The Moral Tradition of American Constitutionalism

H. Jefferson Powell wants the reader to take very seriously the title of this thoughtful and thought-provoking book. While he thinks that it might now be in a fatal state of crisis, Powell tries to make a case that American constitutionalism, in its original genius and much of its history, is a tradition according to his carefully argued definition of that term.

Powell identifies four major antecedents to the moral tradition of American constitutionalism”Enlightenment individualist moral anthropology, Protestant civic republicanism, Anglo common law reasoning, and practical political life before and under the Articles of Confederation. And he makes a convincing case that while vestiges of the latter three remained for a while, it is Enlightenment moral individualism that has become the moral tradition in American constitutional thought.

Nevertheless, he argues, with underpinning from the vestigial remains of the other three antecedents, a kind of “American social morality” emerged in law and adjudication from the mid-nineteenth to the mid- twentieth centuries. This social morality, while primarily individualist, was guided by a community of discourse”a community embodied by lawyers, judges, and legislators”which saw the Constitution not merely as positive law but as the foundation for “a tradition of rational discussion” over disagreements. The Constitution created a ”space,” i.e., a tradition, in which sustained rational legal argument could be carried on. And it is this tradition of constitutionalism that is in a grave”perhaps fatal”“epistemological crisis.”

As a conceptual tool for analyzing American constitutionalism and its current crisis, Powell sketches four essential elements of a ”MacIntyrean tradition,” as outlined in Alasdair MacIntyre’s Whose Justice? Which Rationality? First, a tradition must be extended over time. To evaluate a tradition of thought or human actions it is necessary to locate them in a persistent historical narrative. Even the very rationality a tradition uses to justify itself must be seen as a development within the history of the tradition. Second, traditions are embodied in discrete social contexts. While separate traditions might share certain accidental elements, one cannot call those shared traits a ”tradition” in any interesting way. This is because, third, a tradition is “fundamentally interpretive in nature,” such that even its use of accidental similarities will be peculiar to it alone. A MacIntyrean tradition, explains Powell, is one that is united by “shared ‘goods’ or ’fundamental agreements.’” This does not mean that these fundamental agreements do not have some degree of elasticity within the tradition, but the progress of agreement will be framed within a persistent, socially embodied, historical narrative.

The fourth aspect of a tradition, according to MacIntyre, is the conceptual tool Powell most heavily relies on to make his case for a moral tradition in American constitutionalism: “Traditions, rather than being bastions of immobile stability, ‘embody continuities of conflict.’” That is to say, a tradition is a sustained intelligible argument, based upon a shared rationality, which will necessarily include internal conflicts, but of a kind that furthers the purposes of the tradition, and helps it to overcome inconsistencies.

Powell thinks this fourth point is true but somehow paradoxical, and he insists that it disqualifies MacIntyre’s use of teleological language to describe a tradition. If conflict is essential to a tradition, says Powell, then one can hardly say that a tradition has some particular telos toward which it is consistently directed. This point is paradoxical, however, only because Powell overstates it in such a way that one could no longer be talking about the same tradition. He says that for MacIntyre, “even the most fundamental aspirations and commitments of a tradition are subject to revision.” Were this the case, one certainly could not use teleological language, but then neither could one call this a MacIntyrean tradition.

MacIntyre does not suggest that the fundamental aspirations of a tradition are subject to revision, but rather that the particular goods that would contribute to the tradition’s fundamental aspirations”its telos”are open to argument and conflict. As conflicts are resolved or as they raise new animating questions, the tradition is able to make “progress” towards its end. Moreover, there is no paradox in affirming that a tradition is characterized by internal conflict. On the contrary, by MacIntyre’s reasoning authentic conflict or argument can occur no place but within a particular tradition, since authentic argument must necessarily share a common rationality, telos, and narrative context. Thus, as he has indicated most clearly in Three Rival Versions of Moral Enquiry , for one tradition to argue against another, it is necessary conceptually to place oneself within that rival tradition, else meaningful argument cannot really occur. (MacIntyre calls this “constrained disagreement.”)

Powell does rightly note that, according to MacIntyre, a tradition may reach a point of “epistemological crisis,” in which the tradition may find itself unable to resolve internal conflicts in its own idiom and by its own rationality, or to articulate coherently its own purpose or goal. When this happens, the tradition will either emerge with a clearer self-understanding and more coherent rationality, or disintegrate. Powell thinks that one can identify a multifaceted moral tradition in American constitutionalism, but argues that that tradition is now in a condition that merits being called an epistemological crisis, one, moreover, from which it is unlikely to emerge. Moreover, he argues that insofar as the best we can hope for from politics is the dilution and refraction of violence, Christians have no real stake in trying to sustain this now nearly moribund tradition.

Certainly Powell is correct in identifying the dominant brand of reasoning in American political and legal discourse, and he most effectively argues that liberal individualism”despite its protestations” is an all-encompassing and exclusionary vision of the good. “In demanding the exclusion from public discourse of (nonliberal) substantive accounts of the good, liberalism, of course, is enforcing its vision of the good”of human life as the individual and private pursuit of individually chosen goods.”

Moreover, Powell is most perceptive in seeing that the current crisis in American constitutionalism is represented by such opposite figures as Robert Bork and critical legal studies scholar Mark Tushnet, neither of whom sees the possibility of a constitutional tradition. For Bork the Constitution is mere positive law, without reference to anything outside itself, standing silent in the presence of all future laws that do not explicitly contradict it. For Tushnet the individualist demands made in the Constitution are inherently incoherent: they require both a limited, weak government that respects the “rights” of individuals, and an extensive, powerful government that uses violence to constrain individuals from intruding on the rights of each other. As Powell summarizes Tushnet: “The individualistic anthropology of liberalism inspires a political theory aimed at restraining the threat to the collectivity of [the goods of] individuals posed by their own antagonistic self-interests.”

But for all its merits, The Moral Tradition of American Constitutionalism reads in some ways like a work in progress, with a couple of nagging problems left unresolved.

First, Powell himself does not seem to be sure whether he wants to say that American constitutionalism is a blend of the four historical sources he discusses, or that they are four mutually exclusive competing traditions, only one of which could have won the day. Sometimes he leans toward the former view, and at other times he says that the constitutional tradition is a thoroughly Enlightenment project from the beginning. For instance, he points out that by the middle of the nineteenth century judicial decisions contained internal tensions: “The common law vision of discourse as tradition-dependent had prevailed over the competing Enlightenment preference for rationalistic logic, but most of the substantive values and commitments of the constitutional tradition were thoroughly liberal,” affirming radical individualism, and so on. Powell’s case for the former is not strong, but even it if were, this by no means implies that two traditions are at work. It might only mean that the winning tradition shares some accidental aspects of the losing one. But, as noted above, the interpretive use of those aspects would be (and indeed was) radically distinct in each respective tradition. Put another way, by Powell’s own MacIntyrean criteria can one rationally say, “American constitutionalism for much of its history explored (mainly) liberal moral principles through the use of tradition- dependent (common law) modes of reasoning”?

Second, and more to the point of the book, Powell’s positive theological prescriptions tend to suffer from the very malady he wants to criticize. He cites approvingly Stanley Hauerwas’ criticism that the “primary subject of Christian ethics in America has been America,” and he warns repeatedly that Christians ought not necessarily frame their own moral reasoning around some mandate to preserve the moral-legal-political institutions of liberal democracy. For instance: “The liberty of which constitutionalism has spoken has never been Christian freedom, and so the degeneration of the tradition’s internal rationality is not itself of grave importance to Christians.” But Powell’s own preference for something like “social democracy” is not much of an improvement over the kinds of ethics of which Hauerwas is so effectively critical.

Powell invokes John Howard Yoder in arguing for a kind of majoritarian egalitarianism as an antidote to imperial judicial activism, on the grounds that only the former will be able to channel the violence of the state in the way that a previously more restrained judicial activism once did.

Christians should respond to the current constitutional crisis by joining others calling for a renewed judicial deference for a distinctly theological reason; majoritarian processes in the United States, at least when policed by . . . limited judicial activism, . . . increase minority leverage by increasing the variety of forums and the variety of decisionmakers available to hear and respond to deviant or weak voices (including the deviant voices in Christian communities).

It is highly doubtful that majoritarianism would have such an effect. Moreover, Powell does not give us any criteria for what distinguishes judicial deference from limited judicial activism. Finally, and perhaps most important, how does such a point of view contribute to the idea that Christians are called to a radical commitment to Jesus Christ, rather than to a radical commitment to a moral theory of equality? To put it another way, how can this free church ecclesiology-cum-political theory prevent the Church itself from affirming democratic pluralism as a theological mandate (as the quote above suggests)? No doubt Jefferson Powell would object strongly to a critique of his book that accuses it, at the end of the day, of giving a theological justification for dogmatic pluralism. So we can hope that the further development of his thought will work toward convincing us that this is not so.

Kenneth R. Craycraft, Jr. is Assistant Professor of Theology at St. Mary’s University in San Antonio, Texas.