Let me reassure my friend that I was not in any way questioning the objectivity of morality. Rather, I was contending that, because there was no way to legally contest the claim by a majority of the legislature that particular conduct was immoral, allowing a claim of immorality, standing alone, to justify legislation would be to give the legislature carte blanche--an unlimited unreviewable power inconsistent with limited government and the Privileges or Immunities Clause of the Fourteenth Amendment. All you would need to outlaw any conduct is a majority of the legislature to vote that an action is immoral. ...That isn't right. The courts don't just say that a legislature's purported motivation is its real motivation, and even if the the real motivation *is* morality, the courts might properly strike it down. Consider a couple of examples:
1. The legislature passes a law forbidding blacks to serve on juries because it thinks that to allow a black jury to convict a white man would be immoral. The courts would say that possible immorality is irrelevant-- the Constitution doesn't allow that law.
2. The legislature passes a law saying that every company but Acme, Inc. must shut down its bakeries, because only Acme can morally bake and sell a loaf of bread. The courts strike this down as "lacking a rational basis", because it is obviously an attempt to increase Acme's profits, and nobody really believes that morality is the true motivation.
Case (2) is perhaps controversial, but I think Prof. Barnett would like courts to behave in that way (I am not sure what Justice Holmes would have done). It is no harder-- or easier-- for courts to decide about moral motivations than other motivations.
Professor Barnett also says,
Consider the claim that homosexuality is immoral. I strongly disagree. Now what? In a contest between a majority of state legislators and me and those who agree with me, what privileges the legislature's judgment of morality? In what way are they experts? How does being elected to the legislature qualify them to make these judgments? Do they hold hearings on the morality of homosexuality and offer reasons for their conclusions? Or do they just press a button and register their vote? Most importantly, how can we assess the merits of their claim? If we cannot, then in reality they can prohibit whatever they want (and for whatever reason they want). No matter how objective morality may be, any such doctrine of constitutional law is recipe for tyranny.
This argument is wrong in two ways. First, it is easily flipped. Consider the claim that homosexuality is moral. I strongly disagree. Now what? In a contest in which we say that the legislature is not allowed to ban homosexuality, I lose. This is not a recipe for tyranny-- it is instant tyranny. Even if I can persuade 99% of the people in the state that I am right, Professor Barnett's opinion is still privileged, and wins. It would be as if I said that since the question is hard to decide, the legislature should not be allowed to legalize homosexuality.
Second, it cannot distinguish between morality and any other motivation of the legislature. Sure, there is disagreement on the morality of homosexuality. But how many things a legislature decides on don't have disagreement? Zero. Their job is to resolve disagreement. Are the legislators experts on budgetary priorities? On how to run schools? On tax policy? On *anything*? No. Or, actually, what they have the highest degree of expertise in is morality, because that is a subject where getting extra years of education or experience doesn't add a great deal to one's knowledge. The legislator's opinion on homosexuality is much closer to "man's best knowledge" than his opinion on more technical subjects. Thus, Professor Barnett's argument really suggests that legislators should legislate *only* on morality, rather than on everything but morality. By his reasoning, they should leave the state tax system to economists like me, because the legislators don't know the first thing about tax incidence, and being ignorant of calculus have no chance of coming up with the right policies.
Of course, this is wrong. We rightly distrust the experts, because though they are smarter and better informed than the legislators, they have different goals than the average citizen. The same is true for morality as for tax policy. Law professors may think that the legislators get morality policy all wrong, just as economics professors may think they get tax policy all wrong, but that is no reason to wrest the power out of the hands of the legislators and give it to judges.
[in full at 04.02.17a.htm . Erasmusen@yahoo.com. ]
To return to Eric Rasmusen's weblog, click http://php.indiana.edu/~erasmuse/w/0.rasmusen.htm.