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1 1 (January 13, 2022)

handle is hein.crs/govefcv0001 and id is 1 raw text is: Congressional ______ ~.Research Service inforng the legist ive debate since 1914____________________ The Modes of Constitutional Analysis: Moral Reasoning and the National Ethos (Part 6) January 13, 2022 This Legal Sidebar Post is the sixth in a nine-part series that discusses certain methods or modes of analysis that the Supreme Court has employed to determine the meaning of a provision within the Constitution. (For additional background on this topic and citations to relevant sources, please see CRS Report R45 129, Modes of Constitutional Interpretation.) Another approach to constitutional interpretation is based on moral or ethical reasoning-often broadly called the ethos of the law. Under this approach, some constitutional text employs terms that are informed by certain moral concepts or ideals, such as equal protection or due process of law. The moral or ethical arguments based on the text often pertain to the limits of government authority over the individual (i.e., individual rights). For instance, the Supreme Court has derived general moral principles from the broad language of the Fourteenth Amendment in cases involving state laws or actions affecting individual rights. A particularly famous example of an argument based on the ethos of the law is contained in the Supreme Court's decision in Bolling v. Sharpe. The Court decided Bolling on the same day it decided Brown v. Board of Education, which held that a state, in segregating its public school systems by race, violated the Fourteenth Amendment. Specifically, the Court held that the practice of separate but equal as applied to schools violated the Equal Protection Clause, a provision that prohibits state governments from depriving their citizens of the equal protection of the law. Bolling, however, involved the District of Columbia school system, which was not subject to the Fourteenth Amendment because the District of Columbia is not a state, but rather a federal enclave. Furthermore, the Fifth Amendment, which applies to the actions of the federal government, provides that no person shall be deprived of life, liberty, or property, without due process of law but does not explicitly contain an Equal Protection Clause. Nevertheless, the Court struck down racial segregation in DC public schools as a violation of the Fifth Amendment's Due Process Clause, determining that due process guarantees implicitly include a guarantee of equal protection. The Court based its reasoning on the Due Process Clause being derived from our American ideal of fairness, ultimately holding that the Fifth Amendment prohibited the federal government from allowing segregation in public schools. Another approach to interpretation that is closely related to but conceptually distinct from moral reasoning is judicial reasoning that relies on the concept of a national ethos. Professor Phillip Bobbitt Congressional Research Service https://crsreports.congress.gov LSB10684 CRS Legal Sidebar Prepared for Members and Committees of Congress

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