There is a particular way of reading and enforcing a political constitution, which I call the moral reading. Most contemporary constitutions declare individual rights against the government in very broad and abstract language, like the First Amendment of the United States Constitution, which provides that Congress shall make no law abridging “the freedom of speech.” The moral reading proposes that we all—judges, lawyers, citizens—interpret and apply these abstract clauses on the understanding that they invoke moral principles about political decency and justice. The First Amendment, for example, recognizes a moral principle—that it is wrong for government to censor or control what individual citizens say or publish—and incorporates it into American law. So when some novel or controversial constitutional issue arises—about whether, for instance, the First Amendment permits laws against pornography—people who form an opinion must decide how an abstract moral principle is best understood. They must decide whether the true ground of the moral principle that condemns censorship, in the form in which this principle has been incorporated into American law, extends to the case of pornography.
The moral reading therefore brings political morality into the heart of constitutional law.1 But political morality is inherently uncertain and controversial, so any system of government that makes such principles part of its law must decide whose interpretation and understanding will be authoritative. In the American system judges—ultimately the justices of the Supreme Court—now have that authority, and the moral reading of the Constitution is therefore said by its critics to give judges absolute power to impose their own moral convictions on the public. I shall shortly try to explain why that crude charge is mistaken. I should make plain first, however, that there is nothing revolutionary about the moral reading in practice. So far as American lawyers and judges follow any coherent strategy of interpreting the Constitution at all, they already use the moral reading.
That explains why both scholars and journalists find it reasonably easy to classify judges as “liberal” or “conservative”: the best explanation of the differing patterns of their decisions lies in their different understandings of central moral values embedded in the Constitution’s text. Judges whose political convictions are conservative will naturally interpret abstract constitutional principles in a conservative way, as they did in the early years of this century, when they wrongly supposed that certain rights over property and contract are fundamental to freedom. Judges whose convictions are more liberal will naturally interpret those principles in a liberal way, as they did in the halcyon days of the Warren Court. The moral reading is not, in itself, either a liberal or a conservative charter or strategy. It is true that in recent decades liberal judges have ruled more statutes or executive orders unconstitutional than conservative judges have. But that is because conservative political principles for the most part either favored or did not strongly condemn measures that could reasonably be challenged on constitutional grounds in those decades.
There have been exceptions to that generalization. Conservatives strongly disapprove, on moral grounds, the affirmative action programs that give certain advantages to minority applicants to universities or jobs, and conservative justices have not hesitated to follow their understanding of what the moral reading required in such cases.2 The moral reading helps us to identify and explain not only these large-scale patterns, moreover, but also more fine-grained differences in constitutional interpretation that cut across the conventional liberal-conservative divide. Conservative judges who particularly value freedom of speech, or think it particularly important to democracy, are more likely than other conservatives to extend the First Amendment’s protection to acts of political protest, even for causes that they despise, as the Supreme Court’s decision protecting flag-burners shows.3
So, to repeat, the moral reading is not revolutionary in practice. Lawyers and judges, in their day-to-day work, instinctively treat the Constitution as expressing abstract moral requirements that can only be applied to concrete cases through fresh moral judgments. As I shall argue later, they have no other real option except to do so. But it would indeed be revolutionary for a judge openly to recognize the moral reading, or to admit that it is his or her strategy of constitutional interpretation, and even scholars and judges who come close to recognizing it shrink back, and try to find other, usually metaphorical, descriptions of their own practice.
There is therefore a striking mismatch between the role the moral reading actually plays in American constitutional life and its reputation. It has inspired all the greatest constitutional decisions of the Supreme Court, and also some of the worst. But it is almost never acknowledged as influential even by constitutional experts, and it is almost never openly endorsed even by judges whose arguments are incomprehensible on any other understanding of their responsibilities. On the contrary, the moral reading is often dismissed as an “extreme” view that no really sensible constitutional scholar would entertain. It is patent that judges’ own views about political morality influence their constitutional decisions, and though they might easily explain that influence by insisting that the Constitution demands a moral reading, they never do. Instead, against all evidence, they deny the influence and try to explain their decisions in other—embarrassingly unsatisfactory—ways. They say they are just giving effect to obscure historical “intentions,” for example, or just expressing an overall but unexplained constitutional “structure” that is supposedly explicable in nonmoral terms.
This mismatch between role and reputation is easily explained. The moral reading is so thoroughly embedded in constitutional practice and is so much more attractive, on both legal and political grounds, than the only coherent alternatives, that it cannot readily be abandoned, particularly when important constitutional issues are in play. But the moral reading nevertheless seems intellectually and politically discreditable. It seems to erode the crucial distinction between law and morality by making law only a matter of which moral principles happen to appeal to the judges of a particular era. It seems grotesquely to constrict the moral sovereignty of the people themselves—to take out of their hands, and remit to a professional elite, exactly the great and defining issues of political morality that the people have the right and the responsibility to decide for themselves.
That is the source of the paradoxical contrast between mainstream constitutional practice in the United States, which relies heavily on the moral reading of the Constitution, and mainstream constitutional theory, which wholly rejects that reading. The confusion has had serious political costs. Conservative politicians try to convince the public that the great constitutional cases turn not on deep issues of political principle, which they do, but on the simpler question of whether judges should change the Constitution by fiat or leave it alone.4 For a time this view of the constitutional argument was apparently accepted even by some liberals. They called the Constitution a “living” document and said that it must be “brought up to date” to match new circumstances and sensibilities. They said they took an “active” approach to the Constitution, which seemed to suggest reform, and they accepted John Ely’s characterization of their position as a “noninterpretive” one, which seemed to suggest inventing a new document rather than interpreting the old one.5 In fact, this account of the argument was never accurate. The theoretical debate was never about whether judges should interpret the Constitution or change it—almost no one really thought the latter—rather it was about how it should be interpreted. But conservative politicians exploited the simpler description, and they were not effectively answered.
The confusion engulfs the politicians as well. They promise to appoint and confirm judges who will respect the proper limits of their authority and leave the Constitution alone, but since this misrepresents the choices judges actually face, the politicians are often disappointed. When Dwight Eisenhower, who denounced what he called judicial activism, retired from office in 1961, he told a reporter that he had made only two big mistakes as President—and that they were both on the Supreme Court. He meant Chief Justice Earl Warren, who had been a Republican politician when Eisenhower appointed him to head the Supreme Court, but who then presided over one of the most “activist” periods in the Court’s history, and Justice William Brennan, another politician who had been a state court judge when Eisenhower appointed him, and who became one of the most liberal and explicit practitioners of the moral reading of the Constitution in modern times.
Presidents Ronald Reagan and George Bush were both intense in their outrage at the Supreme Court’s “usurpation” of the people’s privileges. They said they were determined to appoint judges who would respect rather than defy the people’s will. In particular, they (and the platform on which they ran for the presidency) denounced the Court’s 1973 Roe v. Wade decision protecting abortion rights, and promised that their appointees would reverse it. But when the opportunity to do so came, three of the justice Reagan and Bush had appointed between them voted, surprisingly, not only to retain that decision in force, but to provide a legal basis for it that much more explicitly adopted and relied on a moral reading of the Constitution. The expectations of politicians who appoint judges are often defeated in that way, because the politicians fail to appreciate how thoroughly the moral reading, which they say they deplore, is actually embedded in constitutional practice. Its role remains hidden when a judge’s own convictions support the legislation whose constitutionality is in doubt—when a justice thinks it morally permissible for the majority to criminalize abortion, for example. But the ubiquity of the moral reading becomes evident when some judge’s convictions of principle—identified, tested, and perhaps altered by experience and argument—bend in an opposite direction, because then enforcing the Constitution must mean, for that judge, telling the majority that it cannot have what it wants.
Senate hearings considering Supreme Court nominations tend toward the same confusion. These events are now thoroughly researched and widely reported by the press, and they are often televised. They offer a superb opportunity for the public to participate in the constitutional process. But the mismatch between actual practice and conventional theory cheats the occasion of much of its potential value. (The hearings provoked by President Bush’s nomination of Judge Clarence Thomas to the Supreme Court, are a clear example.) Nominees and legislators all pretend that hard constitutional cases can be decided in a morally neutral way, by just keeping faith with the “text” of the document, so that it would be inappropriate to ask the nominee any questions about his or her own political morality. (It is ironic that Justice Thomas, in the years before his nomination, gave more explicit support to the moral reading than almost any other well-known constitutional lawyer has; he insisted that conservatives should embrace that interpretive strategy and harness it to a conservative morality.) Any endorsement of the moral reading—any sign of weakness for the view that constitutional clauses are moral principles that must be applied through the exercise of moral judgment—would be suicidal for the nominee and embarrassing for his questioners. In recent years, only the hearings that culminated in the defeat of Robert Bork seriously explored issues of constitutional principle, and they did so only because Judge Bork’s opinions about constitutional law were so obviously the product of a radical political morality that his convictions could not be ignored. In the confirmation proceedings of the present Justices Anthony Kennedy, David Souter, Thomas, Ruth Bader Ginsburg, and Stephen Breyer, however, the old fiction was once again given shameful pride of place.
Some branches of legal theory, including the "Realist" and "Critical Legal Studies" movements of recent decades, emphasize the role of politics for a skeptical reason: to suggest that if law depends on political morality, it cannot claim "objective" truth or validity or force. I reject that skeptical claim, and have tried to answer it in other work. See, for example, Law's Empire (Harvard University Press, 1986).↩
Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995)↩
Texas v. Johnson, 491 US 397 (1989).↩
See Antonin Scalia, "Originalism: The Lesser Evil," The University of Cincinnati Law Review, Vol. 57 (1989), pp. 849–865.↩
See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980). Ely's book has been very influential, not because of his distinction between interpretive and noninterpretive approaches to the Constitution, which is happily not much used now, but because he was a pioneer in understanding that some constitutional constraints can be best understood as facilitating rather than compromising democracy. I believe he was wrong in limiting this account to constitutional rights that can be understood as enhancements of constitutional procedure rather than as more substantive rights. See my article "The Forum of Principle," in A Matter of Principle (Harvard University Press, 1985).↩
Some branches of legal theory, including the “Realist” and “Critical Legal Studies” movements of recent decades, emphasize the role of politics for a skeptical reason: to suggest that if law depends on political morality, it cannot claim “objective” truth or validity or force. I reject that skeptical claim, and have tried to answer it in other work. See, for example, Law’s Empire (Harvard University Press, 1986).↩
Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995)↩
Texas v. Johnson, 491 US 397 (1989).↩
See Antonin Scalia, “Originalism: The Lesser Evil,” The University of Cincinnati Law Review, Vol. 57 (1989), pp. 849–865.↩
See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980). Ely’s book has been very influential, not because of his distinction between interpretive and noninterpretive approaches to the Constitution, which is happily not much used now, but because he was a pioneer in understanding that some constitutional constraints can be best understood as facilitating rather than compromising democracy. I believe he was wrong in limiting this account to constitutional rights that can be understood as enhancements of constitutional procedure rather than as more substantive rights. See my article “The Forum of Principle,” in A Matter of Principle (Harvard University Press, 1985).↩