The Moral Reading of the Constitution

Anthony Kennedy
Anthony Kennedy; drawing by David Levine

1.

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…


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