Final Causes and the Five Eras of American Law

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 505

ß 16 1 Material Base of Moral Reasoning: Faith in Custom or Reason

Moral reasoning refers to an effort to identify through reasoning how persons ought to behave and what ought to be. Sometimes in philosophy this has been referred to as a search for "the good."1As discussed in Chapter 15, ideas on what is good have differed from one society to another and have changed from time to time within individual societies. The concern in this Chapter is what has been, is, and will be considered the good in American society, to the extent that it becomes reflected in constitutional law. Thus, the central question addressed in this Chapter is what universal principles of justice are likely to emerge for guiding the social, culture, and legal system of the United States, particularly its constitutional law, as the United States evolves from a modern Stage 5 immigrant society into a post-modern Stage 6 society, as can be predicted based upon the analysis in Chapter 15 of Piaget, Selman, Kohlberg, and Walzer. Dealing with this question is relevant for a book on the path of constitutional law because the predominant style of constitutional interpretation and, indeed, constitutional doctrine, has been moving ever closer to what could be expected in a post-modern Stage 6 society.

Of course, decisions on American constitutional law do not begin with an analysis of universal principles of justice. Decisions usually begin with text and then consider context, history, practice, and precedent. However, relevant sources also include prudential consideration of consequences, and the perception of consequences will be influenced by what is going on in society with respect to moral reasoning. Of course, any judge's vision of what is ideal may undergo change in response to economic developments, developments in science and technology, ideas produced by the culture, and interaction with other societies in the world, as well as be influenced by the personal experiences of the judge. Nevertheless, to the extent that Piaget's, Selman's, and Kohlberg's cognitive, social perspective-taking, and moral developmental stages are universal stages applicable to all individuals in all cultures, these causes of social and moral development should push all societies in generally the same direction. Particularly for natural law or instrumentalist judges, the meaning attributed to general terms in a constitution, such as "liberty" or "equality" in the 14thAmendment of the United States Constitution, will tend to reflect enduring themes in moral reasoning about human rights viewed from that society's moral reasoning perspective. For example, in Justice Kennedy's majority opinion in Lawrence v. Texas,2 he wrote, "Had those who drew and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Page 506

Under Kohlberg's theory of moral reasoning stages, any "existing" perspective will necessarily be built on a base of "traditional" views regarding moral reasoning of earlier moral reasoning stages. Contemporary and future searches for "the good" will thus inevitably be influenced by what has been traditional with respect to moral reasoning in the past. As discussed at ß 8.4.1, at the time of our Nation's founding, there were two main Western traditions of moral reasoning about human rights: the Enlightenment natural law tradition and the classic/Christian natural law tradition. These two traditions competed 200 years ago as our society emerged from being ruled by the English multinational empire to forming our own democratic base. The historical fact of these two traditions of moral reasoning about human rights means that it is likely that both traditions will have their own versions of Stage 6 principles. Because Stage 6 moral reasoning is based upon rational principles of justice, however, the universal principles from both traditions should end up looking the same because, as discussed at ß 16.2, "reason" is the same whether "God-given" or not.

Many commentators have phrased the contemporary debates over values, the so-called "Culture Wars," as a debate between religious and secular ideologies. Based upon the discussion in Chapter 15, this is not an accurate way to describe the debate. The real debate is between traditional ideologies, whether religious or secular, which reflect Stage 3 or 4 concrete customary or traditional norms, versus progressive ideology, whether religious or secular, which reflect a Stage 6 understanding of morality based upon reason. For example, as discussed at ß 8.4.1 nn.72-76, slavery was supported by the traditional view of Aristotle, the traditional view of the Catholic Church, and the traditional view of many Protestant denominations in pre-Civil War America, particularly in the South, as reflected in the quotes of Jefferson Davis and Reverend Furman, cited at ß 25.1 n.4. As noted at ß 8.4.1 n.77-80, the progressive ideology of the Enlightenment tradition, coupled with the progressive views of "radical dissenting Protestantism," supported the abolitionist movement.

The debate over slavery was thus not a religious versus secular debate, but was a debate among various traditional views upholding the long-standing practice of slavery versus progressive views rejecting the morality of slavery. The traditional religious view, of course, focused on the many passages in the Bible which refer without unfavorable comment to the then-existing historical practice of slavery. The progressive interpretation of the Bible focused on the general statements of Jesus and St. Paul concerning love, the equality of all persons, and the reasoned logic of the Golden Rule of treating one's fellow human as one expects to be treated by others. As phrased in Galatians 3:28, "There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Jesus Christ."

The same dynamic applied during the 20th century to the issues of segregation and bans on interracial marriage. The traditional view supported such institutions based on a traditional reading of the Bible, as reflected in the state court opinion in Loving v. Virginia,3 which stated, "Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." The progressive Enlightenment view, as well as the progressive Christian view, rejected this justification for racial discrimination as immoral. From the progressive Enlightenment viewpoint, long-standing tradition Page 507 does not make a particular practice moral that denies individuals their "unalienable rights [to] life, liberty, and the pursuit of happiness." As Justice Kennedy noted in Lawrence v. Texas,4 quoting Justice Stevens' dissent in Bowers v. Hardwick, "'[T]he fact that a governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.'" From the progressive Christian viewpoint, the Galatians passage that we are "all one in Jesus Christ" also makes such racial discrimination immoral.

Many examples of the same dynamic throughout world history can be given. For example, the traditional Christian view opposed Galileo's contention that the earth moved around the sun. The Enlightenment faith in science, and the modern Christian view, accept Galileo's scientific findings as accurate. Passages in the Bible regarding the earth not moving and the sun revolving around the earth are viewed from the modern perspective as mere reference to certain historical views existing in the ancient world that are not authoritative.

In each of these cases, even those who originally held the traditional view have come to acknowledge that the progressive view is just. On these issues, no major religious or secular tradition today attempts to defend the concrete Stage 3 or 4 practices of the past supporting slavery, or segregation, or anti-miscegenation laws, or opposition to the cosmology of Copernicus, Galileo, and Newton. On the other hand, on some issues, like the ordination of women, there is still a split among major religious traditions, with the Catholic Church still clinging to the historical refusal to ordain women, while Protestant religions have long-since moved to the progressive view of Galatians that "there is neither male nor female: for ye are all one in Jesus Christ," which supports the ordination of women. The Catholic Church has sometimes used the concrete fact that all of the 12 disciples were men to support the refusal to ordain women. But the fact is that all the disciples...

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