GOVT 2302
Retrospective and Conclusion
During the second part of this course, we have covered a wide range of issues that we have
broadly referred to as moral controversies, including abortion, gay rights, pornography,
hate speech, the exclusionary rule, the death penalty, and affirmative action. These issues
are called moral controversies because debate has been radicalized to the extent that
people on both sides of these social regulatory policy issues tend to present their arguments
in terms of moral absolutes.
Most of the selected readings have followed a format wherein the authors describe the roles
of relevant policy-making institutions (Congress and state legislatures, the president, the
bureaucracies, and the courts), as well as public opinion and interest groups. While the role
of each institution or structure varies with the particular issue, there appears to be some
discernible patterns. Here are a few general observations that you will undoubtedly agree
are consistent with the conclusions of the authors of these articles:
The Courts
The courts are primary policy-making institutions on these issues because the courts,
particularly the federal courts, historically have seen themselves as the protectors of
individual liberties against the popular will of legislative majorities. Whereas legislatures
have generally adopted laws in an attempt to enforce traditional social norms or community
standards, the courts have found it necessary to use their power of judicial review to void
legislative acts that infringe constitutionally protected rights of individuals.
The activism of the federal courts on these issues has allowed policy to be changed
through litigation which is outside of the normal political process. In other words,
important policy changes have been made by federal judges who are appointed for life
terms rather than by legislatures whose members are elected by the people arguably for the
purposes of making public policy decisions. This fact raises serious philosophical issues
concerning the American system of government. Who should make policy decisions in a
representative democracy: elected legislators that presumably reflect majority consensus or
appointed judges who seem to be primarily concerned with protecting individual rights?
The Presidency
Presidents have generally provided only symbolic leadership with respect to these moral
controversies and have exercised very limited decision-making authority in these areas.
There are numerous reasons for the symbolic aspects of presidential leadership on these
issues, but perhaps most fundamentally it stems from the fact that ultimately we are dealing
with issues that raise constitutional questions. Whereas the president has no formal role in
the constitutional amendment process, the role of the president appears to be limited to
rhetorical gestures designed to appeal to his political base.
Republican presidents have exploited these moral controversies in an attempt to mobilize
their base of political support among conservative voters, while Democratic presidents
have largely tried to evade these issues in an effort to avoid alienating moderate voters
while simultaneously not abandoning their base of support among liberals. This means
that Republican presidents have been more likely than Democrats to make strong public
pronouncements on these moral issues. Democratic presidents, on the other hand, have
frequently appeared to "waffle" or "flip-flop" on many of these issues in their attempt to find
ways to forge compromises between entrenched positions.
The Congress and State Legislatures
As elected bodies, legislative assemblies generally pass laws that reflect the will of
popular majorities. This has pitted them against the courts in battles over these moral
controversies. As a result, legislators have argued that the traditional values of our culture
have been eroded by activist judicial decision-making. Many legislators have taken the
position that the courts have usurped their constitutional policy-making authority in these
areas.
Electoral pressures encourage politically conservative legislators to take leadership roles
in legislating traditional values, while providing incentives for many liberal legislators to
take low profile roles in the debates over proposed legislation. For example, the
pornography issue provides an obvious opportunity for conservative politicians to the rail
about the erosion of standards of decency. Liberal politicians, however, are hard-pressed to
persuade voters that, by opposing laws regulating pornography, they are defending the
principle of free speech and not supporting indecency. Conservative politicians seem to
have a natural advantage on such issues and the liberal position appears to be an easy
target for caricature.
Bureaucracies
As a general rule, federal agencies have limited jurisdiction over policies involving moral
controversies. The bulk of the cases involving church-state relations, free exercise of
religion, privacy, criminal due process, free speech, etc. have arisen out of state laws. Thus,
the opportunities for federal enforcement have been scarce. Equal protection of the laws,
particularly racial integration, serves as a notable exception. Federal agencies such as the
Civil Rights Commission (CRC) and the Equal Employment Opportunity Commission
(EEOC) have played an active role in this area.
The oversight functions of the political institutions of American government constrain the
ability of federal agencies to implement changes in these areas. The extent of the
constraints imposed on agencies by Congress, the president, the courts, interest groups,
and public opinion depends on the extent to which liberal or conservative arguments
prevail in the political debates. For example, when conservative arguments dominate the
debate over pornography, we would expect that agencies such as the Federal Bureau of
Investigation (FBI), the Federal Communications Commission (FCC), U.S. Customs, and the
U.S. Postal Service would engage their enforcement responsibilities more vigorously. On
the other hand, when liberal arguments prevail on issues such as gun control or equal
employment opportunity, we would expect the Bureau of Alcohol Tobacco and Firearms
(ATF) and the EEOC to step up their enforcement activities.
Federalism
As mentioned above, most of the regulatory activities of government related to these
moral controversies arise under the police powers of the states -- that is, the power to
protect public safety and morals. State and local jurisdictions pass laws regulating access to
abortion services, sexual behavior, recreational drug use, the sale and ownership of
firearms, and hate speech. Consequently, the extent of regulation varies dramatically from
state to state. Thus, federalism is still a relevant, indeed dominant, feature of the American
political system.
Enforcement of social regulatory policies often depends on the willingness of state or
local officals to comply with federal laws, mandates, or court orders. Ordinarily, federal
decision-makers have limited ability to force state and local officials to implement federal
decisions. The reluctance of local school districts to comply with the Supreme Court's
desegregation order in Brown v Board of Education is a good illustration.
Public Opinion
On many social regulatory policy issues, general public opinion can accurately be
described as conservative or moderate. In limited examples, it might be possible to
characterize public opinion as liberal. In either case, the opinions held by the general
public are always less intense than those of the advocacy groups who are supporting
social change. In other words, those who favor change, whether the proposed change
would be characterized as a move to the "left" or to the "right," are always more vocal and
more mobilized than the general public.
The general public will undoubtedly meet social regulatory policy decisions that will
result in major revisions to community standards or norms with resistance. If the change
is inconsistent with the values of the broader community, we would expect public opinion to
oppose the change. For example, Supreme Court decisions in the early 1960s which
effectively ended the practice of prayer in the public schools were unpopular among the
general public and, as a result, were met with significant resistance.
Interest Groups
Unlike economic regulatory policy issues, the debate social regulatory policy issues is
most often dominated by single-issue groups which are most responsible for increasing
public awareness and the political significance of these moral controversies. In economic
regulation, interest groups are motivated by the desire to secure material benefits for their
membership. These groups tend to be concerned with a wide range of "pocketbook" issues
(i.e., taxes, wages, educational opportunities, health care, etc.). In social regulation on the
other hand, interest groups tend to be motivated by their conviction to a moral absolute -- to
a fundamental sense or right and wrong. Single-interest groups tend to see their cause as a
moral crusade rather than an effort to acquire a bigger piece of the pie. Consequently, their
efforts and energies are naturally focused on a single moral issue.
Because single-issue interest groups usually articulate their arguments as absolute
moral imperatives, they tend to polarize the political debate on social regulatory policy
issues. Being convinced of the absolute righteousness of their positions, single-issue groups
are generally uninterested in political compromise and are, therefore, more likely to
abandon mainstream political processes that are designed to foster discourse and build
consensus. Instead, they are more likely to endorse unconventional and, perhaps even
illegal, political tactics that are primarily designed to shock, intimidate, or provoke their
opponents and increase media exposure and public attention.