Reviewed by Dr Stephen James, Member, Australian Association of Constitutional Law. Email: stephen.james [at] mail.com.
This ‘little book,’ as H. Jefferson Powell modestly describes CONSTITUTIONAL CONSCIENCE (Frontispiece), makes a significant contribution to scholarship on American constitutional interpretation. In it one can clearly see the influence of the author’s background as an academic lawyer, theologian and former assistant attorney general in the US government. It is a defense of Supreme Court justices’ duty faithfully to interpret the words of the Constitution, while recognizing that ambiguity will often be present, that extra-textual considerations and values may have to be examined and that the words cannot be cordoned off from political and moral considerations.
Powell is a sophisticated textualist. While he recognizes that constitutional interpretation is a creative exercise, he is (like the rather different originalist, formalist or conservative interpreter) nevertheless opposed to judges treating interpretation as camouflage for the substitution of personal values, or the pursuit of values and outcomes that cannot plausibly be reconciled with the text of the Constitution. Thus, he is no friend to the instrumentalist interpreter or the judicial ideologue who, like the Marxist, sees no distinction between law and politics in a pejorative sense.
Powell tries to balance his recognition that the American Realists have tolled the bell signaling the death of the formalist, mechanistic, positivist fantasy that judges merely apply but do not make law, with his insistence that judges must obey the Constitution in a democratic republic. Thus there is a certain tension in the book, one the author thinks is unavoidable in the complex work of constitutional interpretation; that is, between traditional aspects of the judicial role and the moral dimensions of ‘the faithful interpretation of a fundamental law’ (p.x). This faithful interpretation means that a Supreme Court justice must take the Constitution as ‘the ultimate rule governing his official actions’ (though he never explains precisely how the text is a rule, and of what kind). While the book is largely focused on the role of Supreme Court justices as constitutional interpreters, Powell considers that the conscientious approach he advocates is applicable to other judges, and, indeed, to constitutional interpreters in the legislative and executive branches.
The book begins with a discussion of Chief Justice John Marshall’s defense of judicial review in MARBURY v. MADISON (1803). In particular, Powell emphasizes the importance of a judge’s oath to support the Constitution. In his view, this constrains the exercise of judicial review. The ‘central claim’ (p.9) of the book is that ‘the exercise of the power of judicial review presents [*970] profound moral questions for those who wield it and thus for all of us affected by it.’ Supreme Court justices must act in ‘good . . . conscience’ in interpreting the Constitution (p.11). That is, they must take the language of the Constitution seriously, act within the broad tradition (p.9) and practice of American constitutional interpretation and ‘use [the Constitution’s] language fairly’ (p.11). Much of the book is devoted to elucidating what ‘fair play’ (p.54) in constitutional interpretation would look like.
A judge acting conscientiously will, among other things, be honest, candid, frank about the ‘ambiguities’ in the text of the Constitution, and humble. She will know and accept the proper limits of her role as an interpreter (and the limited applicability and decisiveness of constitutional law in relation to issues faced by society) (p.11). Regarding humility, Powell further argues that justices must act in a fiduciary capacity. They have been entrusted with power and responsibility by the community and must act on its behalf (pp.6–7). This argument is not dissimilar to the originalist’s position (though Powell is certainly not an originalist) that judges must not usurp the sovereign power of the electorate, or, more crudely, ‘the people’. They have no authority to modernize the Constitution through undemocratic, irreversible judicial ‘amendment’ of it. For that reason, textualists have also argued against the ‘judicialization of politics,’ seeing what they regard as the disproportionate power of the US Supreme Court as a prime example of this unwanted development. Powell’s prescription for the ill of judicial usurpation is a range of ‘constitutional virtues’ (p.11), some of which I have referred to above. These virtues stop judges straying from their proper interpretive role, while legitimately allowing them to exercise moral judgement, consider political matters (and Powell is surely right that such matters are inescapable in constitutional law) and creatively make law.
In Chapter 1 Powell evaluates the controversial ‘Rule of Five.’ This so-called rule is based on an anecdote about Justice William J. Brennan of the US Supreme Court. Reportedly, in an impish exchange with one of his associates, he identified the ‘fundamental rule’ of ‘constitutional law’ by holding up one hand and declaring that ‘Five votes can do anything around here’ (pp.16-18). The incident has been interpreted to mean, in the most cynical Realist characterization, that providing it can garner a majority there are effectively very few constraints on Supreme Court decision-making. In contrast, Powell considers that the Court is constrained by what justices think is plausibly constitutional, what is ‘morally imaginable’ to society, and what the community is prepared to ‘support’ or at least acquiesce in (pp.16-20). One could also note that judges may be constrained by common law tradition, precedent, curial and extra-curial criticism and the doctrines of judicial independence, impartiality and the separation of powers. While Powell mentions these potential constraints, he spends relatively little time on them.
Chapter 1 also introduces, in the spirit of the long tradition of jurisprudential thought experiments (for example, those of Lon Fuller and Ronald Dworkin), a number of characters. We meet the [*971] corrupt Justice John, the politicized Justice Johanna (‘Her vote is the servant of her political ideals.’ (p.21)), the formalist/positivist Justice Oliver (‘a kindly caricature’ of what ‘most’ judges say publicly about how they adjudicate (p.25)) and the teleological Justice Marsha, who believes the Constitution itself demands that justices always seek ‘the best human outcome’ (pp.26-28). Powell is particularly critical of John and Johanna since they do not treat the text of the Constitution seriously, but also of Oliver and Marsha. Oliver is engaged in a form of self-deception because it is not possible to draw a bright line between legal and political content in adjudication. Thus, Oliver’s claim to act ‘apolitically’ is not credible (p.23). Powell’s criticism of Marsha is based on the liberal thesis that it is dangerous for anyone, let alone a judge, to assume that they can identify with any certainty optimal human outcomes.
Chapter 2, ‘Playing the Game,’ has a similar theme. What did Justice Oliver Wendell Holmes, Jr. mean when he said that his job on the bench was not to do justice but ‘to play the game according to the rules’ (p.38)? Did it mean he was as cynical about the Constitution as the fictional justices John and Johanna? Or did it reflect instead a distinctive and legitimate judicial wariness of collective or personal commitments to ‘just’ outcomes? Powell thinks the latter account is the proper understanding. Supreme Court justices can pursue justice providing they do so ‘within a certain activity or practice’ (p.40). What does this mean? According to Powell (p.42), Holmes thought that ‘the justices of the Supreme Court are supposed to play a game, an ordered, rule-bound activity, not to pick and choose what they like, even if what they prefer is justice in some ethical or political sense.’
Little of this would cause indigestion to conventional positivist and formalist judges in the common law tradition. The judge’s fidelity is to the law, not to societal or personal values, especially where stare decisis is applicable. These notions are evident when a judge applies law she thinks is regrettable. She may even in dicta criticize the binding law, but, consistent with the traditional doctrine of the separation of powers, remind the reader that judges are not legislators. The continuing injustice must then be corrected through the political process, through the amendment or repeal of the offending law. Some judges may resist even this level of commentary. So the difference between the approaches of Holmes and Oliver may be much less than Powell imagines.
For Powell, the rules of the game of constitutional interpretation are ‘expressed in the words of the constitutional text’ (p.44). He argues that constitutional theory ‘hasn’t worked’ since no theory has ever been instantiated in the practice of the Supreme Court, nor been accepted by other lawyers or judges, let alone by ‘the American public’ (p.46). Moreover, no particular theory can be identified within the US Constitution. Indeed, according to Powell, the Constitution is ‘resolutely atheoretical, at least when one goes beyond generalizations about the separation of powers and the rule of law’ (p.46). I find Powell’s view of theory strange. For one, CONSTITUTIONAL CONSCIENCE is an exercise in constitutional theory. Moreover, are [*972] there not clear theoretical dimensions to the US Constitution, at the very least in relation to the Bill of Rights, but also regarding such matters as federalism? (see also the author’s discussion of freedom of thought at p.112). Further, in chastising judges such as Justice Marsha who seek outcomes claimed to be the best for humans through their adjudication, Powell draws on liberalism to claim that acceptance of disagreement is fundamental to the US polity and Constitution (evident of course in the jurisprudence of the First Amendment). Also, democratic theory underpins Powell’s argument that judges must have humility, recognizing that much conflict and disagreement is properly resolved through political not judicial channels.
Nor do I find Powell’s argument that judges do not employ theory persuasive. There has in fact been quite an overlap between jurisprudential discussion and judicial practice (think, for example, of the writings of American Realists as scholars and judges). Theory has played an especially important role in ultimate constitutional courts such as the US Supreme Court, the Canadian Supreme Court and the High Court of Australia (even though the Australian Constitution has much less explicit reference to values than the American one does). Theory is also intrinsic to the concept of constitutionalism. Finally, Powell assumes that constitutional theorists are averse to the political, and so seek ‘technological means of excluding politics from constitutional law’ (p.47; see also p.50). But this is not an accurate statement about many constitutional theorists (for example, purposive interpreters like Justice Marsha).
In this chapter (as in Chapter 4) Powell further develops his account of judicial virtues. Many of these are consistent with the professional conventions and culture of the judicial role in the Anglo-American common law tradition: ‘loyalty to a certain objectivity, rationality and neutrality in law, and . . . distance from the passion, willfulness, and self-interest of electoral politics’ (p.47). In fact, ‘fair play’ in constitutional interpretation involves the judge exercising legal craftsmanship. This is a kind of cultural and professional constraint on constitutional interpretation. In making this argument, Powell draws upon the work of Bobbitt (pp.53-54). The virtues described here do not seem very different from the way that Justice Oliver would approach constitutional interpretation, despite Powell’s criticism of him.
Powell contends that judges ought to act ‘not from and on behalf of the judge’s personal politics or faction but in service to the community, to the government of laws and not of men’ (p.47). Much of this view can be reconciled with the hoary doctrines of the separation of powers, judicial impartiality and independence. However, serving the community, or acting on its behalf, is not the same as advancing the principle of a government of laws. Judges in constitutional democracies take oaths to administer the law without fear or favour, and to act independently, not only of the legislative and executive arms, but of the electorate. They are not answerable directly to the electorate and do not represent it. They ought to be insulated from populist pressures.
Chapter 3 shifts the focus from judicial interpretation of the Constitution to the [*973] role of members of the executive, using a case study of a nineteenth-century US Attorney General, Amos T. Akerman. Powell takes Akerman’s advice to President Ulysses S. Grant in relation to the presidential power to make civil service appointments as exemplary: as a model of his preferred ‘good faith’ interpretation of the Constitution (pp.56-57). The lessons for the constitutional interpreter that can be derived from Akerman’s advice are that she must act in a ‘lawyerly manner’: defining the issues, paying serious attention to the text as authoritative, attending to authorities, and constructing coherent legal arguments that will be approved by one’s professional peers (pp.60-70). The lawyer’s particular ‘technical expertise, learning and skill,’ which is ‘not common among the citizen body as a whole,’ facilitates judicial craftsmanship (pp.71-72). This sounds very much like Chief Justice Coke’s defense of the special training of the lawyer in the science of the common law, a special kind of reasoning that the monarch did not possess. Powell (pp.73-74) sees in this tradition of technical constitutional interpretation a partial solution to the lack of consensus in society over fundamental values:
In a community which is deeply divided . . . technical argument provides something which we all share in common. It serves as a sort of lingua franca, a means of communication which transcends the heated disagreements which it serves to express.
Again, I doubt that Oliver would have cause to object. He would be as happy as Powell is to endorse the ‘craftsman’s pride in getting it right, or as right as he could’ (p.70). Thus, the constitutional conscience of the book’s title requires judges to respect the traditions and conventions of their judicial role, not to follow the direction of their own internal moral compasses. As Powell says, it is conscience as part of judges’ ‘public personae as officials of the Republic’ (p.108).
Chapter 4 explores in greater detail the virtues necessary for a faithful judicial interpretation of the Constitution. The ‘virtuous justice’ (p.82) accepts a number of ‘presuppositions’ about the Constitution: its ‘intelligibility,’ the possibility of meaningful dialogue ‘about the purposes and goals of the American project,’ the unavoidability of uncertainty regarding the meaning and applicability of the text, and its ‘commitment to liberty’ (pp.83, 85, 86-93). With these presuppositions there are, as corollaries, various constitutional virtues (pp.83-93): faith (that one can understand and is bound by the text), integrity, candor, humility and ‘acquiescence’ (p.99), which is akin to the doctrine of precedent. The notion that the Constitution is underpinned by liberal values is unremarkable. But it goes against Powell’s frequent dismissals of the relevance of constitutional theory to the enterprise of constitutional interpretation and his insistence upon the great difficulty of identifying core norms in the Constitution. We might recall in this respect Powell’s claim that the Constitution is atheoretical.
Powell turns his attention in the final chapter to ‘substantive commitments’ that parallel the interpretive virtues. These are the ‘priority of the political’ as opposed to judicial channels for resolving social conflicts and moral [*974] dilemmas, the lack of orthodoxy in the American constitutional system (evident in the liberties of thought and speech) and ‘the inclusion of everyone’ within the constitutional republic (pp.110-116). Liberal democrats would have no difficulty accepting these norms, but it is not clear to me that all of these claims can be made out by someone who, first, seems at times so wary of constitutional theory, and second, requires that judges anchor their interpretations in the text. Think, for example, of Powell’s following claims. He claims that where his virtues ‘hold sway’ in Constitutional interpretation the ‘American political community will be resistant to the temptations to prejudice, cruelty, and heartlessness’ (p.102). He also says that the virtuous interpreter will recognize ‘the incorrigible otherness of those with whom they must live and yet who decline the old, sour, ultimately violent solution of denying the equal humanity of the other’ (p.101). I am not convinced that these admirable values flow clearly from the modest interpretive virtues he identifies. In this sense, it is similar to the substantive claims Lon Fuller made much earlier for his procedural prerequisites for the existence of law that were criticized by H.L.A. Hart. Powell begins his work by only asking ‘the reader to entertain . . . a very thin set of ethical presuppositions’ (p.6). But, by the end of the book, the presuppositions seem to have fattened quite considerably. Here Powell asks the reader to find in the interpretive virtues, and in the content of the Constitution, not only liberal but egalitarian commitments (see also pp.96-97).
CONSTITUTIONAL CONSCIENCE is an erudite and stimulating work, rich in insight. It makes innovative use of history, philosophy, law and political science. Refreshingly, Powell’s discussion is not limited to the much-ploughed territory of debates over originalism. His 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.
MARBURY v. MADISON, 5 U.S. 137 (1803).
© Copyright 2008 by the author, Stephen James.
Constitutional Conscience: The Moral Dimension of Judicial Decision