I’ll steal a reply from the GD thread which you have no interest in actually debating.
Tangentially, I happen to believe that law should not be based on morality at all.
I know that historically speaking, our law inherits from the ten commandments and the Hammurabic code; however, I believe that is mere artifact, and should not guide us on the purpose of law - a law should never exist because it promulgates morality - when it does, it’s happenstance.
Law should exist to protect potential victims - I don’t need a moral code to understand that I fare better in a society where it’s illegal for someone to murder me or steal from me.
Religion should exist to protect potential perpetrators. When dealing with murder, theft, etc., I see religion as properly being concerned with saving the murderer or thief.
Per the OP, I trust that Bricker is always arguing in good faith. I haven’t seen him getting close to the ‘ban line’ myself, although I don’t read every thread.
I don’t know why you’d say that. He uses it frequently, see nearly every time he references Lochner and a few other cases.
Said the spider to the fly. 
Bricker, I haven’t looked into every nuance of jurisprudential philosophy on the subject, but my first take on what would be “moral” grounds for criminal law in a Constitutional republic would have a great deal to do with the “standing” threshold for a civil case: It should prohibit something that works injury on another innocent party in the same sense that the hypothetical legal construct of the “reasonable man” would see a given alleged tortuous action as “working injury” on the plaintiff if valid.
Murder, rape, theft, robbery, extortion, fraud, embezzlement: they all work injury to a party who did not consent to be murdered, raped, stolen from, robbed, blackmailed, defrauded, embezzled form, etc. Consensual sex, drug use, Sabbath-breaking, etc. do not have that element of working of demonstrable injury to a non-consenting party.
Contemplate that approach and let me know whether it’s workable, and what problems if any you see in it.
I’ll go further than that. Most people’s views on morality are so strongly intertwined with their religious views that such views shouldn’t form the sole basis of any law. If you’re going to outlaw something, you should be able to show that it harms someone, not just that it’s morally wrong. And furthermore, the law should go no further than is necessary to prevent that harm.
For instance: Sodomy practiced in private between consenting adults doesn’t harm anyone, and therefore shouldn’t be made illegal, even if the majority were to decide that it’s morally wrong.
sigh
When did we both agree that “less rape, disease, violent assault, arrest, oppressive pimping and diagnosed mental illness” is the comprehensive list of “bad things” to be considered?
Who gets to decide what constitutes “harm?”
If you include infants in that harm–i.e., acts which kill babies ought to be illegal–then you’re not operating from a social contract perspective, inasmuch as infants are not part of a social contract, and murdered infants never will be. If that’s the case, it looks to me as if you’re still operating from your own moral system, albeit a minimalist moral system that I agree with: an it harm none etc.
I do think the law is based on morality, and I think it should be based on morality–my morality in particular. It’s only a problem for me when the law diverges from my morality. Note that my morality is pretty freakin laid-back, though.
Daniel
What should we do if we have a question and can’t get a hold of you?
I was thinking more in terms of the reality we live in now. Is there a constitutional bar to such laws? Does the federal constitution bar the states from passing such laws?
That’s something we all need to determine on our own. And reasonable people can disagree over the details.
Except, what’s wrong with saying, in the first place, “something should be made illegal if the majority considers it morally wrong”? Saying “something should be illegal only if it harms someone” is saying that that should protecting people from harm should be the only role of the government.
If you have a different conception of government, though…if you say that the proper role of the government is to advance common societal values, then it makes a lot of sense to make things illegal if the majority considers it wrong. In that case, it’s the job of the minority to submit to the values of the majority or be punished.
Morality formed by public opinion? What the fuck are you talking about? In an effort to weasel your way out of a dumb ass OP, you’re picking semantic nits and throwing out all kinds of smoke to hide the fact that, when you posted the OP, you did not actually believe that because something is immoral, it should be illegal. You are probably the first poster to jump on any other one who dares to confuse the two, yet here you are playing Legal Philosophy 101. Here, I’ll help. For your response post, just throw in a couple quotes from Bentham, Hobbes, and Dworkin. Maybe then you’ll get people to believe your original OP was an attempt to discuss the implications of natural law, legal positivism, and morality, and not another one of your bullshit “gotcha” threads. Good Luck with that.
I just wanted to say that this seems a really, really odd castle keep that you have chosen to back yourself into, Bricker. I do hope all is well with you.
My best guess is yes.
I don’t think it’s been tested, but if I were a federal judge, I believe Lawrence v. Texas would compel me to find the adultery law unconstitutional.
So… not sure, but my best guess is yes.
I stand by what I’ve posted, except to the extent that subsequent discussion has changed my mind.
I don’t know, the general public? The elected legislators? But I think the harm has to be “tangible” in some sense, at least in as much as you shouldn’t be able to say “Well, allowing sodomy [to use my example] is damaging to the moral fibre of our society, and thus inflicts harm.” In other words, you can’t just recast all immoral acts as harmful acts, or you’re really just legislating morality under a different name.
I suppose one could argue that I’m just choosing the definition of “harm” to exclude acts whose only “harm” is to “the moral fibre of our society”, but I do so for a specific reason: because we as a society overwhelmingly believe that the govenment shouldn’t be able to force people to adhere to a particular set of religious beliefs. Moral beliefs are ultimately inseparable from religious beliefs, so I don’t think anyone can reasonably say “The government should be able to force people to act morally” while still maintaining that the goverment shouldn’t be imposing religion on people.
Well, perhaps it is a minimalist moral system, but if using the law as a tool to impose our moral beliefs on others is a bad thing, then at least imposing a minimalist set of beliefs is less bad. However, I think you could see it as a social contract, and say that we’re not outlawing killing babies as part of our contract with babies, but rather as part of our contract with each other – i.e., we as a society have collectively agreed that the lives of babies are valuable to us, and killing them is thus a harm to the society as a whole. You could say the same thing about endangered species. Obviously, we don’t have some sort of social contract with bald eagles, but if we as a society decide their lives are of value, then we should be able to pass laws to keep people from killing them.
This may sound like it’s a slippery slope, and if I’m going to let people outlaw killing bald eagles because we value their lives, then why not let people outlaw sodomy because they value “morality” and feel that such activities are damaging to it? But I think there’s a key difference here: Everyone can agree on what constitutes a bald eagle, and every reasonable person can agree that killing a bald eagle constitutes harm. Not everyone can agree on what constitutes “the moral fibre of our society”, or whether it is “harmed” by sodomy. So on the one hand we’re saying “This act does real, tangible damage to something we’ve agreed is valuable, and therefore we should outlaw it” whereas on the other hand, we’re saying, “We believe that this act does harm to some intangible thing, based on the moral convictions we derive from our religious beliefs.” To outlaw the act in the second case basically amounts to legislating our religious beliefs.
The problem with that is that if you accept that it’s OK to base a law solely on your moral views, then the only objection you can pose to someone basing a law on their moral views is “I think you’re wrong.” Whereas by saying “If the people who think like me become the majority, we shouldn’t be able to impose our brand of morality on society,” I have stronger grounds to object to it when the people who don’t share my views on morality do it.
OK.
And it’s actually a moot point now, since you agreed in the other thread that laws should not be based on morality alone.
Funny thing that. You apparently changed your mind from the belief that morality alone can not provide a proper basis for a law, then, for one OP, to your belief that it could, and then a few hours later, changed it back again. Convenient that.
OK, Bricker, I see exactly what’s going on now.
It’s not so much that you’re trying to make a larger point in these “gotcha” threads, you want particular individuals to concede that point. Never mind that your epiphany on page 4 of the prostitution thread was preceded, on page 1, by several posters making that exact point. They weren’t the target posters, and so it didn’t matter.
Has this tactic ever worked? I doubt it. The posters you are targeting are impervious to that kind of logic. But I can also see that it was a mistake for me to try to get in your way. I will take your advice and simply stay out of those threads in the future. As to whether that tactic is against the board rules, that’s up to the moderators to decide. If it gets you banned, so be it. Your a big boy and you know exactly what you’re doing and exactly what the consequences are. 
My apologies.