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“The 15% Solution,” Serialization, 29th Installment: Appendix IV: “On Morality and the Uses of the Law,” Dino Louis 1992

Note: The Preface and Chapters One through Twenty can be found here: The 15% Solution

by Jonathan Westminster, Ph.D. aka Steven Jonas, MD, MPH
Featured Writer
Dandelion Salad
crossposted on TPJmagazine.us
September 22, 2012

Morality

Image by dietmut via Flickr

This is the twenty-ninth installment of the serialization of a book entitled The 15% Solution: A Political History of American Fascism, 2001-2022.  Herein you will find Appendix IV.  This Appendix, purportedly written by the 20th century political analyst, (the fictional) “Dino Lewis” presents a comparison of the Religious Fundamentalist and he Jeffersonian/civil-libertarian positions on the subject: “Morality and the Uses of the Law. It is certainly fully relevant to the United States and what we might face in a future governed fully by the Republican Religious Right.

For readers coming into this serialization at this time, you should know that under the pseudonym Jonathan Westminster, the book is purportedly published in the year 2048 on the 25th Anniversary of the Restoration of Constitutional Democracy in the Re-United States. It was actually published in 1996 by the Thomas Jefferson Press, located in Port Jefferson, NY.  The copyright is held by the Press.  In early 2013 it will be republished under the name of the true author, Steven Jonas, with the title The 15% Solution: How the Republican Religious Right Took Control of the U.S., 1981-2022 – A Futuristic Novel, by Punto Press Publishers, New York, and Brewster, NY.

A commentator had this to say about the book: “I am in the middle of reading ‘The 15% Solution.’  For some reason I assumed it was a recent publication.  About 100 pages in I looked to see when it was published.  It was published in 1996.  That absolutely shocked me. What it was saying then is exactly what is happening now.  The race-baiting, anti-homosexual crap that takes one’s attention away from what is actually happening, and it was written about 15 years ago.  Even the 14th amendment controversy is discussed in this book, as well as so much more – ownership of the media, talk radio, etc.  This is truly frightening, and if the Dems do not wake up and fight, I fear there is much worse to come.”  Indeed!

And so, Appendix IV.

Definitions

“Moral,” the dictionary tells us, means (Webster’s):

“1. of, pertaining to, or concerned with right conduct or the distinc­tion be­tween right and wrong. 2. con­cerned with the principles or rules of right conduct; . . . 4. founded on the fundamental principles of right conduct rather than on legali­ties, enactment or cus­tom: moral rights; mor­al obligations. . . .

“Morality” means (Webster’s):

“1. conformity to the rules of right conduct; . . . 4. a doctrine or sys­tem of morals. . . .”

These definitions and their differing interpretations provide some of the ex­planation for the never‑ending struggles in this country over just what is “mor­al thought and behavior,” and the closely related ques­tion on the proper role of government in private decision‑making on matters of per­sonal thought and conduct. From shortly after the founding of the Massa­chu­setts Bay Colo­ny, in this land there have been two strongly held schools of thought on these ques­tions. The first can be called the Fundamentalist, legal‑prescription/legal‑proscription school, the second the Jeffersonian, civil‑libertarian, freedom‑centered school. The Funda­mentalists in particu­lar have held great political power and influence from time to time.

The members of that school has always had a strong founda­tion in one or more (Christian, often Fundamentalist) religious denominations. They hold that there is a clearly defined set of “rules of right conduct” based in their particu­lar religious theory, that they know with certainty what those rules are, and that the rules are absolute. Further, “morality” means “confor­mity to the rules” as those rules have been laid out by themselves, for ev­eryone, reli­gious adher­ents and non‑adherents alike.

The Fundamentalists allow no deviation from their interpretation of what is moral, so sure are they that their interpretation is the right one for every­one, in absolute terms. They are particularly concerned with those parts of the defini­tions of moral and morality which pertain to sex and sexual behavior.

A major feature of the Fundamentalists’ position on morality and moral behavior is their heavy reliance on the use of the criminal law for the propaga­tion and enforcement of their views among the population. The failure of the religious forces to effectively sell their product through their own large mar­kets, the churches, religious publications, and the religious and Right Wing me­dia, lead them to demand that their prescripts and proscripts be given the force of law.

Although the Fundamentalists are considered to be very strong in this country, and they are, politically, actually, their position indicates moral weak­ness, not strength. (Unfortunately, no one in the opposition to the Fundamen­talists seems to recognize that fact.) In one sense, their position is a reflection of a deep‑seated (and well-founded) fear that without the force of the law be­hind them, relatively few people would listen. It is unfortunate for all Ameri­cans that the Fun­da­mental­ists do not have more confidence either in their teachings or the Ameri­can people.

Thus in reality the Fundamentalists put little faith (if I may use that word) in the value of exhortation, persuasion, reason, education, and example. They seem to have little faith themselves that the latter tools will be effective in achieving their goals. To the extent that the Fundamentalists are forced to rely on the criminal law to enforce their views on personal thoughts and behaviors, to that extent is the fundamental weakness of their positions and their lack of confidence in their ability to change peoples’ thoughts and behaviors by moral suasion revealed.

Thomas Jefferson presented the civil‑libertarian response to the Funda­men­talist position in his famous “Bill for Establishing Religious Freedom” in Vir­ginia (1779):

“Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and mean­ness, . . . that the impious presumption of legislators and rulers, civil as well as ecclesi­astical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, . . . that our civil rights have no dependence on our religious opinions, . . .

“Be it therefore enacted by the General Assembly . . . . that all men shall be free to profess, and by argument to maintain, their opinions in matters of reli­gion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.”

In certain contexts, the Fundamentalists deny that they are dealing with religious matters. In those cases they like to frame the issues in such terms as “promoting family values.” But the concerns of the Fundamentalists are reli­gious matters, fundamentally. How do we know this? First, most often those who raise the issues are religious figures themselves, or are closely associated with religious denominations. Second, and more significant, the Fundamental­ists usually characterize as a “sin” the behavior to which they want to apply the criminal sanction, whether that behavior is to have an abortion, to live as a homosexual, or to view/hear art the Fundamentalists describe as “objection­able.” Therefore, the behavior must be punished/protected against. “Sin,” of course, is a religious, not a secular concept. Third, in dealing with human behaviors they find objectionable, they often invoke “God’s law” as the justifi­cation for imposing a criminal penalty on those behaviors.

Conceptual Conflict

There are three aspects of the Fundamentalist approach to morals and morality that lead to the development of the sec­ond school of moral thought in America, so eloquently es­poused by Jefferson. It has stood in opposition to the first school since Roger Williams broke away from the Massachu­setts Bay Colony to found the Rhode Island Colony in 1636.

 Absolute Moral Values. The first zone of disagreement be­tween the two schools is that, while there may be some “fun­damental principles of right con­duct” laid down somewhere, there is, in political and moral fact, no general agreement as to what they all are. If asked, each of us could come up with a list. But the lists would differ, even among people who con­sider themselves to be quite moral.

Take murder, for example, a violation of one provision of one of the most basic components of Western Society’s basic moral code, the Ten Command­ments, to wit: “Thou shalt not kill.” Written in absolute terms, is it not? Well, it happens that there are some generally agreed‑to excep­tions to the rule, like “except in self‑defense,” or “except when your country’s leaders tell you it’s in the national interest.” And, “except when a person has been found guilty of committing one of a list of crimes.”

Further modifying this particular “fundamental principle” are differ­ences among people concerning the exceptions. While virtually everyone would kill in self‑defense, a signifi­cant number will not do so in war, con­sidering it to be immor­al. An even larger number oppose capital punish­ment, con­sidering it to be immoral. What appears on first glance to be a “fundamental principle” of Judeo‑Christian morality turns out to be not so fundamental after all. It is subject to modification. And among thoroughly responsible people there are strong­ly held differences over what modifica­tions are moral.

      The Role of the Law in the Management of Morality. The second differ­ence between the two schools is their view of the relationship between the law and morality. The Fundamentalist school ignores that part of the definition of moral that says that it is “founded on the fundamental princi­ples of right con­duct rather than on legalities, enactment or custom. . . .” They apparently feel that without the force of law, few if any persons would follow their pre­cepts (and thus they make them into prescripts).

This reliance on the criminal law to enforce a particular position on moral questions is nothing new in American history. For example, at the time of the Scopes “monkey trial” in the 1920s, the Springfield Republican noted that William Jennings Bryan, the defender of Tennessee’s law against teaching evolution in the public schools, was (Greene):

“. . . seeking to use the powers of government as a fortified line bris­tling with the terrorism of the criminal courts, and the threat of crimi­nal penalties, as a defense for his fundamentalism.”

Now, there certainly is a list of behaviors which almost everyone agrees is immoral: murder, (other than in self‑defense, war, and for many, capital pun­ishment), rape, robbery, burglary, embezzlement, fraud, and so forth. Society endorses the view that these particular acts are immoral by using the force of law to support it. But in the minds of many members of society, the list of immoral behaviors subject to legal penalty is, and should be, relatively short. This is because people’s lists of “fundamental principles” differ so markedly.

Further, given that morality is by definition not based in “legalities,” the Jeffersonian view as reflected in the Bill of Rights is that thought and behavior on moral questions should be intruded upon by the law only exceptionally, in terms of the list agreed to by almost everyone, described above. It may be fairly concluded that the Jeffersonian view is that even if there is some­where some absolute set of “fundamental principles” governing thought and behavior, no one knows yet what it is. Further, the Fundamentalists’ view of precisely what it is carries no more weight than anyone else’s, and there are and can be per­fectly legiti­mate differences of opinion on that question.

Morality and Dumbness. In the Fundamentalist view people are basically dumb. That is, on matters ranging from deciding which movies to see, to choosing which books to read, to looking at “sexually provocative” works of art, (“dirty” and “obscene,” are two other favorite words the Fundamentalists use to describe written, visual, or auditory materials they don’t happen to like or find personally offensive), to choosing which recreational mood‑altering drugs to use, people will invariably make the “wrong” choice. People simply cannot be trusted to do the right thing (however that is defined). Of course, it is the Fundamentalists who define right and wrong in that context. Then they go on to demand that the law be used to prevent people from getting access to materi­als the Fundamentalists find objectionable. In some cases they also advocate punishing those who produce/create the stuff, and/or punishing users just for using.

The civil‑libertarian view is that most people are basically smart. Most of the time they will behave in ways which are fundamentally healthy and posi­tive for them, if, (and that’s a big if), they are given appropriate information about dangers, if any, and they are not subject to continued promotion of negative behaviors, (e.g., pro‑drug use tobacco and alcohol advertising; pro‑gambling advertising [both public and private].)

With accurate information about, let us say, the sexual content of certain movies, most people will make the choice to view or not to view that will work well for them. If people were not subject to the overwhelming barrage of pro‑drug advertising that they are in this country, there would be much less drug use. In those countries in which it is widely available, sex education does work to, for exam­ple, re­duce the spread of vene­real disease and teenage preg­nancy. In the civil‑libertarian view, most people can perfectly well decide on their own what television and radio programs they want to watch/listen to and want their children to watch/listen to, if they simply have an idea of what’s in the program.

As an example of the latter proposition, a garden vari­ety morn­ing drive‑time radio show like WFAN/New York’s “Imus‑in‑the‑Morning.” The show fea­tures an ego‑ma­niacal, nasty, sexist, short‑tempered, politically-reac­tionary host who loves to engage in per­sonal put‑downs, high‑school locker‑room scatologi­cal humor, and dis­cussions of the breast size and dating behavior of the (in­variably female) an­nouncers of the show’s traffic report. He is sur­rounded primarily by a group of sycophan­tic yes‑men who egg him on in his transpar­ent double enten­dre, painfully un­funny, pseudo‑sexual shtick (cer­tainly “objec­tionable” to many a Fundamental­ist).

The only voice of sanity is a long‑suffering sports announcer, who, as the butt of an unending series of lame barbs emanating from the host’s foul mouth, must either get paid very well or be unable to find another job. But do Ameri­cans need someone to tell them whether or not they can listen to this show? No. Obviously any intelligent person will simply choose, on their own, not to.

Taking this line of analysis a bit further, most people can decide on their own whether or not a photography exhibition with a couple of homoerotic photos in it is for them or not. Most people viewing an exhibition of art of the American Frontier can decide whether or not they agree with a museum guide text that interprets that art as glorifying Western imperialism, male chau­vinism, and racism. They don’t need some Senator from Alaska (Thomas) making that choice for them. Of course, the spread of information and the idea that peo­ple, especially children, can make their own choices based on accurate scientif­ic, historical, and cultural information is abhorrent to the Fundamentalists.

Moral Questions and the Constitution

The civil‑libertarian view on morality is, of course, sup­ported by the ap­proach to the matter embodied in the Decla­ration of Independence and the Constitution. In the Declara­tion, Jefferson put forth the concept of “unalien­able Rights,” “among which are life, liberty, and the pursuit of happiness.” Further, Jefferson noted, “it is to secure these Rights that Governments are instituted among men” (emphasis added both times). According to Jefferson, and pre­sum­ably all those men who took their lives in their hands and signed the Decla­ra­tion of Independence, that is what governments are for: “to secure these rights.”

Our Constitution in its Preamble calls upon the Federal government to “secure the Blessings of Liberty to ourselves and our posterity.” And then in the Bill of Rights, the Consti­tution proscribes specific Federal legal action dealing with speech, religion, the press, and assembly. Through its protec­tion of un-enumerated rights in the Ninth Amendment, the Constitution proscribes government activity in many areas of sexual conduct that so concern the Fun­damentalists.

It is important to remember that the Constitution is very specific in listing what the government can do vis‑a‑vis person­al rights (and expansive when it comes to government’s pow­ers to regulate the economy.). There is no basis in the plain language of the Constitution for the Borkist view that govern­ment can do anything it wants to limit personal rights, as long as such action is not spe­cifically prohibited (and for him the prohibited list is minuscule). Nor is there any basis for the Borkist view that unless a personal right is specifically men­tioned in the Constitution, it doesn’t exist (Abrams). That view flies in the face of both the Declaration and the Constitu­tion, especially the Ninth Amend­ment. (No wonder Judge Bork characterized the latter in terms of an “inkblot” [Barnett]. It just doesn’t happen to fit with his authoritarian, Fundamentalist, anti‑Constitutionalist view of what govern­ment should be all about.)

For a majority of Americans, the Constitution and the Declaration mean that the law should stay completely out of regulating their personal thoughts and for the most part out of regulating their behaviors, as long as those do not infringe upon the rights of others. Most Americans also agree that the law should also stay out of the deter­mi­nation of the composition of lists of moral princi­ples, except to the extent that most peo­ple agree that certain behaviors should be curtailed by the rule of law because such behaviors impinge directly on the rights of oth­ers.

The Role of the Law Inside the Family

Much of the current Right‑wing program on matters of conscience, and on matters of liberty and freedom of choice, focuses on children and the family. Thus, minors should not be able to get abortions without parental consent and children should not have access to pornography or “obscene” materials. Their programs to deny certain kinds of health services to certain people and deny access to certain materials to everyone is based on the premise that the family should be involved in making decisions in the named mat­ters.

In terms of definition, “pornography” is a technical term, usually referring to visual, written, or aural material designed to stimulate sexual interest and arousal. It must be recog­nized, however, that “obscenity” is something that exists only in the eye of the beholder. The Supreme Court has recognized this prin­ci­ple in the “com­munity standards” rule.

I think that most would agree that the family should be involved in decision‑making about, for instance, rules to be applied to the sexual behavior of the children at a given age. The disagreement comes over how this in­volve­ment should be achieved. The Fundamentalists would accomplish this end by law‑enforcement. They want to put the criminal justice system to stand in loco parentis. They want to interject the police and the courts into the most private precincts of family life.

Certainly, many teen‑age girls who become pregnant and want an abortion already go to their parents for advice, coun­sel, support, and assistance. They, for the most part, are in families that are strong, without any need to depend upon the law as a crutch. There are a few seven year‑olds who some­how get the money and get out to the record store to buy the latest recording of 2 Live Crew, family preferences to the con­trary notwithstanding. But there are not too many of those.

In cases in which the girl doesn’t go to her parents or the seven year‑old does buy the recording without his/her parents knowing, one must say that there is a break‑down, a weak­ness, in the family structure and intra‑family communications. The civil‑libertarian position on dealing with this problem is that law enforcement is an entirely inappropriate, in most cases ineffective, measure to deal with the problem.

Actually, the Fundamentalist position on these matters is one that would weaken, not strengthen, the family structure. To the extent that the law re­lieves families of the obligation and necessity to talk about and establish family rules for dealing with subjects like sex, abortion, obscenity, and morality, to that extent the family structure is weakened.

The criminal law has little place inside the family except for dealing with intra‑family violence, sexual abuse, and theft. Nor should laws be enacted to deal with intra‑family problems that exist on a small scale (how many seven year‑olds actually do get out to the store, with the money, to buy the latest tape that some professional “moralist” has labeled as “dirty”), — laws that would deprive millions of adults of their Constitutional rights. On the other hand, the development of educational and other support programs which will strengthen the family structure so that socially productive choices can be made on these issues should be strongly supported.

Morality and American Values

What in the Fundamentalist position on morality and the law that is not consistent with the American values reflected in the Declaration and the Con­sti­tution, is not that they hold particular positions on abortion, sexual prefer­ence, obscenity or the like. Nor is the content of those positions (i.e., abor­tion is wrong, homosexuality is wrong, the visual depiction of sexu­al inter­course is wrong) not consistent with American values.

Under the Constitution, the Fundamentalists are fully enti­tled to hold their views, to express themselves freely on them, and to attempt without the use of force to educate/persuade others to agree with them and act accordingly. However, un­der the Constitution, the governmental means for implement­ing the American dream expressed in the Declaration of Inde­pendence, no one is enti­tled to enforce upon others their par­ticular views on morals and morality by the use of the law, except in such limited matters as “Thou shalt not kill (with exceptions).”


References:

Abrams, F., Foreword to R.E. Barnett, ed., The Rights Re­tained by the People: The History and Meaning of the Ninth Amendment, Fairfax, VA: George Mason University Press, 1989, (for the Cato Institute), p. viii.

Barnett, R.E., “Introduction: James Madison’s Ninth Amend­ment,” in R.E., Barnett, ed., The Rights Retained by the Peo­ple: The History and Meaning of the Ninth Amendment, Fairfax, VA: George Mason University Press, 1989, (for the Cato Institute), p. 1.

Greene, L., The Era of Wonderful Nonsense, New York: 1939, p. 152.

Jefferson, T., “An Act for Establishing Religious Freedom, passed in the As­sembly of Virginia in the beginning of the year 1786,” reprinted in Koch, A., and Peden, W., The Life and Selected Writings of Thomas Jefferson, New York: The Modern Library, 1944, 1972 (Random House), p. 311, 1779.

Thomas, E., “Time to Circle the Wagons,” Newsweek, 5/27/91, p. 70.

Webster’s Encyclopedic Unabridged Dictionary of the English Language, Port­land House: New York, 1989.


The original hardcover and trade paperback editions (1996) of The 15% Solution are available on both Amazon.com and BarnesandNoble.com. The 2004 print-on-demand re-issue of the book from Xlibris, with a New Introduction dealing with the first four years of the real Republican Presidency that began in 2001, can be found at Xlibris.com (http://www2.xlibris.com/), as well as at Amazon.com and BarnesandNoble.com. There is a “Sub-Home Page” for this serialization at the lower right-hand corner of the Home Page of TPJmagazine (www.TPJmagazine.us). It contains a full archive of all the chapters as they are published over time. It also has such items as the Disclaimer, the cast of characters, the author’s bio., cover copy, and several (favorable) reviews. The serialization is also appearing on www.BuzzFlash.com, Dandelion Salad; The Greanville Post; and TheHarderStuff newsletter.

Jonathan Westminster and biography are based on a pseudonym.

Steven Jonas, MD, MPH is a Professor of Preventive Medicine at Stony Brook University (NY) and author/co-author/editor of 30 books. In addition to being a columnist for Truthout/BuzzFlash (http://www.truth-out.org/, http://www.buzzflash.com), Dr. Jonas is also Managing Editor and a Contributing Author for TPJmagazine; a Featured Writer for Dandelion Salad; a Senior Columnist for The Greanville POST; a Contributor to Op-Ed News.com; a Contributor to TheHarderStuff newsletter; and a Contributor to The Planetary Movement.

see

The 15% Solution: A Political History of American Fascism, 2001-2022 Preface

The 15% Solution

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  1. […] “The 15% Solution,” Serialization, 29th Installment: Appendix IV: “On Morality and the Uses of… […]

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