Introductory remarks.

• Author: Van Alstyne, William W.
• Position: The Relationship of Law and Morality in Respect to Constitutional Law

The topic for this panel of our symposium is billed as "The Relationship of Law and Morality in Respect to Constitutional Law." Our panelists are assuredly suitably credentialed to provide new perspectives on this deeply vexed topic. (1)

And it is "deeply vexed," I say, if just because while some slippage between "law" and "morality" might quite fairly be expected to characterize more mundane areas of the law, (2) it would seem to be much more disturbing if one were to find any equivalent voids in the Constitution itself--gaps between what sound principles of a moral nature would appear to require, on the one hand, and what even our highest law ("the supreme Law of the Land" (3) aspires to do. Even significant "gaps" between what ordinary law may permit, albeit what morality may condemn, may be found within the thick layers of ordinary law--those many layers of law, each of which, however, is also more readily amenable to change than anything found in the Constitution. In the latter case, it may be less bearable to believe after two centuries of struggle and refinement--that any truly similarly significant "gaps" remain at large within the Constitution itself. "Here, surely, within our own supreme law as it is laid out in the Constitution," one might hope to be able to say, "we do not expect to find such gaps!"

And, indeed, virtually as an unspoken corollary of that understanding, many doubtless expect our judges--and certainly those who sit astride the Supreme Court itself--to take care to assure us by the force and virtue of their decisions that in fact there are no such gaps, or, at the very least, none of a genuinely egregious sort. (4) Correspondingly, in terms of our own obligations (that is, our own obligations as moral citizens), it would seem to fall to us in turn to resolve that, insofar as particular judges may fail in their duty to us so to construe and so to understand "our" Constitution, the truly moral obligation that we have is to see to their succession by judges firmly committed to our own higher ideals such as they are. This proposition strongly suggests itself--it speaks to us, one might say, even as in the words of the Declaration of Independence, virtually as a "self-evident truth." (5)

Yet, what if it should happen that the Constitution itself is not especially "moral" in one or another of its many features? (6) Then what is one to do? Or, rather, what does one want of a judge who is aware of the difference such as it may be? Ignore it or acknowledge it? Note it or declaim that "it doesn't exist?" In short, what is a "moral" judge to do?

This difficulty, of reconciling public demands (or expectations) with the judge's own particular oath (7) was, I think, probably never better captured than it was in the passing observation Justice Hugo Black offered nearly four decades ago. In the course of an informal interview held in his Supreme Court office in 1968 with Eric Sevareid and Martin Agronsky, commemorating his thirtieth year on the Supreme Court, Justice Black offered the following reflection: "I think most [Americans] do not [understand the Constitution] .... It's all because each one of them believes that the Constitution prohibits that which they think should be prohibited, and it permits that which they think should be permitted." (8)

In so declaring what "most [Americans] do not understand" about the Constitution, Justice Black said nothing different in kind from what an experienced radiologist might similarly offer as a passing observation particular to his or her own field of study, that is, supposing that most people may believe that radiology...