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Constitutional Conscience

The Moral Dimension of Judicial Decision

Constitutional Conscience

The Moral Dimension of Judicial Decision

While many recent observers have accused American judges—especially Supreme Court justices—of being too driven by politics and ideology, others have argued that judges are justified in using their positions to advance personal views. Advocating a different approach—one that eschews ideology but still values personal perspective—H. Jefferson Powell makes a compelling case for the centrality of individual conscience in constitutional decision making.
Powell argues that almost every controversial decision has more than one constitutionally defensible resolution. In such cases, he goes on to contend, the language and ideals of the Constitution require judges to decide in good faith, exercising what Powell calls the constitutional virtues: candor, intellectual honesty, humility about the limits of constitutional adjudication, and willingness to admit that they do not have all the answers. Constitutional Conscience concludes that the need for these qualities in judges—as well as lawyers and citizens—is implicit in our constitutional practices, and that without them judicial review would forfeit both its own integrity and the credibility of the courts themselves.

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Law and Legal Studies: The Constitution and the Courts

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Reviews

“In this brilliant book, Jefferson Powell—who may be the country’s wisest, most learned, and least partisan constitutional scholar—uncovers in American constitutional law what it needs most today: its abiding moral compass, offering true and constant guidance in an age of cynicism, realism, and profound legal and moral disagreement.”

Jed Rubenfeld, Yale University

“This is an inspiring and wise book. It is imbued with the very virtues it expounds and advocates: faith, integrity, candor, and humility. Powell’s arguments are cogent and incisive—they invariably go to the heart of the matter—and his critiques are profound.”

James E. Fleming, Fordham University

“On the most divisive questions facing our country, the Constitution often gives no clear answers. Too often the response to constitutional indeterminacy is naked political preference. Jefferson Powell rejects that response, and instead identifies constitutional virtues that inform the moral dimension of judging. These qualities link the individual virtues of good faith, integrity, humility, and candor with the requirements of American constitutionalism. Ultimately, Powell’s aim is not to elide conflict but to manage it within the constraints of American constitutional law.”

John Jeffries, University of Virginia

"In this fascinating work, Powell compares the interpretive philosophies of Chief Justice John Marshall and federal judge/legal philosopher Richard Posner, the former emphasizing the moral dimensions of constitutional interpretation and the latter advocating a pragmatic/economic approach to that task."

Choice

"An erudite and stimulating work, rich in insight. It makes innovative use of history, philosophy, law and political science. . . . [Powell’s] identification and elaboration of interpretive virtues is an original and important contribution that will have significance for jurisprudence and constitutional law well beyond the United States."

Stephen James | Law and Politics Book Review

"Powell scratches a 200-year-old itch: Should the Supreme Court’s interpretation of the Constitution as memorialized in precedent displace equally plausible but conflicting interpretations that responsible elected officials make? . . . Scholarly and thought-provoking."

Jonathan Koles | Trial

Table of Contents

Preface
Introduction
Chapter One: The Rule of Five
Chapter Two: Playing the Game
Chapter Three: A Question of Degree
Chapter Four: Men and Women of Goodwill
Chapter Five: Making It Up as We Go Along
Conclusion: To Govern Ourselves in a Certain Manner
Notes
Index