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Morality and Constitutional Interpretation

Usually, Constitutional or statutory interpretation requires a fairly straightforward reading and application of the text. Professor Christopher Green argues that sometimes it can be necessary to think beyond that and to make moral judgements about the application of the law. Jurisprudence enables a judge, or lawmaker, to think through the long-term effects and consequences of interpreting the legal text in various ways. https://youtube.com/watch?v=OL8EIb0DsNE


There are, I think, at least two and maybe three ways that morality or moral reality are relevant to Constitutional interpretation. So one way is the way that Chief Justice Marshall used moral considerations in a case from 1805, U.S. v. Fisher. So in 1805, Marshall said the mischiefs to result from the construction on which the United States insists have been stated as strong motives for overruling that construction. So he's looking at an argument that says: Hey, if you adopt that interpretation, bad things will happen. That can't be the right reading of that statute because bad things, morally bad things would happen if you had that reading. So what Marshall is saying here is that look right and wrong, whether something infringes fundamental rights, that is a guide to the intention of the legislature in doubtful cases. If we look at words and we think I'm not sure what that means, we generally want to assume that the legislature was doing something that would be a good idea to do. So ethics on the presumption that the legislature is reasonable in doing the right thing. Ethics can be a guide to interpretation in this first sense. A second relevance for ethics has to do with this meaning-application distinction. So sometimes the law, either in a statute or in a Constitution, sometimes the law will use a term, which itself has a partly moral meaning. So if you look at the way that courts have construed both the privileges and immunities clause from Article Four and the privileges or immunities clause from the 14th amendment, they have interpreted those words, the privileges of citizens, to mean roughly the privileges enjoyed by similarly situated fellow citizens of various kinds. Well, whether or not one citizen is similarly situated to another citizen requires some moral analysis in certain cases. So the most famous construction of Article Four, Section 2, Clause 1, before the Civil War. Corfield v. Coryell from 1825. Justice Bushrod Washington includes a list of lots of privileges of citizens, but then he adds this bit. He says, these privileges are “subject nevertheless, to such restraints as the government may justly provide for the general good of the whole.” So to figure out whether something is a privilege of citizens, you have to think at least a little bit about what the government can justly provide for the general good of the whole. There's a tacit restriction to cases in which the general good, the general, moral good of the community doesn't require something else. A third way that morality is relevant, at least to what judges are doing in interpretation cases has to do with precedent. They have an idea that when lots of things depend on a decision, you're going to want to be very, very careful about it. So we see this distinction in the law. Before we send somebody to jail for a crime, we say, you got to prove it beyond a reasonable doubt. We can apply this to precedent and say, well, how much is riding on a decision can be part of how we decide whether to overrule a precedent and specifically how much evidence we need of the wrongness of that earlier precedent in order to overrule it. If the worry is, if you make a mistake, it's going to be a moral disaster. If that's the case, you're going to require a lot more evidence of unconstitutionality than in an ordinary case where it only involves property or something that is not a moral catastrophe.

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