Moral relativism is the view that what determines whether something is right or wrong is a person’s opinion. Since human opinions vary significantly, this then means that there is no universal definition of right and wrong. What seems wrong to one person could be right with another. Relativism has become quite popular with the globalization of the world. There is a conscious attempt to accommodate everyone, and this has favoured the moral relativism movement (Scheb, 2001).
Historically, Greek philosopher Protagoras was the first to come up with the idea of relativism. He proposed that reality varied according to people’s point of view. His work was later quoted by Plato who supported this view. Herodotus also cautioned that societies believe that their way of doing things is superior to all others. Later, Baruch Spinoza said that nothing can be said to be inherently good or evil, it all depends on many factors. Anthropologist Ruth Benedict was against the use of one’s own cultural standards to judge others from a different culture. The anthropologist claimed that in order to completely understand someone’s actions and make a judgement about whether they did good or evil, it is necessary to consider the cultural context.
Culture in relativism refers to the accepted norms of behaviour among a certain group. It may be ethnic, religious or even national. Scholars who were against relativism questioned the legitimacy of these cultures. The fact that we belong to many different sub- cultures means that there are too many basis on which to judge whether something is good or evil. They also claimed that some things are universally right e.g. respect for parents, whereas others are universally wrong e.g. torturing children. This leads us to the other side of the debate, moral objectivism.
This is the view that what is morally right or wrong is independent of human opinion. According to this view, some things are right and others wrong, regardless of what people think. There are two types of moral objectivism theories, teleological and deontological theories. Deontological theories claim that the act in itself is what determines what is good or evil. These theories are also referred to as duty based theories. Immanuel Kant was the major proponent of this theory. He advises that people should only act according to those rules that they would wish to be universal laws. Therefore, if one would not approve of their sister or daughter being raped, then they should not rape another woman.
Teleological theories focus on the consequences rather than the action itself. John Stuart Mill vouched for utilitarianism, the best known form of teleological theory. His view was that a good action is one that results in the greatest joy for the majority of the people, while an evil one is that which results in the greatest unhappiness for the greatest number of people. However, Mill did not provide a standard measure of happiness, making his theory slightly ambiguous.
Religious leaders propose that what is good or evil is determined by external forces beyond man. They say that only a good God can determine what is good or evil. This is because man changes according to his emotions. Therefore, the single way to identify what is right is to look to God for guidance. Atheists and some scientists disagree with this view.
The debate on relativism versus objectivism affects our daily lives profoundly. This paper seeks to establish the effect of this on the American Federal, Legislative and Judge made laws. The issues of abortion, slavery and homosexuality will be discussed extensively. American Law has changed over the years and is becoming more accommodative due to the great cultural diversity of the citizens.
Slavery in America began around 1952. Traders would travel to Africa and purchase people, and then transport them to America by ship. These slaves were sold mainly to white Plantation owners. They worked on the plantations to produce cash crops such as tea, cotton and coffee. Initially, slavery was legalized in North and Southern America. Slaves were treated as chattels, and the slave owners could decide what to do with them. Some slave owners allowed their slaves to purchase their freedom after working for some time. The first legal case filed by a slave was the Dredd Scott vs. Emerson and later Dredd Scott vs. Stanford in 1857. However, the Supreme Court ruled that a slave court ruled that African slaves were not citizens of America and therefore not protected by the constitution. This ruling was in line with the society’s expectations at that time.
Later, in 1863, President Lincoln signed the Emancipation Proclamation. American society had started frowning against slavery. However, the proclamation was not legally binding and had to be followed almost immediately with the Thirteenth Amendment in 1865. The law very which had once endorsed slavery abolished it because society considered it wrong. This marked the beginning of the fight for equality.
Abortion was illegal in most of the American states in 1900. These laws prohibiting abortion were created between the 1820s and 1900. They were an effort of both physicians and legislators. Abortion was prohibited after the fourth month and in cases where it was not to save the mother’s life. However, this absolute stand was altered by the Supreme Court’s ruling in the Roe vs. Wade case of 1973. This ruling effectively made abortion legal in the US. There are still some pro-life activists who do not support this law, but abortion still remains legal because society believes a woman has the right to choose whether to carry a pregnancy to term.
Homosexuality was not explicitly addressed in the constitution. Rather, it was covered by a series of laws known as Sodomy Laws. They outlawed several sexual practises including same sex unions. Some of these practises were however ,legal in opposite sex unions. This changed in 2003 after the Lawrence v. Texas case. It involved two men who were arrested while engaging in sexual practises in Texas, where this was illegal. The Supreme Court ruled that the sodomy laws were unconstitutional.
It is evident that the Legal system is moving from moral objectivism to moral relativism. Both the Federal system and the Judiciary have facilitated this by altering laws and creating new ones as seen above. Things that were previously considered evil are now legal. These changes have been accelerated by the belief by Americans in personal freedom. One can only wonder whether anything will be illegal in America in the future.
The separation of powers in the different branches of the government was intended to prevent dictatorship by any of the branches of the government. The system of checks and balances helps to achieve this goal by ensuring that no arm of the government can act with impunity. The executive has the power to appoint judges, veto power and power to pardon some offenders. However, the legislature can impeach the president, override presidential vetoes in special cases, declare war and approve the replacement of vice presidents and ambassadors. The judiciary on the other hand, can conduct judicial review and create laws by judicial precedent. These checks and balances were assumed to imply that the three arms of the government were separate, thus there is no explicit statement of this in the constitution.
The system of the government has embraced this notion in partiality. The different arms of the government have been seen to exercise their power on several occasions to prevent action by another arm which would be unconstitutional. This was the case in Dred Scott vs. Stanford when the Supreme Court declared an act of congress unconstitutional. This happened again when Chief Justice John Marshall declared another act of congress unconstitutional. Recently, two federal judges have also declared the president’s healthcare bill unconstitutional. However, they did not repeal the bill, leaving this decision to the Supreme Court. These are a few examples of instances when the structure of the government worked well. However, there are many more records of instances where branches of the government overstepped their mandate and encroached on other’s powers. This paper shall examine a few famous instances.
The case of Tube Co. Vs Sawyer of 1952 involving President Harry Truman forms our first case study. The dispute was whether the presidential powers allowed him to seize private property, in the form of the steel plants, in the case of an emergency. Justice Hugo Black of the Supreme Court ruled that the seizing and controlling of the mills by President Truman was unconstitutional and exceeded his executive mandate. The president should have found another way to deal with the revolting unions.
Congress overstepped its boundaries in the case of Bowsher vs. Synar in 1986. The judge ruled that the Gramm- Rudman- Hollings Act which Congress had enacted was unconstitutional. The said Act conferred on congress some kind of veto power to dismiss the United States Comptroller General. The Comptroller also had the executive power under this act to decide where funds would be cut if the budget was in deficit.
In 1974, President Richard Nixon refused to provide some Oval Office tapes that were believed to contain crucial information about the Watergate break-in. He claimed that the constitution provided him with executive privilege. However, the court ruled that though the privilege did exist, it did not extend to the tapes in question. This in effect meant that the president had either misused or overstretched his powers under the constitution.
The 1979 Hutchinson vs. Proxmire case was a dispute about how far the speech immunity granted to legislators’ stretched. The question was whether it extended beyond Congress or not. This immunity, granted by the constitution was meant to give the legislators freedom to discuss sensitive matters of the government without fear of being sued. The same immunity also applied to the judges. The court found that this immunity did not extend to statements made outside Congress and press releases, but applied only to official debates.
In the recent past, President Bush was criticized for authorizing an extensive surveillance programme. It involved data mining and watching footage of American citizens’ homes. This came immediately after the terrorist attack of September eleventh. This programme was not made known to other arms of the government. The president claimed that it was in the interest of the country’s security.
The judiciary however, objected to the programme, claiming that there was no legal basis for conducting the surveillance. Further, checking telephone records of innocent Americans was an invasion of personal privacy. Indications pointed towards a little known unit, The Main Core, as the perpetrators of this crime against Americans. However, the government refused to divulge more information or offer an explanation. The fact that the Executive can engage in secret activities that encroach on citizens’ privacy is an example of how the spirit of the separation of powers in the government is not being upheld. There should be checks on what the President does, but when it is done in secret, those checks cannot operate.
There is also the question of how the federal the government spends funds. Financial data shows that the United States of America’s public debt is equivalent to more than 80% of the Gross Domestic Product. The sad reality is that the the government spends much more than America can afford, driving the country further and further into debt. The major lenders to the US are China, Japan and Russia. The question is how these countries will recover their money from America. Chances are quite high that the individual taxpayers will bear the brunt of this massive $3.5 trillion debt. This is quite sad considering how hard an average American already has to work in order to make ends meet.
The government as it is has done well in some areas. The education system in America is one of the best. One can tell by the large number of foreign students admitted in schools and colleges. However, it has failed in self regulating. Politics has blinded some of the people in leadership and prevented them from serving Americans.
I would propose that the Judiciary be given more power over the executive and Legislature. This seems to be the only way to maintain sanity in the government. Left on their own, the Executive and Legislature have always made choices according to party politics rather than in the nation’s best interest.
Judges should also be appointed by an independent body. Appointing of judges by the president may create a feeling of obligation to further the president’s agendas. Professional lawyers and other qualified individuals can form the body. These independent appointments would help in creating an objective judiciary which would check on the other arms of the government.
The President’s healthcare bill has sparked a lot of controversy and let to almost two dozen lawsuits being filed. The major bone of contention is the mandate to get insurance by 2014. Currently, there have been four rulings in different federal districts regarding this matter. The healthcare bill is set to bring a revolution in the way healthcare is provided and will result in millions of Americans gaining access to healthcare. This paper will examine the four and finally give an individual opinion. The first ruling was made by a judge in Detroit, Judge George Caram Steeh. He ruled that the Healthcare Bill was constitutional (Kramer, 2007).
According to Steeh, the government was not overstepping its mandate in requiring citizens to purchase minimum insurance coverage or pay an extra tax. The plan would ensure that insurance cost was spread over a large number of people hence lower the premiums paid. This is as opposed to the situation where only those who considered themselves in need of medical insurance purchased it. In the latter scenario, the healthy people would be outside the insurance system while the sickly and old would be inside. This would then lead to higher insurance costs. The court thus ruled that the Bill was constitutional since it seeks to promote the participation of citizens in healthcare.
This ruling did not please the plaintiffs who claimed they had no private medical insurance and did not want the state to force them to purchase it. The plaintiffs, who are Christians, also expressed fears that any tax paid under this bill would be used by the government to pay for abortions. They vowed to take the case to a higher Court. However, as it stands, the ruling is binding in the district until a higher court repeals it (New York Times, 2011).
Judge Norman K Moon also ruled in favour of the constitutionality of the Health Care Bill. He dismissed the plaintiffs’ claims that the bill was an attempt by the government to regulate economic inactivity. He also concluded that the decision by the government to require Americans to participate in the provision of quality healthcare by purchasing insurance was within Congress’ powers.
In his 54 page ruling, Judge Moon found that Congress had the power to require employers and individuals to obtain minimum coverage. The defendants also stated that the Necessary and Proper and the General Welfare Clauses also gave congress the mandate required for this act. However, the judge did not go into the details of the latter clauses.
In regards to the Individual Coverage Provision, the judge ruled that the Supreme Court permitted congress to regulate activities that affected interstate commerce. Judge Moon found that lack of a Health Insurance cover would affect interstate commerce by transfer of the cost of medical emergencies to insurance companies, healthcare providers and the state. The resultant high insurance premiums would also affect the rest of the population. Thus, Congress was not overstepping its mandate in trying to prevent these undesirable consequences (Donerberg, Wingate, & Zeigler, 2008).
The plaintiff also argued that the Employer Coverage Provision was an attempt by congress to force employers to purchase for their employees a product. This is unconstitutional as it infringes on the rights of employers. However, the constitution also states that the state can regulate the terms of employment. Thus, the judge ruled in favour of the defendants.
The third judge, Henry Hudson in Virginia ruled against the healthcare bill, terming it to be unconstitutional. The fact that the government decided that citizens could not read the bill until it was passed amounted to forcing them to abide by it. The plaintiff, a Virginia attorney Ken Cuccinelli, cautioned that if this law was not repealed, then the government would get the leeway to control many other aspects of citizen’s lives. This could include gym membership to what they eat. This would be an infringement on the citizen’s rights. The Judge ruled that the bill was an attempt by the government to regulate interstate Commerce which is in fact unconstitutional. The judge also was against what he described as an attempt by the government to force Americans to purchase health insurance, which should be a personal decision. However, he did not strike down the whole Bill; rather, he stated that it needed several reforms. The ruling, made late last year, did not however stop the implementation of the Healthcare Bill. It was the first major setback for the government in promoting the bill (Leiter, 2007).
The government responded to this ruling saying that lack of health insurance is an economic activity as it affects doctors, hospitals and many small businesses. According to the government, the cost of providing healthcare during emergencies without insurance was too high and could be lowered with the adoption of this bill. They believed that the bill would stand the test of time and gain America’s support eventually (Melone & Karnes, 2007).
The most recent ruling was Judge Roger Vinson’s ruling towards the end of January this year. He agreed with Judge Henry Hudson but gave further reasons for his ruling. The ruling was delivered in a 78 page document. This is the latest blow to the president’s attempt at overhauling the health care system (Shane, 2009).
The basis for Judge Roger Vinson’s ruling was that the individual mandate in the law was unconstitutional. Congress had misused its power in requiring that everyone must purchase insurance. The penalty in the form of an extra tax was not based on a choice a person would make, rather on the fact that they are citizens of the USA and are alive. This amounts to forcing compliance with the law (Harman & Thomson, 1996).
The judge also found that a citizen’s decision not to purchase insurance was economic inactivity, as opposed to the government’s claim that it is an economic activity. Unlike the earlier ruling by Judge Hudson, Vinson found that the personal mandate could not be separated from the rest of the Healthcare Bill. This is because the operation of the bill depends almost entirely on the personal mandate. Without the personal mandate, there would be a limitation on funds to finance this Act Therefore; he concluded that the entire bill was unconstitutional. He however refrained from issuing an injunction against the law. Judge Vinson did not however issue an injunction for the law but left it open for administration officials to appeal the case (Abadinsky, 2007).
It may be noteworthy that both Judge George Steeh and Norman Moon were both appointed by President Bill Clinton. Judges Vinson and Hudson were both appointed to office by non- Democrat presidents. Some spectators see this as a battle of parties and not genuine legislators. However, Americans still hope that the outcome of this debate will be in their best interest (Harman & Thomson, 1996).
If I were a federal judge, I would consider both sides of the story before making, my ruling. It is true that the government’s intention is to provide better healthcare for Americans. Congress also has the power to regulate some aspects of society which if left to self regulate would result in more harm than good. The Commerce Clause also allows the government to intervene in free trade if the activities affect interstate affairs. However, there is a limit to how far Congress can go in exercising its powers.
A good government is not made by good intentions. It is the responsibility of congress to find ways to promote the welfare of society while maintaining the delicate balance between freedom and regulation. In this case, Congress has no right to compel Americans to purchase commercial health insurance. The implementation of this act will not affect those who are already members of such a scheme. It is the poor and middle class who will have to dig deeper into their pockets (Gerangelos, 2009).
The small and middle size enterprises would also suffer the burden of increased reporting requirements and forced healthcare contributions for employees. This bill contains many unconstitutional clauses that are both material and pervasive. I would therefore rule that the entire Patient Protection and Affordable Care Act, popularly known as the Obama’s Healthcare Bill is unconstitutional. I would recommend that Congress redraft it, maintaining the spirit of providing affordable healthcare but implementing it in a manner that does not infringe on the citizens’ freedom (Harman & Thomson, 1996).
Reference List
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Donerberg, D. L., Wingate, K. C., & Zeigler, D. H. (2008). Federal Courts, Federalism and Separation of Powers: Cases and Materials (American Casebook). London: Thomson West.
Gerangelos, P. (2009). The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations. London: Hart Publishing.
Harman, G., & Thomson, J. (1996). Moral Relativism and Moral Objectivity (Great Debates in Philosophy). Chicago: Wiley-Blackwell.
Kramer, M. (2007). Objectivity and the Rule of Law (Cambridge Introductions to Philosophy and Law). Cambridge: Cambridge University Press.
Leiter, B. (2007). Objectivity in Law and Morals (Cambridge Studies in Philosophy and Law). Cambridge: Cambridge University Press.
Melone, A., & Karnes, A. (2007). The American Legal System: Perspectives, Politics, Processes, and Policies. New York: Rowman & Littlefield Publishers, Inc.
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Scheb, J. M. (2001). Introduction to the American Legal System (The West Legal Studies Series). Chicago: Delmar Cengage Learning.
Shane, P. M. (2009). Madison’s Nightmare: How Executive Power Threatens American Democracy. Chicago: University of Chicago Press.