From Conscience to Constitution: Should the Government Mandate Virtue?

You have probably heard it said that you can’t legislate morality, that making laws that require people to do the right thing is both ineffective and authoritarian. Nevertheless, in his recent Atlantic article entitled “American Has Gone Too Far in Legalizing Vice,” Matthew Loftus encourages politicians to do just that. By legalizing sports betting and recreational marijuana, Loftus argues that states are neglecting to consider the countless addicts that will result, and that lawmakers should do more to outlaw these harmful vices.

On Loftus’s view, public policy plays a role in the habits that we form, and creating an environment where more people succumb to their vices is neither good for addicts nor the political communities that will be left picking up the pieces. A substantial portion of gambling revenue comes from those who struggle with addiction, and legalizing marijuana is linked to higher rates of drug abuse. If these activities remained illegal, then fewer people would get hooked.

On this score, it seems that Loftus is obviously correct. Our environments play a significant role in the habits we adopt. If I am surrounded by responsible peers, I will be more likely to study for my next exam, while if many of my friends are cutting class, I will be more likely to skip out as well. These choices then form my habits. In the good case, my habits will be virtues like temperance, honesty, and diligence. In the bad case, my habits will lead me into all sorts of vice, including destructive addictions like gambling and drug use.

But even if it is true that our environments form our habits, the question still remains whether it’s the government’s place to guide us towards virtue instead of vice.

As a democracy founded on the rights to “life, liberty, and the pursuit of happiness,” it may be too heavy-handed for political leaders to require us, or even nudge us, to live a certain way.

This concern is amplified by the fact that many of the philosophers who have been the staunchest advocates of state-sanctioned virtue have not been very enthusiastic about democracy. According to Plato, a well-functioning political community should mirror the way that virtuous individuals conduct their lives, while for Aristotle, the purpose of government is to help citizens to live flourishing lives of virtue. But Plato also held that we should all be ruled by philosopher kings, a class of highly educated rulers, and that the freedoms granted within democracies would inevitably lead to anarchy. Likewise, Aristotle thought that monarchy and aristocracy are superior to democracy. An emphasis on character formation through the law might also lead to rejecting democracy as a promising form of government rather than embracing important constitutional freedoms.

These considerations reveal that there is some tension between allowing citizens the freedom to conduct their own lives and passing laws that promote virtue. Part of this tension arises because we often disagree about what is morally best, a fact that the political philosopher John Rawls called reasonable pluralism. Intelligent, well-intentioned citizens can find themselves at odds over many key moral questions.

Is gambling a harmless pastime or a serious moral vice? Is access to abortion a central human right, or the murder of an innocent human being? By enforcing policies that promote particular virtues, lawmakers may have to come down on one side or the other of these ongoing debates.

Furthermore, even in cases where we can agree on what is morally best, it is not clear that the law should prevent us from doing things that we know are to our detriment. Certainly the law should prevent us from interfering with how others choose to pursue happiness, but if we are only hurting ourselves, then why is that anyone’s business besides our own? Part of making room for the pursuit of happiness is allowing citizens to decide for themselves what they pursue, not limiting them to only a menu of government-approved options.

All of this, however, overlooks the fact that promoting certain virtues might be an unavoidable aim even for democratic governments. If it is true that political institutions should enable their citizens to freely pursue their vision of the good life, this goal cannot be accomplished by being completely hands off.

To form and pursue their understanding of the good, citizens need wisdom, discernment, courage, and perseverance, amongst other virtues. These virtues are necessary, not because the government wants to control our lives, but because without them we would be incapable of controlling our own lives.

We would instead be left to the dictates of momentary desires or, in the worst case scenario, crippling addictions from which we cannot recover.

This insight opens up a potential middle road between fully laissez-faire public squares and domineering, authoritarian governments. According to the philosopher Martha Nussbaum, political institutions should cultivate the capabilities necessary for their citizens to pursue self-directed lives. By promoting these capabilities, or virtues, governments ensure that their citizens are able to pursue their own unique visions of the good.

This approach allows that the law can encourage citizens in virtue in a way that creates and supports their ability to choose the life that they want to lead. On this model, the rule of law would not be completely value neutral, but it would make space for people to be able to choose many of their own values.

Forbidding certain kinds of vice, like preventing adults from gambling or using addictive substances, would for the most part be off the table. Unless the government wants to endorse a more robust picture of what a good life is like, the default position would be to let those who can choose their own informed goals pursue those ends. Recreational activities, like football or freediving, come with substantial dangers, but it is typically left up to individuals whether they want to take on those risks. In contrast, protecting those who are still forming the ability to choose their own life paths, like forbidding Juul from marketing to children, would be well within the purview of government officials.

Of course, just having laws that promote virtue does not ensure that anyone will become particularly moral. While they may succeed in outlawing vice, laws simply compel behavior, and those who begrudgingly comply out of fear of punishment would not for that reason become deeply good. The law, rather, would act as a guide for what kinds of values might be worth adopting, and citizens can then decide whether or not they want to choose these ideals for themselves. Policies like sin taxes, for instance, allow states to discourage vice without outright banning it.

Thus, even a view like Nussbaum’s leaves plenty of room for people to develop their own distinctive moral characters. Democracies can lay the groundwork for citizens to live meaningful and fulfilling lives, but at the end of the day, it is up to them to decide what values their lives will ultimately serve.