In Defense of Newt – Part 2

Posted by Bob Lord

Well, 17 comments later, I figured I’d go for an encore. We can’t agree all the time, right? And, I’ll confess that my wife agrees with most of your comments.

Here’s my second run at it:

There is a legitimate connection between morality and legality, by which I mean conduct that’s disfavored under the law. Ultimately, legal principles incorporate moral principles, but don’t necessarily line up with them precisely. If society does not consider behavior immoral, the behavior almost never will have adverse legal consequences. But the opposite is not true. Society may consider behavior immoral, but choose not to impose legal consequences for it. If you were to draw a Venn diagram of this, immoral behavior would be a large circle and legally disfavored behavior would be a smaller circle almost wholly within the larger one. An example of immoral but not legally disfavored conduct, by the way, would be marital infidelity. We used to go there, but virtually every state now has no fault divorce, and there generally are no adverse legal consequences for marital infidelity.

Over time, a society’s moral code evolves and, with it, it’s legal standards. The legal standards tend to lag when dealing with conduct which is evolving from being considered not immoral to being considered immoral. The legal standards tend to lead when dealing with conduct that is evolving from being considered immoral to being considered not immoral. The reason for this is that there will be natural resistance to reflecting moral beliefs in the law unless those beliefs are widely held. A simple majority doesn’t do it here. So, for example, it’s taking longer than many of us would like for laws to penalize cell phone yakking or, worse yet, texting while driving, because even though many of us, probably a substantial majority already, believe it is immoral, the belief is not yet widely held enough to force a change in the law. Stand by, it will be one day, probably soon. For a counter example, consider pot laws. We’ve only reached about a 50/50 split at this point on the morality of pot smoking, and already the anti-pot laws are breaking down.

The problem with most conservatives these days is that they disrespect this paradigm and want either to substitute their own moral beliefs for the widely held views of society or define immoral behavior as illegal when it needn‘t be, or both. For example, Rick Santorum still believes homosexuality is immoral, so he wants it to be disfavored legally, even though his belief no longer is widely held. Some politicians want to crack down harshly on gambling. Even if they were right about the morality part, does it make sense to make gambling illegal simply because its immoral. The temperance movement was another examply of a poorly conceived elevation of immorality to illegality.

So, with that background, here’s why I think it’s a mistake to attack Newt. If we attack Newt, presumably for his hypocrisy, we’re essentially saying that he’s not qualified to legislate morality because his morals don’t cut it. But that implicitly concedes the horrendous idea that someone virtuous enough (Santorum?) might be qualified. That’s wrong. If some Republican who never committed one immoral act in his life were taking the same positions as Newt on same sex marriage, choice, etc., that Republican would be no less offensive than Newt. The point is that nobody is qualified to substitute their own beliefs for those of society at large. And, once you’ve implicitly agreed that somebody may legislate morality, it’s not even a winning argument to say Newt’s morality doesn’t cut it. After all, we all have feet of clay. And making the case that Newt’s shortcomings are disqualifiers is not necessarily a slam dunk. Moreover, it’s not necessarily a given that a moral shortcoming on one front is a disqualifier from passing moral judgment on another front, if you’re going to accept the idea that passing moral judgment while making law is ok. For example, if a politician has been completely honest in his financial dealings, but has been a scoundrel in his love life, it’s hard to claim he’s no less fit to determine fines for financial wrongdoing than the next guy, even if he’s taken a holier than though approach to the subject.

The bottom line, I believe, is that it’s short sighted to get into the mud over Newt’s marital foibles. Ultimately, it defines the playing field in a way that progressives, and the country, don’t want it defined.