The Federal Government was set up with very important functional roles, relating to Commerce, avoidance of problems between the States, and protecting all of them from foreign dangers, etc.. The day to day interaction of Government with respect to questions of health, safety and morals--the Police Power--was left to the States; or better put, not delegated to the Federal Government.
In short, moral rule setting was never intended to be a Federal function.
"Moral rule setting" was never intended to be a primary function of State or local government either.
We were to have a republican form of government in the States, where our individual rights to life, liberty, & property were not to be infringed.
Moral rule setting by majority will is against all of our basic Constitutional principles.
The Fourteenth Amendment has been the avenue by which the Federal Courts have interfered with the exercise of State Police powers, where someone claimed, on one of various rationales, that they were unfair.
After the civil war, some States were violating the individual rights of former slaves, using the 1833 Marbury opinion as their rationale. The 14th attempted to stop those violations.
The problem is that the Fourteenth Amendment has been the vehicle to apply restrictions originally put on the Federal Government, which was not supposed to act in certain fields, to the States, which from time immemorial have had the role to act in those very fields.
State & local governments can reasonably regulate public behaviors, using Constitutional methods.
-- See Art. VI, as to how all Officials are bound to support our Constitution as the Law of the Land.
You are very confused. At the time the Constitution was ratified and went into effect, the States had legislation on the books that accomplished all of the things which the ACLU has lately interfered with.
You seem obsessed with the ACLU, Flax.. Why? -- I am not their defender.
The framers of the Constitution were not idiots. If they intended anything remotely like what you suggest--and suggest over and over again in various threads--they would have addressed it. If you read the Constitution as an entity, you will note that they did address those things which they wanted the States to cease doing--both in Article I, Section 10, and by implication in Article IV.
You ignore Article VI, with its clear demand that States honor the "Law of the Land"; -- "anything in the Constitution or the Laws of any State to the Contrary notwithstanding."
You can cite provisions out of context--and clearly without understanding--until you are blue in the face. That will not change the intended nature of our systems.
You can say I lack 'understanding' till you're blue, but that doesn't change the clear words of our Constitution, as I cite them.
And the absurdity of your claiming to be a Libertarian, but denying the rights of local governments to set moral standards for themselves, should be equally evident.
I've never denied that local governments have the power to set reasonable standards for public behavior, as you well know.
Obviously, it is more in accordance with the concept of free individuals for the Police power to be invested in the Governments near to them--the Governments that they can influence directly--and not in far off Washington.
You preach to the choir, Flax.
Incidentally, I am not sure just what you are intending to say on the subject of whether Conservatism is correctly addressed in the lead essay? That is the subject, you know. William Flax
I addressed what you had to say about "Moral rule setting".
-- Setting 'moral rules' is not a primary function of a republican form of government.
In the days of our founding fathers, that was known as "liberal." The Democratic party usurped the meaning of liberal and now it means something disgusting.
The same kind of thing is happening now to the word "conservative." Instead of limiting government, many self-proclaimed conservatives want to expand governmental powers to encompass every detail of American life. This is not conservative. It's the same kind of planned existence that Frederick Hayek warned us about in The Road to Serfdom.
I was raised to understand that there is no political formula that can guarantee freedom. The only thing that defends our freedom is what is inside each of us. Some professed conservatives and many liberals today violate all of those principles. That comes as no surprise to me. I was warned again and again that it would be this way. The label "conservative" does not guarantee patriotism. The Republican or Libertarian parties cannot tell us how to be free, or what we need to do in order to protect the birthright of liberty that has been bestowed upon us.
Only we can do that in the silence of our own minds.
You offer a lot of theorectical thoughts. But the historic facts are as I posted earlier. The States exercised the Police Power in ways that set the moral rules, that have lately been upset, without question or serious dissent, both at the times of the Treaty of Paris in 1783, at the time the Constitution was proposed in 1787, at the time it went into effect in 1789, and for a long time thereafter. That is fully in accordance with the concept of a Republican form of Government. The suggestion that there are no moral rules in a Republic is absurd. You cannot name a Republic on earth, now or ever before, which did not have a Criminal Code that enforced its moral rules.
The alternative would be total anarchy, where no one would dare sleep at night without someone else standing armed guard to protect him.
William Flax Return Of The Gods Web Site