This article explores the consequences of a Constitution not entirely aligned with moral law. These remarks encourage all legal minds to acknowledge such gaps when they are found, although there are a variety of ways in which such acknowledgment may take shape

Van Alstyne, William W.

English

Duke Law Scholarship Repository

CONSTITUTIONAL LAWINTRODUCTORY REMARKS: THE RELATIONSHIP OF LAWAND MORALITY IN RESPECT TO CONSTITUTIONAL LAWWILLIAM W. VAN ALSTYNE*The topic for this panel of our symposium is billed as "TheRelationship of Law and Morality in Respect to ConstitutionalLaw." Our panelists are assuredly suitably credentialed to providenew perspectives on this deeply vexed topic.'And it is "deeply vexed," I say, if just because while some slippagebetween "law" and "morality" might quite fairly be expected tocharacterize more mundane areas of the law,2 it would seem to bemuch more disturbing if one were to find any equivalent voids inthe Constitution itself-gaps between what sound principles of amoral nature would appear to require, on the one hand, and whateven our highest law ("the supreme Law of the Lanc 3) aspires to do.* Lee Professor of Law, Marshall-Wythe Law School, and William R. Perkins Professorof Law emeritus, Duke University Law School.1. Larry Alexander, Warren Distinguished Professor of Law, University of San DiegoLaw School; Kent Greenawalt, Professor, Columbia Law School; Fred Schauer, FrankStanton Professor of the First Amendment, John F. Kennedy School of Government, HarvardUniversity. Each has published more than seventy-five articles in various learned journals,in jurisprudence and in constitutional law.2. For example, within "the law of torts," or within "the law of contracts," or (even farmore obviously?) "the law of taxation," one might not expect anything like a seamlessfit-between the "moral" and "the legal"-in these and many other topics of law. The idea ofan "amoral" Constitution, on the other hand, may well seem to be quite a different matter,indeed.3. We are, of course, but quoting, albeit with emphasis, from the salient provision inArticle VI of the Constitution which declares its own provisions to be "the supreme Law ofthe Land," and then at once provides further that all state-as well as all federal-judges arecommanded"to support this Constitution." U.S. CONST. art. VI (emphasis added). Note, ifjustfor possible future reference, that it is not merely "the" Constitution but, indeed, just "this"1571WILLIAM AND MARY LAW REVIEWEven significant "gaps" between what ordinary law may permit,albeit what morality may condemn, may be found within the thicklayers of ordinary law-those many layers of law, each of which,however, is also more readily amenable to change than anythingfound in the Constitution. In the latter case, it may be less bearableto believe-after two centuries of struggle and refinement-thatany truly similarly significant "gaps" remain at large within theConstitution itself. "Here, surely, within our own supreme law as itis laid out in the Constitution," one might hope to be able to say, "wedo not expect to find such gaps!"And, indeed, virtually as an unspoken corollary of that under-standing, many doubtless expect our judges-and certainly thosewho sit astride the Supreme Court itself-to take care to assure usby the force and virtue of their decisions that in fact there are nosuch gaps, or, at the very least, none of a genuinely egregious sort.4Correspondingly, in terms of our own obligations (that is, our ownobligations as moral citizens), it would seem to fall to us in turn toresolve that, insofar as particular judges may fail in their duty tous so to construe and so to understand "our" Constitution, the trulymoral obligation that we have is to see to their succession by judgesfirmly committed to our own higher ideals such as they are. Thisproposition strongly suggests itself-it speaks to us, one might say,even as in the words of the Declaration of Independence, virtuallyas a "self-evident truth."5Yet, what if it should happen that the Constitution itself is notespecially "moral" in one or another of its many features?' Thenwhat is one to do? Or, rather, what does one want of a judge who isaware of the difference such as it may be? Ignore it or acknowledgeit? Note it or declaim that "it doesn't exist?" In short, what is a"moral" judge to do?Constitution (that is, the Constitution "as is") that the judges take an oath to support.4. And indeed, they can find some evident support for that proposition in the writingsof notable scholars. See, e.g., Henry M. Hart, Jr., The Power of Congress To Limit theJurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1372 (1953)("It's a perfectly good Constitution if we know how to interpret it." (emphasis added)).5. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).6. Is this possible? Come to think of it, it surely is. Indeed, it is the opposite propositionthat would seem utterly unlikely, namely, that the Constitution is already just (about)perfect as is!1572 [Vol. 48:1571INTRODUCTION TO CONSTITUTIONAL LAWThis difficulty, of reconciling public demands (or expectations)with the judge's own particular oath' was, I think, probably neverbetter captured than it was in the passing observation Justice HugoBlack offered nearly four decades ago. In the course of an informalinterview held in his Supreme Court office in 1968 with EricSevareid and Martin Agronsky, commemorating his thirtieth yearon the Supreme Court, Justice Black offered the following reflec-tion: "I think most [Americans] do not [understand the Constitu-tion].... It's all because each one of them believes that the Constitu-tion prohibits that which they think should be prohibited, and itpermits that which they think should be permitted."8In so declaring what "most [Americans] do not understand" aboutthe Constitution, Justice Black said nothing different in kind fromwhat an experienced radiologist might similarly offer as a passingobservation particular to his or her own field of study, that is,supposing that most people may believe that radiology can curemost forms of cancer, radiologists themselves may well be unableto share that view. It is not by way of casting any aspersion on what"most" Americans may "believe" (whether in the one case, about theConstitution, or in the other case, about radiology), but simply anobservation from a Justice who had been on the Court for threedecades, reflecting on what he himself had learned, and sharing hisobservation, candidly, as he thought it merely appropriate to do.That there might well be a similar large gap between what "mostAmericans" might "believe" (because they want to believe it) aboutthe curative values of radiology as such and the vastly morequalified understanding of what radiologists know to be the case(that its "curative values" may well have been oversold) is utterlylikely. If so, it would seem to be the very mark of a conscientious7. See supra note 3 (quoting the requirement of Article VI respecting what it is that eachjudge swears to do, namely, to "support this Constitution"-that is, the Constitution as is...and not merely as one might like it to be).8. Interview by Eric Sevareid and Martin Agronsky with Hugo Black, Associate Justice,United States Supreme Court (CBS television broadcast Dec. 9, 1968), reprinted inNewsmakers, Objection Overruled, NEWSWEEK, Dec. 9, 1968, at 52. For a still-unsurpassedarticle reflecting on these matters, see generally Henry P. Monaghan, Our PerfectConstitution, 56 N.Y.U. L. REv. 353 (1981). See also Henry Paul Monaghan, We the People/s],Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121 (1996).2007] 1573WILLIAM AND MARY LAW REVIEWradiologist who will truthfully report the fact, for such is the stuffof conscientious radiology itself. And so, too, here as well, as I thinkJustice Black was merely affirming for himself, in his own quietand quite unassuming fashion, in his candid reflections from thirtyyears experience on the Supreme Court. If the Constitution bedefective, one need not ignore the matter-those "defects," such asone may think they may be. Neither, on the other hand, will onepretend they are not there.Rather, one might well consider that the Constitution is quitepossibly still a work in progress, even as I think Justice Blackimplied. One may also, in this regard, heed the advice given by CarlSchurz more than a century ago, in his famous statement on theSenate floor, in 1872.' Speaking to his colleagues on the greatmatter of patriotism, the immigrant Senator offered a thoughtfulamendment to an oft-quoted patriotic toast Stephan Decatur hadproposed to mark the end of hostilities with the Barbary Pirates,decades earlier, in 1816.10 The toast by Stephan Decatur was this:"Our country! In her intercourse with foreign nations, may shealways be in the right; but our country, right or wrong."" CarlSchurz added a qualifying thought of his own: "My country, right orwrong; if right, to be kept right; and if wrong, to be set right.'12If one agrees with Carl Schurz's best point (as I think mostAmericans will want to do) and also with Hugo Black, the question,then, is not whether there may be even significant gaps betweenwhat our "highest" law may now condone or forbid and what itperhaps ought not so condone or forbid (thus the "morality gap").There assuredly may well be such gaps (it would be surprising werethere none), even as Hugo Black gently acknowledged on his ownbehalf. Rather, the better question is, supposing it to be true, howbest to "set right" what we may frankly admit not now to be "right,"and whether, all things considered, one works to amend theConstitution to bring the necessary change about to make it "right"or whether we proceed instead by making ourselves mere cheerlead-9. CONG. GLOBE, 42d Cong., 2d Seas. 1287 (1872).10. ALEXANDER SLIDELL MACKENZIE, LIFE OF STEPHEN DECATUR, A COMMODORE IN THENAVY OF THE UNITED STATES 295 (1846).11. Id. This toast was given at an April 1816 banquet in Norfolk, Virginia.12. CONG. GLOBE, 42d Cong., 2d Seas. 1287 (1872) (emphasis added).1574 [Vol. 48:1571INTRODUCTION TO CONSTITUTIONAL LAWers within the fable of the clever tailors ... and the oft-told tale ofThe Emperor's New Clothes.13In the latter case, then we will simply engage in praising thosewho will even now declare that the emperor (that is, the Constitu-tion) needs no additional garments: indeed, declare he is alreadysplendidly dressed up just as he is and as he parades through ourstreets. Rather (or so we shall say), he merely looks a bit naked tothose who, like Hugo Black (or like a sweet uncorrupted child),cannot see for themselves how utterly well caparisoned the em-peror's tailors have already made him appear, outfitted in his finewardrobe to which nothing needs to be added to make him utterlymagnificent! 'The trouble," in this view, "is merely that you andsome children-like Hugo Black-simply have no adequateimagination, that is, no adequate 'interpretive' gifts, and certainlynone as highly developed as our own!" The truly "morally enlight-ened" majority 4 merely needs to take care that none of the morallybereft get elevated to the Supreme Court. What we need, in brief,are more tailors who, like those once upon a time in Copenhagen,will unfailingly find no gaps in the clothing of the nation-nomissing threads in its constitution--or, upon finding them, willpromptly weave new threads providing a perfect seamless garmentand an elegant match of the "is" with the "ought."Indeed, and toward that very end, many academics (and manyjudges) have proposed all manner of forensic means for weavingbetter clothes ("clothing the morality gaps" one might say). Oneway of doing so is to tout a jurisprudence of "nonoriginalinterpretivism,"' the basic idea of which is that we-and the judges-should make no pretense of anchoring the manner in which agiven clause is to be given content in anything it-the clause inquestion-was originally understood to enclose or not enclose. Afterall, for moral people, even assuming one could determine such athing, in the end, who cares, what does it matter, and why? Perhapsa few historians might care, but beyond that, it is just a moot13. HANs CHRISTIANANDERSEN, The Emperor's New Clothes, in ANDERSEN'S FAIRYTALES82 (1963).14. Perhaps we might call them "the moral majority" (but then, again, perhaps not).15. See generally Michael J. Perry, Normative Indeterminacy and the Problem of JudicialRole, 19 HARV. J.L. & PUB. POLY 375 (1996).2007] 1575WILLIAM AND MARY LAW REVIEWpoint---or may surely be treated as though it were (that is, by"moral people"). And why "moot"? Because, obviously, it is for "us"(the living) rather than for "them" (the dead) to declare today'sauthoritative description of each phrase or clause in "our Constitu-tion. And so much being true (as well as obvious), if we say it meansX" (rather than "not X"), then X it is (save, perhaps, for smallchildren standing puzzled alongside the street).Moreover, to follow up on this very thought, if what is required(to close the gaps) would seem to stretch constitutional languagebeyond even a plausible claim of "interpretation" per se("nonoriginal," "unoriginal," or otherwise), one may merely moveover one farther step to embrace the notion of "noninterpretivism"itself as a way out of the morass." If even this is not enough, thenone may turn to the discovery of structural Ackerman amendmentsto do the job, that is, to propositions "we" say are now entitled torecognition by the Supreme Court as propositions which, thoughnever reduced to any text (because never proposed, much lessadopted, as amendments pursuant to any of the provisions ofArticle V), nevertheless received (in our view) such concentratedand sustained political endorsement "by the people" acting outsideof Article V, as to be equal in stature-for purposes of judicialapplication in concrete cases-to those that do.' 7 But I forbear from16. See generally Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L.REV. 703 (1975); Michael J. Perry, Interpreting the Constitution, 1987 BYU L. REV. 1157;Michael J. Perry, Noninterpretive Review in Human Rights Cases: A Functional Justification,56 N.Y.U. L. REV. 278 (1981). The school of"noninterpretivism" may seem to be unlikely toattract many to its banner (declaring what it is solely by declaring what it is not seems tomake it a strange sort of beast). It might even be seen as a kind of oxymoron, albeit of a mostpeculiar kind. I once asked of a colleague which clauses in the Constitution he was currently"noninterpreting." Strangely, perhaps, he was not amused. (Not many months later, in hissubsequent writings, however, I noticed that he had shifted locutions. No longer was it"noninterpretivism." Now, it was "nonoriginal interpretivism." Plus ca change ...?)17. See Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALEL.J. 1013, 1055 (1984) ("Rather than acting under the explicit procedures established byArticle V, however, We the People of the United States expressed its will through a higherlawmaking process that relied primarily upon the structural interpretation of Articles I, IIand III of the Constitution."); see also Akhil Reed Amar, The Consent of the Governed:Constitutional Amendment Outside Article V, 94 COLuM. L. REV. 457, 457 (1994) ("We thePeople of the United States have a legal right to alter our Government-to change ourConstitution-via a majoritarian and populist mechanism akin to a national referendum,even though that mechanism is not explicitly specified in Article V.").1576 [Vol. 48:1571INTRODUCTION TO CONSTITUTIONAL LAWproliferating further examples. 8 They would merely come eventu-ally to the same end.Endlessly vexed by the "morality gap" one otherwise despairs ofattempting to close by the onerous requirements of meeting theConstitution's own provisions for "improvements" (such as theymight be thought to be) by actual, written amendment, our moderntailors are forever busy, weaving a magical cloth to present to thejudges ... and to all of us as well.Fortunately (or unfortunately-I suppose it depends upon yourpoint of view-but for me it is fortunate), our distinguishedpanelists have decided not to revisit the relationship of law andmorality in respect to constitutional law at this level of conflict.Rather, the first essay, by Larry Alexander and Fred Schauer,offers a number of provocative observations regarding "the settle-ment function" of the law as a moral principle quite worthy ofrespect in its own right.'" And the second essay, by KentGreenawalt, responds ably to the following concern, namely,"whether the law should ever treat moral judgments based onreligious conviction differently from moral judgments that lack sucha basis."' Each essay speaks well for itself, as the reader willreadily see. So much being the case, all that remains for me to dois to invite the reader to the intellectual treat of these fine essays,and now, at once, to step aside.18. See generally Ackerman, supra note 17; Ronald M. Dworkin, The Model of Rules, 35U. CHI. L. REV. 14 (1967); Grey, supra note 16; Richard A. Posner, Legal Formalism, LegalRealism, and the Interpretation of Statutes and the Constitution, 37 CASE W. RES. L. REV. 179(1986-1987); Adrian Vermeule, Interpretation, Empiricism, and the Closure Problem, 66 U.CHI. L. REV. 698 (1999).19. Larry Alexander & Fred Schauer, Law's Limited Domain Confronts Morality'sUniversal Empire, 48 WM. & MARY L. REV. 1579 (2007).20. Kent Greenawalt, Moral and Religious Convictions as Categories for SpecialTreatment: The Exemption Strategy, 48 WM. & MARY L. REV. 1605 (2007).2007] 1577

Introductory Remarks: The Relationship of Law and Morality in Respect to Constitutional Law

bepress Legal Repository

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5807&amp;context=faculty_scholarship

Introductory Remarks: The Relationship of Law and Morality in Respect to Constitutional Law

Abstract

Similar works

Full text

Available Versions

Duke Law Scholarship Repository

bepress Legal Repository