social whims from becoming mammoth injustices, but it merely delays (without preventing) lasting social consensus from being adopted into law. From a consequentialist viewpoint, the potential for unjust outcomes is the same either way; whether those outcomes are being enforced by government or tolerated by government is irrelevant. But from the idealist standpoint, it is far better for government to wait until it’s nearly certain its own actions are just. The responsibility for the morality of an action lies with an agent; therefore, it is better for the agent of government to patient and err on the side of caution***; that is, the side of inaction. Until a near consensus is reached, we cannot assume that the ends justify the means.
What does this mean for the abortion and slavery comparison? I see two implications. Firstly, the comparison illustrates the distinction between government action and government inaction. Unlike abortion, slavery was not an action by other agents which government passively tolerated; rather, government actively partook in the practice itself. This was to such a degree that without government’s participation, slavery could not have survived nearly as long as it did. On the federal level, this was through things like the Fugitive Slave Law or the 3/5ths compromise; on the state level, it was through capturing runaways or publicly killing any slaves which revolted against their masters. Without the use or threat of government force to apprehend runaways, kill rebels, and protect masters, slavery would have crumbled. True neutrality and passivity on the issue would have allowed this to occur. But by officially recognizing slaves as property, government was taking a side on the matter and actively imposing one subjective moral framework over another, something my framework does not permit.
Abortion, by contrast, requires no such participation****. Deciding to permit abortion did not involve taking government action; it involved ceasing to take an action which was already being taken (namely, forcibly preventing people from having abortions). After a certain point in the 20th century, there was no longer consensus regarding the morality of the practice in question, and so government became passive in the face of that practice. People may now do as they like to their fetuses before a certain date.
But this is an inadequate distinction, because it still doesn’t establish that black people have rights. Today, we know that black people have rights, and that they’ve always had rights. Defending those rights requires government action; that action is just, and it has always been just. But those rights have not always been universally accepted, and while they weren’t, my moral framework would not have government defend them. For example, without a near consensus that the black person had a right to life, the government I advocate would be powerless to stop a white person from killing a black person, or beating him or chaining him or threatening him into submission. In the absence of consensus, how can these injustices be avoided?
The unfortunate truth is that they can’t, because we can’t know if they’re actually an injustice. At no point in time was slavery okay, but there were points in time where slavery was widely viewed as okay by the standards of the times. Those standards were wholly, flatly, completely wrong, but at the time, there’s nothing the government could have done about it. Government can only reflect the views of the governed. Government can only be as right or wrong as the governed. Morality can only be judged by the cultural norms of the time, and government cannot adapt faster than those norms. As such, there were points in time where slavery or similar injustices needed to be tolerated by necessity, or else the government would cease to be legitimate and cease to function.*****
When we look back at the horrors of history, it is right to feel outraged. But unless the government was the agent actively conducting the injustice, it is not right to funnel our outrage at the government. We need to reallocate that blame to the real culprit: society itself. These things happen because human society is deeply flawed, and a legitimate government can only be as good as the people it governs.
And when we look towards the future, it is right to advocate for social change. But unless the government is the agent actively conducting the injustice, it is not right to use law as the mechanism to bring about that change. We need to refocus our efforts on changing minds, rather than changing law, because the changes have to happen in that order. Legislation is a tempting tool for implementing our moral views, because it’s the fastest way to get our way. But the purpose of government is not to make all of us live by whatever morality the majority holds; it’s to enforce whatever morality all of us hold.
My next post will discuss how governments ought to be constructed for that purpose.