Constitutional Conscience: The Moral Dimension of Judicial Decision

By H. Jefferson Powell | Go to book overview

PREFACE

In many law schools in the United States, constitutional law is a required first-year course. The wisdom of that curricular decision is at least debatable, for regardless of the instructor's intentions, an introductory course in the law of the United States Constitution can easily turn into a sustained lesson in cynicism. Constitutional law, at least much of the time, deals with matters that are clearly of political import, but the language in which we discuss it generally sounds like a form of apolitical law. The justices of the Supreme Court, whose opinions make up the core of most introductory courses, sometimes accuse one another of willful blindness to the Constitution's commands while insisting that their own views are the product of a scrupulous fidelity to those same commands, and it takes little time for the student to realize that the justices' positions generally fall into patterns, both in terms of outcomes and of alliance within the Court, that seem best explained as ideological. It is hardly surprising that some students come to the despairing conclusion that constitutional law is a systematic hypocrisy, and that others happily embrace the same understanding of the law because it seems the product of hard-bitten realism.

I do not believe that constitutional law is, or ought to be, or needs to be, an exercise in hypocrisy. If we (students, their teachers, lawyers, judges, citizens) become cynics about the law of the Constitution, then of course we can make the language of the law hypocritical, and if enough of us do that for long enough, then constitutional law will be a fraud. But that is a choice that we need not make. It is possible to understand the American constitutional tradition in a different light, as

-ix-

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Constitutional Conscience: The Moral Dimension of Judicial Decision
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • Introduction 1
  • 1: The Rule of Five 16
  • 2: Playing the Game 38
  • 3: A Question of Degree 56
  • 4: Men and Women of Goodwill 80
  • 5: Making It Up as We Go along 103
  • Conclusion: To Govern Ourselves in a Certain Manner 117
  • Notes 123
  • Index 145
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