by William G. Miller. New York: LFB Scholarly Publishing, 2008. 298 pp, Hardcover. $80.00. ISBN: 9781593322731.
Reviewed by Peter Cane, The Australian National University College of Law. Email: canep [at] law.anu.edu.au.
The burden of this book is well represented by its title. William Miller’s basic arguments are (1) that in post-Revolutionary America the constitutions of various states (Virginia, New Jersey, Delaware, Pennsylvania, Maryland, North Carolina, Georgia, New York, Vermont, South Carolina and Massachusetts) empowered the legislature to use the law to enforce moral principles, and (2) that legislatures exercised this power freely (3) to give legislative force to moral principles purportedly derived from or embodied in divine law (‘faith’) or natural law (‘reason’). In Chapter 8, Miller discusses and rejects the views of scholars who argue (so Miller says) that the political ideology motivating early legislators was neither faith nor reason but ‘consent’ or ‘popular sovereignty.’ According to this latter line of argument, the source of the moral principles that were given statutory force by early legislatures was neither divine law nor natural law but ‘the relativistic will of man’ (p.273). In terms of modern debates about ‘legal moralism’ and ‘the legal enforcement of morality,’ Miller’s contention may be expressed as an argument that early ‘moral legislation’ was based on religious or secular ‘critical morality’ rather than on contemporary ‘positive morality.’
Before proceeding further I should say that I am an Australian lawyer with some knowledge of and interest in the famous debate between HLA Hart (Hart 1963) and Lord Patrick Devlin (Devlin 1965), and subsequent contributions to that debate, most notably by Joel Feinberg (Feinberg 1984; 1985; 1986; 1990) (see Cane 2006). I am not a legal historian, let alone a historian of post-revolutionary America; nor do I have any expertise in the constitutional law of the American States in either the post-Revolutionary or the modern period. I have an amateur interest in US politics and have spent some time in the country but can claim no special insight into American culture.
In Chapter 1, Miller identifies four ‘streams of thought’ about ‘the extent to which law should regulate individual behavior’ (p.5) each of which provides a different basis for identifying moral principles that may appropriately be given legislative force: the authority (or will) of the legislator, the ‘will of the people,’ ‘theory’ (or ‘reason’), and ‘religion and theology.’ Miller interprets the first two streams of thought as appealing to ‘the opinions of the ruler or the people at a given time’ (p.12) and the latter as appealing to ‘fixed principles’ that provide an ‘ultimate standard’ (p.12). In Chapter 2, Miller argues that ‘[t]here are three prominent grounding principles, which the early American state founders laid as a foundation for moral legislation: popular sovereignty, [*51] natural law and divine law’ (p.19). Contrary to what the argument of Chapter 8 might lead the reader to expect, Miller does not see commitment to popular sovereignty as being ‘necessarily incompatible’ with commitment to either divine law or natural law as legitimizing sources for moral legislation. Rather he seems to think that such ultimate standards leave room for, but also constrain, human choice. Miller identifies two categories of moral legislation: laws ‘that restrict citizens from violating the natural rights of others (e.g., theft, murder and assault)’ (let us call these ‘category 1 laws’) and ‘laws that restrict citizen’s behaviour even when the rights of another citizen are not threatened by such behaviour’ (let us call these ‘category 2 laws’) (p.25). The latter, he says, ‘are more important to this study’ (ibid).
The first step in Miller’s strategy is to examine the text of constitutions for evidence of appeals to faith, reason and popular sovereignty as principles of political legitimacy. Chapter 3 explores ‘the account of the nature of God given by each constitution . . . to determine whether that view places . . . limits on . . . moral legislation’ (p.26). Chapter 4 explores the ‘view of human nature . . . espoused by each constitution . . . largely in the context of . . . discussions concerning the rights of citizens’ on the basis that ‘the kinds of rights affirmed . . . and the basis for affirming those rights (i.e., nature, divine revelation, or convention) provide guidance and standards for . . . legislators’ (pp.26-7). Miller’s second step (Chapter 5) is to examine constitutions to discover the extent to which they direct . . . government to legislate morality’ and ‘the objective of such legislation’ (p.129). His main finding is that three of the constitutions examined ‘explicitly grant the power’ (p.164) to make category 2 laws while the other eight ‘do not provide a clear mandate’ (p.201) to make category 2 laws. The third step in Miller’s strategy (Chapters 6 and 7) is to survey legislation made ‘in the years following the ratification’ (pp.198-9) of the various constitutions to ascertain ‘what kinds of moral legislation’ were made and whether ‘on the basis of popular sovereignty or . . . either natural or divine law’ (p.165). Miller’s summary conclusions are that legislatures in all the states engaged to a significant extent in category-2 law-making, and that ‘most of the clear reasoning given in support of moral legislation is based on divine law or popular sovereignty or both’ (pp.25-6).
Finally, Chapter 9 opens with the assertion that modern US governments – and especially, Miller implies, the federal government – engage in significantly less category-2 law-making than their early counterparts. There follows a comparison between ‘the view of John Rawls . . . [and] the approach of the early American state founders,’ the motivation for which seems to be the identification of Rawls as a leading exponent of modern liberal (and secular) political theory. According to Miller, Rawls’ idea of the original position ‘requires people to view themselves as a “self originating source” of their own convictions’ (p.281). By contrast, the early American legislators believed they had discovered truths, which existed ‘outside themselves’ (ibid), that could provide a legitimate basis for moral legislation. Miller ends with the observation that the power of the states [*52] to pass moral legislation has been ‘increasingly limited in the last 100+ years’ (p.282) and the recommendation that as ‘long as the liberty to freely migrate and work in other states with different regulations exists,’ it would perhaps ‘be a positive development to allow the states a bit more room to legislate based on moral principles that their citizens hold – even to allow moral regulation of behavior that is deemed immoral for religious reasons by most of the state’s citizens’ (ibid).
It is hard to know how most fairly to assess this book. Should it be read as a contribution – albeit a very restrained contribution – to the so-called ‘culture war’ between religious monists and secular pluralists? Or as politico-legal history? Or political theory? Or as a study of the politics of federalism?
The main problem with reading FAITH, REASON AND CONSENT as political theory is that the book contains no substantial or credible discussion of any of the relevant theoretical debates. The very brief analysis of ‘Rawls’ Original Position’ (pp.278-81) contributes nothing of value either to the book itself or to the political theory literature more generally. If Miller is conversant with the large body of highly sophisticated 20th-century writing about the legal enforcement of morality, his simplistic approach to, and lack of analysis of, the extremely complex and difficult concept of ‘moral legislation’ belie the fact. Running through the book is a tension, between popular sovereignty and ‘fixed principles’ as sources of legislative and political legitimacy, which the author barely attempts, and certainly fails, to explore, let alone resolve. In short, FAITH, REASON AND CONSENT lacks theoretical depth.
Reading FAITH, REASON AND CONSENT as an exploration of the politics of federalism is equally difficult. Miller’s proposal for a re-adjustment of the federal-state balance is no more than a suggestion, and it is unsupported by any serious or sustained analysis of the law and politics of federalism. For instance, Miller delphically comments, without elaboration or analysis, that the United States Constitution is more ‘permissive’ than the early state constitutions examined in the book (p.277). The pivotal role of the United States Supreme Court in establishing and policing the boundary between federal and state legislative power is not even mentioned.
As history, FAITH, REASON AND CONSENT consists largely (Chapters 3-7) of an analysis of the constitutions and selected legislation of eleven American states in the period immediately following the Revolution. As I indicated earlier, I am not competent to judge this material as a work of history. However, what strikes me, even as a lawyer, is the unsuitability of Miller’s methodology for answering his basic research question. If the historical argument of FAITH, REASON AND CONSENT can be summarised in one proposition, that proposition would probably be along the following lines: the constitutions of the early states empowered legislatures to enact category 2 moral legislation in order to give effect to divine law; and early legislatures freely exercised that power in order to give effect to divine law. The basic questions that need to be answered in order to test this hypothesis are what motivated the early state [*53] founders in drafting constitutional provisions empowering legislatures to enact category 2 laws, and what motivated legislators in enacting such legislation? Miller purports to answer these questions by subjecting the text of the early constitutions and early legislation to close textual analysis. But as every lawyer (and, I am sure, every historian and every student of politics) knows, there may be a significant gap between what a document says and the motivations of its authors. A major – perhaps the major – shortcoming of Miller’s approach is that he tells us next-to-nothing about the authors of the constitutions and legislation the texts of which he analyses, or about the social and political environment in which they lived and worked.
Perhaps, then, we should read FAITH, REASON AND CONSENT primarily as a contribution to contemporary cultural debates. Certainly, Miller’s throw-away line about federal-state relations might be thought to bolster his credentials as a cultural warrior, especially when the picture (painted in Chapter 9, especially at 277), of contemporary America as a liberal free-for-all and the US Constitution as a libertarian’s charter, is set alongside Miller’s opening image of ‘The Battleground of Moral Legislation’ (pp.4-6). It is not necessary to peer too closely between the lines of FAITH, REASON AND CONSENT to discern that for the author, ‘One Nation Under God’ is more than rhetoric. Miller looks back with admiration to a period when, as he sees it, the project of ‘making men moral’ was central to the American dream. Sadly, such gentle nostalgia is unlikely to have much impact in a society in which even people whose world-view is grounded in faith or reason (or both) disagree deeply about the meaning and practical implications of fundamental values.
Cane, Peter. 2006. “Taking Law Seriously: Starting Points of the Hart-Devlin Debate.” 10 THE JOURNAL OF ETHICS 21-51.
Devlin, Patrick. 1965. THE ENFORCEMENT OF MORALS. Oxford: Oxford University Press.
Feinberg, Joel. 1984. HARM TO OTHERS (THE MORAL LIMITS OF THE CRIMINAL LAW, vol.1). New York: Oxford University Press.
Feinberg, Joel. 1985. OFFENSE TO OTHERS (MORAL LIMITS OF CRIMINAL LAW, vol. 2). New York: Oxford University Press.
Feinberg, Joel. 1986. HARM TO SELF (THE MORAL LIMITS OF THE CRIMINAL LAW, vol.3). New York: Oxford University Press.
Feinberg, Joel. 1990. HARMLESS WRONGDOING (THE MORAL LIMITS OF THE CRIMINAL LAW, vol.4). New York: Oxford University Press.
Hart, HLA. 1963. LAW, LIBERTY AND MORALITY. Oxford: Oxford University Press.
© Copyright 2009 by the author, Peter Cane.