Public Morality and Liberal Society. - book review

Public Interest, Summer, 1997 by Walter Berns

In 1790-91, Supreme Court Justice James Wilson delivered a series of lectures on the law at what was to become the University of Pennsylvania and before an audience that included President George Washington, Vice President John Adams, and a "galaxy of other republican worthies, some with their ladies at their sides." Although little honored and almost forgotten today, Wilson played a major role in the founding of this nation. He was one of only six men to sign both the Declaration of Independence and the Constitution, a key figure in the drafting of the Constitution and in its ratification by his state of Pennsylvania, the principal author of that state's constitution, and, reputedly, the most learned and profound legal scholar of his generation. I mention these biographical details only to suggest that Wilson, when speaking on the law, might be said to be speaking for the Founders generally.

The lectures cover a wide range of subjects: political theory, the natural law, the law of the U.S. Constitution, the law of nations, and, of most interest here, the common law and its place in our constitutional system. Like James Madison (see, for example, Federalist 55), Wilson understood that a liberal regime could not be indifferent to the moral character of its citizens, and he believed that, by providing the rules of decisions in the state courts especially, it was the task of the common law to play a role in the molding of that character.

Harry M. Clor's important book, Public Morality and Liberal Society,(*) is concerned with the same problem, a problem indigenous to a regime founded on Lockean principles. As he says, "Our Declaration of Independence proclaims that the end of government is to secure the inalienable rights of individuals to life, liberty, and the pursuit of happiness (as the individuals perceive happiness)." But, he points out, just as John Locke's Second Treatise of Government says nothing at all about any public interest or governmental role in the moral development of citizens, so "nothing is said in either our Declaration or written Constitution about promotion of virtue or restriction of vices." Clor's task, as he sees it, is to persuade us that, nevertheless, the Constitution provides room for laws that promote what its written text ignores, namely, public morality and decency. He has in mind laws that restrict "grossly immoral or indecent" speech and acts, as well as laws concerned with "parental custody of children, criteria for the definition of a family, the fitness of teachers in public (and private) schools, appropriate rules of behavior and disciplinary authority in the schools, and much else." This "much else" includes the role of women in the formation of good character.

Compared with Clor, Wilson had it easy; he did not have to argue with his audience. He could take it for granted that Washington, Adams, and the "other republican worthies" would agree with him when he said that "indecency" and "pro-faneness" are offenses "punishable by fine and imprisonment"; and agree with him as well about the respective roles of men and women under the Constitution. Of course, he said, men make the laws, but "What are laws without manners? How can manners be formed, but by a proper education?" Providing that education was the job of women: "You have, indeed, heard much of publick government and publick law," Wilson said, "but these things were not made for themselves: they were made for something better; and of that something better, you form the better part - I mean society - I mean particularly domestick society: there the lovely and accomplished woman shines with superiour lustre." And he could take it for granted that every member of his audience agreed with him about the nature and, most significantly, the truth or validity of the philosophical principles informing the Declaration and embodied in the Constitution. In a word, Wilson was a 1790s classical liberal speaking to, and for, his kind.

Unfortunately, there are not many of his kind left. We have utilitarians, whose founder (Jeremy Bentham) dismissed the idea of natural rights as "rhetorical nonsense - nonsense upon stilts"; and Marxists, whose founder spoke of "the so-called rights of man"; and historicists, who deny the existence of a human nature and, therefore, of the self-evident truths dependent on it; and Freudians, pragmatists, and a potpourri of postmodernists, whose thought, despite its varieties, derives from Nietzsche, who, to say the least, was not a constitutionalist. Of these thinkers or modes of thought Wilson knew nothing, but with all of them Clor has to contend, if only indirectly.

And outside the realm of political theory, there are politicians willing to concede that the torrent of "grossly immoral or indecent" films and music coming out of Hollywood constitutes a problem, but none of them (not even Bob Dole) has the temerity to suggest that it be censored. Nothing Clor can say will avail with them; they lack courage, not an argument. Then there are John Stuart Mill liberals who believe that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." Some of them - say, members of the American Civil Liberties Union - deny that anything said or printed can be the cause of harm, or, if they concede the possibility of harmful speech, insist that a greater harm is caused by censoring it. Clor calls this the libertarian argument.