Constitutional Morality: Constants and Variables

Dang!  I can't seem to get beyond this obsession with morality/constitutionality!  So I guess I'll just have to prattle on a bit more about the ideas I began to explore in yesterday's "Morality, Marriage, and Fruits."  Forgive me.  Or stop reading (is anyone reading anyway?).

In his Moral Landscape, Sam Harris makes it clear that (like Hume, Mill, Kant, etc.) he is seeking some sort of common denominator permitting rational people to transcend the moral relativism that proceeds inevitably from any serious examination of the sundry, wildly-conflicting codes of behavior known to actually exist on our tiny planet.  Amidst all of Earth's mutually-exclusive and often bitterly antagonistic moralities, amidst all this subjectivity, is there no objectivity?  Amidst all these variables, is there no constant?  Is there no definitively reliable guide for right conduct?

Well, as I mentioned in my previous post, there might, indeed, be such a constant. But it would not find expression (cannot do so, as we shall see) in a systematic, absolutely invariable body of laws.  Rather, if I am on the right track here, it would be the fundamental principle upon which laws (that vary according to time, place, and other contingencies) should be based and from which these derive their validity. Though the good philosophers I cited have all argued amongst themselves about details and exceptions, yet the majority still agree with Harris (and Pascal?) that "le principe de la morale" is a constant, viz. : "good" conduct is behavior which a) avoids harming humans  and b) advances the well-being of humans.  Likewise, "bad" conduct is behavior which harms humans and/or inhibits the overall flourishing of the species (or the society--a point to which I must return in another blog).

Little more, in short, than the Golden Rule (be charitable to others) or, at least, the Silver Rule (don't harm others).

The rub, of course, is determining how we know what is good for humankind (yet another blog?).  Harris asserts that we can and must do so via the scientific examination of evidence:  we apprehend the good by making scientific inquiry.  Many of the other pontiffs of morality would probably quibble, but for the sake of argument, let us accept Harris' assertion.

Which means that, yes, we have a constant upon which to base our morality, a reliable yardstick against which to measure the validity of our Constitution and our collateral laws.  But by the same token, the Constitution--and especially the collateral laws--are not, cannot be, constant.  (Justice Scalia speaks nonsense when he says that the Constitution is dead.)  No, the framework of our laws, together with the laws themselves, must evolve as our society evolves, else our codes of behavior risk becoming destructive of the very ends they were (ostensibly) intended to foster--i.e., the advancement of human well-being.


Let us take an example.  While the overall well-being and survival of humanity might, at one point in time, have justified--say--laws requiring women to be subordinate to men (it was advantageous for weaker, child-bearing females to be protected by physically stronger males), changes in social structures and technology have, over the centuries, made it possible for women to survive and prosper as equals, without being dependent on men.  Hence, a woman's well-being, in the 21st Century, is better served by laws guaranteeing her equality with, rather than her subordination to, a man.  Ergo, while the principle of "human well-being" remains objective and unchanged, the laws enforcing that principle must change in accordance with changes in human reality.  The "standard" is constant; the rules by which the standard is implemented are variable.

So it is that, over time, parts of an official (usually written) constitution can become--well--unconstitutional--i.e., out of sync with that which is broadly accepted, perhaps even scientifically demonstrated (a la Harris) as necessary and right for human advancement within a society whose "realities" have evolved or changed from a previous state.

And this, I think, is the situation now facing the Supreme Court, and the entire country, in terms of same-sex marriage.  Just as the Constitution and our legal system had to change in order to discard outdated (and, in modern times, oppressive) moral notions about women, so, too, our "moral judgments" and our fundamental laws must soon be updated in order to acknowledge that neither homosexual relations nor same-sex marriage inhibit the common good--and that prohibitions of either do cause emotional, economic and, sometimes, physical harm to gay citizens.

I conclude, therefore, that if Harris' "moral constant" is fairly applied to the "landscape variables" as they now exist in the United States, our Constitution must very soon "evolve" (as so many politicians have recently done) to accord complete sexual and marital equality to all consenting adults.  Dear Justices of the Supreme Court: it is time to make the Constitution moral once again.  Do your job!