The news of New York Governor Eliot Spitzer’s dalliances with high-priced prostitutes fills me with sadness, regret, and dread. Sadness over the Governor’s shaming his family in such a public way, regret at having to listen to the smirking schadenfreude of his political enemies, and dread that we’ll have to suffer the tedious and inevitable articles and blog posts asking, “What’s the problem with prostitution?”
Always ahead of the curve. Matthew Yglesias leads the meme with his post, “Thinking About Prostitution”:
Whenever a politician gets caught up in a prostitution scandal, I do need to return to the fact that at the end of the day I don’t really think the exchange of sex for money is serious wrongdoing in the sense that justifies criminal sanctions. Obviously, in most cases such conduct will be a form of private wrongdoing against one’s spouse, etc., but that’s not a matter of public concern. [emphasis in original]
The unstated reason why it is “not a matter of public concern” is because no one is harmed by prostitution, at least not in a way that would necessitate intervention by the state. This is a view commonly held by social liberals and libertarians who believe that the primary (if not sole) purpose of the law is the protection of rights (however narrowly or expansively defined).
In contrast, a traditional conservative view is that law and public policy should be concerned with public health, public safety, and public morality. The first two are shared in common with our left-leaning political cousins; it is the last item that sets us apart. While they have discarded the concept as antiquated, we maintain a view held by thinkers ranging from Aristotle to Thomas Aquinas to Robert George that the promotion of virtue–“making men moral”–is a proper, though subsidiary, role of the government.
As George notes in The Clash of Orthodoxies, “public morals laws, like health and safety regulations, regulate private conduct insofar as it harms or threatens to harm, the public interest.” For instance, using the example of prostitution, George argues:
Assuming, again, that prostitution is indeed immoral, then the availability of prostitutes is going to facilitate immoral acts by individuals–prostitutes and their customers. Of course, the commercial sex acts will likely take place in “private,” that is, behind closed doors and it could be the case that there is no highly visible publicizing of the prostitutes’ availability (though unless there is some way of getting the word out publicly, there won’t be much work for the prostitutes). Still, public interests are damaged. The public has an interest in men not engaging prostitutes: for when they do, they damage their own characters; they render themselves less solid and reliable as husbands and fathers; they weaken their marriages and their ability to enter into good marriages and authentically model for others (including their own children) the virtue of chastity on which the integrity of marriages and of marriage as an institution in any given society depends; they set bad examples for others. In short they damage what I have referred to as the community’s “moral ecology”–an ecology as vital to the community’s well-being, and as such, as integral to the public interest, as the physical ecology which is protected by environmental laws enacted pursuant to the police powers to protect public health.
Although commonsensical, liberal-libertarians will scoff at such talk of “moral ecology.” The concept is simply too foreign, too abstract, too pre-modern (i.e., pre-’60s era sexual mores) for them to grasp. While they could connect the dots between the “private wrongdoing” of littering and the inherent public concern with protecting our environment–they know why Iron Eyes Cody is crying–such talk of legislating sexual activity because of public moral harm seems…bizarre.
Regrettably, the same holds true for many people who consider themselves to be “conservatives.” Because of a misunderstanding of the concept of limited government, many conservatives today have sided against their own tradition and with the liberal-libertarians on this point. They simply can’t comprehend either the concept of moral ecology or the idea that government has any role in making citizens virtuous.
This post is a lament, not an argument so I won’t try to defend virtue jurisprudence here. (Besides, if conservatives ignore the wisdom of Aristotle or Russell Kirk why would they listen to me?) The shame is not just that weak and ineffectual men like Spitzer succumb to temptation. No, the true regret is that we have such strong and capable apologists for sanctioning vice. We can survive the individual moral polluter. It’s the people who deny that we a duty to protect our moral ecology that will be our downfall.