Is it moral, ethical and or proper to criminalize personal decision making that does not challenge the individual identity and or personhood of another? Does a right of citizenship or even of the individual exist if one is unable to disclose the structure of one’s social existence because the structure is proscribed by law and criminalized by the government under which one collectively lives? This question applies to all attributes of the individual, whether it be gender, marital structure, race, source of income, and many other common and current practices of modern existence.
If harm is not imposed upon another, in the thinking of John Stuart Mill (1806-1873), these personal attributes are expressions of liberty and freedom, derived from existence and nature, and may not be ethically restrained by the government. Persons exist within the fellowship of existence. Law and government which encroach upon one’s personal individuality, liberty and freedom are ensured only by prejudice according to Mill.
Even the most liberal and inclusive of elected statesmen has not yet remedied all such personally experienced difficulties in which one is unable to disclose the structure of one’s existence by virtue of one’s life structure being, in some aspect, prohibited by law. We can know the spoken and written words of our governing officials and candidates. Yet, how can we fairly evaluate their demeanor if the material source of their identity, their life structure, is prohibited from being disclosed to the public. Their temperament, regardless of intensity, may not unilaterally be determined by matters in discussion before them.
In his Thoughts on the Present Discontents, Sir Edmund Burke (1729-1797) expressed the view that:
Government is deeply interested in everything which, even through the medium of some temporary uneasiness, may tend finally to compose the minds of the subjects, and to conciliate their affections. I have nothing to do here with the abstract value of the voice of the people. But as long as reputation, the most precious possession of every individual, and as long as opinion, the great support of the State, depend entirely upon that voice, it can never be considered as a thing of little consequence either to individuals or to Government.
(emphasis added). Under American law, as derived from the words of Edmund Burke, as well as countless additional voices of all hues and genders, all should have full, complete, and unfettered participation with one voice. The voice of the individual, not that of the abstract “tyrannous majority” is the founding principle of our government.
Some indicia of personal status, which upon actus reus, or effectuating conduct, constitute a crime in virtually all of the 50 American states are a noncriminal personal status of mental intent, such as a personal yet unconsummated devotion to a career of prostitution or the intent to engage in multiple marriages upon reaching the age of puberty without equal treatment under formal legal acknowledgment of the marital union. If, upon the effectuating act, traditions of liberty in America exist untranscended, is there an ethical rationale for this criminalization?
Sir Burke agrees that a nation is merely the composite of the individuals comprising it in cellular diversity. The principles of respect and ethics by which our nation of individuals is governed are derived via prescription from the very principles by which individual humans share and comport with one another. In the words of Burke:
Nations are governed by the same methods, and on the same principles, by which an individual without authority is often able to govern those who are his equals or his superiors, by a knowledge of their temper, and by a judicious management of it; I mean, when public affairs are steadily and quietly conducted: not when Government is nothing but a continued scuffle between the magistrate and the multitude, in which sometimes the one and sometimes the other is uppermost — in which they alternately yield and prevail, in a series of contemptible victories and scandalous submissions.(emphasis added). Anglo-Saxon, conservative thought upon which America was founded provides due precedent for legalization of many American civil privileges long acknowledged and many that might be.
Such support in the writing of Burke long preceded the day and era of American poet Emma Lazarus (1849-1847) and her poem The New Colossus, in which she wrote:
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”
America lives by a written social contact of enlightened popular democracy. All participate equally. Participation requires an equal voice. A voice hindered and encumbered when such encumbrance is not materially required is unjust. Conservative theorists suggest that persons come together in society when encouraged and implored by a subconscious sense of order, even in present times.
In the thoughts of our President Franklin Roosevelt, democratic patriotism is the right of all on American soil, to seek freedom from prejudice and unkindness, which he deemed an affront not only against the one but also as against the many within the American public. Declaring life structures that are harmless to another to be harmful to the general public when the argument declaring such is not based upon an understanding of the manner in which the rights of individuals and of the government are compromised is invalid. Such assertions of criminal conduct deprive all of liberty and freedom. It is not patriotism under any theory of a respect for our constitutional rights or the national security of our nation, domestic or abroad. For, most importantly, government that is open is government that is most wise, most fair and most just. The people professing life structures we currently criminalize such as: prostitution, multiple marriages, and controlled of substance use, are currently the people we regulate from the criminal and noncivil side of the line as currently drawn. If no injury to others, why not the civil side of the line?
Legal right to the privilege of government acknowledgment of our personal identity and personhood are prerequisites to a constitutionally acknowledged right to speak freely and participate in government. Men and women who offer sexual services for monetary compensation, and sister wives and brother husbands are currently deemed status criminals as to the social contacts to which they are a party. If the multiple wives and brothers seek formal written and governmentally filed licenses of marriage, they are illegal by virtue of intent to misrepresent their family structure and chosen social contract. If men and women who trade currency for sexual favors do so they consummate written and or oral contracts that contravene governing law. If the only proper and ethical concerns of American government are the respect for the rights of our citizens and America’s founding principles of justice and fairness, and not the various tenets and principles long ago giving rise to various proscriptions against certain social contracts, upon what proper bases are these proscriptions founded? For, they continue to exist in numerous and myriad informal and unregulated forms that have been deemed to readily devolve into abuse in previously no longer criminally contexts.
Sex commerce and multiple marriage partners deserve the ordinary rights of citizenship under state and federal law. These rights include the centuries old rights to: real property ownership and management; state and local tax treatment; business commerce and investments; banking privileges; family and juvenile law; no less participation in voting and elections; expressions of faith; and public education, with its long acknowledged absence of truancy compliance, and the aggregations of proceeds brought to America, etc. Only with open access to government and society, that legalization brings, may many honest people not live in fear.
Lori Gayle Nuckolls, Esq.
Philosophy, Law and Politics 