LAW OR MORALITY? THE PROBLEM WITH UNDERAGE DRINKING LAWS

OESTERHOUDT STRIKES

Several days ago, I saw a curious poster alongside the usual commercial garbage on 22nd Street. Next to a print ad for Lady Gaga's new album and a placard about McDonald's meal deals stood this message: "The Legal Drinking Age is 21. Do Your Part This Christmas. Don't Give Alcohol to Teens." The poster showed a wine glass with a Ghostbusters-style red circle around it; a red diagonal line crossed out the glass. On the bottom appeared the following slogan in stern capital letters: "Serving Alcohol to Teens : It's Unsafe. It's Illegal. It's Irresponsible."

What made this "ad" so curious? Several things. First, it was not a commercial message. Most "ads" are crass commercial messages that aim to excite an urge to buy in the viewer. They communicate selective information intended to entice a person to spend money and enrich the speaker. In short, advertising is about making money. It is morally indifferent. In fact, it is morally destitute. Morality and commerce have little to do with one another. A dirty dollar is still a dollar. And people with more dollars are stronger than those with fewer dollars, dirty or not.

In traditional terms, then, this message against underage drinking was not an "ad" at all. It did not aim to excite an urge to buy in the passing viewer. No, it aimed to evoke a moral impulse; it beseeched people not to buy alcohol for people under 21. It asked people to refrain from commercial activity. If an advertising firm came up with a campaign that asked people to refrain from buying the product, it would go out of business faster than you can say: "Madison Avenue." In that sense, this message to stop underage drinking was not an "ad." It was an anti-ad.

But what good is an "ad" if it does not propose a commercial transaction? Can "ads" also promote morality? This one certainly tried. As long as an organization coughs up cash to buy posters or airtime, they can say basically whatever they want. It is their choice whether to say something that will generate no profit. Advertisers generally only advertise commercial stuff because it has the potential to create profits. And no one does anything in business that does not attempt to make money. Morality does not create profits. You can't buy it and it's not very exciting. Face it: It's easier to sell Dewar's than chastity.

In this light, we can conclude that some nonprofit organization paid for this message. It did not intend to make money with its speech. Rather, it aimed to foster public morality. Of course, the poster never uses the word "morality." In fact, everyone who supports underage drinking laws rarely speaks the word. Rather, they couch the issue in legal terms. The poster, for example, references the law twice: "The legal drinking age is 21;" "It's illegal to give alcohol to teens." It is easy to make a law; you just need a majority vote at the State house. But the underlying message here is moral, not legal. And it plays upon the popular confusion between law and morality.

People always mistake the law for morality. Morality existed among human beings before law. Morality refers to the average man's sense that something is disgusting or intuitively objectionable. It has more to do with popular social values than reason or abstract truth. Men created laws to embody their moral judgments, but law never could--and never will--supplant morality. In fact, the law is supposed to be morally neutral. It is supposed to operate according to pure reason and extrinsic evidence. Morality, by contrast, appeals to deep-seated intuitive prejudice against particular conduct within the dominant value system. When enough people in a society think something is disgusting, they call it "immoral." And that judgment passes down across generations. They don't need to verify it. They just need to feel it.

Still, people have more outward respect for the law than morality. It sounds more official. After all, the law has sovereign power behind it. It can attach bank accounts, imprison bodies and garnish wages. People fear those consequences. Morality, by contrast, is more basic than that. Morality informs almost everything a society does. Law simply represents the society's effort to assure a minimum baseline of behavior consistent with the dominant moral code.

Law enforces morality. The sovereign enforces the law with penalties on the body and property. But unlike morality, there are practical problems associated with enforcing the law. The sovereign cannot punish everyone for every illegal or immoral act that occurs. And there are some immoral acts that are not even illegal. The law must verify acts before it can punish them. That is not always easy.

Why, then, did the underage drinking poster harp on "illegality" in connection with serving alcohol to teens? After all, the overall message was a moral one. On a basic level, Americans have a troubled--and borderline schizophrenic--relationship with alcohol due to their cultural and religious heritage. The same cultural forces that culminated in Prohibition remain at work today in American society. Hostility toward alcohol is a moral judgment; it has to do with social values and disgust, not reason. Americans have always embodied their moral judgments about alcohol in law. The law gives official expression to their traditional moral queasiness on the subject. But to be abundantly clear, hostility toward alcohol--especially when coupled with children--is a uniquely American moral judgment.

Consider the interplay between law and morality in the poster. Even without understanding America's long history with regard to morally-nuanced alcohol regulations, the poster's own language reveals the connection. It says: " Serving Alcohol to Teens : It's Unsafe. It's Illegal. It's Irresponsible." It draws a linguistic connection between "illegality" and "irresponsibility." Strictly speaking, it is not "illegal" to be irresponsible. In American cultural parlance, however, "responsibility" is a sweeping moral judgment. It refers to "proper living" according to dominant social morals. That means acting and thinking in a certain way, especially when it comes to recognizing obligations and power relationships.

But "legality" is a technical inquiry. Unlike morality, the law must be specific in its prohibitions. Any aggrieved mother can complain that her child is "irresponsible" because he is not "living correctly." Yet that does not mean the child is acting "illegally." Legal violations must match specific language. They must be investigated and proved according to objective procedures. Yes, it might be irresponsible to violate the law. But not all "irresponsibility" is illegal. If it were, virtually everyone would be a criminal.

It is significant that the poster equated legality with responsibility. It forges a direct thematic connection between law and morality. In most cases, the average viewer has no idea that the two concepts are distinct. He simply assumes that all laws are moral, and that moral people are responsible. That assumption is false. Yet the law benefits from the false assumption because morality acts as a sort of "self-executing enforcement mechanism." After all, people stop themselves from acting in a particular fashion when they think it is "immoral." No law constrains them. Rather, innate cultural conditioning influences their decisions. If the law can harness that innate cultural conditioning, it can successfully thwart certain behavior before it happens. And from the law's perspective, whenever someone refrains from prohibited behavior, it has done its job. If morality helps enforcement, then the law will appeal to morality. It does not matter that the law has no power to shape individual morals.

At this point, however, a substantial problem arises: What is so immoral about serving alcohol to a 20-year-old? Or even a 14-year-old? This suggestion might arouse revulsion in the typical American listener. But that shows once again that underage drinking is essentially a moral issue. After all, Americans somehow feel queasy when they think that children are drinking alcohol. That reaction is a cultural. It has survived for generations.

And it is not a universal reaction. People in European Nations, for instance, do not flinch to serve alcohol to teenagers. There is no dominant public rhetoric that equates underage drinking with illegality, irresponsibility and "evil." Quite the contrary, life goes on in Germany, France, England and Holland quite well, even when 16-year-olds sip beer--even in public. Society does not collapse. The sky does not fall. And religious leaders do not spread hellfire for it.

In my mind, this illustrates the point that American concerns over underage drinking are essentially moral concerns. No matter how much public rhetoric couches the debate in legal terms, the fact remains that Americans just don't feel culturally comfortable with the idea that teenagers are drinking. It is a question of cultural heritage, not wise policy.

Of course, those who support widespread bans on underage drinking will never say that morality motivates them. In fact, they probably do not even realize that it does. Instead, they point to safety statistics and other supposedly "neutral" indicia to show a "practical" reason why teenagers should not drink. Because fewer teens die in alcohol-related accidents, they say, underage drinking bans are good laws.

I think this is a dishonest argument. If safety were really the main objection to alcohol, Prohibition should still be in effect. Alcohol causes untold damage to countless lives every year, not just among teenagers. It causes thousands of accidents. It ruins families. It leads to violence, disruption and turmoil. Why protect only children from those hazards? If a legislator identifies negative social consequences that flow from a particular behavior, he should ban that behavior in toto. Only a fool would argue that alcohol does not cause myriad social problems. Yet for some reason Americans tolerate those consequences among adults, but refuse to tolerate them among children.

At this juncture, it is hard to escape identifying some hypocrisy in the clamor over underage drinking. After all, the essential argument against underage drinking is to ensure safety. But if safety were the ultimate goal, then all alcohol should be banned, not just some. Yet despite Americans' moral qualms about underage drinking, they sure love to drink. So all their talk about safety goes out the window because they want to keep drinking. They can be "responsible" with their drinking, even though experience shows that alcohol continues to ruin lives on a daily basis. Yet they have the gall to label underage drinking "immoral." Immoral for some, but not for them? This is deeply problematic. And it renders all opposition to underage drinking disingenuous.

Let's be honest about alcohol. Everyone likes it. But there is a cultural tradition in America that teaches against it. That tradition forms a moral baseline that enables Americans to say with a straight face that underage drinking is bad, while "legal" drinking is good. All drinking creates pernicious social consequences. Yet legislators--and popular moralists--only ban it among children. In my view, this makes little sense. If you identify a social problem, you should root it out wherever it appears, not just in a subset.

But I ask too much. American morality is a complicated thing; there's no sense applying logic to sort it out. Let's just try to separate it from law. No matter how much we hear about "legal" drinking in America, the whole debate is really just a moral battle. And moral battles are never logical.