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.Toprohibit an individual from obtaining capital through credit, thegovernment may be restricting his or her ability to secure materialgoods for physical well-being in the future.Thus, the goal ofcultivating frugality, while protecting the right to acquire privateproperty, is one example of the difficulties government faces whentrying to cultivate various kinds of moral character in citizens withoutunjustly violating its citizens natural rights.The same kind of tension can arise with regard to thegovernment s mandate to encourage individual happiness throughfulfilling the duty to practice religion according to individualconscience.Legislation that prohibits productive labor one day a week,designated as a day of Christian worship, is an example of a lawintended to encourage individual fulfillment of a religious obligation.The Constitutionality of Moral Legislation 139However, such legislation may be interpreted as denying liberty toindividuals to acquire property.Some citizens may argue that they canwork seven days a week without hindering their obligation to worship.Perhaps, in accordance with the dictates of their consciences, theybelong to a religious group that meets twice a week during the eveningrather than one day a week during the day.Virginia s constitution faces an inherent tension between the  firmadherence to cultivate virtue and respect for the equally free andindependent nature of individual citizens.This tension, which is similarto that found in some of the other states, is a necessary reality forVirginia because of its commitment to a fixed view of human nature interms of virtues considered obligatory for all citizens and itscommitment to natural rights.Virginia s constitution does not seem toquestion the ability of its future state government to navigate throughthat tension.The constitution requires its future legislators to do soremaining equally committed to both concerns.In order to do so, lawsthat regulate private morality beyond the scope of protecting the life,liberty and property of other citizens are clearly legitimate if they canbe shown to be an effective means of contributing to the cultivation ofcitizen virtues without violating individual rights.NEW JERSEYNew Jersey s constitution includes no references to moral virtues andno assertions that human beings have a duty or right to worship.Itrefers to  just rights but provides no indication of what they are.ccliiiThe happiness and safety of the people is considered a good objectiveof government, but without any definition of happiness or safety.cclivThere is no doctrine of individual rights articulated.The rights to life,liberty, acquisition, or worship mentioned in other constitutions arecompletely lacking in New Jersey s constitution.The constitution,therefore, fails to articulate principles upon which judgments regardingproposed moral legislation might be made.One conclusion is toassume that moral legislation can be enacted that corresponds to therepresentative s understanding of that which is conducive for thehappiness and safety of the people.In other words, this view wouldconclude that legislation on moral issues is appropriate when therepresentatives, being the indirect agents of the people, think it isappropriate.The only standard by which moral legislation can beFaith, Reason, and Consent140judged, in such a case, is the current view of happiness and safety heldby the people i.e., popular opinion.Even though New Jersey includes passages on the  privilege toworship and the limited guarantee of civil liberties to Protestants, thesepassages are irrelevant with regard to moral legislation that regulatesbehavior in a manner beyond protection of others rights, since bothpassages are given in negative language.For instance, while no one canbe prohibited from worshiping God according to conscience, no onecan be compelled to worship in any particular manner and, apparently,there is no obligation for human beings to worship.cclv While theconstitution creates a barrier protecting Protestants from beingpolitically persecuted, it does not suggest that Protestantism ought to beencouraged.The result is a constitution that gives its legislatureguidance for creating legislation on moral issues chiefly with a view torestraining actions from violating others rights.One can make a case for a restrictive approach to the legislation ofmorality in New Jersey s constitution.However, since the constitutionstates that the happiness of the people is an aim of the regime, one canmake a case that a more expansive approach to moral legislation isacceptable depending on how happiness is defined.In the end, NewJersey seems to fall into the category of allowing for moral legislationbeyond merely protection of others rights if the representatives of thepeople find it conducive for the citizens happiness.Since politicalauthority is  derived from the people, they may decide, through theirlegislative representatives, to enact moral legislation that regulatesbehavior beyond simply protecting others rights.Thus, popularsovereignty is the primary principle guiding decisions about morallegislation.Whether or not New Jersey s understanding of popularsovereignty is understood by the state s founders to rest upon otherfoundational principles, such as natural rights or theological principles,is unclear.DELAWAREThe right to life, liberty, and property is granted in Delaware sconstitution, but without any natural or theological basis.It is grantedin a positive manner for  every member of society, without suggestingthat this right is fixed for all human beings.cclvi The only right listed inDelaware is the right to worship  Almighty God. cclvii However,The Constitutionality of Moral Legislation 141worship is not explicitly politically relevant.Nor is there any referenceto the need to encourage specific moral virtues.The only passage thatmight be argued to weigh into the discussion of moral legislation isfound in the oath of office.cclviii Delaware requires its legislators tomake a religious oath that includes acknowledging a Trinitariandoctrine and the inspiration of Christian scripture.Why does Delawarethink this oath is relevant to the function of holding political office, orspecifically to the function of lawmaking? One could argue that theywanted legislators to deliberate about lawmaking from a specificallyChristian moral position.Such an argument is perhaps plausible, butthe constitution provides no support for such a position outside of thisone passage.Additionally, the oath might be understood to function inan entirely different capacity.It is possible that Delaware thinks thatChristians will have more integrity in their public service [ Pobierz całość w formacie PDF ]