What this country almost certainly doesn't need right now is more laws and regulations; but it doesn't necessarily need fewer laws and regulations, either. What we appear to need above all else is a deeper -- and that's not saying much -- understanding of the purposes for which a civilized society passes laws and enacts regulations. We need, in essence, moral instruction.
Eeek! "Moral instruction"? "Right" and "wrong"? By whose lights, whose standards? The contraception debate -- to the extent you call it a debate instead of a shouting match -- brings to mind these fundamental, yet generally skirted, issues. In 21st-century America, right and wrong are matters we hand over to the big guns in politics and -- alas -- the chattering profession, my own profession: the media. He who makes the loudest noises and wins the most elections gets to cram his views down the public's throat.
Consider Barack Obama, who is never, ever, according to Barack Obama, wrong. Our president lays down the law in tones more and more strident every year. He's right! His benighted, obstructionist critics are wrong! Never mind what they do or say -- he's got a phone and a pen, both of which he will wield to achieve the ends that he, Barack the Great, has decided are in the public interest.
The most notable declaration to issue from the Obama White House thus far came in response to Speaker John Boehner's plan to curb his unchecked authority by means of a lawsuit. "So sue me," said the former constitutional law professor who is temporarily leader of the free world. Was there ever a more evocative declaration of the will to power?
And based, we might ask, on what? On one man's moral understanding (or that of his backers)? Or upon deeper understandings of what a free people means to accomplish by means of its sovereignty?
To our all-knowing leader there can be no objections to the notion of mandating free access to contraceptives (for women, not men). Really? What about conscientious views held by many regarding the sacred character of unborn human life -- not to mention the right not to be conscripted by government into a movement for the appeasement of pro-contraceptive activists? Have all the questions that swirl around the abortion question been so nicely resolved that we all agree unwanted babies enjoy no special standing at law? Of course not. Don't we all have two eyes? The Supreme Court's attempt to legislate a national consensus on abortion has proved a major failure. One reason for it: the lack of agreement on the morality of legislating a right to abortion. That selfsame lack of agreement has produced, instead of general bliss, social fractures of grievous dimensions. The federal government is identified with a policy viewed by millions as contrary to the moral law.
Our leaders spread wide their hands in innocence. Moral law? What's that? Doesn't a Supreme Court decision suffice? Not when that decision is viewed as a moral cramdown: take that, you rascals!
Same with same-sex marriage. Moral understanding dating back a couple of millennia contradicts everything the courts are saying. Never mind, as Gilda Radner would say, were she still around. It's cramdown time! Durn you homophobes! Durn you reactionaries! (Save for my membership in a backward generation I would employ a stronger verb than "durn.") We know the truth, we jurists, we deep thinkers, we pundits. Shut up! Take your medicine!
What a helpful way of speaking to a complex society. On the other hand, the proprietors of viewpoints at variance with those of the cramdown artist have a duty only partially fulfilled. That duty is to speak back; to explain why the cramdown artists are morally off base, by widely, and historically held, standards. This task has not been performed well, or at all, partly -- such is my intuition -- because the cramdown artists get lathered up when their judgments meet with contradiction.
Too bad. The time for backtalk has come. In fact, it came a long time ago; we just didn't notice. Alas.
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