Can it be otherwise? Certainly the politicians have only limited room for maneuver. There is usually not much to be obtained by alienating the undecided voters who might well be the difference between victory and defeat. What candidate wouldn't trim his sails to the prevailing winds? President Clinton is a master of this formula for success: preserve your base while moving as far away from it as you can to maximize the undecided vote. Is this not what elections are ultimately all about?
For the rest of us, press and public, surely our interest in preserving comity is enough to discourage contemplation of the differences between us. When disagreements revolve around moral differences, the potential for explosion is high. Even from our point of view, little seems to be served by pushing disagreements to the limits. Far safer to smother them in the platitudes of "different strokes for different folks," "live and let live," and so on. This is, after all, what has preserved the liberal democratic peace.
But it is also what has given an air of pervasive unreality to our society. We have a right to arm ourselves to the teeth; we have a right to enjoy pornography; we have a right to burn the American flag; we have a right to abort our fetuses; we have a right to die. We have a right to be reckless, inconsiderate, immature, and downright crazy. At least up to a point. There are of course limits, especially when we can discern a measurable impact on the rights and welfare of others. They too must have the same maximal space for self-abandonment. Is there not something truly nutty about a society that defines itself in such terms?
No wonder we have such an ache for the certainties of a bygone era. Family values, individual responsibility, community building are code words for that deeper yearning. The more fractured and fractious the assertion of our rights to personal freedom, the more the idyllic integrity of a communitarian era beckons us. Who wouldn't be drawn by the wholesome images of family and neighbors pulling together through the ups and downs of life, rather than the cacophony of rights claimants that seems to dominate our own noisy public square? The only difficulty is that we haven't a clue about how to get from one to the other. Merely cutting back the government won't bring about a deeper change.
Neither will endless talk about the need for personal responsibility and a new ethos of civility within civil society. Without tackling our specific moral responsibilities such talk is empty rhetoric. Its vacuity is all the more painfully exposed when the moment of undifferentiated empathy has passed. If we fail in our obligation towards specific human beings, then we have discredited the humanitarian sentiments espoused. The problem is that concrete moral issues have been preempted by the liberal presumption of privacy, and the relentless extension of the liberal language of autonomy has removed a common moral framework from our society. Somewhere we have lost our hold on the sense that there is a moral order independent of our choices and wishes.
We can point to many suspects in history as the causes of this loss, but only their common character really matters. It is the fate of a liberal political tradition to progressively consume its own moral substance. By removing more and more of the controverted issues from the public sphere and placing them in the private realm, it conveys the inexorable sense that there is no common moral order. There are only the "values" we choose to apply to ourselves. All that matters is that we are legally right in asserting our rights claims, and the legal order is finally accepted as the only moral order.
The independent moral order has not been abolished, of course. The fact that pornographers pose as (moral) champions of the First Amendment may be the clearest evidence that we still have in our civil society some sense of morality, and within that inchoate germ of self-realization lies the best hope for a moral reawakening. The inescapability of an order of good and evil, which is not ours to command but by which we will eventually be measured, is a steady pressure on our individual consciences, and it is made manifest by the elaborateness of attempts to deny it.
The problem is to find a way to make this moral order a presence in the public square amidst the dominant ethos of relativism. The Republicans have the best prospects, because their traditionalist intuitions are closer to the answer most of us seek. But they need to recognize that the problem is not completely new and that it has been successfully tackled in the past (as others have pointed out, notably, on the issue of abortion, George McKenna in the September 1995 issue of Atlantic Monthly).
Abraham Lincoln confronted a comparable conflict between competing values, democratic self-determination versus abolition of slavery. Lincoln knew the decision was not simply up to him, and understood that everything depended on maintaining the difference between the legally right and the morally right. Only inexorable moral pressure could move the nation. It was imperative that the difference between the moral and the legal be preserved so that they were not simply collapsed into whatever a particular legislative majority passed on a particular day.
Lincoln saw that it was necessary to establish an antislavery moral principle that would not abolish slavery, but would have the inestimable effect of stigmatizing it. No one's rights would be violated or suspended by the strategy. The law itself would establish that what was legally permissible within certain states was nevertheless not morally acceptable. What one could do and what one should do were quite different matters, and while it was not possible to prohibit the former it was certainly possible to restrict and anathematize it. Lincoln expected that, over time, slavery would disappear as a result of this strong disapprobation.
Could this not provide a model for dealing with our own moral and legal confusion? Recent legislative efforts to prohibit pornography on the internet are a useful step in this direction. The proposed restrictions (although they are currently on hold because of legal challenges) do not prohibit the right to traffic in such materials, but they do eliminate one particular vehicle of purveyance. Regulation in this sense not only has the advantage of limiting the controlled product, but it has the equally salutary effect of morally quarantining it. This is a mode of business, the proposed law insists, that is not approved. Moreover, the reach of public disfavor is extended by a robust critique of the individuals and companies responsible.
A parallel approach might be possible, as McKenna and others have suggested, on the most intractable of controversial issues. Abortion in fact elicits a very broad consensus of disapproval from the Clintons on down. Both the President and First Lady have averred their personal estimate of its immorality. The President proclaims, at least, his desire to make it "safe, legal, and rare." That makes more inexplicable his veto of legislation to disallow late- term partial-birth abortions. That is precisely the kind of law we need. The number of cases is tiny, the "rights" to be abridged are negligible, but the impact would be enormous. It would be a first tangible step in making the practice rarer than it is now, and it would brand the procedure as morally wrong- reflecting the electorate's broad unease and repugnance at what we are daily asked to condone as a constitutional right. This is the large middle ground that can be tapped by any political leader who has the skill and integrity to represent it. It does not, in the absence of a clear political consensus, attempt to settle the isue of abortion once and for all. It does not substantively prohibit a freedom now embedded in social expectations. But it does distinguish between a legal right and a moral right, and it makes unmistakably clear the difference between the two.
Wherever the exercise of self-restraint begins, it has the inestimable value of forcing the recognition that we live within an order of limits. Our rights are not a poisonous brew destined to subvert any sense of difference between good and evil. We may not be able to define to our satisfaction where the line is to be drawn. But we can discern clearly its outer limits. The unambiguous recognition of such boundaries is an indispensable element in preserving the awareness of a moral order beyond our construction. Without that awareness we would eventually cease to regard respect for an order of mutual rights as itself something right.
An order of rights without right is simply that. Only if we recognize this do we have any chance of retaining contact with an order of right beyond rights. What we have a right to do may not in fact be right to do. The difference is crucial and it must be embedded in the law itself, because only then can we prevent the collapse of the morally right into the legally right. Acknowledging the limits of the law is indispensable to preserving the recognition of a moral order beyond it. Conversely, relieving legality of the burden of moral rightness is also indispensable to its preservation. The legal and the moral must remain distinct if they are to perform their roles of supporting and facilitating one another.