Conscience and the Law

Your conscience is your exclusive property. It’s the voice
in your head, the feeling in your gut. It is an entity entirely internal to you. The warning bells it sounds when choices likely to lead to bad ends are near are a product of the workings of your mind. Morality is a product of your intellection; it is up to you to define right and wrong for yourself and up to you to determine in which choices available to you right and wrong lie.

Your conscience is invisible to the wider world, others are not privy to the process by which you make moral choices — or choose not to make moral choices — unless you choose to give voice to that process.

And in neither situation is its dictates binding to anyone other than yourself.

Power, whether wielded by government institutions that have a monopoly on force or by civic groups whose influence over society is proportional to the members it commands, has a long history of using morality to justify its excesses.

Prohibition stands as perhaps the most visible example of the marriage between power and conscience — and the devastation such a union can wreak upon a society.

In the preceding decades, Populists and Progressives had used the law as a cudgel, attempting to force the citizenry into modes of behavior more in line with their values by outlawing actions they deemed illicit. For some, this was rooted in Protestant values. But it was also spurred by the broader social climate. As the Industrial Revolution threatened to put and end to many traditional modes of living, particularly the agrarian lifestyle, many feared it also threatened an end to moral traditions. It is in these exigent fears that many of the reforms called for by Populists and Progressives are rooted. Morality became not a mere reflection of philosophical notions of right
and wrong, but a statement of survival as well. In their party platform, adopted in 1892, the Populists, for instance, denounced immigration:

“we condemn the fallacy of protecting American labor under the present system, which opens our ports to the pauper and criminal classes of the world and crowds out our wage-earners; and we denounce the present ineffective laws against contract labor, and demand the further restriction of undesirable emigration.”

1892 Populist Party Platform

Immigrants, particularly those who came from countries not governed by a Protestant ethic, threatened not only the economic wellbeing of American citizens, who now found themselves competing for jobs they’d held all their lives, but their moral wellbeing as well.

For politicians of this era, legislating morality becomes acceptable because the survival of the nation is dependent upon the dominance of certain values. The marriage of survival and morality reaches a legislative apex with Prohibition.

As Pulitzer Prize winning historian Richard Hofstadter writes in his book The Age of Reform:

“The alcohol issue had been approached with the usual Populist-Progressive arguments: it was one of the means by which the interests, in this case the “whisky ring,” fattened on the toil of the people. Drinking was pre-eminently a vice of those classes — the plutocrats and corrupt politicians and ignorant immigrants — which the reformers most detested or feared. The saloon, as an institution pivotal in the life of vice on one side and of American urban politics on the other, fell under particular reprobation.”

Prohibition was not just about the immorality of a particular action, but the lifestyle and culture surrounding it: groups like the Anti-Saloon League may have felt strongly alcohol’s evil as a contributory factor to poverty and domestic abuse, but alcohol itself was not the end problem. Alcohol consumption, and the problems caused by its consumption in excess, were a byproduct of individuals who did not have the proper regard for certain virtues: discipline, self-control, etc. Lacking the proper moral compass, they were a threat upon the rest of society, whose welfare was not only threatened by the degradation of the public square caused by these irresponsible individuals but upon their economic welfare as well.

The backdrop against which the moral war to ban the production, sale and consumption of alcohol was set was not unlike the social terrain in which the nation now finds itself. Today, a revolution in technology has upended traditional manufacturing processes; the entire world is an economic marketplace open to anyone who cares to patronize it. But the benefits this brings to the consumer are often overshadowed by the exigent fears of domestic producers who suddenly find themselves adrift upon uncharted waters: they are no longer sure their survival is assured. Add to this immigration, driven in part by conflict and in part by the economic unfolding of the world, and fear for survival becomes the dominant element of political discourse. This fear can be seen in the moral aspects of the protectionist argument advanced by the current administration. It is the driving force behind the pseudo-mercantilist trade policies and the nativist immigration rhetoric Trump advances. His trade policy is governed by five pillars, all of which are rooted in a morality that reflects the idea that the nation’s survival hinges upon the pre-eminence of a certain set of values:

• Supporting our national security by ensuring economic security.
• Strengthening the United States economy so it benefits all Americans.
• Negotiating trade deals that result in prosperity for more Americans.
• Enforcing and defending trade laws so bad actors no longer take advantage of the United States.
• Reforming the World Trade Organization (WTO) to promote rules for efficient markets, expanded trade, and greater wealth for all nations.

In his first State of the Union address, Trump outlined the
four pillars of his immigration policy, all of which, again, reflect a
government motivated by a desire to preserve the welfare of the nation by
protecting a certain set of values:

The first pillar of our framework generously offers a path to citizenship for 1.8 million illegal immigrants who were brought here by their parents at a young age — that covers almost three times more people than the previous administration. Under our plan, those who meet education and work requirements, and show good moral character, will be able to become full citizens of the United States.

The second pillar fully secures the border. That means building a great wall on the Southern border, and it means hiring more heroes like [Border Control agent] CJ to keep our communities safe. Crucially, our plan closes the terrible loopholes exploited by criminals and terrorists to enter our country — and it finally ends the dangerous practice of “catch and release.”

The third pillar ends the visa lottery — a program that randomly hands out green cards without any regard for skill, merit, or the safety of our people. It is time to begin moving towards a merit-based immigration system — one that admits people who are skilled, who want to work, who will contribute to our society, and who will love and respect our country.

The fourth and final pillar protects the nuclear family by ending chain migration. Under the current broken system, a single immigrant can bring in virtually unlimited numbers of distant relatives. Under our plan, we focus on the immediate family by limiting sponsorships to spouses and minor children. This vital reform is necessary, not just for our economy, but for our security, and our future.”

Donald Trump, State of the Union Addressed, Delivered January 30, 2018

For Trump to invoke the image of pillars is as informative as are the justifications which he offers for his policies. A pillar is a support structure: it keeps a building from collapsing under its own weight. It also has a definite collective connotation to it: each part is integral to the structure of the whole and derives its meaning from that which it contributes to the whole. To invoke the pillar as a symbol for policies themselves undergirded by certain moral ideas — namely that the welfare of the nation hinges upon prosperity and security — sends a very strong message about the importance the government plays in society. It is to say that individual citizens can only prosper when moral actors are given free reign to use all the tools of power open to them to ensure certain virtues and modes of behavior are dominant in society.

But morality, as we have seen, is a product of an individual process of intellection. “I” is central to conscience, for in every step taken in pursuit of virtue — whether it is discovering where good lies or in actively seeking to make choices that align one’s being with the good — it is the individual mind that is active.

Morality requires choice: the choice to seek out and accept the dominion of good. But others cannot acquiesce to the dictates of your conscience because it is an internal process. Its expression in the wider world external to one’s being is an after-effect. To use power to attempt to impose virtue upon others is to rob them of the ability to make such determinations for themselves. The soundness of one’s conscience is irrelevant; the most flawless logic cannot justify forcefully imposing what another has, in a volitional act, determined to be virtuous.

Originally published at The Politics of Discretion.