Virtue jurisprudence and the American Constitution.

• Author: Cantu, Timothy

INTRODUCTION

For most of the current period of legal thought, legal realism or instrumentalism have been the strongest forces at work in the field. (1) This has coincided with the rise in popularity of the theories of deontology or consequentialism in the field of moral philosophy. However, since Elizabeth Anscombe's famous 1958 paper Modern Moral Philosophy was published, (2) the theory of virtue ethics (3) has captured a small but growing group of adherents. Moral philosophy, of course, is necessarily and intricately tied to legal theory, and because of this, a corresponding theory is slowly developing in legal academia. For example, Lawrence Solum has already written of the effect of virtue jurisprudence on some areas of the law, (4) and together with Colin Farrelly, has called for a return to the principles of virtue jurisprudence as the basis of law. (5) At best, this project is in utero. (6)

Virtue ethics is not, of course, a new field. In one form, its roots in western thought can be traced as far as Plato; (7) however, the treatment given to it by his pupil Aristotle received more attention and is generally regarded as the true birth of the theory. (8) Most early Christians disregarded Aristotelian and other Greek philosophies as pagan, and therefore the theory of virtue and law proposed by Aristotle fell into disfavor among western cultures. (9) The next serious treatment of the theory was in the medieval period, when St. Thomas Aquinas revived peripatetic thought and gave his own detailed account of how exactly the flourishing of human virtue was the goal of government, as well as what a regime was and was not permitted to do in pursuit of this goal. (10)

This outline, while by no means exhaustive of the literature on the interaction of virtue and the law, provides a brief sketch of the primary influences on the field of virtue ethics from the pre-Enlightenment western canon. Until the recent treatment of the field, it had remained largely undeveloped from these roots. Recently, as noted above, some have attempted to build on this tradition and adapt our current legal system to virtue ethics, thereby creating a framework which most actively and effectively promotes the common good. (11) In many areas of the law, it remains to be seen or fully explored what sort of effect virtue jurisprudence might have and what the broader implications will be.

One of these areas is constitutional interpretation. While the effect of virtue jurisprudence on constitutional adjudication has been explored, (12) the question of whether or not the Constitution may reasonably be interpreted as consistent with the ends of law according to virtue jurisprudence is valid and as yet little-discussed. If the Constitution is incompatible with virtue jurisprudence, then we must choose whether to have our cake or eat it. Such a discovery would not, of course, invalidate the theory of virtue jurisprudence; it would instead require us to conclude that the Constitution does not have a sturdy basis in a valid moral philosophy. (13) For many Americans, this choice between the Constitution and virtue ethics is easy: the Constitution functions neatly enough and is dear enough that it is the clear selection over what is, to most Americans, a nebulous and relatively unknown philosophical mindset.

This Note will argue, however, that the two are not only compatible but ideally paired. This is not to say that adopting virtue jurisprudence as the philosophical foundation of the Constitution would be without consequence. Rather, it will argue that the Constitution is compatible with virtue jurisprudence if the reader interprets it in a particular way which is consistent with the founders' general worldview and beliefs. This Note will not attempt to establish that virtue jurisprudence is a superior system to any other, nor that the constitutional interpretation it provides ought to be the preferred method. Instead it will give a theoretical framework by which we as a people might base our Constitution on virtue jurisprudence, if we desired to do so.

Part I of this Note provides definitions and explanations of the terms "virtue ethics" and "virtue jurisprudence." It examines the history of these theories as they have developed in western thought. Part II discusses how the Constitution can be grounded in the principles of virtue jurisprudence. It examines how the Constitution can be used to fulfill the goal of allowing its citizens to live excellent lives. First, it surveys the current constitutional jurisprudence and how in many cases it is counterproductive of the goal of producing virtuous citizens. Next, it discusses how, in early America, the people possessed certain traits of character which were highly desirable, conducive, and necessary to a free state. It uses these characteristics to understand why the Constitution was written as it was, and why it would be in our best interests to ensure that these traits survive in America. Finally, it examines how the dual division of powers--federal against state and the three federal branches against each other--can functionally frustrate the development of vice in lawmakers in any branch at any level.

1. FROM PLATO TO SOLUM: 2400 YEARS OF VIRTUE ETHICS AND JURISPRUDENCE

   Virtue ethics is one of three current popular approaches to moral philosophy. (14) It emphasizes as the measure of actions whether those actions will produce excellent character, rather than judging actions by adherence to a set of rules (the deontological approach) or the consequences they produce (the utilitarian or consequentialist approach). (15) This brief description is the modern formulation of the theory, but it has remained substantively intact since it was first articulated.

   In the earliest treatment of virtue and the state at length, Plato gave an account of the four cardinal virtues and how they come to be in both men and the state. (16) He named justice, fortitude, prudence, and temperance as cardinal virtues and further claims that the state must aim to foster each of these virtues in the respective class where it is necessary. (17) This is of limited use for the purposes of this Note because virtually no one, either in 1787 or today, thinks that American society has or should have designated strata which do not permit vertical movement from one to the other. The British aristocracy had been a partial cause of the American Revolution. It is, however, the first major treatment of the cultivation of virtue as the end of the state and served as a foundation for the firm establishment of the theory by Plato's pupil.

   Aristotle remains one of the most well-known philosophers in human history and wrote extensively on the nature of virtue and virtuous activity. In the Nichomachean Ethics, he concluded that virtuous action was the greatest achievement man could reach and therefore should also be his primary goal in life. (18) Building on this conclusion, he designated the inculcation of virtue in the populace as the primary goal of both the state and the household. (19) Later in the Politics, when studying the different types of political government, he referred to three distinct parts of government: the deliberative body, the magistracy, and the judicial body--a division which will sound familiar to any student of American political science. (20) This brief overview of Aristotle's teachings on virtue describes its essential points as they will relate to the topic of this Note.

   St. Thomas Aquinas, in his Treatise on Law, built upon Aristotle's conclusions about the ends of government. First, regarding the nature of law itself, he determined that it is "an ordinance of reason for the common good, promulgated by him who has the care of the community...." (21) Any such law, he further argues, will result in the creation of men who are good with respect to the ends of their particular government, for "the proper effect of law is to lead its subjects to their proper virtue...." (22) In a well-ordered state, these laws result in the creation of citizens who are capable of and well-suited to attaining the common good--and this in turn will require that the citizens possess the cardinal virtues. (23)

   St. Thomas's conclusions about the purpose of law in this regard are not particularly different from those of Aristotle, though his arguments are often more concise and easy to follow. Both St. Thomas and Aristotle are of the opinion that legislators instill virtue--or vice, as the case may be--in their subjects by forming habits in them. (24) As a final note on this subject, it is important to note that while both of them thought that the habituation of citizens to virtue was the end of law, neither felt that it was the place of law to prohibit every vice, (25) nor to command every virtue. (26)

   The preceding covers the most important arguments made in favor of virtue jurisprudence (though it was not yet termed as such) prior to the Enlightenment and American colonial period. Many of the American founders were well aware of this intellectual tradition and adopted it to some degree in their own philosophies on government. (27) While they did not uniformly identify "general virtue," or even the same virtue if one was singled out, the men who played major roles in the drafting of the Constitution and Declaration of Independence subscribed to this theory in varying degrees. This is not especially surprising given the moral climate that they lived in; many of them would not have accepted that there is what Lincoln decried as the "right to do wrong." (28) Even before Lincoln said this, the view that there was no such right was becoming less and less common, and it now seems to have virtually disappeared. It is common for a modern American to be offended by the notion that the government may interfere with his right to do what he wants--even if that action is widely recognized as a moral wrong. In this view, the only permissible...