PUBLISHED:August 08, 2008

A Q&A with Professor H. Jefferson Powell-full

Aug. 8, 2008 — In his latest book, Professor H. Jefferson Powell explores the moral dimensions of constitutional decision making by judges and public lawyers. Mining the decisions, opinions, and commentary of such legal luminaries as Chief Justice Marshall, Justices Holmes and Brennan, and Amos T. Akerman, the first attorney general to head the United States Department of Justice, Powell examines how these and other “paradigmatic” constitutional decision-makers did their jobs of making decisions “that can’t be justified in formalistic, legal-logic kinds of ways.”

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.

Duke Law Magazine: Tell me about some of the “paradigmatic decision-makers” you highlight in the book.

Powell: Among them, Chief Justice Marshall is, in a certain sense, the paradigmatic constitutional law [decision-maker]… if the Supreme Court is paradigmatic in general, Marshall is paradigmatic for the Supreme Court. … [R]ight is defined by what John Marshall was doing.

DLM: Can Attorney General Amos T. Akerman — who “confessed” to President Ulysses S. Grant an “inability to answer” certain constitutional questions — be seen as paradigmatic in another way?

Powell: He is. Nobody sensible thinks that attorneys general are not political figures. They are, clearly. But I take Akerman to be somebody who did the job in a fashion that was both political in the proper manner, but not political in whatever we take the bad sense to be. This is somebody who takes very seriously lawyerly logic and yet knows it is not determinative. And when he has to step outside of legal logic … he’s honest and transparent about it. That’s all we could possibly ask for from attorneys general, but equally for justices as well — that they be honest about where they’re going and why they’re going there, including when they step beyond the formalist logic of the law.

DLM: 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.

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: The first virtue you identify is “faith,” and you acknowledge the provocative nature of the concept and the word. What do you mean by faith in this context?

Powell: In the constitutional context, the virtue of faith is a belief that the Constitution is not simply an empty cipher into which we put whatever we want but in fact carries with it meaning, and a commitment to acting on that basis — to acting as if, or acting in order, to make it the case that the Constitution has content.

One of the central issues in constitutional law — and I think a great many people think the constitution is simply empty, that there’s nothing to it, and therefore we necessarily are simply making it up as we go along. And I agree, as a chapter of the book [entitled “Making it up as we go along”] says, I think that is what we are in substantial measure doing. But the difference is that I think we are making it up something on the basis of something else and the folks I disagree with think we are just making it up, period. I’m not willing to concede that our whole system is fraudulent and just an ugly joke. But I think that’s the ultimate position on the other side.

DLM: The virtues of integrity and candor: Are they as straightforward as they sound?

Powell: What I mean by integrity is a kind of consistency. When somebody like Akerman or a justice writes a constitutional opinion it ordinarily will say, “Here are my conclusions, and here are the justifications in law that I think support it.” … The virtue of integrity is one that keeps the connection between your conclusion and the reasons that you share with us.

The virtue of candor is closely related — it’s the virtue of actually striving to set forth the reasons that support what you say. [It’s] the public side to which integrity corresponds as the internal, personal side. I think somebody like Holmes, for example, exemplifies that. He both holds and acts on the basis of a set of views that he then sets out candidly in his writing. I think that’s true of Akerman as well.

DLM: Humility …

Powell: I make considerable use of Justice Brennan’s famous “rule of five” — which is usually taken to mean that if you’ve got five votes on the nine-justice Supreme Court you can do what you want to do. The virtue of humility is the settled habit of not acting on that assumption. Yes, within limits set by reasonability, the Court can come out with whatever it wants to; it could have decided the Second Amendment case it announced [in June 2008], the opposite way, as our colleague, Walter Dellinger, told it should — no doubt correctly. But it had to decide, one way or the other. And the easy assumption is that since I have to decide one way or the other, and since I have a view about the humanly best outcome on pretty well everything, as you, I, and the Justices all do, I should decide reach the humanly best outcomes. I should make the world better, better as I see it.

Well, the constitutional virtue of humility says, “Wait a minute. It’s not your task as a constitutional decision-maker to make the world better. Yes, there are times when that is what you do and when that’s right for you to do, but you don’t start with the presumption that, “because I can, therefore I ought to — maybe I should and maybe I shouldn’t.” And I like associating that virtue with Holmes because he was so notoriously not humble in the ordinary human sense.

DLM: Acquiescence …

Powell:That’s the virtue of humility looking backwards or sideways. Other people hold other views. There’s a great deal to be said for listening to other people. That includes when I actually think they’re wrong. For example, under existing case law the death penalty is not unconstitutional under either the Eighth Amendment’s cruel and unusual punishment clause or the Equal Protection principle. I think the Court’s wrong on the Equal Protection principle issue. I think the death penalty, as applied in this country, is systematically unconstitutional on that ground. But if I were a justice, I would acquiesce in the Court’s view to the contrary, because the Court has so firmly and repeatedly said otherwise, and because the Court’s position is not indefensible. That is, as constitutional law currently stands there simply is no room as a justice to take the view I think right in principle on the Equal Protection question unless you simply think that what you think always trumps what other people think. (It may be worth noting that I agree with the Court on the Eighth Amendment issue even though I find the death penalty abhorrent and bad policy.)

So the virtue of acquiescence is the virtue of knowing that when enough people have taken a constitutional position long enough their view carries a lot of weight, and that judges are not the only decision makers whose constitutional opinions matter. It is the habit of giving weight and attention to what others have said, including, most seriously, what courts have said in the past. It’s a virtue, a habit of thought and will, not some automatic rule that one must follow precedent. You can possess the virtue of acquiescence and you can still overrule yourself, because you are convinced that the arguments for overruling outweigh the arguments that are always there for adherence or acquiescence.

DLM: And collectively you say that these virtues offer the moral argument for American constitutional law.

Powell: Well, they make it something other than just raw political choice by unelected decision-makers. These virtues are themselves the concretized constitutional law version of virtues that are virtues in a broader sense. …These kinds of habits of thought are what enable you to be a decent member of a democratic society.

Because that’s so, I think it reinforces my conviction that they are appropriate habits or virtues for constitutional decision makers to display.

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.