What justification is there for having any laws? By their nature, laws infringe on our freedoms, so there is an argument for having none of them. The separation of powers as outlined in our Constitution suggests a concern about overly enthusiastic lawmaking, but we should ask whether that is adequate. Separation of powers is such a crude strategy that fails to distinguish between good laws and bad ones. Might we have had some more refined guideline in the Constitution to put a better check on misguided lawmaking? Maybe one is there if we look carefully enough.
The preamble to our Constitution lists the benefits of establishing a government:
[To] establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.
Perhaps government should be limited to dealing only within the boundary of this list of recognized responsibilities. Is this an exhaustive list of appropriate government concerns? No doubt in the writing of our Constitution this question was given some serious thought and if more were found they would have been added. Let us explore some consequences of accepting the preamble as a complete enumeration, of the appropriate arenas suitable for government to enact laws.
First and foremost, a government must provide a system of establishing laws, a system for interpreting those laws and for enforcing them, but clearly there must be some restraint. That is the first in the preamble's list of five responsibilities. Once that is accomplished there remain only four. This test can only work in the negative indicator, of course. Judgement is still needed. Just because a law (or a proposed law) seems justified by one of these four criteria does not mean it is a wise law, but if a proposed law falls outside of all four of these broad criteria of appropriate concerns for government that proposal should, at the very least, be regarded with intense skepticism.
Currently we surely have laws that this rule would judge to be mistakes in judgement. A likely motivation for an ill-advised law is a strong moral belief by some powerful individual or group. Though these individuals find this an entirely adequate reason, these (likely personal religious) beliefs are probably not widely held in a diverse society. Moral certainty on the part of a few exalted individuals is much too weak a thread to serve as justification for legislation, especially in a country the prides itself on diversity and the separation of church and state. Indeed, such legislation would very likely offend other citizens and would contradict an honest interpretation of the establishment clause in the first amendment to our Constitution. A few examples seem useful.
Many Americans would object strenuously to a new law that bans eating beef or pork. But the nation's Hindus likely find the eating of beef to be morally objectionable and both Jews and Muslims sometimes object strenuously, on moral grounds, to eating pork. So, if a consortium of Jewish and Muslim citizens came to power, would a law outlawing the eating of pork or beef be justified? Not on religious grounds of course, but perhaps on the grounds of providing domestic tranquility? Might there be concern for outbreaks of violence from groups opposed to eating these meats? It seems unlikely.
But should that become a problem would we not prefer a different solution than making it illegal to eat pork or beef? The alternative of enacting laws to the violence would seem much more consistent with American values and traditions.
A similar issue occurs for ethical Vegans who find it a moral failure to eat, not just beef or pork, but any food derived from animals. There are many ethical Vegans in the United States, and we might imagine a few of them gaining sufficient political power to force through legislation to end the consumption of meat and dairy. Could such a law be justified based on the obligations listed in the preamble?
What if the justification offered as to prevent imminent ecological disaster? Surely, avoiding ecological disaster would promote the general welfare. Arguably such a law would also help to promote posterity enjoying the benefits of liberty. And in this case, there would be no obvious alternative to the legislation. A law forbidding ecological disaster would surely be at best a silly gesture. Alternatively, such a law might be justified for the health benefits of a plant-based diet, something that would seem to fall under the general welfare clause.
But even so, would such a law be wise? Perhaps, but even a law being justified even under several clauses could fail to be a wise law. The preamble serves as only as a warning against proposals of laws, not an argument that can, alone, justify a law.
So, what about a law against murder? It can be credibly argued that such laws are needed to promote domestic tranquility. If people felt at liberty to kill one-another without fear of legal repercussions, it is likely that there would be instances of neighbors, friends and relatives of the victim who would take the matter of retribution into their own hands; the lack of such laws could ignite violent inter-generational feuds, a clear threat to domestic tranquility. Clearly, many personal injury laws such as against theft, assault or fraud can be justified in exactly this same way.
But what about abortion? Some people will claim that it is murder but the fact that we use two different words, murder and abortion, is evidence that there are at least conceptual distinctions between the two words. Depending on which religion one favors, a fetus becomes a person after taking the first breath, or at viability or at birth or after some specified time after conception, or even as early as the moment of conception. This evident lack of consensus, even about how to place the boundary between murder and abortion, demonstrates that there is a lack of consensus on whether abortion is murder. But now we have another argument.
The preamble test for laws against murder, theft or fraud seriously falters when it is applied to abortion. In the typical situations, such as when a married couple agrees on having an abortion or when a young woman lacks the means to properly support a child, would we anticipate violent repercussions from neighbors or relatives to an abortion? Would an abortion be expected to ever introduce a violent inter-generational feud? It is hard to imagine such a thing happening, but in this case there is the alternative of a law against the resulting violence and the historical record indicates this alternative to be quite sufficient for preserving domestic tranquility.
