Morality v. the Social Contract

Since I’ve been repeated called ignorant on my own blog and keep being asked what the basis of morality is even though it’s far from a cogent point, I think it’s about time to discuss the concept of the Social Contract v. Morality-based law. First of all, though, let’s get something out of the way quickly. Say that my father was an alcoholic circus clown who came home every night and beat me with his oversized clown shoes (the basis for this particularly poetic tale can be found in the middle of this disturbing and hilarious Rolling Stone article). Does this mean that I, too, have to become an alcoholic circus clown who beats my children with my oversized shoes? I should think not. American democracy can claim traditions and roots that go back to Athens and the Roman Republic. However, do we take everything that the Greeks and Romans did, or do we borrow that which is useful to us and discard that which is outmoded or unable to be adapted? For that matter, the America that currently exists is actually quite different from the one the Constitution envisioned. The biggest example is that we’ve gone from a voting class consisting of landed, white males to universal suffrage for those 18 and above who are non-incarcerated citizens. This is what is called “progress,” the rejection of old, outmoded forms of thinking in favor of new ways of looking at things. Thereby, even if Biblical values formed a part of the foundation of the United States Constitution (which, admittedly, they probably did, but mostly in that the Bible is kind of a foundational item of Western culture and has been influencing the thinking of this part of the world for many, many years), that doesn’t mean we actually have to follow them. Again, I point at the Establishment Clause as a bulwark designed specifically to keep that sort of thing from happening. We are allowed to reject Biblical teachings if they conflict with our society’s values in the same way we can discard items of Roman Republic law if we so choose. This, by the way, is one of those places where being first isn’t necessarily good. The great liberal revolutions/evolutions of Europe that followed in the century after the great experiment in the United States were far more explicit in establishing the public and the religious sphere as separate entities. So let me make something clear. I don’t give a flying crap what the Bible says about homosexuality. The state California doesn’t have to, either. California only has to answer to its voters and the Federal government, not god (no matter what kind of foot-in-mouth garbage Pat Robertson will undoubtedly spew). Anyway, this brings me to my original point. Sadly, this came to me as a whole-cloth argument at about 3 o’clock this morning, but I don’t remember how I was putting it together then, so I kind of have to start from the beginning. Just so we remember, it’s morality-based law v. the Social Contract. Morality-based laws are generally unjust, arbitrary, and handled by a gatekeeper or group of gatekeepers. This is how most of the laws in human history have worked (China being a notable exception with its two-thousand year tradition of Confucian law). They’re unjust in that there is generally no equal distribution of the protection of the law, with certain privileges reserved for an elite class and unequal punishments depending on what levels the criminal and the victim were on. They’re arbitrary in that morals change from person to person, tribe to tribe, and country to country and when you combine those variations in morals with the concept of the gatekeeper, well, who knows what you’re going to get? The gatekeeper, in the case of morality-based law, then becomes the most important issue. This, fundamentally, is where the injustice and arbitrariness of the morality-based law system comes from. Even if you have something written down, it’s generally interpreted by a morality police or, in the case where it is a religious issue, the priestly class who are the sole interpreters of the intentions of the lawgiver. So if the gatekeeper decides that, say, wearing hats on Friday is immoral, then nobody gets to wear hats on Friday. In the United States we do not have a morality-based law system. I cannot stress this enough. Our laws are founded on John Locke’s principle of the Social Contract, which is pretty self-explanatory in my book, but it needs to be unpacked a bit for discussion purposes. The Social Contract works like this: we as a society make a judgment like, “It would be bad for society if people were allowed to kill other people with no reprisal.” We then pass a law making murder illegal. At that point it’s not a moral decision, it’s an actuarial decision, with different values of punishment based on intention and whatnot. The Social Contract then goes down the line. Allowing unpunished property theft is bad for society, therefore we need to make laws against it. We can even take that down to the traffic laws. It’s quite dangerous if everyone on the road is driving a different way, so we need to make laws. These laws are either put in place by elected officials or ratified directly by the voters in referendums. The process by which they come in to being is a largely public, transparent process (I mean, we have TV cameras in Congress, for the love of crap, not that anybody actually watches C-SPAN, but it’s there). There was no Mt. Sinai moment for the United States Constitution when George Washington came down from the top of the statehouse in Philadelphia with the parchments and declared it the law of the land. Nope. The Constitution was written, then taken to each of the thirteen states to be ratified by the voters, competing the “contract” part of the Social Contract. Meanwhile, the gatekeepers of the Social Contract are the judges and lawyers. Judges are directly elected on a local level and appointed by elected officials on a national level, meaning that they aren’t some sort of isolated elite blessed with the gnosis of the lawgiver, but regular people with as specific type of education. No one in the country has to go before a judge without a lawyer, either, because it’s taken as a given that the average citizen will be largely ignorant of their rights and it is, therefore, taken as a given that someone who does know should be there. Now, back to that sticky issue of gay marriage: In a morality-based law system could we say that gay marriage should be made illegal? Most certainly, assuming that the system of morality in question doesn’t like gay people. In a Social Contract based law system could we say that gay marriage should be made illegal? No. A gay marriage has no more effect on the society than a heterosexual marriage does. In fact, it may well have a beneficial effect on society. Making sure that same-sex partners fall under the same insurance and inheritance laws that married couples do is a good thing for society. There will also be a slight uptick in the amount of money spent on weddings, which is good for the economy. This allows me to make an important point. Debates like this are rarely logical and sound a lot like the people on opposite sides are talking past each other. There’s a reason for this: they are. Having spent more than my fair share of time in evangelism training and working on “personal testimonies” and whatnot, I can say with confidence that Christian apologetics are built around creating that all-important sense of inevitability. Creating inevitability requires defining the terms under which the arguments are made. This attitude has transferred over to the political arena, too. So we’re told we live in a “Christian nation” and that the Constitution is actually based on the Bible even when those things are true only in that the US was founded as part of the Christian West and the Bible is a foundational cultural document. The reason that there is a Bill of Rights is because after the Constitution was written, several people looked at it and said, “You know, if we don’t specifically spell out certain rights, they’re going to be taken away.” It’s probably not an accident that the Establishment Clause was one of the very first things to get written down. The Framers of the Constitution did not want a morality-based law system wherein people could be exploited or persecuted in the name of religion. That’s why that’s in there. Either way, as soon as we’re transferred in public dialogue to a “Christian nation,” the Constitution is held hostage by the Bible. That goes against the Establishment Clause and completely contradicts the spirit of the founding of this nation. The first step in dealing with it, though, is to recognize why we’re talking past each other.