Ethics and Government Lawyers Redux: Jeff Powell’s Happy Constitution

     In an earlier post, I noted that two recent books had important things to say relevant to the ethics of government lawyers. That first post reviewed one of those books. This post reviews the second, H. Jefferson Powell’s beautifully written and spiritually uplifting new book, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008). Despite what the book’s title might suggest,  Powell’s lessons concern the ethics that should guide all constitutional decisionmakers, not only government lawyers. Indeed, his lessons explicitly apply to such lawyers as well, including a chapter-length illustration. Here I simply summarize his ethical theory, leaving it to the reader to imagine applications.

     I note one preliminary point: while much constitutional law scholarship is depressing, either foolishly pretending law to be a mechanical enterprise divorced from politics or a cynical one masking politics,  Jeff Powell offers a third, happier way ignored by fools and cynics alike: that of virtue. Those embracing the first two approaches may see Powell’s way as hopelessly idealistic, but Powell himself sees it as highly realistic, and his extended examples, which I do not have space to recount here, strongly support the pragmatic viability of his suggestions.

The Constitutional Virtues

     Powell defines a “virtue” as “a habit or disposition of mind or will, oriented in (say) Aristotelian thought to happiness or eudaimonia, and in the American constitutional tradition to the interpretation and application of the Constitution as supreme law.” Powell thus begins by linking constitutional interpretation to fostering character development in pursuit of human happiness and flourishing.

Faith

     In the classic way of moral philosophers, Powell argues that the American constitutional tradition rests on certain, perhaps implied, presuppositions. But he departs from other commentators by arguing that such propositions entail certain virtues.

     The first presupposition is that the constitution is intelligible over time. But the words of the text cannot be intelligible if separated from the “political and legal enterprise that the words constitute.” Divining meaning from this enterprise and the text also presupposes that Americans can “talk meaningfully about the purposes and goals of the American project.” But such talk is ‘intrinsically laden with political and moral content” and fraught with the certainty of principled disagreement.

     The constitutional virtue these presuppositions entail is that of “faith,” both as belief and as an activity of commitment. “The constitutional virtue of faith,” Powell explains, “involves both an acceptance of the Constitution’s intelligibility (it is not just an empty vessel into which we can pour whatever values and preferences we choose) and an undertaking to govern oneself as a constitutional actor in accordance with the Constitution’s intelligible meaning.” It is the virtue of faith that enables the possibility of respectful dialogue about the document’s meaning.

Candor and Integrity

     Powell’s second presupposition is the unavoidable presence of uncertainty in divining the Constitution’s mandates. This ambiguity means that constitutional interpretation is “an intellectually creative activity, not a mechanical process of unveiling outcomes already fixed in the text.” For such creativity to be more than mere posturing, the virtues of candor and integrity are required. Candor about ambiguity and the true, complete reasons supporting a particular decision is essential if decisions are to be taken seriously in a world in which it is risible to claim that they are beyond dispute. Candor allows the system moral dignity and is more than just sincerity and honesty. Candor is “the disposition to seek, and so far as possible to achieve, a congruity between the mind grappling with the constitutional issue before it and the language in which that struggle and its resolution is expressed, ‘living speech,’ as James Boyd White has memorably described it.”

     Candor is linked to integrity, “the virtue of seeking in any given situation that interpretation…that honestly seems to the interpreter to be the most plausible resolution of the issues in the light of text and constitutional tradition.” The Constitution may thus not be used as a means to achieve goals stemming from other sources but rather be “itself the ground for their decisions.” Self-deception and not openly considering all relevant factors fails this test.

Humility

     Powell’s third presupposition is that the Constitution assumes that “disagreement on matters of great importance is ineradicable….,” yet that community can be maintained in the face of such disagreement. But this presupposition holds only if those who act under the Constitution possess the virtue of humility, “the habit of doubting that the Constitution resolves divisive political or social issues as opposed to requiring them to be thrashed out through processes of ordinary, revisable politics.” Powell still expects political positions to be passionately held, but he sees the Constitution as a way of framing debate, not shutting it down. In short, “the Constitution leaves disagreement to the political realm of conflict and faction, where the big-enders may win today and the little enders tomorrow, and ensures that the conflict may continue by forbidding governmental attempts to shut down debate.” Humility decidedly does not, Powell emphasizes, equate to deference to the political branches. Rather, it simply requires that the Court and other constitutional actors neither curtail dissenting views nor eliminate them from the public agenda.

Acquiescence

     Powell’s final constitutional virtue – “acquiescence” — stems from the combination of the Constitution’s presupposition that not only its text but its purposes be “comprehensible and humanly attractive,” that there be a practical means for settling principled disputes, that how we do constitutional law defines us as a people, and that this peoplehood is an ongoing project linking past, present, and future. “Acquiescence” is the predisposition to (rebuttably) presume that past decisions merit respect. Such respect, even for decisions with which a Justice, legislator, or executive branch lawyer disagrees, recognizes the possibility of his own error, the value in the debate and resolution of past disagreements, and the importance of the voice of America as a temporal community. Explains Powell,

The virtue of acquiescence locates the constitutional decisionmaker within the broader American community, which encompasses the past, with its controversies, conclusions, and errors, as well as his or her contemporaries, who share the past, as well as the obligation to treat constitutional decision as the search to implement not a partisan or parochial perspective but what Madison called the national judgment and intention.

Powell also concludes that the virtues themselves entail a small number of substantive constitutional values, whose meaning should by now be self-explanatory: the priority of the political, the absence of orthodoxy, and the inclusion of everyone in the “community of those who count, whose voices must be heard….” Powell believes that his study suggests some modest institutional reforms, such as greater openness in government and attention to the constitutional virtues in legal education, but his articulation of the virtues themselves is his signal contribution. Powell further reminds us that we are a republic of laws, not Justices, so constitutional interpretation is everyone’s business. Moreover, he concedes the possibility that the ideals that he outlines are themselves fantasy or too often inadequately demonstrated in practice. Yet he believes that history offers hope for promise and that, if he is wrong, we face a future too bleak for him to accept. Powell concludes:

Constitutional law is an experiment, as all life is an experiment. The experiment is modest in its goals – we have not formed a political community to bring about the Kingdom of God or even the classless society. Our goals have been to alleviate human suffering and to empower men and women to live their lives as they see fit but to do so in a political community that demands their allegiance to it and to their neighbors, and is worthy for all its flaws of making such demands. Such an enterprise, we have thought, nourishes our individual spirit and our social impulses alike. At the heart of the more than two centuries of American constitutionalism is the conviction that this is an experiment worthy continuing.

The Happy Constitution

Jeff Powell’s Constitution is a “happy one,” for it is devoted to human flourishing stemming partly from virtuous persons and institutions. It is, in this sense, an antidote to the depressing constitution, a form of constitutional Prozac. All constitutional actors, and certainly government lawyers engaged in constitutional interpretation in their role as advisor to the executive, would do well to heed Powell’s call.

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2 Responses

  1. Interesting stuff, to put it mildly.

    Several observations and comments:

    Articulating a central role for virtue in jurisprudence has of course been one of the preoccupations of Larry Solum and, with Colin Farrelly, he’s edited a volume on same: Virtue Jurisprudence (2008). It would be nice to know where Powell’s work fits alongside material such as this (especially Larry’s, which to date is the most sophisticated of the bunch). Indeed, there’s even a work on eudaimonistic ethics as it relates to democratic theory and practice generally: David L. Norton’s Democracy and Moral Development: a Politics of Virtue (1991), that should be part of the discussion by way of assessing the originality of Powell’s argument as well as to what extent it is compatible with a proposal such as Norton’s. Indeed,it would be illuminating to see how Powell’s approach comports with “perfectionist politics” in general (cf. George Sher’s Beyond Neutrality: Perfectionism and Politics, 1997).

    There are of course various lists of virtues (cardinal and otherwise) found in several religious and philosophical worldviews of both Eastern and Western provenance, and thus it would be nice to know how Powell comes to justify his particular cluster of virtues: even though there’s reference to Aristotelian eudaimonia here, it’s obvious that he does not confine himself to classical Greek virtues. Moreover, there is one work that does a fine job of assessing the Liberalism’s somewhat ambivalent but no less thoughtful response to a “politics of virtue:” Peter Berkowitz’s Virtue and the Making of Modern Liberalism (1999). As Berkowitz argues, the “standard picture—which has been embraced by both liberals and their critics, and which, on the whole, has much to recommend it—is not in every respect adequate. It obscures an especially important matter: despite their rejection by and large of the idea that the state should be devoted to the promotion of human excellence, the makers of modern liberalism did not reject virtue as a critical category of moral and political philosophy, and never dreamed that a politics based on natural freedom and equality could achieve its goals independently of the qualities of mind and character of citizens and officeholders.” And William Galston, among others, has spoken to the question of specifically “liberal virtues,” also arguing that Liberalism has the capacity to recognize that it is not self-sufficient with regard to the virtues that sustain it but is nonetheless able to recognize and take advantage of this partial reliance on extra-Liberal virtues.

    Finally, I would think Powell’s work is not too far afield from existing work in constitutional theory, at least in spirit, and I’m thinking here in particular of James E. Fleming’s “constitution-perfecting” theory as outlined in Securing Constitutional Democracty: The Case of Autonomy (2006).

  2. Oh, one other thing: I’m also curious how Powell’s approach differs from both canonical and recent works in legal ethics, say, by the likes of Monroe Freedman, David Luban and Daniel Markovits.