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Constitutional Morality

The concept of Constitutional Morality is present in the constitutional scheme, particularly in the Preamble, Part III (fundamental rights) and Part IV ( Directive Principles of State policy ). However, as pointed out by various experts, it was not debated at length in the Constituent Assembly except in the instance where Ambedkar quoted and built upon the arguments of George Grote, the British classical historian and political radical.

Constitutional morality is an important concept that is a part of the polity segment of the UPSC syllabus. In this article, you can read all about the term, its meaning and significance for the IAS exam .

Constitutional morality in the modern sense means to abide by the substantial moral entailment that the Constitution carries. However, Dr Ambedkar in the Constituent Assembly was referring to methods that are adopted in policymaking where the Constitution is either silent or gives discretionary powers. Thus, he was referring to an approach whose essence should be unanimity of approach, a process effective to mediation in case of differences.

The Constitution was made possible by a constitutional morality that was liberal at its core.
Not liberal in the eviscerated ideological sense, but in the deeper virtues from which it sprang: an ability to combine individuality with mutual regard, intellectualism with a democratic sensibility, conviction with a sense of fallibility, deliberation with decision, ambition with a commitment to institutions, and hope for a future with due regard for the past and present.

In practice, constitutional morality is evident in various well-established rights that emanate from the Constitution, and include among others:

Rule of law
Individual liberty
Right to equality
Freedom of choice and expression
Social justice
Due process of law
Procedure established by law

Society doesn’t remain static, the changes that occur lead to new scenarios, and thus, the law and the constitutional setup have to keep up with the same. This aspect can be clearly understood through judicial pronouncements like Navtej Johar & Ors v. Union of India, where the Supreme Court provided for an elaborate mechanism to affirm the rights of people who do not conform with a particular gender, thus ensuring their life, liberty, dignity and identity.

Read more about other landmark Supreme Court judgements in the linked article.

Main Themes Of doctrine of constitutional morality

The central themes of the doctrine of constitutional morality are freedom and self-restraint.

In the smooth functioning of the constitutional process, self-restraint is a precondition for freedom.
Part IV of the Constitution in the form of Directive Principles is the reservoir of social welfare in the Constitution of India.
However, conflicts arise when Part IV is sometimes pitted against Fundamental Rights .
The Supreme Court while addressing these concerns in the Minerva Mills case, emphasised on the harmonious construction of the two in the true spirit of constitutional morality.

Issues in News

The trend of populism is growing the world over and India is no different in this aspect.

Laws in the Parliament in the recent past are being passed without the kind of debate and careful treatment they require.
The abrogation of Article 370 in 2019 was one such instance where the Parliament acted in haste.
Irrespective of the constitutional validity of the said move, the procedural treatment of such an important and sensitive provision does not bode well as far as the doctrine of constitutional morality is concerned.
India has a federal polity in place in which the centre and the state both work in consonance with the Constitution and as such a state is in no way subordinate to the Central Government.
The move on Article 370 is not an isolated move; the CAA has also opened a can of worms as far as the applicability of the test of constitutional morality goes.

Scope of Constitutional Morality

The extent and scope of constitutional morality have not been clearly defined by the Supreme Court, which leaves it open for subjective interpretations by individual judges. Critics also argue that the concept of constitutional morality is another chapter in the adventure that the judiciary has embarked upon to infringe upon the powers of Parliament. This in turn violates the essential principle of separation of powers by imposing Judicial Supremacy over Parliamentary Supremacy. This overreach by the judges pits constitutional morality against societal morality.

Constituent Assembly Debate Summaries for Mains, Essay Preparation

The Constitution which embodies the will of the people is not the end in itself, rather a means to achieve justice; social, economic and political as has been envisaged in the Preamble. The Constitution safeguards all the avenues that are needed to achieve the ends of justice and thus if the Constitution fails in this endeavour, it will be attributable not to the Constitution but to human beings who are tasked with safeguarding and implementing it. The thread of liberal values (not ideologically) runs throughout the Constitution and needs to be safeguarded, preserved, implemented and cherished at every given opportunity. Finally, the concept of constitutional morality need not be determined by the Supreme Court at every given instance, particularly at times of great exigencies like the present one in the face of an unprecedented pandemic. The different branches of government at different levels need to act forthwith without the intervention of Courts so that the duties of a welfare state are fulfilled.

Constitutional Morality UPSC Notes:- Download PDF Here

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Constitutional Morality: Meaning, Source & Interpretation

Constitutional Morality refers to following the fundamental principles of a constitution . It involves supporting an inclusive and democratic political process that satisfies both individual and collective interests. In the case of the Indian Constitution, the values it upholds include democracy, socialism, equality, and integrity.

Meaning of Constitutional Morality

It means abiding by the rules that limit the power of the government to infringe on citizens’ liberties.
It emphasizes the commitment to protecting citizens’ freedom.
It also includes respecting the supremacy of the Constitution and the rule of law.
This principle requires conforming to the norms of the Constitution and avoiding actions that violate the rule of law or act in an arbitrary manner.
Being committed to the Constitution is an aspect of this only. A government clerk on election duty in the conflict-ridden jungle of Central India tries his best to conduct free and fair voting despite the apathy of security forces and the looming fear of guerrilla attacks by communist rebels.
It goes beyond simply following the core principles of constitutionalism written in the Constitution.
It encompasses broader virtues , such as fostering a diverse and inclusive society while upholding other constitutional principles.
It is through embodying constitutional morality that the values of constitutionalism permeate the functioning of the state for the betterment of every citizen.
It ensures the elimination of inequality from society and guarantees the means to enforce the rights guaranteed by the Constitution.
It aims to make Indian democracy vibrant by promoting brotherhood among the diverse population of the country.

Constitutional Morality and Preamble of India

It finds its essence in the Preamble of the Indian Constitution.
The preamble clarifies constitutional values and ideals.
the major elements of constitutional morality in the context of the Constitution of India are- the Preamble, the Rule of Law, the Right to Equality, Unity, and Integrity of the Nation, Social Justice, Individual liberty, and Freedom of Expression.
It also exists in the Fundamental Rights (articles 12 to 35) section of the Constitution, which guarantees certain essential rights for the free existence of every member of society.

Is the term “Constitutional Morality” Mentioned in the Constitution of India?

While the term is not explicitly used in the Indian Constitution , the concept of morality appears in a few articles like Article 19 (2), Article 19 (4), Article 25 (1), and Article 26 which are related to freedom of expression, freedom of religion, and the interpretation of fundamental rights.
The Supreme Court has relied on this concept to interpret and assess the constitutionality of laws.

Sources of Constitutional Morality

There can be four sources from which it derives itself.

The first source is the Constitution itself . If we carefully read and interpret Articles 12 to 35 (Fundamental Rights), Articles 36 to 51 (Directive Principles of State Policy), the Preamble, and the Fundamental Duties, we can find the underlying essence.
The second source is the debates and discussions that took place during the Constitutional Assembly. The views expressed by Ambedkar, in particular, have played a crucial role in shaping our modern understanding of the concept.
The third source is the events and historical context surrounding the framing of the Constitution . The experiences and lessons learned during that time have influenced our understanding and practice of the concept.
The fourth source is the case laws and precedents , especially in recent times. The Supreme Court and various High Courts have played an important role in striking down oppressive laws and upholding the spirit of constitutional morality . Through their decisions, they have strengthened democratic ideals and protected constitutional values.

Constitutional Morality vs Social Morality

In the Navtej Singh Johar case , the Supreme Court ruled that Constitutional Morality takes precedence over social morality.
It struck down a provision in the Indian Penal Code that criminalized consensual sexual conduct between adults of the same sex.
It encourages the state organs to preserve the diverse fabric of society and not succumb to popular sentiments.
Forcing a uniform philosophy on society would go against the principle of Constitutional Morality.

The Constitution represents the people’s will and aims to achieve justice, be it social, economic, or political. It is about upholding the principles of the Constitution and ensuring a just and inclusive society.

Previous Year Question

Q. Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of Constitutional Morality’ with the help of relevant judicial decisions. (2021)

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No Confidence Motion: Meaning, Article, Significance

Preserving a Constitution Designed for a Moral and Religious People

by Mark D. Martin, Dean, School of Law Bradley J. Lingo, Executive Director, Robertson Center for Constitutional Law Michael Schietzelt, Senior Fellow, Robertson Center for Constitutional Law

Many of our Founders were men of faith or were influenced strongly by the Judeo-Christian tradition. 3 They accepted the premise of mankind’s imperfect nature. They had experienced first-hand the oppressive dictates of Parliament and the Crown that led to the American Revolution. And they were rightly suspicious of the accumulation of governmental power by one person or a small body — “the very definition of tyranny” according to Madison. 4

Consistent with these experiences and beliefs, the Founders imbued liberty-preserving principles into the very structure of the new government. They divided power between federal and state governments, apportioned federal power among three branches of government, and limited the power of the federal government to certain delegated functions. But the Founders also knew that these devices alone were inadequate to preserve and sustain our new nation.

Instructors of Virtue

Why did they believe that the success of the union ultimately depended on the virtue of the people? Simply put, the Founders knew that government was downstream from culture. A virtuous people would courageously defend the rights endowed by their Creator and restored by the blood of patriots. But a fearful people would readily cede these rights in exchange for a fleeting sense of security. As Princeton’s Robbie George explains, “[P]eople lacking in virtue could be counted on to trade liberty for protection, for financial or personal security, for comfort … for having their problems solved quickly. And there will always be people occupying or standing for public office who will be happy to offer the deal.” 5

“But what is government itself, but the greatest of all reflections on human nature?”

-james madison.

So how do we cultivate the virtue needed to sustain our republic? It is, after all, contrary to the founding premise of man’s imperfection. And to entrust the government with this task is to invite the fox into the proverbial henhouse. Indeed, Madison observed, “[W]hat is government itself, but the greatest of all reflections on human nature?” 6

It falls, then, to the family, the church, and educational institutions to transmit “to each new generation the virtues without which free societies cannot survive: basic honesty, integrity, self-restraint, concern for others and respect for their dignity and rights, civic-mindedness, and the like.” 7 In other words, even the structural constraints of our Constitution will fail without institutions to teach people how those constraints protect liberty, to explain why that liberty is vital to the success of our country, and to inculcate the virtue needed to resist a culture of immediate gratification. 8

The Robertson Center for Constitutional Law

Institutions of higher education like Regent University play an important role in preserving the values on which our nation was founded. For this reason, we are excited to launch Regent Law’s newest endeavor, The Robertson Center for Constitutional Law. The Center will promote first principles in constitutional law such as textualism, originalism, separation of powers, limited government, judicial modesty, and religious freedom — all while helping educate and cultivate the next generation of Christian lawyers.

The Robertson Center for Constitutional Law will promote first principles in constitutional law while educating and cultivating the next generation of Christian lawyers.

The Place of Christianity in Constitutional Law

Such an endeavor prompts the question: How should a Christian think about constitutional law? To begin, we approach this question with humility. Christianity is not “a club to be wielded against those who do not share” that faith. 9 Instead, Christians are called upon to recognize our own limitations and shortcomings.

Although our faith does not compel a single legal or political philosophy, certain aspects of Christian belief inform our views of constitutional law. As discussed above, man is selfish and imperfect. That makes us inherently skeptical of concentrated power. History well illustrates concentrated power’s destructive impact on liberty. We should distrust even those who claim that they can “bring about the Kingdom of Heaven on this earth through our political efforts” and know that “[i]f we allow our governments to try, the result will be tyranny.” 10

Our Founders understood this well. Indeed, George Washington extolled the virtues of our nation’s pluralist legal order in his August 18, 1790, letter to the Hebrew Congregation in Newport, “All possess alike liberty of conscience and immunities of citizenship. … For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.” 11 We also know — indeed, we hold self-evident — that government officials, lawyers, and judges are not the creators of our rights. Our Creator endowed those rights to We the People. 12 Our Constitution recognizes this, restraining the power of the federal government and preserving the liberty of the people.

This skepticism of state power and a desire to preserve democratic self-government accord most naturally with an originalist approach to constitutional interpretation. Originalism confines interpretation of the Constitution to the words of the constitutional text and tethers that interpretation to the public understanding, as closely as it can be discerned, of what the words of the Constitution meant when ratified (plus any lawful amendments). (Originalism’s cousin, textualism, applies a similar interpretive method to statutory law.) As the late Associate Justice of the U.S. Supreme Court Antonin Scalia explained, “Originalists believe that the provisions of the Constitution have a fixed meaning” so that its words “mean today what they meant when they were adopted, nothing more and nothing less.” 13 Such constraints limit the reach of the unelected judiciary and preserve the political power of We the People.

Contrast these views with “living Constitutionalism,” which rose to prominence during the 20th century. Rather than ask what result the text or original public meaning of the Constitution requires, a “living Constitution” philosophy empowers the judge to consider what he or she thinks the Constitution should mean today. The allure of this approach is strong. After all, it is often much easier to convince five Supreme Court justices of the need for change than it is to amend the Constitution itself or convince the people’s representatives to change the law. As former Attorney General Edwin Meese pointed out, living constitutionalism “remold[s] principles in light of policies” instead of “judg[ing] policies in light of principles.” 14

Focusing on the result, rather than on the analysis, delegates immense power, concentrated in members of the judiciary, to make decisions about some of the most important and controversial issues in society. Even worse, it allows them to make those decisions largely unmoored from the constitutional text and absent any democratic accountability. One simply cannot reconcile notions of popular sovereignty and skepticism of concentrated power with the idea that society should provide a small number of fallible judges with the power to infuse the constitutional text with their own personal values and policy preferences on many of the most significant — and hotly debated — societal issues. Such a delegation to unelected judges relinquishes democratic self-government. By contrast, requiring judges to adhere to the text and its original meaning provides constitutional decision-making with democratic legitimacy. We expect judges to find and adhere to the original meaning — to the extent that it can be determined — because that is the meaning that gained the political support of We the People required for ratification. This grant of authority, from the Creator, to We the People, and then to the federal government, is what furnishes our Constitution with its legitimacy.

Harvard Law professor Richard Fallon is known to have remarked that most of his constitutional law students enter his class, whether they know it or not, as originalists. That’s how we intuitively read documents, whether it be a constitution, Shakespearean play, or an 18th century fried chicken recipe. 15 We naturally try to make sense of these documents by seeking to understand what the words meant when they were written. It is a testament to the power of educational institutions, then, that while so many students enter law school with a common-sense inclination to read legal documents as originalists, so few leave law school with the same view.

That said, here’s some news that might surprise those who have not closely followed constitutional jurisprudence over the past 30 years or so: Thanks largely to Scalia, there has been a renaissance in textualism and originalism. In fact, Justice Elena Kagan, the former dean of Harvard Law School appointed to the Supreme Court by 44th U.S. President Barack Obama, opened the second day of her 2010 confirmation hearings by acknowledging that now, “We are all originalists.” 16 Later, Kagan reflected on the emergence of textualism in statutory interpretation, declaring that “we’re all textualists now.” 17

Kagan’s statements are truer today than when they were first made. U.S. President Donald Trump has appointed two Justices of the Supreme Court of the United States and roughly 20 percent of the judges on the federal courts of appeals, virtually all of whom subscribe to textualism and originalism.

From Classroom to Courtroom

This change is not merely academic. It’s having a real effect on outcomes in court. The lay reader surprised by the revival in originalism might be even more surprised to hear that, despite some widely publicized losses, defenders of religious liberty are having significant success in court. For example, the Alliance Defending Freedom, whose Supreme Court practice is led by Regent Law graduate Kristen Waggoner (’97), has won nine religious liberties cases in the last seven years at the U.S. Supreme Court.

Now, even many left-leaning lawyers and scholars use textualist and originalist interpretive methods to advocate for their positions. That is a significant change. And it is reason for optimism.

Of course, originalism and textualism will not always lead to results favored by one political group or another. Adoption of those methods means that case outcomes are based on what the words of the text demand, regardless of whose ox is gored. Moreover, lawyers and judges may still disagree on the proper interpretation of the text, or worse, attempt to use “originalist” or “textualist” arguments as cover to infuse the text with their preferred meaning.

So, What’s Next?

Expect federal courts to continue to embrace textualism and originalism in the years to come as Justices Neil Gorsuch and Brett Kavanaugh stay closely tethered to these modes of interpretation. Expect increasing use of originalism and textualism by those on both the right and the left. And, although the path might be bumpy at times, expect that this interpretive shift will, on balance, diminish the Supreme Court’s role as an agent of social change. Expect the Robertson Center for Constitutional Law to advocate powerfully for the self-evident truths set forth in our Declaration of Independence and enshrined in our Constitution. And expect Regent University’s School of Law to continue faithfully training the next generation’s fearless, principled advocates of liberty.

The biggest threat to our constitutional order … is the failure to pass to subsequent generations the character, virtue and knowledge required to protect the constitutional safeguards.

Overcoming the Greatest Threat

The biggest threat to our constitutional order is not a string of non-originalist decisions from the U.S. Supreme Court. It is instead, as our Founders warned, the failure to pass to subsequent generations the character, virtue, and knowledge required to protect the constitutional safeguards. Victories in court will be hollow and ephemeral if we fail to instill in future generations the virtues upon which our nation was founded. The decisions of the Supreme Court and, ultimately, the preservation of the Constitution itself rest downstream from culture. Preserving the Constitution requires maintaining the virtuous culture it was designed to serve. We hope that Regent University School of Law and its Robertson Center for Constitutional Law will have a prominent role in preserving, protecting, and defending our Constitution.

1 “From John Adams to Massachusetts Militia, 11 October 1798,” Founders Online, National Archives, accessed Feb. 28, 2020, https://founders.archives.gov/documents/Adams/99-02-02-3102 . 2 James Madison, The Federalist Papers, No. 55. 3 See generally Mark David Hall, Did America Have a Christian Founding? , The Heritage Foundation, accessed Mar. 6, 2020, https://www.heritage.org/political-process/report/did-america-have-christian-founding . 4 James Madison, The Federalist Papers, No. 47. 5 Robert P. George, Ruling to Serve , First Things, accessed Feb. 14, 2020, https://www.firstthings.com/article/2013/04/ruling-to-serve . 6 James Madison, The Federalist Papers, No. 51. 7 George, supra note 6 . 8 See id. 9 See William J. Stuntz, Christian Legal Theory , 116 Harvard Law Review 1707, 1726 (2003) (book review). 10 Michael W. McConnell, Old Liberalism, New Liberalism, and People of Faith , in Christian Perspectives on Legal Thought, 8 (M. McConnell, R. Cochran & A. Carmella eds. 2001). 11 “From George Washington to the Hebrew Congregation in Newport, Rhode Island, 18 August 1790,” Founders Online, National Archives, accessed Feb. 28, 2020, https://founders.archives.gov/documents/Washington/05-06-02-0135 . 12 See The Declaration of Independence para. 2 (U.S. 1776). 13 Antonin Scalia, Interpreting the Constitution, in Scalia Speaks 188 (C. Scalia & E. Whelan, eds. 2017). 14 Speech by Attorney General Edwin Meese III before the American Bar Association on July 9, 1985, Federalist Soc’y, accessed on Mar. 6, 2020, https://fedsoc.org/commentary/publications/the-great-debate-attorney-general-ed-meese-iii-july-9-1985 . 15 Gary Lawson, On Reading Recipes . . . and Constitutions , 85 Geo. L.J. 1823 (1997). 16 Confirmation Hearing on the Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary , 111th Cong. 62 (2010) (testimony of Elena Kagan). 17 Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes , YOUTUBE (Nov. 25, 2015), https://www.youtube.com/watch?v=dpEtszFT0Tg .

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How We Will Influence Culture

By establishing an academic center within the legal academy, we will occupy a place of unique influence within our culture. We will engage with that culture, educate the public, collaborate with and support those with whom we find common cause, and fight — in both the courts and the arena of public opinion — those who seek to extinguish the legacy left to us by our Founding Fathers.

Robertson Center for Constitutional Law ®

Regent University School of Law 1000 Regent University Drive Virginia Beach, VA 23464 Phone: 757.352.4040 [email protected] regent.edu/law

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Article Contents

Introduction
I. Constitutional Morality: A Brief Intellectual History
II. Judicial Approaches
III. CM’s Place in India’s Constitutional and Political System
Conclusion: The Road Ahead
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Constitutional Morality: An Indian Framework

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Nakul Nayak, Constitutional Morality: An Indian Framework, The American Journal of Comparative Law , Volume 71, Issue 2, Summer 2023, Pages 354–387, https://doi.org/10.1093/ajcl/avad029

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Over the last dozen years, Indian courts have formulated the idea that, inherent in the Indian Constitution, lies a type of morality referred to as constitutional morality (CM). CM acts as an interpretive device to help courts ascertain the meaning of the Constitution’s text in contested cases. Fundamental questions around CM, however, remain unaddressed: What are the methodological moves that courts have adopted to deploy CM in case law? What judicial premises and logics are at work in CM? And, given CM’s path dependence, what implications does CM have for Indian constitutional law and theory? This Article attempts to address these questions, using three levels of analysis. First, it explores the intellectual history of CM to ascertain how B.R. Ambedkar—the chief draftsperson of India’s Constitution—conceptualized it. Second, it develops a framework that situates CM as understood by Indian courts. Courts have given two distinct meanings to CM: (i) CM as a fiction that anchors the meaning of “morality” understood as a restriction to fundamental rights, and (ii) as an obligation on institutional actors to follow ethical political practices even when the law does not guide their conduct. This Article charts out both accounts and analyzes them on their own terms. Finally, it sketches two problems that the development of CM presents for Indian constitutional theory. As the Indian Supreme Court gears up to commence hearings on whether courts may continue to use CM as an interpretive device, the normative attractiveness of CM will be under the scanner. The framework and analyses I have developed can act as a foundation on which critiques and defenses of CM can take place.

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‘Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions.

Sample Answer

Introduction

The doctrine of ‘Constitutional Morality’ refers to the guiding values enshrined in the Constitution that must be protected to uphold the integrity of its vision. Several judicial decisions have helped define and apply this doctrine to safeguard fundamental rights , separation of powers and rule of law.

Judicial interpretations

In Manoj Narula v Union of India (2014) , the SC defined ‘Constitutional morality’ as the principle that provides an ability to experience constitutional provisions from a moral and ethical point of view.
In Navtej Johar v Union of India (2018) , it emphasized Constitutional morality as the soul of the Constitution embracing within itself virtues like justice, equality and human dignity.
In Lilly Thomas v Union of India (2000) , the Court struck down an MP ordinance that defied the ‘basic structure’ principle.
In Coelho case (2007) , it reasserted that Constitutional amendments must comply with basic Constitutional morality and identity.
In Krishna Kumar Singh v State of Bihar (2017) , it maintained that all institutions must work jointly to attain vision of the Constitution guided by ‘Constitutional morality’.
In T S Thakur v State of Gujarat (1980) , ‘(Constitutional morality’ was described as the responsibility of authorities to respect norms of constitutional objectives and goals in official conduct.
In Namit Sharma v Union of India( 2013) , the SC highlighted that ‘Constitutional morality’ required transparent functioning of institutions which was intrinsic to rule of law.

The doctrine of ‘Constitutional morality’ is an essential tool for interpreting Constitutional provisions to protect citizens’ rights and ensure proper functioning of democratic institutions. As the final arbiter of the Constitution, the Judiciary has been pivotal in evolving and upholding this doctrine to defend the essence and spirit of India’s democracy.

Constitutional Morality

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Sub-Categories:

GS-II: Governance

GS-II: Polity

What is Constitutional Morality?

What are some of the elements of constitutional morality, how has the concept of constitutional morality evolved, what are some significant supreme court judgments relating to constitutional morality, what is the significance of constitutional morality, what are some of the issues pertaining to constitutional morality in india, what steps can guide towards the effective realization of constitutional morality.

Prelims : Indian Polity and Governance – Constitution, Political System

Mains : Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure

Constitutional morality refers to the principles and values that underlie the constitution and guide the actions of government and citizens.

It encompasses the idea that the constitution is not just a legal document but also a moral one that reflects the shared values and aspirations of a society.
It also encompasses the idea that the constitution should be interpreted and implemented consistently with these fundamental principles and values rather than simply as a technical document to be followed literally.
The term Constitutional Morality is not mentioned anywhere in the constitution.

Some of the elements of Constitutional Morality are:

Rule of Law
Right to Equality
Social Justice
Due Process of Law
Individual Liberty
Freedom of Expression
He used ‘constitutional morality’ to describe popular sovereignty, governed based on ‘freedom’ and self-restraint.
Constitutional morality, for Grote, also meant citizens’ right to criticize public officials. Therefore, highlighting the limitation to the power of public officials and their duty to respect the Constitution.
According to him, constitutional morality was the solution to the existing inequality in society. It primarily meant respect among parties in a republic for constitutional democracy as the preferred form of governance and administration.
Kesavananda Bharati Case(1973): It was subtly indicated by the Supreme Court when it propounded the conception of the basic structure of the Constitution.
Other cases : Constitutional Morality was also mentioned in the First Judges case(1982) . Thereafter, it was mentioned in Naz Foundation v. Government of NCT of Delhi(2010), where it was used antithetically to popular acceptance and social morality.

Constitutional morality has been invoked in several cases by the Supreme Court. Some of these cases are

SP Gupta Case/First Judge Case (1982) : The Supreme Court described constitutional violation as ‘a serious breach of constitutional morality’.
Naz Foundation vs. Government of NCT of Delhi (2010) : The Supreme Court took into cognizance the idea of upholding the constitutional principles rather than society’s perception with regard to the legitimacy of same-sex relationships.
Manoj Narula vs. Union of India (2014) : Chief Justice of India(CJI) described constitutional morality as a means to bow down to the norms of the Constitution and not to act in a manner that would become violative of the rule of law or reflectible of action in an arbitrary manner.
It held that Constitutional morality, in its strictest sense, implies a strict and complete adherence to the constitutional principles as enshrined in the various segments of the document.
It held that constitutional morality reflects the ideal of justice as an overriding factor in the struggle for existence over any notion of social acceptance.
The court thus struck down section 377 of IPC, which made homosexuality a criminal offense.
The Supreme Court noted that constitutional morality must guide the law and not the common morality of the State at any time in history.
The court observed that the term "morality" in Articles 25 & 26 of the Constitution refers to constitutional morality rather than popular morality.

Constitutional morality is significant for the functioning of a democratic society due to the following reasons:

Protects rights of citizens : It helps to protect the rights and freedoms of citizens by ensuring that the government is held accountable to the rule of law and the principles of democracy, justice, liberty, and equality.
Promoting Democratic ideals : It helps to maintain the integrity of democratic institutions by ensuring that the government is constrained by the will of the people and the principles of the constitution.
Bring positive change in society : It can be used to interpret laws or statutes no longer consistent with recent times, thus bringing positive societal change.
Creates Inclusive Society : It helps to promote social cohesion and respect for diversity by recognizing and protecting the rights of all citizens, regardless of their background or identity.

Some of the issues pertaining to Constitutional Morality in India are

Lack of clarity : Some argue that the concept of constitutional morality is not clearly defined and that it can be used to justify a wide range of actions and decisions, which undermines the principle of predictability and the rule of law.
Can lead to judicial overreach : If this doctrine is used without limits or restrictions, it could amount to judicial overreach. This can lead to a violation of the separation of powers.
Subjectivity : Some argue that the concept of constitutional morality is highly subjective and that it can be used to justify different actions and decisions depending on the perspective of the person or institution interpreting it.
Lack of popular legitimacy: Some argue that constitutional morality is not based on popular consent and is imposed on society in opposition to public morality.
Selective application : There have been instances where constitutional morality has been selectively applied to certain groups or issues, undermining the principle of impartiality and the rule of law.

Some of the steps that can be taken are:

Providing holistic definition: Defining the meaning of ‘constitutional morality' could make this a standard, especially in cases where the rights and liberties of individuals are pitted against religious or cultural practices.
Increasing Objectivity: By setting certain objective standards, the principle of constitutional morality could develop into a more holistic doctrine, such as the ‘Basic Structure Doctrine’.
Balanced Application: Constitutional morality should be applied in a manner that is consistent with the principles and values of the constitution and that takes into account the specific context and circumstances of a particular situation.
Active citizenry: Citizens should be encouraged to actively participate in the political process and hold their elected officials accountable.
Strong oversight institutions: Strong and independent institutions, such as the judiciary and the press, play a vital role in upholding constitutional morality.

Previous Year Questions

Q) Constitutional Morality is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (2021)

Frequently Asked Questions (FAQs)

Q) is constitutional morality defined by the constitution .

No, Constitutional Morality neither finds mention nor is defined in the constitution. It was first mentioned during constituent assembly debates and has thus evolved through judicial interpretations.

Q) How does Constitutionalism differ from Constitutional Morality?

Constitutionalism means limited government. It recognizes the need for a government with powers but, at the same time, insists that limitations be placed on those powers. Constitutional morality, on the other hand, refers to the principles and values that underlie the constitution and guide the actions of government and citizens.

Q) How does social morality differ from constitutional morality?

Social Morality is a set of values and norms that exist in society. It varies from culture to culture depending on various beliefs, practices, traditions, or customs prevalent in society. Constitutional morality is a way to ensure that social morality does not prevail in such a manner that it violates the rights of other persons in the community.

Our Constitution Was Made Only for a Moral and Religious People

On October 11, 1798, John Adams wrote to the Massachusetts Militia that

Because We have no Government armed with Power capable of contending with human Passions unbridled by morality and Religion. Avarice, Ambition, Revenge or Gallantry, would break the strongest Cords of our Constitution as a Whale goes through a Net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.

But are we still a moral and religious people? In “ The Real American Founding: A Conversation ,” professors of politics David Azerrad and Thomas West help us answer that question.

In the fifth lecture of that course, titled “Morality and Virtue,” professors Azerrad and West discuss the fact that government always legislates morality, but what that morality consists of depends on the beliefs of those who make the laws. The nature of the legislative power is to tell people what they can and cannot do, what is right and wrong.

In the Founders’ understanding, they believed that government ought to support true morality and virtue. That is, morality and virtue grounded in the laws of nature and of nature’s God, from which they derived man’s natural rights and duties.

The Founders also believed that the laws of nature and of nature’s God, along with the natural rights and duties derived from them, were in accord with their Christian beliefs. Government therefore ought not to be hostile to Christianity, but rather should support it with laws that are friendly to it and encourage its flourishing among the citizenry.

For example, in Washington’s Farewell Address, he advises that

Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. The mere Politician, equally with the pious man ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.

Without those great pillars of human happiness—religion and morality, with the former supporting the latter—the courts of justice become a sham because oaths cannot be trusted. Property, reputation, and life will not be protected.

Washington therefore warns us to be on our guard against those who “should labor to subvert these great pillars of human happiness.” Have we heeded his warning?

Professor Azerrad points out that America’s “elites”—those in positions of authority—have abandoned the Founders’ belief that Christianity ought to be encouraged to flourish in America. He observes that

the consensus elite view is that religion—and Christianity in particular—is dangerous. You shouldn’t talk about it; you shouldn’t subsidize it. Whereas the secular religions of the age—feminism, critical race theory, sexual liberation, transgenderism—they get subsidized, promoted, pushed everywhere.

Professor West agrees and observes that the change “didn’t really happen until post-World War II. And the reason why is because those in positions of authority now have a different understanding of justice and morality than the Founders.” According to Dr. West, the post-war “elite” no longer viewed the purpose of government as being to secure the rights of citizens:

They wanted to get people away from the idea that somehow or other property rights are to be respected and defended, in order to justify the new orientation towards property, which is redistribution—to governments, to groups that government designates as disadvantaged. And the same thing is true with regard to sex and sexual liberation. As that becomes more and more important to the elites of our society, in the ’40s and ’50s and ’60s, then Christianity came to be seen as the enemy. . . . “Thou shall not commit adultery.” It’s a principle that had to be overturned in order to justify the sexual revolution.

There is a stark contrast between the world we live in versus the one inhabited by the Founders, especially including the laws they implemented versus the ones we live under today. Our world has changed drastically, and in many cases, not for the better.

If we are no longer a moral and religious people, and if Adams was right, then do we still live under the same Constitution? Indeed, with the rise of Progressive, bureaucratic government, followed by the takeover by the radicals of the 1960s and their cultural Marxist ideology, it appears that our government has undergone a radical revolution. By not entirely and overtly discarding the parchment which contains our fundamental law, but rather keeping it under protective glass as a mere relic, the revolutionaries pulled off a clever coup by grasping authority under the guise of legitimacy.

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The Problem with Biocentric Environmentalism

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[Answered]What is meant by constitutional morality? How does one uphold constitutional morality? Discuss its importance in public services.

Constitutional morality means adherence to the core principles of the constitution. Constitutional morality resolves conflicting interests of different people. It involves the administrative cooperation to resolve the issues without any confrontation amongst the various groups.

How does one uphold constitutional morality?

Criticism: By criticising and raising voice against the non-constitutional practices. It is necessary to speak up against any actions, which you feel as illegal or unethical under the constitution. For example, section 377 of IPC was unconstitutional as it was against the principle of equality.
Education: Only our beliefs and actions for upholding constitutional values is not enough. It is our moral obligation to educate the public regarding the importance to uphold these ideals. This will be fruitful for our democracy in the long run. For example, conducting programmes in schools where children are trained to inculcate constitutional values and practice them in their day to day life.
Judicial Use: By letting constitutional morality guide the Court’s decision instead of popular morality, while interpreting the constitution, constitutional morality is being upheld. By locating the content and contours of constitutional morality so that it is not being ignorantly and dangerously used in courts.
Holding constitutional values: By making a commitment to the values like constitutional supremacy, rule of law, liberty, equality, parliamentary form of government, self restraint and intolerance for corruption etc. Constitutional morality involve adherence to constitutional principles like:
Commitment to liberty.
Constitutional supremacy.
Parliamentary form of government and self restraint.
Rule of law.
Intolerance for corruption, to name a few.

Importance of constitutional morality in public services:

The democratic values and principles governing public administration must follow the constitutional principles:

Professional Ethics: A high standard of professional ethics need to be guided by the principles of constitutional values like equality, liberty, fraternity, etc. Constitutional morality held in upholding these values in civil services.
Values: The civil servant are mandated by the Constitution to amongst others to promote the Constitutional Values and Principles governing public administration. Constitutional morality guide the values of the public servant leading to better
Social Cohesion: In the preamble, the Constitution outlines the fundamental values on which nation building and social cohesion should firmly rest. These values include human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism, supremacy of the Constitution, the rule of law, democracy, social justice, equity and respect.
Impartiality: It allows an impartial responding to people’s needs and encouraging the public to participate in policy making.
Accountability: Constitutional morality in a way instill a sense of accountability in public administration and help in fostering transparency.
Representative administration: A representative public administration with employment and personnel management practices based on ability, objectivity, fairness and the need to address the imbalances of the past.

Constitutional morality is important for constitutional laws to be effective. It has been observed that young officers are resigning from service and aim to uphold ‘constitutional morality’, which they say is being violated. But the fact is that ‘constitutional molarity’ can be better preserved by being part of the system and initiating reforms rather than working out of the system. Thus, we can conclude that upholding’ constitutional morality’ is indeed a very important part of our official as well as moral duty and it needs combined efforts of all the sections of the society to make it possible.

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Can Originalism Be Moral?

Professor of law at the Boalt Hall School of Law at the University of California, Berkeley

Key Takeaways

Originalism can be moral even if some individual provisions, as originally understood, fail to pass universal tests for morality.

What matters is not the morality of the individual rules, but the morality of the system that makes those rules possible.

The lesson of the American experience is that the Constitution and originalism are moral because they create the Union that makes liberty possible.

Select a Section 1 /0

John G. Malcolm. Welcome, everybody, to The Heritage Foundation, and thank you for joining us for the third annual Edwin Meese III Originalism Lecture, which will be delivered tonight by my good friend, Professor John Yoo.

This lecture honors former U. S. Attorney General Ed Meese, who, through a series of speeches in 1985 and 1986, was instrumental in sparking a revolution in the law by reinvigorating what he called a jurisprudence of original intention. This, of course, should not have been revolutionary at all since judges prior to the Progressive Era had long practiced originalism. But times had certainly changed—that is, until Ed Meese came along.

Look how far we have come since then. A solid majority of Justices on the Supreme Court today are self-professed originalists, and during her confirmation hearing, Justice Elena Kagan went so far as to say today, “we are all originalists.” REF I am delighted that the man who sparked this revolution, Ed Meese, is here with us this evening.

Tonight, John Yoo will speak about originalism. John is the Emanuel Heller Professor of Law at the University of California at Berkeley, where he also directs the Public Law and Policy Program and the Korea Law Center. He’s also a visiting scholar at the American Enterprise Institute and a visiting fellow at the Hoover Institution.

John began his legal career by clerking for two legal giants, Judge Laurence Silberman on the D.C. Circuit Court of Appeals and Justice Clarence Thomas on the Supreme Court. He’s written over 100 articles and several books, including his latest one, which he co-authored with Robert Delahunty, The Politically Incorrect Guide to the Supreme Court . REF

John also served as a Deputy Assistant Attorney General in the Justice Department’s Office of Legal Counsel and as General Counsel to the U. S. Senate Judiciary Committee. Please join me in welcoming John Yoo.

John G. Malcolm is Vice President of the Institute for Constitutional Government, Director of the Edwin Meese III Center for Legal and Judicial Studies and the B. Kenneth Simon Center for American Studies, and Gilbertson Lindberg Senior Legal Fellow at The Heritage Foundation.

John Yoo. Thanks, John, for that introduction. It’s really great to be here. I’m reminded of the last time I spoke at Heritage in a presidential election year back in 2016. I landed in Washington shortly after the election. I hailed a cab and asked the driver to take me to the Trump transition headquarters. He delivered me here instead. I see that times haven’t changed.

I’m honored to deliver a lecture named after my role model and friend, General Meese. One thing that is sometimes obscured in General Meese’s biography is that he is one of our proudest graduates at Berkeley Law School and a recipient of the school’s Alumni Award, which was given to him by former Dean Chris Edley.

I’m not sure our current Dean Erwin Chemerinsky would have given him the same award, but not for want of trying. Before COVID, Berkeley co-sponsored a conference with Heritage on criminal procedure and invited General Meese to speak. Dean Chemerinsky got up, welcomed everybody, and then proceeded with a 10-minute attack on the Roberts Court for its criminal procedure decisions.

General Meese got up next. Without making any welcoming remarks, General Meese turned to Dean Chemerinsky and said: “Erwin, the Warren Court is over.” He then proceeded with a 10-minute, point-by-point rebuttal, leaving no doubt that the Court had come to its senses on criminal procedure. It was a wonderful event and not the first time that General Meese had to take a law school dean to school.

The subject of my talk is originalism, a subject that has achieved its high stature in academic discourse thanks to General Meese. I think he was the last of what I would call the “intellectual” Attorneys General. Today, when we think about Attorneys General, we don’t think about their ideas: We instead think about how many people they put in jail. Our Attorneys General today are home secretaries and interior ministers. In contrast, General Meese hearkened back to the original Attorneys General who were advisors to the government about the Constitution and its meaning. His speech on originalism was part of that great effort, along with his unceasing efforts to get constitutionalists appointed to the Supreme Court and the lower courts.

After General Meese delivered his famous speech on originalism, REF citations to The Federalist Papers in Supreme Court opinions went up 600 percent. That almost matches the growth of the federal deficit.

A Crisis of Originalism

I intend my remarks to respond to what I call a crisis of originalism. On one hand, originalism is at the height of its acceptance in the bar and on the courts. Perhaps a majority of the Justices of the Supreme Court, or maybe even a super-majority, identify as originalists or at least strive toward originalism.

But at the same time, originalism is suffering from internal doubt. This doubt originates not from the 1619 Project or from others who regularly vilify our Founding Fathers and denounce originalism, but from the very conservative circles that gave originalism its first home. We stand now at the height of originalism’s victory, the fulfillment of General Meese’s wishes. But amid this apparent victory lies a furious debate among conservatives: Is originalism moral? And if not, is originalism a true victory for conservatives?

My very good friend Adrian Vermeule, who leads the intellectual project known as common good constitutionalism, would say no. To him, originalism is amoral. Vermeule proposes that the Constitution be interpreted not in accordance with its original meaning, but with an eye to policies that benefit the “common good.” Like Ronald Dworkin, Professor Vermeule defends “moral readings of the Constitution.” But unlike Dworkin, Vermeuele’s vision for a “moral reading” aligns with conservative principles.

Professor Vermeule is correct that originalism is not a moral theory. It doesn’t promote good or bad morality. And because originalism promises fidelity to the law, whether originalism leads to a “good” or “bad” result depends on the law. If the law is good, then originalism is good. If the law were bad, then maybe originalism would be bad too. Vermeule concludes, correctly, that originalism should be judged against an external moral theory.

What should that external moral theory be? Professor Randy Barnett, no stranger to Heritage, would say that originalism is justified by a libertarian notion of individual rights. Others, like Professor Hadley Arkes and his fellow travelers from the Claremont School (inspired by Claremont Graduate University Professor Harry Jaffa, the student of University of Chicago philosopher Leo Strauss) would say that natural law should guide our understanding of the Constitution when linguistic and moral gaps arise.

In contrast, Professor Joel Alicea of Catholic University Law School would say that the natural law itself requires that we accept the authoritative decisions of the leaders that the people have chosen within a system of popular sovereignty. Thus, he concludes, obeying the decisions of those leaders itself is moral because popular sovereignty in the U.S. context is consistent with the natural law.

These justifications appeal to various theorists, but they depend on a common assumption, one that is fundamental to any justification of originalism: that our Constitution and our country are different from other constitutions and other countries. Our Constitution is exceptional because our nation is exceptional. Our Constitution is moral, and hence originalism is moral, because the Founding created a nation whose existence and progress has produced good moral outcomes.

This is in contrast to other countries, where the people preceded the establishment of their constitutions or even their nations. Take France, for example. The French people existed long before the modern state of France came into being. The French people saw one constitution after another passed, enacted, thrown out, and replaced again. To them, as with most other countries, the constitution is just an instrument, no different from any other law. In a country like France, it might make sense to reject an understanding of the constitution as moral.

That’s why it’s no surprise that many critiques of originalism come from people who are enamored with the civil law system and European approaches to the law. The morality of constitutional law in Europe stems from the history and traditions that have existed from the time of the Roman Republic through the Catholic Church to the civil codes of today. That greater political context gives European legal systems their moral justification. Vermeule is surely right in arguing that European constitutional law must abide by the broader notions of the common good provided by that long history and thought.

But Americans are different. The United States is different. We were not a people before the Constitution. In fact, our Constitution created and defined the American nation rather than the other way around. And so if the Constitution itself is what creates our nation-state, which creates us as a nation, then it’s possible for the Constitution itself to be morally good (putting aside its outcomes in individual cases).

I’m an American exceptionalist. America is a force for good in the world, and it always has been. America is the best thing that has happened to the modern world.

Think about how different the world would be if we had never had our Revolution and Constitution, if we had remained an appendage of the British Empire. Imagine what the destiny of millions would have been if the United States had not intervened in World Wars I and II, protected Europe and Asia during the Cold War, and established the liberal international order after the disappearance of the Soviet Union.

Giving Effect to America’s Goodness

Indeed, the United States is and has been an incredible force for good. And if America is good, then the people and things that built America are good too. Originalism is what gives effect to that goodness. It teaches us to try to understand what the people who gave us the Constitution understood and to apply their wisdom to the circumstances of our times. Truly, it is the goodness of America that makes originalism moral.

This principle is separate from the specific provisions in the Constitution. Not only did the Constitution establish a new nation, but it also united a collection of states and societies with serious regional differences. Originalism is moral because it advances the Constitution’s fundamental purpose of creating the Union.

The North was industrial; the South was agrarian. The North was built on freedom; the South, unfortunately, on slavery. But they came together in the Revolution and the Constitution to found our nation. Although the North and South deeply distrusted each other, they foresaw the enormous public benefits of national unity.

Consider the free-market economy which the Constitution created. Consider the national defense against hostile invaders, the potential for westward expansion, and the ability to accept millions of hard-working immigrants longing for a better life. How did these brilliant features come together? They came together because of the Constitution: not because the Constitution provided a detailed answer to every question, but because it struck a careful balance of power between the North and the South so that they could both trust each other enough to join a single Union.

Today, we take their trust for granted, but their cooperation was miraculous. Before the North and South worked out a system, there was no Supreme Court. Nor was there any other enforcement authority. After independence was won, the North and the South lived in regional anarchy. They needed to come together to become one nation. And how did they do it? By writing a Constitution. The Founders understood that a written Constitution would promote trust: trust that people would keep their bargains and fulfill their promises about the sharing of power.

A similar problem arises in international relations. How do two countries make a treaty? How do they ever make an agreement with each other when there’s no international court with any real authority to enforce the terms?

International relations theory provides an answer: credible commitments. Each state must send signals to each other that it is trustworthy and that it’s not going to break its word, even if one side becomes much more powerful later. The best way for a party to prove that it will keep its word is to contribute to expensive institutions that will safeguard its obligations and protect against subversion of the agreement, and the most credible signal that the North and the South could have sent was to devise a written constitution with a Supreme Court that would enforce its terms.

Although there’s no way to test this theory perfectly, one way to understand it is to consider Dred Scott and the advent of the Civil War.

Chief Justice Roger Taney wrote for the Court in Dred Scott . His opinion seriously misconstrues the original understanding of the Constitution. It concludes that Congress cannot regulate slavery in the territories. The crux of his opinion was that slaves were property. Thus, their ownership and their movement could not be restricted by the federal government without violating the Takings Clause and the Due Process Clause. The natural consequence of this reasoning, as Lincoln understood, was that either all of America would tolerate slavery or none of it would. And Dred Scott ’s logic suggested that all of it would.

This interpretation contradicted the original meaning of the Constitution. But more fundamentally, it subverted the careful constitutional bargain crafted by the North and South. The two regions could no longer trust each other to obey the Constitution because the expensive safeguard the parties had established—the Supreme Court—surrendered its legitimacy with its erroneous decision. Dred Scott , by failing to honor and enforce the original terms of the deal embodied in the Constitution, left the North and South with no recourse but civil war.

So, can originalism be moral? Dred Scott shows that it can. When a constitution is as fundamental as ours is, a deviation from the Constitution amounts to a change in the basic rules of the game. When that change adversely affects a party who helped to form the agreement, the change subverts the entire purpose of the agreement and, in turn, the country that the agreement was made to establish.

This means that originalism can be moral even if some individual provisions, as originally understood, fail to pass everyone’s test for morality. What matters is not the morality of the individual rules, but the morality of the system that makes those rules possible. While I am in full agreement that our Constitution exists to protect the natural rights of the Declaration of Independence, that lofty purpose is not possible without the creation of the United States, which will then protect those natural rights.

Even if the common good is the metric, natural law thinkers understood that there must be an effective, viable government to protect the common good, and that’s not possible without a constitution.

Daniel Webster, one of our greatest Senators, captured this relationship between individual rights, natural rights, and freedom. In his famous speech on the Senate floor, Webster said: “Liberty and Union, now and forever, one and inseparable!” That’s the lesson of the American experience and why the Constitution and originalism are moral: because they create the Union that makes liberty possible.

John Yoo is the Emanuel Heller Professor of Law at the University of California at Berkeley.

Emanuel S. Heller Professor of Law, UC Berkeley School of Law and Fellow, American Enterprise Institute

The Constitution translates the principles of the Founding into a framework of limited government that remains central to the American way of life.

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There’s No Sense of Shame at the Supreme Court

The Supreme Court Building, reflected upside down and blurrily in water.

By Jesse Wegman

Mr. Wegman is a member of the editorial board.

An earlier generation of Supreme Court justices seemed to possess the capacity for shame.

In 1969, Justice Abe Fortas resigned his seat for accepting a $20,000 consulting fee (which he returned) from a foundation led by a man who was convicted of securities fraud.

Whatever Justice Fortas believed about his honor and morality, he understood that the Supreme Court is an inherently fragile institution and that its nine justices cannot afford the slightest whiff of bias or corruption. As the Times editorial board wrote then , “A judge not only has to be innocent of any wrongdoing but he also has to be above reproach.” Placing the court’s and the country’s interests above his own, Justice Fortas stepped down.

That sort of humility is nowhere in evidence on today’s court, which is finding new ways to embarrass itself, thanks largely to the brazen behavior of two of its most senior members, Justices Samuel Alito and Clarence Thomas, who are making a mockery of their obligation to at least appear neutral and independent. They fail to report large gifts , luxury vacations and payments to their family members by wealthy donors, at least one of whom had business before the court, and they express nakedly partisan opinions or fail to adequately distance themselves when their spouses express such views.

They are saying, in effect, that they don’t care if any of this bothers you. To go by recent polls showing that this court’s public approval has approached record lows , it bothers many millions of Americans. And yet no one in Washington seems willing to act.

It can’t go on. The court’s refusal to police itself, willingly allowing a few justices to trample on its reputation, demands that Congress step up and take far stronger action to enforce judicial ethics and to require justices to recuse themselves when they have or appear to have clear conflicts of interest.

The latest in a long list of examples became public last week, when The Times reported that an upside-down American flag flew over the front lawn of the Alito family home in the immediate aftermath of the Jan. 6 insurrection incited by then-President Donald Trump. The flag, a clear pro-Trump statement widely flown by those who believed the 2020 election was stolen, apparently stayed up for days, even as the court was weighing whether to hear a case challenging the outcome of the election. (The court voted not to hear the case. Justice Alito, like Mr. Trump, was on the losing side .)

In a statement to The Times, Justice Alito placed the blame for the hoisting of the flag on his wife, Martha-Ann Alito, in response to a dispute with some neighbors. He said nothing about any attempt to remove it, nor did he apologize for the glaring ethical violation. To the contrary, he has failed to recuse himself from any of the several Jan. 6-related cases currently before the court, including Mr. Trump’s claim that he is absolutely immune from prosecution for his role in the Capitol assault.

Justice Thomas may be even more compromised when it comes to Jan. 6. His wife, Ginni Thomas, participated in the legal effort to subvert the election and keep Mr. Trump in power. And yet with one minor exception , he has also refused to recuse himself from any of the Jan. 6 cases.

Other justices revealed political biases in the recent past. In 2016 the Times editorial board criticized Justice Ruth Bader Ginsburg for referring to Mr. Trump as a “faker,” comments for which she quickly expressed regret . That was the right response, but it couldn’t unring the bell.

As all justices are aware, federal recusal law is clear: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

In the Jan. 6 cases, recusal should not be a close call. At the least, reasonable people are justified in questioning Justice Alito’s impartiality based on his failure to take down the inverted flag, especially during a period of intense national conflict over an issue that was at that very moment before the justices.

Justice Thomas’s extreme closeness with his wife (he has described them as being melded “into one being”) raises similar doubts about his ability to be impartial. He is further implicated by a separate provision of the law, which requires a judge to recuse when his or her spouse is “to the judge’s knowledge likely to be a material witness in the proceeding.” That sure sounds like Ginni Thomas, who testified, under threat of a subpoena, before the House Jan. 6 committee.

In short, Justices Alito and Thomas appear to be breaking federal law, tanking what remains of the court’s legitimacy in the process. The challenge is whether anyone is willing to do anything about it.

“If there’s no recusal in this situation, if a justice is flying a banner to support a violent insurrection while he is sitting on a case that implicates the scheme to steal the election, is the recusal statute a dead letter?” Alex Aronson, the executive director of Court Accountability, a judicial reform organization, asked me.

It’s a fair question. The Ethics in Government Act requires the Judicial Conference, which is chaired by Chief Justice John Roberts, to refer to the Justice Department any case in which there is reason to believe a judge willfully broke the law. The attorney general does not have to wait for a referral, but based on how Merrick Garland’s Justice Department handled the Trump investigations, I’m not holding my breath.

The Supreme Court’s recently adopted ethics code isn’t much help, either. If anything, it makes matters worse , undercutting the authority of existing law and giving the justices even more space to act with impunity.

Mark L. Wolf, a senior federal district judge in Massachusetts who worked in Gerald Ford’s Justice Department, said in a lecture this year that in adopting the code, “the Supreme Court has essentially asserted the power, if not the right, to disobey laws enacted by Congress and the president. Thus, the code undermines the system of checks and balances that safeguard our constitutional democracy, threatens the impartiality of the Supreme Court and jeopardizes crucial public confidence in the federal judiciary.”

Chief Justice Roberts may not have the power to force any of his colleagues to do the right thing, but he does have moral and institutional authority. And yet it appears the new code of ethics is no match for the old code of omertà that has bound justices for generations. As The Times reported , the Alito flag incident soon became known to the court (where, by the way, regular staff members are barred from any political activity, down to displaying bumper stickers), and yet it was suppressed for more than three years.

For now, Democrats control the Senate, and yet they have remained largely silent, resorting to sending admonishing letters .

On Monday, Richard Durbin, the chairman of the Senate Judiciary Committee, punted once again , calling for Justice Alito to recuse himself from Jan. 6 cases but dismissing the idea of anything more forceful. “I don’t think there’s much to be gained” by holding a hearing, Mr. Durbin said.

Perhaps he and other Democrats were scared off by Justice Alito’s shocking assertion in The Wall Street Journal last year about Congress’s power.

“No provision in the Constitution gives them the authority to regulate the Supreme Court — period,” he said. That would be a surprise to the nation’s founders, who said no such thing. To the contrary, Congress has been regulating the court — its size, its salaries, its jurisdictions, its ethical obligations — from the start.

We are faced with flatly unacceptable behavior from the most powerful judges in the land. If nothing else, Congress has the power to call that to light, to name and shame the wrongdoers. This would be a truth-seeking mission as well as a public service, showing the American people just how corrupt some justices are.

So what is Congress afraid of? Committees can and should hold hearings and subpoena witnesses to answer questions before the nation. They can subpoena Justice Alito himself. If he declines to show, subpoena his wife. He implicated her, after all, and she certainly has no separation-of-powers claim. Then subpoena Chief Justice Roberts, who declined to testify last year when he was asked politely. If he still doesn’t show up, Congress should remember it has the power of the purse and can reduce the court’s nonsecurity budget.

As right-wing activists have understood about an institution with lifetime tenure, it’s all part of the long game. Justices Alito and Thomas may be in their mid-70s, but a new generation of even more extreme, more partisan activists is coming up through the judicial ranks. Many of them were appointed to the federal bench in Mr. Trump’s first term, and many more would surely be in a second term. These men and women will take the absence of meaningful congressional action as carte blanche to run roughshod over ethical norms.

This is about the future as much as the past. Young Americans who are voting for the first time this year were born after Bush v. Gore; some were not even in high school when Senator Mitch McConnell stole a Supreme Court seat from Barack Obama. For all they know, this is how the court has always been and always will be.

That’s why now is the time to show future generations that the nation needs a court that can be trusted to be fair, a court whose justices have the capacity for shame. The Supreme Court is an institution that we depend on as much as it depends on us.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

Follow the New York Times Opinion section on Facebook , Instagram , TikTok , WhatsApp , X and Threads .

Jesse Wegman is a member of The Times editorial board , where he writes about the Supreme Court, law and politics.

Kohlberg’s Stages of Moral Development: Understanding Ethical Growth in Individuals

This essay about Lawrence Kohlberg’s theory of moral development explores the stages of ethical maturation. It begins with the “Preconventional Level” in childhood, where moral understanding is based on self-interest and authority. It moves through the “Conventional Level” of adolescence, dominated by social conformity, and reaches the “Postconventional Level,” where personal principles and justice guide moral reasoning. The essay also critiques the theory’s cultural limitations and emphasizes the diversity of moral growth.

How it works

Embarking on an odyssey through the intricate labyrinth of ethical maturation, we delve into the profound insights unveiled by Lawrence Kohlberg’s pioneering exploration of moral development. With each twist and turn of the human psyche, Kohlberg’s theory unfurls a rich tapestry woven from the intricate interplay of cognition, societal dynamics, and individual moral compass.

Our journey begins in the innocent realms of childhood, where moral reasoning takes its fledgling steps within the “Preconventional Level.” Here, the moral landscape is painted with broad strokes of self-interest and deference to authority, as young minds grapple with the rudimentary concepts of right and wrong.

Fear of reprisal and the allure of rewards serve as guiding stars in this nascent stage of moral cognition.

As our voyage progresses, we navigate the turbulent waters of adolescence, where the “Conventional Level” casts its imposing shadow. Amidst the swirling currents of societal expectations, moral judgments are shaped by the gravitational pull of conformity and social acceptance. Peer influence whispers its seductive melodies, steering the moral compass toward the shores of amiable relationships and the preservation of social order.

Yet, beyond the confines of convention lies the uncharted expanse of the “Postconventional Level,” where individual principles emerge as guiding constellations in the moral firmament. Here, the moral landscape undergoes a transformative shift, revealing the nuanced contours of social contracts and individual rights. Against the backdrop of shifting societal values, individuals grapple with the delicate equilibrium between personal liberties and the common good, guided by the luminous beacons of justice, equity, and human rights.

At the zenith of moral ascent stands Stage 6, where universal principles cast their radiant glow upon the path ahead. In this rarified realm, individuals transcend the constraints of societal norms, embracing self-fashioned ethical precepts imbued with the eternal resonance of truth. With hearts ablaze with conviction, they confront the bastions of injustice and oppression, heralding a new epoch of compassion and human dignity.

Yet, amidst the brilliance of Kohlberg’s theory, shadows linger, casting doubt upon its universal validity. Critics raise their voices, highlighting the theory’s cultural blind spots and its reliance on hypothetical moral quandaries. They caution against the temptation to oversimplify the complex tapestry of moral development, urging a nuanced appreciation of the kaleidoscopic diversity of human experience.

And so, as we embark on this voyage through the labyrinth of ethical growth, let us navigate with humility and open-mindedness, mindful of the intricate mosaic of human morality. For in the crucible of moral evolution, diversity flourishes, enriching the fabric of human existence with its multifaceted hues. And though the journey may be fraught with challenges and uncertainties, let us embrace it with courage and conviction, guided by the timeless wisdom distilled within the pages of Kohlberg’s magnum opus.

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Moral Reasoning and Constitutional Interpretation
Footnotes Jump to essay-1 Some scholars refer to the general moral or ethical principles underlying the text of the Constitution as the ethos of the law. Philip Bobbitt, Constitutional Fate: Theory of the Constitution 142 (1982). Jump to essay-2 Id. at 126. Jump to essay-3 Id. at 162. Jump to essay-4 Id. at 142. Jump to essay-5 539 U.S. 558, 578 (2003).
Constitutional Morality
Constitutional morality ensures the establishment of rule of law in the land while integrating the changing aspirations and ideals of the society. Constitutional morality as a governing ideal that highlights the need to preserve the trust of the people in institutions of democracy. As such an ideal, it allows people to cooperate and coordinate ...
Man, Morality, and The United States Constitution
Part III will focus on the incorporation of these philosophical insights on morality and human nature into the United States Constitution. This section will involve the discovery of important fissures between the Framers on their conception of man. Framer James Wilson's and the authors' of The Federalist (John Jay, James Madison, and Alexan-.
Constitutional Morality
Constitutional Morality. Constitutional morality in the modern sense means to abide by the substantial moral entailment that the Constitution carries. However, Dr Ambedkar in the Constituent Assembly was referring to methods that are adopted in policymaking where the Constitution is either silent or gives discretionary powers.
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Constitutional Morality refers to following the fundamental principles of a constitution. It involves supporting an inclusive and democratic political process that satisfies both individual and collective interests. In the case of the Indian Constitution, the values it upholds include democracy, socialism, equality, and integrity.
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CONSTITUTIONAL MORALITY 157 the Constitution of the United States was deemed necessary in 1788 when Hamilton was writing his famous essays, and in 1803 when Marshall announced the unanimous opinion of the Supreme Court, it is far more necessary in our day of multiform legislation, of vast increase in the functions of
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This paper examines the different meanings of constitutional morality in the Indian constitutional law context. It traces the doctrine's origins to George Grote's history of Greece and explains how it was in vogue in the U.S. when Ambedkar arrived there to study at Columbia University. It was at Columbia that Ambedkar took courses on Greek ...
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The concept of constitutional morality was propounded by the British Classicist named George Grote in the 19th century in his book "A History of Greece.". He described CM as a "paramount reverence for the forms of the Constitution" of the land. It essentially implied a "co-existence of freedom and self-imposed restraint".
Preserving a Constitution Designed for a Moral and Religious People
One of the foremost constitutional theorists of the founding generation, John Adams, observed, "Our Constitution was made only for a moral and religious People. ... 4 James Madison, The Federalist Papers, No. 47. 5 Robert P. George, Ruling to Serve, First Things, accessed Feb. 14, 2020, ...
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Over the last dozen years, Indian courts have formulated the idea that, inherent in the Indian Constitution, lies a type of morality referred to as constitutional morality (CM). CM acts as an interpretive device to help courts ascertain the meaning of the Constitution's text in contested cases.
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Judicial interpretations. In Manoj Narula v Union of India (2014), the SC defined 'Constitutional morality' as the principle that provides an ability to experience constitutional provisions from a moral and ethical point of view.; In Navtej Johar v Union of India (2018), it emphasized Constitutional morality as the soul of the Constitution embracing within itself virtues like justice ...
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Social Morality is a set of values and norms that exist in society. It varies from culture to culture depending on various beliefs, practices, traditions, or customs prevalent in society. Constitutional morality is a way to ensure that social morality does not prevail in such a manner that it violates the rights of other persons in the community.
Constitutional Morality: An Indian Framework
Over the last dozen years, Indian courts have formulated the idea that inherent to the Indian Constitution lies a morality called "Constitutional Morality" ("CM"). CM acts as an interpretive device to help courts ascertain the meaning of the Constitution's text in contested cases.
Moral Reasoning and Constitutional Interpretation
Another approach to constitutional interpretation is based on moral or ethical reasoningR 1 2;often broadly called the ethos of the law. 1 Footnote Some scholars refer to the general moral or ethical principles underlying the text of the Constitution as the ethos of the law. Philip Bobbitt, Constitutional Fate: Theory of the Constitution 1 42 (1 982). Under this approach, some constitutional ...
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Significance. Constitutional morality ensures the establishment of rule of law in the land while. integrating the changing aspirations and ideals of the society. Constitutional morality as a ...
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Constitutional morality is a concept that refers to the adherence to the core principles of constitutional democracy, such as individual autonomy, liberty, equality, dignity, privacy, and non-discrimination, in matters of personal choices and relations.. The Allahabad High Court judgment in Kiran Rawat vs State of UP is being seen as violating constitutional morality regarding denial of the ...
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Constitutional morality can be originated from within the Constitution itself. If read and interpreted properly, Articles 12 to 35 (Fundamental Rights), Articles 36 to 51 (Directive Principles of State Policy), Preamble and the Fundamental Duties tend to have the pervasive essence emphasising upon constitutional morality. The debates and discussions that happened in the Constitutional Assembly ...
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Cultivating Constitutional Morality. As the Constitution turns 70, its spirit needs to be guarded not only by parliamentarians but also by the people with utmost sacredness. Babasaheb Ambedkar, Chairman of the Drafting Committee, presenting the final draft of the Constitution to the first President, Rajendra Prasad, on November 25, 1949.
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See Twenty-First Amendment to th e Constitution, 48 Stat. 1749, 1749-50 (1933); Intro.3.5 Early Twentie th Century Amendment s (Sixteen th Th rough Twenty-Second Amendment s). Jump to essay-7 See Amdt21.S1.2.4 Drafting of th e Twenty-First Amendment (discussing ambiguity in congressional debates over th e scope of th e states' Section 2 ...
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The morality of constitutional law in Europe stems from the history and traditions that have existed from the time of the Roman Republic through the Catholic Church to the civil codes of today.
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Mr. Wegman is a member of the editorial board. An earlier generation of Supreme Court justices seemed to possess the capacity for shame. In 1969, Justice Abe Fortas resigned his seat for accepting ...
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Essay Example: Embarking on an odyssey through the intricate labyrinth of ethical maturation, we delve into the profound insights unveiled by Lawrence Kohlberg's pioneering exploration of moral development. With each twist and turn of the human psyche, Kohlberg's theory unfurls a rich tapestry

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Constitutional Morality: An Indian Framework

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‘Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions.

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Constitutional Morality

What is Constitutional Morality?

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Frequently Asked Questions (FAQs)

Q) How does Constitutionalism differ from Constitutional Morality?

Q) How does social morality differ from constitutional morality?

Our Constitution Was Made Only for a Moral and Religious People

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