Should the government take a role in “legislating morality”?

This transcript has been adapted from the attached audio. It may not be in its final form and may be updated.

LAND: Ben, welcome back to For Faith & Family.

SHAPIRO: Thanks so much for having me again.

LAND: You have sort of been on a journey yourself that when you first became engaged with political philosophy, you were more libertarian, and you have moved to a more social conservative position. That is a journey that I have seen several people take myself personally— just friends of mine. But for those of our listeners who may not be familiar with those terms, tell us about libertarianism and social conservatism and how you move from one to the other.

SHAPIRO: Libertarianism is essentially the idea that government should not be involved in anything, well, which sounds nice, which is why it is so seductive to people, especially when they are becoming interested in political philosophy. It seems very consistent across the board. Look, we don’t want the government involved in economics. We want them involved in national security, but we don’t want them involved in social morality either. As I began to examine the issue of pornography in our society and over sexualization of the culture, I realized very quickly that government actually does have a place and local governments do have a place in promoting virtue. That was always the goal of the founders, was that local governments would have a place in promoting societal morality because the problem is that the libertarians essentially rely on the market to regulate everything. The market is not going to regulate things like pornography because there is always a niche market for that sort of stuff, and, if we as a society condone that and allow it into the public view and say, oh, you know, that is just fine, there is a market for it, no problem, essentially what we are doing is poisoning our popular culture and that does affect everyone. So, if the public can’t have control over that sort of thing because we don’t want “big government” involved, then really we are just abandoning the field of play. We are allowing the lowest common denominator to define us. So, obviously I am still very laissez-faire in terms of economics, and I think that the free market should rule in terms of products and distribution and production, but when it comes to things like social morality, the argument for virtue is not a market argument. It is an argument based on the need for virtue in a society that promotes the welfare of kids and that promotes the welfare of society as a whole.

LAND: Well, Ben, you have done that very admirably in a short space of time to summarize that and it reminds me of a lot of people in my generation who started out as Goldwater conservatives and Goldwater was essentially a libertarian. You know, the government is bad, the government is a bad thing. We need it for national security but it is something that should be less intrusive interference from government than there is and, you know, it was a very seductive argument for many people. But there were many, many others who were arguing that well, government does have a role to play, and while we believe in free markets, because free markets produce more wealth, they work, and command economies don’t, and you certainly have to have national security, that you can’t just have a live and let live attitude as you say. Bad culture will drive out good culture if left to itself.

SHAPIRO: And it will effect things like economics because the problem is that as we lose standards of right and wrong. What is to prevent people from cheating, what’s to prevent people from engaging in fraud, what’s to prevent the market from breaking down? Simply because people are acting in their own personal self interests, so economics, again, I do believe should be left largely unregulated, but that only works in a society that is moral in nature. If you do have this kind of dog-eat-dog society, then eventually, number one there is going to be a reaction on the part of many people to protect the lesser members of society by more and more regulation, and that is exactly what happened in the 1930s with FDR, and you are also going to have a breakdown in the mechanisms of capitalism itself because people are encouraged to cheat and lie and steal essentially in order to afford their own personal goals. So, again, I think that the argument for libertarianism is very seductive because it is very simplistic. It is the absolute rejection of say the FDR kind of values of big government for everything. We say, okay fine, he was wrong, small government for everything. Well, the problem is that we have to realize that number one, that all the legislatures are expressions of the popular will. That’s the whole purpose of a legislature; that is the whole purpose of a representative democracy. So when our legislature votes on social moral issues, they are really expressing our will. So we have to realize as a society that government is not always in opposition to the popular will, often it is expressing the popular will and that is why I think that we should be, number one, more amenable to the use of legislature for social moral good, and number two, I think that is why we should be so wary of allowing the judiciary to encroach on popular will because the judiciary is not elected, and that is more vicious than oligarchic.

LAND: Ben, I want to stop for a second and ask you a question that I know that a lot of our listeners are thinking, and that is, we can understand you going to UCLA, I mean, you’re a California guy, but Harvard? I mean, that’s sort of like going to the eye of the storm for the influence on the culture that you are fighting against. Tell us why you decided to go to Harvard and what has that experience been like.

SHAPIRO: I think that one of the reasons, I think probably the main reason, I decided to go to Harvard is because the main mechanism of social left has used to take over our culture has been the law. They can’t do it through popular election so, instead, what they do is they tend to legislate morality by using the judiciary. That is what has happened with things like same-sex marriage. I mean, Massachusetts is probably the best case in point. Just the Supreme Judicial Court of Massachusetts stating that the Massachusetts Constitution which was written by John Adams, a religious Christian, mandates gay marriage, that sort of activism on the part of the judiciary and the temptation of people to abide by that sort of activism, I think is very damaging and so, I thought that going to Harvard Law and learning the inner workings of the law and being able to turn that against social liberals and really stand up in favor of our Constitution, it was important to go ahead and do that. It has been a very interesting experience to say the least. I have been booed in class, for instance, for suggesting that the Vermont Constitution does not mandate gay marriage. I have certainly found a lot of opposition from classmates with regard to the idea of originalism in the Constitution. A lot of them are receptive because originalism does have a clear intellectual cut to it. There is something very clean and pristine about originalism. It certainly does not just allow judges to go off and do their own thing, which I think people tend to appreciate if they are intellectually honest. But there is no question that they are teaching judicial activism over at Harvard Law. There are 89 law professors, according to one law professor I spoke to, 86 of them are registered Democrats. One of them actually was being considered by President Bush purportedly for the Supreme Court which would have been, I think, disastrous.

LAND: Take a moment if you would and respond to this. I was looking at a Newsweek article about Justice Sandra Day O’Conner, and they were attempting to praise her, and I guess from their lights they were, but I thought it was a very telling statement when they said that she had steered the court to a sort of a moderate left social agenda and that she typified the courts increasing willingness to strike down government regulations that offended their sense of right and wrong. Now, that is sort of a definition of judicial activism, isn’t it?

SHAPIRO: It absolutely is. It is actually fascinating to watch as the left in the legislative system or at least in the legal system, tends to re-define judicial activism. You see people like Pat Leahy out front saying, “Oh well, Scalia and Thomas have struck down more laws than an anyone else, look how judicially active they are.” Judicial activism is not defined by the number of laws that you strike down, it is defined by how in concert with the original intent of the Constitution you are. So Sandra Day O’Conner was in the definition, as you mentioned, of a judicial activist. She would just kind of roam around striking down laws that didn’t appeal to her. The test that I tend to give people in my class, and whenever I am talking with someone who doesn’t agree with originalism or texturalism, is I say to them, name me a statute that you personally dislike but would not strike down because it is not the judiciary’s place to do so. And most people have a real struggle doing that. Most people are willing to strike down just about anything they disagree with. Well, that is not the role of the judiciary. That is an anti-democratic, absolutely unconstitutional view of what Judicial Review is about. Judicial Review, if it is to be justified at all, can only be justified by saying that the constitution should trump majoritarian tendencies in a certain area. That is the only way to justify the anti-democratic institution of Judicial Review. The reason I call it anti-democratic is because obviously it is about a codray of elite judges sitting in Washington, striking down popular will.

LAND: Laws that have been passed by the people’s elected representatives.

SHAPIRO: Exactly, so it is by definition anti-democratic, so the only way that you can justify that is by saying there are higher principles as expressed in the Constitution which must trump legislative majorities in the states and on the federal level. If you abandon that, and if you just say, well judges can strike down whatever they don’t like, you have substituted a judicial oligarchy for the will of the people, for the legislatures, and that in itself is very dangerous. I mean, what you really have there is encroachments of the oligarchic upon the majoritarian republic that we do have in this country. But people at Harvard Law School don’t seem to even understand the concept of a legislature. I mean, it is absolutely astonishing. I have actually had to ask professors in class, so what’s the purpose of a legislature again because they don’t believe in legislature. They believe that judges know best. And I think that that springs directly, I mean, not to get too legal here, but I think it springs directly as Justice Scalia has put it, from the teaching of common law in our law schools. Common law is a system that derives from Britain by which judges essentially make law as they go along based on their own reasoning faculties. So, if you believe the judges are best qualified to make decisions based on their own reasoning faculties, then you are fine with judges striking down popular legislation just because they feel like it. So, unfortunately, that is what students are taught at Harvard Law. It was absolutely amazing to me; possibly the most amazing thing to me of being at Harvard Law was just watching as we went through the entire first year of Harvard Law without ever having to read the Constitution front to back. You only have to know a couple of phrases, and basically, you have to know how to pour meaning into those couple of phrases, so, you say, due process of law, you say, equal protection of the laws, you say, the commerce clause. There are just a couple of phrases that you can use and basically pull whatever you want into those phrases and justify whatever you want to do by citing those phrases. In fact, one of the funnier things that happened the entire year was in our Civil Procedure course. One guy in our class raised his hand and made a suggestion that the Constitution mandated a certain type of behavior, and the professor asked him, “How did the Constitution mandate that behavior?” So the student says, “Due process.” So the professor says, “What does due process have to do with anything?” And the student says, “Look, you can pour anything into due process.” That is really how it’s viewed at Harvard Law. You can pour anything into due process. You can pour anything into the Constitution and, unfortunately, that is really the prevailing method of jurist prudence for anyone coming out of Harvard Law, I would say. I think that even the people, the Federalist Society, who tend to be obviously more conservative in their tendencies, actually, they are mostly libertarian at Harvard Law, and that means that they are politically conservative but not constitutionally conservative.