In any debate regarding abortion, it can be expected that someone may say, “You cannot legislate morality.” That person’s opponent may reply by citing several provisions of the criminal code, such as the laws regarding murder, rape and assault.
But doing so avoids the larger question of whether actual morality can be legislated. In saying that one cannot legislate morality, what is being said, in actuality, is that the government does not declare what is moral and what is not. Now nothing is stopping Congress from creating a new title within the US Code called “Morality”, or passing a bill with the title of “Moral Code of the United States”. Would they then be said to be “legislating morality” if they were to do this? No.
So can morality be legislated? No it cannot, because the government does not have the power to declare what is moral and what is not, and that is often what is meant when someone says that you cannot legislate morality. To counter by citing provisions of our criminal laws overlooks the fundamental truth: laws must be consistent with what is moral, not declare what is moral.
So then what is the basis of morality?
In answering that question, many turn to the Bible, declaring it and the god associated with it to be the only and true source of morality. And it is true that you can find the definition of morality in the Bible, but the Bible is not the only source of it.
I am referring to what is known as the Golden Rule. It goes by several names and exists in several different incarnations, but the basic idea is the same: treat others as you would want to be treated. Libertarians know this as the non-aggression principle, that one shall not initiate violence or force against another except when necessary to counter force or violence that has been initiated against you or to protect and defend someone else against the unjustifiable initiation of violence against them.
More importantly, one must also not call upon someone else to initiate violence or force against someone else except when necessary to counter force already initiated against them or someone else.
This also means that the God of the Old Testament has, in many ways, acted against the Golden Rule, declared “laws” that have no basis when weighted against that basic moral principle.
When keeping that basic moral principle in mind, you can easily see that much of our criminal code is consistent with that principle. It is immoral to kill someone because I’m pretty sure you do not want to be killed either. It is immoral to break into someone else’s home and steal things because you do not want that happening to you. In both instances there is very demonstrable harm, and in both instances it is the initiation of violence against you.
At the same time, just as you cannot kill someone unless that person is trying to take your life, you cannot have the government kill that person either.
So, again, the government (“we”) does not legislate morality, but merely declares actions that are to be called “crimes”, whether they are inconsistent with the Golden Rule or not, and declares punishments for those actions. There is no legislating of morality, and in many cases legislation that is quite inconsistent with it.