Moral Values and the Constitution

July 30, 2005

Speaking at this plenary discussion were:
-Walter Dellinger, O'Melveny and Myers; former Acting U.S. Solicitor General-Pamela Karlan, Professor of Law, Standford Law Schol-Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit-Judge William Fletcher, U.S. Court of Appeals for the Ninth Circuit-Judge Diane Wood, U.S. Court of Appeals for the Seventh Circuit
Does the United States Constitution reflect a set of of moral vlaues and, if so, what are they? This question launched the discussion of this plenary, which looked at various times of United States history, how judges have best decided to interpret the Constitution, and whether readings at certain historical times were faithful to the document's underlying principles.
Walter Dellinger initiated the discussion by referencing slavery cases, which "taught us that the framers had a...limited, but restricted view as to who counted as a citizen," he epxlained. Judge Wood expouned upon Dellinger's reference to the slave cases as an example of an effort to put morality into the Consitution that failed; he also cited the 18th Amendment's prohibition on alcohol as another experiment in morality that was unsuccessful.
Judge Kozinski addressed the quesetion by looking at issues that he felt were lacking from the Constitution. "If we define morality broadly," he asked, "where are the provisions that guarantee a minimum level of" sustenance, education, and health, among other things? "Ours is quite an old-fashioned Constitution," he summed up, pointing out that there is a limited list of negative commands in the document.
Other topics raised during the discussion included the Federalist Papers, which reverts back "to the idea of the 'people'," Judge Wood explained, and the relevance of foreign law to our domestic law: should it be relied upon or even referenced? Pamela Karlan further offered that "the way we think about equality is the way we think about morality."