The Moral Tradition of American Constitutionalism: A Theological Interpretation.

• Author: Chen, Jim

H. Jefferson Powell.(1) Durham: Duke University Press. 1993. Pp. ix, 296. $39.00.

Jim chen(2)

Just as the Gospel reminds Christians that "the last shall be first,"(3) the observation that "less is more" surely does not damn H. Jefferson Powell's most recent work with faint praise. In The Moral Tradition of American Constitutionalism: A Theological Interpretation, Powell launches an unapologetically Christian attack on America's long-standing civic faith in constitutional law. Powell's core message--that there is no such thing as a Christian approach to constitutionalism--heralds a radical and powerful new model for understanding the relationship between personal Christianity and public law.

The Moral Tradition enriches a growing jurisprudence not ashamed to call itself Christian Legal Studies.(4) As the Biblical basis for his project, Powell chooses the familiar distinction between Caesar and God.(5) This concept, so often stressed in legal writing about religion and in religious writing about law, might be considered intellectually banal if it were not so thoroughly and frequently ignored in practice. Powell omits any direct discussion of social and legal issues popularly thought to be of special interest to Christians. Even when discussing substantive due process rights to contraception and abortion,(6) he never purports to prescribe a proper Christian view on the merits, a moralistic exercise in which even Supreme Court Justices sometimes indulge.(7) Powell alludes exactly once to the agenda of the so-called religious right," and in rather unflattering terms at that: "The heedless subservience of much of American fundamentalist Christianity to nineteenth-century secular ideology demonstrates the inevitable result of attempting to think theologically in an intellectual vacuum."(8) His refusal to conscript God in discrete legal and political battles starkly contradicts both the secular state's claim that God "has favored our undertakings"(9) and religious groups' increasingly common efforts to translate abstract spiritual authority into tangible political power. The omission is conspicuous, perhaps deliberate. Powell seems to perceive a far graver threat than the law's episodic failure to conform to individual Christians' political preferences.

Powell's essential message is straightforward and striking, a combination of Shaker simplicity with distinctly un-Quaker aggression. Powell ruthlessly honors his commitment to a "theological" analysis of American constitutionalism based on "those aspects of Christian thought and action that are often separated out as moral or ethical."(10) He doggedly poses an unfiltered version of "the faith question" to fellow Christians:(11) in whom do you place your faith, Caesar or God? For a Christian, the question necessarily answers itself. Powell's elaboration of the answer severely undercuts conventional efforts to reconcile secular lawyering with Christianity. Just as the Fourteenth Amendment did not enact Mr. Herbert Spencer's Social Statics, the resurrection of Christ does not command agreement with Judge John Noonan's Persons and Masks of the Law.(12) Forswearing any attempt to reconcile "the relation of love to power" within "the legal enterprise,"(13) Powell conducts a grinding assault on "[t]he temptation to ascribe theological value to the institutions and modes of thought of American constitutionalism."(14)

After declaring his disdain for "any unquestioning theological approval" of the constitutional status quo,(15 )Powell mercilessly demonizes American constitutionalism. Although this tactic is less than sporting, it does help Powell focus his powers of demolition. Under Sanford Levinson's quasi-Christian taxonomy, Powell is a "catholic" in his willingness to look outside "scriptural" text as a source of doctrine, but an institutional "protestant" in his distrust of centralized, hierarchical interpretive authority.(16) By contrast, the American constitutional establishment emerges as the opposite over the course of Powell's narrative: constitutionalism develops a "protestant" obsession over texts while concentrating all power of moral pronouncements within the "catholic" institution of the Supreme Court. Unfortunately, this transparent dichotomy between Powell's own catholic-protestant virtue and the Supreme Court's protestant-catholic vice drains much of the suspense from The Moral Tradition. Unlike John Milton, whose dazzling, eloquent portrayal of Lucifer shed some doubt on the poet's stated quest to "justify the ways of God to men,"(17) Powell relentlessly aims to expose the mocking imitation of divine order through secular law.

Powell's central proposition springs from an imaginative modification of Alasdair Maclntyre's catastrophe thesis, which posits that a rationalistic, individualistic society can never reach moral agreement.(18) Ironically, Powell notes, the "Enlightenment's parallel attempts to control irrational and violent action through the institution of the nation-state, and to replace irrational, tradition-dependent moralities with universal norms of reason" gave rise to an American constitutionalism that developed a moral tradition of its own.(19) Powell's description is neither novel nor problematic. The numerous grand theories in American law routinely justify themselves morally by claiming rational coherence. Indeed, many a grand theory invokes determinacy as such as its exclusive moral justification.(20) Moreover, legal scholars routinely study constitutional law as America's civic religion, complete with a sacred text, an ecclesiastical hierarchy, a chronically alienated laity, and occasional holy wars.(21) Instead, treating American constitutional law as a moral tradition has far more important prescriptive implications for Powell's project. If "Christian theology and American constitutionalism share the intellectual and social structure [that are] characteristic of moral traditions," they become "in a significant sense rivals or competitors" for believers seeking a "rational exploration of the nature of human community and of the good life."(22)

In short, Powell is arguing that American constitutionalism has aspired to provide a moral tradition akin to Christianity's. If so, the American constitutional system has committed nothing less than what C.S. Lewis has called "the essential vice, the utmost evil": pride.(23) Proud Lucifer aspired to a "throne above the stars of God,"(24) and proud Eve swallowed the serpent's deceitful promise that she and Adam could become "as gods, knowing good and evil."(25) Just as J.R.R. Tolkien's evil Sauron molded grotesque orcs in a futile effort to imitate (or mock) God's creation,(26) the American constitutionalism that Powell depicts has generated a tradition of false, treacherous claims to moral cogency. The sin also implicates those who are complicit in wielding the Constitution's moral apparatus, for "[t]hose who put their faith in worldly order /.../ Degrade what they exalt."(27)

The strength of this analogy ameliorates The Moral Tradition's largely perfunctory recitation of the familiar doctrinal progression from Calder v. Bull to Roe v. Wade. Powell's historical survey nevertheless displays momentary flashes of brilliance. For instance, Powell convincingly illustrates how liberal rationalism subverted the traditional common law's "nonliberal, pre-enlightenment, tradition-dependent form of rational argument about justice."(28) Common law as practiced by Cook, Selden, and Hale relied less on a hidebound system of Euclidean logic than on the fluid concept of resoun. By treating resoun as "that which is rea- sonable,"(29) "that which is just, fair, moral,"(30) or even "a believable story, an acceptable narrative,"(31) common lawyers in the early eighteenth century were employing techniques that twentieth-century jurisprudes often claim to have discovered anew.(32)

Powell largely blames Blackstone for the loss of the common law heritage...