I’m not sure we can say whether anti-murder laws are reasonable without reference to morality, but I think I get the gist of what you’re saying. But if we have some test of secular legitimacy aside from legislative intent, we fail the challenge of the OP because that would make all three laws legitimate. Right?
Apart from the Constitution, and consensus? No.
Regards,
Shodan
So the tyranny of the majority might be very tyrannical? That’s clearly true, but surely you think something smells bad about a vast majority imposing the death penalty for eating lobster just because they want to? I take the OP as a question about the justification of laws, not the capability of the majority to make them.
By the terms of the OP, 2 is legitimate (though where I agree with Shodan that the way to resolve moral problems with at least two sides is by majority rule) and 1 and 3 are not. Bigamy should no more be banned because of solely Biblical rules than eating shellfish. I think there are good reasons for 3 and not 1, but that goes beyond what is stated in the OP.
But, as you point out, consensus + Constitution does not, in fact, distinguish between 1 and 2 & 3.
That may be so. So do you think the OP’s challenge is impossible?
If you are asking if I would support such a law, no, of course not. Nor do I believe it is at all likely. But you can always say that about these kinds of hypotheticals. But unless you can demonstrate that some moral position is objectively true, then you cannot legislate based on it.
But no, I don’t think you can justify majority rule other than by appealing to consensus.
Once you start arguing that there is some standard other than consensus + Constitution by which you can judge laws, you run the danger of forfeiting the consent of the governed. I don’t believe there is a class of philosopher kings who can dictate to the rest of us what is and isn’t right. And if I don’t accept the premise, I am certainly not going to accept the conclusion. Only by consensus do you come closest to the largest number of people accepting the premise, and thereby being willing to buy into a set of social structures such that they can survive.
There is no consensus that eating shellfish ought to be banned. And the Constitution forbids an establishment of religion. So in that sense it sure does distinguish them.
If you are asking if there is some objective principle that would prevent a law from being passed even if the Consitution did not forbid it and a consensus existed that wanted it, then no, there is not.
Did you want to suggest one?
I suppose the Founding Fathers would think that there was such a principle, which is why I mentioned natural law. They believed that God gave certain inalienable rights to men, and that government exists to secure these rights. But they went on to say that government derives its authority from the consent of the governed, and for adequate consent, you need consensus. So that is how you determine which are the natural rights - because pretty much everyone agrees what they are. In cases where there was no agreement, the determination reverts to the states, or the people. See the Ninth and Tenth Amendments for where this gets covered.
But you will notice that they held these truths to be self-evident. They didn’t attempt any defense of the principle of natural law. Either you get it, or you don’t. If you do, great - join the consensus and be governed in such a way as to secure these rights. If you don’t, then you have to accept the will of the majority, and depend on the Constitution to protect the rights of the minority.
But if nobody agrees with you, and the Constitution doesn’t say you are right, then you don’t get to tell everyone else what laws should be.
Regards,
Shodan
Shodan: If I wasn’t clear from my thread title and OP, I’m asking a hypothetical question–posing a philosophical challenge. You seem to think I’m asking about these laws in the context of the US system of governance. I am not. Obviously the US Congress can pass any laws not prohibited by the Constitution. That is not at all my question.
What I am asking is more abstract. I’m looking for a defensible principle that distinguishes 1 from 2 & 3. Obviously such a principle is relevant to our understanding of the Establishment Clause, but that’s not the question in this thread.
Here’s an example that might help. One principle would be that, empirically, sectarian laws are more dangerous than non-sectarian laws. IOW, they have been more likely to cause unjustified oppression. So while we should reject laws based on a particular doctrine, we should allow laws if they are common to multiple religious doctrines. I think this particular principle has a number of flaws, among them the fact that there is a history of oppressing the non-religious. But this would be one example of a potential principle that would distinguish 1 from 2 & 3.
No, morality is absolute-- It’s just people’s interpretations of morality that are variable. In truth, something either causes harm or it doesn’t. If it does cause harm, then it’s morally wrong, and if it doesn’t cause harm, it’s morally indifferent or morally right. If I (or anyone else) think that something causes harm, then I also think that that thing is morally wrong. I may, of course, be mistaken about the harm, in which case I’ll also be mistaken about the morality, but the morality itself stays the same.
Now, if someone wants to lay out a moral case against, say, gay marriage, they then have to make an argument for what harm it causes, and how. If said harm were real, then yes, gay marriage would be morally objectionable. I do not think that such a case can be validly made, so I continue to maintain that gay marriage is not morally objectionable.
Because I can’t distinguish between 1 and 3, which are different in this context only because most of us would be against 1 and for 3. I think I’ve already given a justification for distinguishing 1 and 2.
We have to legislate around moral positions, and since side A’s objective morality doesn’t match side B’s, one good way of doing so is majority rule. It’s pragmatic, in that not legislating takes a moral position also.
We actually don’t even use majority rule, but representative rule. You can use dictatorial rule, but that hasn’t worked out so well, or actual majority rule. This doesn’t work well either, given the California budget crisis and the usual boatload of absurd propositions I have to wade through every election.
Definitely agree about philosopher kings. But isn’t reasonable to request good arguments for any of these? That doesn’t eliminate the need for consensus, since in most cases there are arguments for both sides. A consensus hardly talks of the legitimacy of the argument, since the consensus moves over time. That’s not surprising when there are arguments on both sides, since additional information might sway the people.
I think I have already mentioned at least once that there is no such principle. All public policy, when legitimate, is based on consensus at some level.
“Sectarian is more dangerous than non-sectarian” doesn’t help very much. Because, like Voyager says, there are good arguments on both sides, even about what constitutes “danger”. Laws against bigamy can be based on the idea that it demeaning to women, and if enough people agree, then you can have the laws even if some people don’t buy the idea. Not everything is provable, in other words.
I hesitate to introduce the topic for fear it will hijack the thread, but abortion is an example of what I mean. Is allowing abortion more harmful that not allowing it? That depends on your definition of harm. Arguments for or against a law are certainly useful, but only in building consensus. And you aren’t going to accept an argument if you don’t accept the premise.
If there is a general consensus that blacks are inherently inferior to whites, then arguments that being enslaved is wrong are going to be hard to push. Because it is too easy to say that the harm to the inferior is more than outweighed by the benefit to the superior race. IYSWIM.
If there were an objective morality that you could establish, then you could legislate by reference to that. But there isn’t. Therefore, the best you can do is to refer to the subjective morality of as many citizens as possible.
Regards,
Shodan