A Constitutional Ethic

At this point in the semester, my undergraduate class is encountering a concept called “the constitutional ethic.” (The term is an organizing theme of the textbook we are using, written by yours truly and colleague from Minnesota.)

So what do we mean by “constitutional ethic”? How does such an ethic differ from our usual understanding of ethical behaviors–i.e., honesty, truthfulness, adherence to the law? If the constitutional ethic is “over and above” personal ethics, in what way is it more or different? And how can I describe that difference in language that is accessible to undergraduates?

Here’s what I plan to explain to my class:

As we’ve been discussing, the Constitution is the basis of America’s legal system; as it has operated over the years, it has shaped a distinctive value system and legal culture, a framework within which we make policy and operate our common institutions. Elected and appointed officials take an oath to uphold that constitutional system, an oath that implicitly obliges them to understand its most basic and important characteristics. (For example, policymakers need to understand not just that we are a government of checks and balances, but why our system was constructed that way.)

At its most basic, adherence to the Constitutional Ethic requires public officials to act in ways that are consistent with these basic systemic structures, and to avoid acting in ways that would undermine them.

Some examples might “flesh out” the concept.

Respect for due process guarantees would seem to rule out drone strikes on persons–especially but not exclusively Americans–who have not been afforded legal process to determine guilt or innocence.

Respect for government’s obligation to treat citizens equally would seem to rule out efforts to marginalize GLBT people, or refuse them access to the institutional benefits enjoyed by heterosexual citizens.

Respect for one of our most fundamental rights–the right to vote, to participate equally in our democracy–imposes an ethical obligation to refrain from vote suppression tactics of the sort we saw during the last election.

Respect for the principle of free speech, protected by the First Amendment, imposes an ethical obligation to refrain from attempts to censor ideas of which we disapprove.

It really isn’t complicated. It’s just increasingly rare.