Duke’s Frederic Cleaveland Professor of Law and Divinity, Powell recently talked with Duke Law Magazine about Constitutional Conscience: The Moral Dimension of Judicial Decision. An excerpt follows.
Duke Law Magazine: In Constitutional Conscience you take the position that constitutional law and constitutional decision-making intrinsically demand that one take moral positions.
Powell: Well, it can’t be otherwise. There are no intentional actions one can take that aren’t moral as a descriptive matter. They may be immoral or they may be morally right, but they are always moral decisions because we are not automatons; we are creatures with wills and intentions.
Once one remembers that fact, one sees that a judge or anyone making a constitutional decision is making a moral decision. She is choosing one or the other of various positions that have an impact on other people, and that is a moral choice. That’s by way of definition. But if one thinks that, then one has to work out “How do I go about making these choices?” The book is about how to go about doing so — how you and I might decide constitutional cases and still live with ourselves when we get up in the morning.
DLM: Take me through the “constitutional virtues” that you tease out as being at the heart of moral constitutional decision making: faith; integrity; candor; humility; and acquiescence.
Powell: The concept of virtue that I’m using is one that comes from the philosopher Alasdair MacIntyre. What MacIntyre says that the notion of virtue in Western thinking is the settled habit of doing some activity well.
What I’m talking about are not, in the first instance, virtues in the sense of those things we think [make] somebody a good person but, rather, those things that constitute somebody’s being a good constitutional decision maker. The way I come up with those is by looking at what it is we in fact say we’re doing when we decide constitutional law.
The virtues I’ve identified … and that the book is centrally about, are those derived from what it is the courts and the rest of us say when we talk constitutional law talk. What do we say? We say things that assume the Constitution has meaning. We say things that assume that the line of reasoning we’re presenting is, in fact, the line of reasoning we’re willing to live with in subsequent cases, and so on. That’s what I mean by the constitutional virtues. They are those habits of thought that in fact make real the talk that everybody uses anyway. The distinction, for my purposes, between a constitutional decision-maker who is virtuous and one who is vicious, or lacking in constitutional virtue, is whether the person is, in fact, exemplifying these virtues and carrying them out, or is simply talking the talk to cover over whatever else she’s doing.
DLM: You actually have a challenge in there for people who teach constitutional law to look at opinions not just for the decisions they render, but also as expository pieces of literature.
Powell: Exactly. And that, I acknowledge, is complicated, because most of the justices don’t really write their own opinions, which I think is deeply regrettable. One of the other side-themes of the book is that if you took the book seriously, you would think that they ought to write their own opinions. Handing the writing process off to their clerks is not what they should be doing, because how they express their decisions is nearly just as important as what they say the outcomes should be, and the current practice assumes that all that matters is the outcome.
DLM: Is that the way you’ve always taught constitutional law [over the years] and how you’ve looked at it?
Powell: No! For most of the time I’ve taught constitutional law I was basically a formalist — I was basically Justice Oliver [one of the fictional justices whose approach to decision-making are explored in the book], and therefore thought that most of what I was teaching was wrong because the positions weren’t defensible on formalist terms. In the process of writing this book, I concluded that that didn’t make sense, and now I teach from a different perspective.
» Read full conversation with H. Jefferson Powell on Constitutional Conscience: The Moral Dimension of Judicial Decision.