What is the moral content of constitutional rights? In one sense, the "moral reading" of the Bill of Rights proposed, most famously, by Ronald Dworkin, is surely correct:
The clauses of the American Constitution that protect individuals and minorities from government are found mainly in the so-called Bill of Rights -- the first several amendments to the document -- and the further amendments added after the Civil War.... Many of these clauses are drafted in exceedingly abstract moral language. The First Amendment refers to the "right" of free speech, for example, the Fifth Amendment to the process that is "due" to citizens, and the Fourteenth to protection that is "equal." According to the moral reading, these clauses must be understood in the way their language most naturally suggests: they refer to abstract moral principles and incorporate these by reference, as limits on government's power.(1) The Bill of Rights, by means of open-ended terms such as "freedom of speech," "equal protection," or "due process,"(2) refers to moral criteria, which take on constitutional status by virtue of being thus referenced. We can disagree about whether the proper methodology for judicial application of these criteria is originalist or nonoriginalist. The originalist looks, not to the true content of the moral criteria named by the Constitution, but to the framers' beliefs about that content;(3) the nonoriginalist tries to determine what the criteria truly require, and ignores or gives less weight to the framers' views.(4) Bracketing this disagreement, however, it is surely correct to say -- as Dworkin and many other prominent constitutional scholars have said(5) -- that the Constitution, through the open-ended clauses of the Bill of Rights, incorporates parts of morality.
Yet there is also a sense in which this "moral reading" of the Constitution is mistaken, or at least needs to be qualified. Constitutional rights have a special formal structure -- a formal structure so familiar to us that this structure, and therewith its significance, have become invisible. I will call this structure the "Basic Structure." Constitutional rights are rights against rules. A constitutional right protects the rights-holder from a particular rule (a rule with the wrong predicate(6) or history); it does not protect a particular action of hers from all the rules under which the action falls.(7) As a consequence of the Basic Structure, a constitutional right has only derivative moral content -- or so this article will try to show. To say that X's treatment pursuant to a rule R violates X's "constitutional rights," or that the treatment is "unconstitutional," does not entail that the treatment itself is morally wrong, or morally problematic, or that there is moral reason to overturn the treatment ceteris paribus, or that the treatment violates X's moral rights, or that moral wrong has been done to X, or anything like this. All the statement entails is that there exists moral reason to repeal or amend the rule R.
Let us begin by considering a famous and, for my purpose, exemplary case: the flag-desecration case, Texas v. Johnson.(8) Mr. Johnson, who had burned an American flag during a political demonstration, was prosecuted for and then convicted of violating a Texas statute that read: "`A person commits an offense if he intentionally or knowingly desecrates ... a state or national flag.'"(9) He was sentenced to one year in prison and fined $2,000. Johnson challenged his sanction on constitutional grounds, claiming that it violated his fight to free speech under the First Amendment. When the case reached the U.S. Supreme Court, the Court agreed with Johnson's claim, and overturned his sanction.(10) Crucially, the Court did not hold that Johnson was constitutionally immune from sanction, under any statute, for the actions that had prompted the State's prosecution. "We ... emphasize that Johnson was prosecuted only for flag-desecration -- not for trespass, disorderly conduct, or arson."(11) Rather, what violated Mr. Johnson's rights was being sanctioned pursuant to a rule with the wrong rule-predicate -- one that targeted the wrong type of action. As the Court explained: "`A law directed at the communicative nature of conduct [such as a law prohibiting "flag desecration"] must ... be justified by the substantial showing of need that the First Amendment requires,'"(12) and the State of Texas was unable to make that substantial showing.
Texas v. Johnson exemplifies what I have called the Basic Structure: that constitutional fights are rights against rules. Mr. Johnson's very action of flag-desecration might also have been an action of destroying government property (if the flag he desecrated had belonged to the government),(13) or pollution (if the flag was burned, and dangerous chemicals were thereby released into the atmosphere), or battery (if the flag was burned in close proximity to a bystander, who was badly injured), or perhaps, as the Court suggested, arson, disorderly conduct, or trespass.(14) Had Mr. Johnson been sanctioned under a rule that employed one of these constitutionally unobjectionable predicates, no constitutional right of Johnson's would have been violated.(15) Indeed, nothing in the Court's decision precluded Texas from sanctioning Mr. Johnson pursuant to an unobjectionable rule, in a future prosecution, for the very action of his that had given rise to the flag-desecration prosecution.(16) Where the State of Texas had gone wrong was in prosecuting Johnson under the wrong rule -- under a rule that prohibited "flag desecration." And what violated Mr. Johnson's First Amendment rights, in Texas v. Johnson, was being sanctioned for his action under that rule -- not being sanctioned for that action simpliciter.
Consider, now, two possible accounts of the moral content of Mr. Johnson's First Amendment rights. First, consider what I will call the Direct Account.
The Direct Account To say that some treatment of X (sanctioning X pursuant to a rule, or subjecting X to the duty that the rule announces) "violates X's constitutional fights" entails the following: the treatment is directly wrong, and X has the legal fight to secure judicial invalidation of the treatment. "Directly wrong" means that there is sufficient moral reason(17) for the court to invalidate the treatment (overturn X's sanction, or free X from the duty), quite independent of any further invalidation of the rule under which the treatment falls. On the direct account of Texas v. Johnson, it is morally improper to sanction Mr. Johnson for "flag desecration," even if his action happened to have been an action of property-destruction, pollution, or battery. To sanction him for "flag desecration" is to sanction him on the wrong grounds -- on the basis of his speech, rather than the harmful, nonexpressive properties of his action -- and there is moral reason for the State of Texas not to do that. To be sure, if Mr. Johnson was a polluter, batterer, or property-destroyer, he ought to be sanctioned. But he ought to be sanctioned pursuant to the right kind of rule, and it is not a matter of moral indifference which rule the State of Texas deploys against him.
By contrast, what I will call the Derivative Account of constitutional rights says something quite different.
The Derivative Account To say that some treatment of X (being sanctioned pursuant to a rule, or subjecting X to the duty that the rule announces) "violates X's constitutional rights" entails the following: there is sufficient moral reason to change in some measure the scope of the rule, and X has the legal power to secure the invalidation -- the repeal or amendment -- of the rule, including his own treatment. There may or may not be moral reason to overturn X's treatment, ceteris paribus. On the derivative account of Texas v. Johnson, it would be (or might be)(18) a matter of moral indifference which rule the State of Texas deployed against Johnson, if Johnson's action of flag-desecration also happened to have been an action of property-destruction, pollution, or battery. If his action happened to have been wrongful under a different description, there would be (or might be) nothing at all morally problematic in sanctioning Mr. Johnson pursuant to the flag-desecration statute. Rather, what is morally problematic, on the Derivative Account, is for Texas to have in place a statute that prohibits flag-desecration. This is morally problematic because some actions covered by that statute are innocent actions. Some actions of flag-desecration do not have further, wrong-making properties such that they are properly sanctioned or coerced -- they are not also actions of property-destruction, pollution, battery, etc. -- and therefore Texas is morally required to repeal or amend the flag-desecration statute.(19)
Mr. Johnson's own action of flag-desecration may have been innocent of further wrong-making properties; it may not have been. But that is irrelevant to Johnson's constitutional claim. On the Derivative Account, his case is simply an occasion(20) for the reviewing court to invalidate -- to repeal or amend -- Texas's statute. Because the statute does moral wrong to someone (whether Mr. Johnson, or other persons), the reviewing court rightly invalidates the statute, including but not limited to the sanction Mr. Johnson has received.(21)
Which of these two accounts, direct or derivative, is the correct account of the moral content of constitutional rights? To put the distinction between the two most succinctly: on the Direct Account, constitutional adjudication essentially involves the invalidation of the rights-holder's own treatment (her sanction, or her duty), while on the Derivative Account, it essentially involves the judicial repeal or amendment of rules. Which of these two accounts best describes the connection between constitutional law and morality?
In this article, I will argue that...