The Modes of Constitutional Analysis: Moral Reasoning and the National Ethos (Part 6)
Legal Sidebari
The Modes of Constitutional Analysis: Moral
Reasoning and the National Ethos (Part 6)
January 13, 2022
This Legal Sidebar Post is the sixth in a nine-part series that discusses certain “methods” or “modes” of
analysis that the Supreme Court has employed to determine the meaning of a provision within the
Constitution. (For additional background on this topic and citations to relevant sources, please see CRS
Report R45129, Modes of Constitutional Interpretation.)
Another approach to constitutional interpretation is based on moral or ethical reasoning—often broadly
called the “ethos of the law.” Under this approach, some constitutional text employs terms that are
informed by certain moral concepts or ideals, such as “equal protection” or “due process of law.” The
moral or ethical arguments based on the text often pertain to the limits of government authority over the
individual (i.e., individual rights).
For instance, the Supreme Court has derived general moral principles from the broad language of the
Fourteenth Amendment in cases involving state laws or actions affecting individual rights. A particularly
famous example of an argument based on the “ethos of the law” is contained in the Supreme Court’s
decision in Bolling v. Sharpe. The Court decided Bolling on the same day it decided Brown v. Board of
Education, which held that a state, in segregating its public school systems by race, violated the
Fourteenth Amendment. Specifically, the Court held that the practice of “separate but equal” as applied to
schools violated the Equal Protection Clause, a provision that prohibits state governments from depriving
their citizens of the equal protection of the law. Bolling, however, involved the District of Columbia
school system, which was not subject to the Fourteenth Amendment because the District of Columbia is
not a state, but rather a federal enclave. Furthermore, the Fifth Amendment, which applies to the actions
of the federal government, provides that no person shall “be deprived of life, liberty, or property, without
due process of law” but does not explicitly contain an Equal Protection Clause. Nevertheless, the Court
struck down racial segregation in DC public schools as a violation of the Fifth Amendment’s Due Process
Clause, determining that due process guarantees implicitly include a guarantee of equal protection. The
Court based its reasoning on the Due Process Clause being derived “from our American ideal of fairness,”
ultimately holding that the Fifth Amendment prohibited the federal government from allowing
segregation in public schools.
Another approach to interpretation that is closely related to but conceptually distinct from moral
reasoning is judicial reasoning that relies on the concept of a “national ethos.” Professor Phillip Bobbitt
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defined this national ethos as the unique character of American institutions, the American people’s
distinct national identity, and “the role within [the nation’s public institutions] of the American people.”
An example of the “national ethos” approach to ethical reasoning is found in Moore v. City of East
Cleveland, in which the Court struck down as unconstitutional a city zoning ordinance that prohibited a
woman from living in a dwelling with her grandson. In its decision, the Court surveyed the history of the
family as an institution in American life and stated: “Our decisions establish that the Constitution protects
the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s
history and tradition. It is through the family that we inculcate and pass down many of our most cherished
values, moral and cultural.” Thus, the Court struck down the zoning ordinance, at least in part, because it
interfered with the American institution of the family by preventing a grandmother from living with her
grandson.
Another example of the Court’s reliance on national ethos as a rationale is West Virginia State Board of
Education v. Barnette. In that case, the Court held that the First Amendment prohibited a state from
enacting a law compelling students to salute the American flag. Writing for the majority, Justice Robert
Jackson noted that, in contrast to authoritarian regimes such as the Roman Empire, Spain, and Russia, the
United States’ unique form of constitutional government eschews the use of government coercion as a
means of achieving national unity. The Court invoked the nation’s character as reflected in the
Constitution, writing: “If there is any fixed star in our constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein.”
Proponents of using moral or ethical reasoning as an approach for making sense of broad constitutional
provisions, such as the Due Process Clause of the Fourteenth Amendment, argue that general moral
principles underlie much of the Constitution’s text. Some also argue that the Framers designed the
Constitution as an instrument that would grow over time. Thus, supporters of moral reasoning in
constitutional interpretation contend that its use appropriately leads to more flexibility for judges to
incorporate contemporary values when deriving meaning from the Constitution. Ethical arguments can
also fill in gaps in the text to address situations unforeseen at the time of the Founding, consistent with the
understanding of the Bill of Rights as a starting point for individual rights.
Some proponents of using the distinct character of the American national identity and the nation’s
institutions as a method for elaborating on the Constitution’s meaning argue that the “national ethos”
underlies the Constitution’s text, and the use of this method allows more flexibility for judges to
incorporate contemporary American values when deriving meaning from the Constitution. Moreover,
unlike approaches that discern meaning from general moral or ethical principles, the “national ethos”
approach arguably has added legitimacy as a mode of interpretation because it is specifically tied to the
United States’ identity and values and those aspects of the Constitution that are distinctly American.
On the other hand, critics of an approach to constitutional interpretation based on moral reasoning or the
“national ethos” have argued that courts should not be “moral arbiters.” They have contended that such
approaches involve unelected judges determining the Constitution’s meaning based on principles that are
not objectively verifiable—determinations that critics argue should be made by the political branches.
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Author Information
Brandon J. Murrill
Legislative Attorney
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