When legal theory substitutes for morality, the law becomes the lowest common denominator for social behavior. Law is not the highest standard; it's the lowest acceptable standard. If it's not illegal, it's considered acceptable and defensible -- but it's not necessarily moral.
Law is a way of regulating from without; morality is a way of self-regulating from within.
Regulation from without is always inferior to self-regulation from within. It's inferior in enforcement, it's inferior in results, and it's inferior in its economic effects. The reach of the law always falls short of the reach of morality.
But the trend of American Politics has been away from morality, in part, because of a misunderstanding of the principle of the separation of Church and State. The original intention of the separation of Church and State arose from the existence of an official Church of State in revolutionary period England, which was the Anglican Church. An official church of state imposed itself and interfered with freedom of religious choice. The separation of Church and State was never about removing morality as a regulating force in society.
However, those for whom morality is an inconvenience in their conduct of Capitalism, the official religion of American politics, have used the words, "separation of Church and State", as an excuse for selfishness, exploitation, and inhumanity, as seen in American politics, today. This exclusion and denial of morality as a principle of self-regulation, to be applied to all spheres of conduct, has led to the unhealthy version of Capitalism that dominates the world-scene, today. It is that denial of morality in Capitalism that Pope Francis crititized, recently, in his condemnation of the practice of Capitalism and its promotion of consumerism.
The failure of morality leads immediately to cut-throat corporate business practices and to the failure of trust in commerce, and the failure of trust in commerce leads to economic slowdown and to economic downturns, to the disappearance of the middle-class, to a litigious culture, to severely imbalanced distribution of wealth, to economic hardship, to high stress in the lower classes, to self-anaesthetization by use of drugs and alcohol. Amoral and immoral Capitalism leads directly to the failure of Capitalism. It's not the protection of the right to private property that is being protected by immoral legislation; it is the practice of unhealthy Capitalism by unsound and, as seen in our Congress, insane Capitalism, that is being protected.
The substitution of legality for morality adversely affects Capitalism. The abusers of Capitalism are bringing about its corruption and downfall. Capitalists should understand this.
THE MORALITY LEVEL AND MORALE OF THE U.S. CONGRESS
In the U.S. Congress, the Republican Party, presently the dominating force, regards the Democratic Party in two ways:
1. as one would regard a housefly
2. as the source of its sense of power.
The first way is obvious. The second way may not be so obvious, so I will explain.
What keeps politics going is engagement, even opposition. It's what keeps politics visible, and visibility is essential to status. The sense of opposition is exactly the sense of power. The Republicans need the Democrats to continue the political game, to keep their sense of status, to feel their sense of power. The Democrats are the source of the Republicans' self-gratification.
The Republican Party members regard the Democrats with the casual, self-serving disrespect of those who rule by force. There exists neither respect nor honor in the conduct of the Republicans toward the Democrats or to the public, in general. What they respect is power and money -- not morality and honor. They make politics about winning over the opposition by any means, rather than about getting done the business that brings the highest good to the greatest number.
The Democrats, on the other hand and in general, are half-inclined to agree with the Republicans' agenda. The way we may observe this fact is by the half-hearted and half-witted way the Democrats address and criticize the Republican agenda, which is by feeble protest and attempts at legislation. This statement, of course, is a generality; there are exceptions among the Democrats, just as there exist more centrist Republicans. But the Democrats' strategy is to "put out fires" started by the Republicans, rather than to criticize, publicly and fiercely, the immoral "fires" started by the Republicans. Putting out fires, rather than arresting the strategy of starting fires, to begin with, is highly inefficient and wasteful of time and economic resources. Little constructive can get done when one is occupied with putting out fires. But that is how the Democrats primarily occupy themselves.
The Democrats disrespect the Republicans from the position of the underdog and the Republicans disrespect the Democrats from the position of the top-dog. Even though they may maintain the appearance of politeness in their speech and occasional photo ops, their actions reveal otherwise. There is little honor or mutual respect in Congress.
Their weakness in Congress, again, has to do with putting legality before morality, regarding morality as the "weak suit", quaint and outdated. But legal procedures can put out only individual fires; only morality can prevent fires from being set in a wholesale way, one after the other. Re-establishing a moral foundation is the key to put American politics back on a sound, healthy course. In that case, the differences between the Democrats and the Republicans would be a matter how to get things done for the good of the public, not a matter of for whose sake good must be done, at the expense of the other. That's a matter of principle.
The disadvantage of a moral approach is that it cannot be codified; only behavior can be codified, as in laws. Moral self-regulation requires sensibility, a sense of fairness, a sense of compassion, a conscience -- and those are lacking in the unhealthy form of Capitalist values that has infiltrated American politics. Sensibility, fairness, compassion and conscience cannot be imposed from without; they must be engendered in individuals as part of their personal development -- and that is what is lacking in a secularized culture that disavows moral values because they have traditionally been associated with religion. (Some values called, "moral" by religious fundamentalists have nothing to do with morality, but arise from scriptural dogmas they selectively use to maintain their social visibility and status -- another form of corruption.) However, Congress and the Courts rely on legal theory to enforce morality, when they happen to do so, because that is what they have to work with -- but they make the mistake of thinking that legality adequately substitutes for morality, as if the letter of the law can substitute for the spirit of the law.
Sensibility, fairness, compassion, and conscience depend on the self-awareness of individuals and whether they feel at peace about a course of action. Instead of this kind of internal compass, however, amoral and immoral people use as the benchmark of social convention -- whether "everybody else does it" -- whether it's legal, and whether it conforms to standards of ethics put in place by those whom those ethics are supposed to regulate. The fox is setting the ethics in the henhouse.
Ethics is not morality; it's social consensus, only. The moral individual places his or her internal compass, conscience, above ethics -- but to do so, he or she must be sensitive to whether an action feels wholesome or whether it feels "excusable" or "justifiable". In the latter case, "excusable" or "justifiable", the individual rationalizing that way creates a schism in his or her own being, known as broken integrity, a schism that hardens one up, as in "hardened criminal". That schism, when enacted into law, creates hard times and hard feelings in the society.
That is what happens when people use money and power as the central organizing principles of their lives, instead of self-awareness, awareness of others, self-regulation, and conscience.
Morality involves the greatest good for the greatest number, not the greatest good for those with the greatest power. We need Congress (and The Supreme Court) to reinstate honor and conscience as the central organizing principles of political life, and conscience is not swayed by legal theories or legal argument.