A Review of H. Jefferson Powell's the Moral Tradition of American Constitutionalism

1205 REFLECTIONS ON A ROSE IN ITS SIXTH SEASON: A REVIEW OF H. JEFFERSON POWELL'S THE MORAL TRADITION OF AMERICAN CONSTITUTIONALISM RANDY LEEt I. INTRODUCTION When reading H. Jefferson Powell's The Moral Traditionof Amer- ican Constitutionalism,one might well find herself harkening back to the words of William Shakespeare: "0, be some other name! What's in a name? That which we call a rose By any other word would smell as sweet."' Powell's book, like Shakespeare's Romeo, is in the end a rose with a thorny label. The book contains both a valuable reference guide to American constitutional history and a thought-provoking discussion of social, political, and spiritual community. Unfortunately, when Pow- ell early on labels the work as "Christian,"2 he frightens away many potential readers and heightens expectations in others that will never be realized. Although Powell's Christian label suggests that the book will hold American constitutional law up to some natural law yard- stick and report how the Supreme Court has measured up over the years, Powell has chosen to walk a different path.3 Instead of the natural law approach, Powell provides a wide-ranging, extended discussion of the history of the United States Constitution from its creation through the present.4 Secular as this approach may seem, what t Professor of Law, Widener University School of Law - Harrisburg Campus. The author would like to thank David Craig Callaghan, Brenda Grimm, Nancy Kip- penhan and Harry Witte for their research assistance and especially thank Paula Heider and Shannon Whitson for technical assistance. The author would also like to thank Mary Kate Kearney and Samuel Levine for their comments on drafts of this article and Frederick Cabell, Teresa Collett, Mary Ann Glendon, David L. Gregory, Robert Rodes, Thomas Shaffer, and William E. Simon for sharing ideas and encouragement. Finally, he would like to thank his wife Brenda and the rest of his family for their love, patience, and support. 1. WILLIAM SHAKESPEARE, THE TRAGEDY OF ROMEO AND JULIET act II, sc. 2. (Juliet speaking of her love Romeo, who is a member of an enemy family). 2. H. JEFFERSON POWELL, THE MORAL TRADITION OF AMERICAN CONSTITUTIONAL- ISM 3 (1993). 3. See Jim Chen, The Moral Traditionof American Constitutionalism:A Theologi- cal Interpretation, 11 CONST. COMME.NTARY 599, 600 (1995) (reviewing H. JEFFERSON POWELL, THE MORAL TRADITION OF AMERICAN CONSTITUTIONALISM (1993)). 4. POWELL, supra note 2, at 48-181. 1206 CREIGHTON LAW REVIEW [Vol. 32 makes it Christian in Powell's eyes is that through this approach Pow- ell seeks "to provide a truthful description of American constitutionalism."5 Although Moral Tradition is not what its name might suggest, it is a valuable resource for contemporary constitutional discourse. Many readers, for example, could benefit from an evaluation of constitutional law such as this one that sought only to be truthful; an evaluation which was stripped of all the personal, social, and political agendas that normally accompany such an endeavor and which sought only to describe its subject honestly. In addition, while Powell does not send down all the answers that he believes a correctly functioning constitutionalism would have yielded, he does provide insight into how a correctly functioning constitutionalism would operate. In this regard, Powell's evaluation is process rather than result focused, and seeks to show the reader how American constitutionalism would func- tion if its players acted with a healthy balance of confidence in their wisdom and of the humility merited by the recognition of their fallibil- ity. One would think such an infusion of "resoun," Powell's term for this balance, would be welcomed as a breath of fresh air into the quite frequently stuffy atmosphere of constitutionalism. 6 Unfortunately, Powell's Christian label may not allow a number of readers to meet the work on these terms. Non-Christians may well recoil from the label, as did Mark Tushnet of Georgetown, because they believe that the Christian perspective has nothing to offer some- one outside that tradition or because they suspect the work is an at- tempt to impose Christian law on America at large.7 Christians, on the other hand, may encounter the work with disappointment, because the book does not "talk about particular moral issues such as abortion, capital punishment, welfare, and things of that nature." Nor does it seek more generally to "define the meaning of justice."9 Yet, if the reader can transcend the Christian label and meet the work as Powell has written it, rather than as the reader might pre- create it, the reader will find in Moral Tradition a rose of force and beauty. As Joseph Vining describes it, Moral Tradition "is one of those rare works that leads us to face, at the center of law and legal 5. Id. at 47. 6. Id. at 78. 7. Mark Tushnet, Book Review, H. Jefferson Powell, The Moral Tradition of American Contitutionalism,45 J. LEGAL EDUC. 303, 308 (1995). Cf Conversation, H. Jefferson Powell on the American Constitutional Tradition, 72 NOTRE DAME L. REV. 11, 54 (1996) ("I think of [discussions of law from a Christiam perspective] in my mind as law amoung the Bora Bora. It's interesting, and as an outsider I can profit from trying to figure out what it is."). 8. Conversation, 72 NOTRE DAME L. REV. at 34-35 (Donald P. Kommers). 9. Id. at 30 (Douglas Sturm). 1999] REFLECTIONS ON A ROSE 1207 thought, the largest questions about human life and human pur- pose."10 It is a book that leads one "not to the edge, but to the center, so that the questions become insistent, and whatever we and others say and do in the face of them becomes our response to them.""' At the heart of Moral Tradition is a relentless, no-holds-barred journey decade by decade, trend by trend, case by case through Ameri- can constitutional law. 12 It is a journey subsequently accompanied by theories and theorists of our a response to the leading constitutional 14 day. 13 Jim Chen recognizes in this journey "flashes of brilliance," and Mark Tushnet, despite his religious reservations, concedes that the accompaniment has its insights.', Although Powell approaches these segments with honesty and evenhandedness, in the end his con- clusions seem as inevitable as they are hard-hitting. As Powell put it six years ago, American constitutionalism is in a state of "decay," and "the peace of constitutionalism is a false 'peace;"' the Supreme Court "lurches from decision to decision with no obvious rationale other than the specific substantive preferences of a majority of the justices." Fur- thermore, "the epistemological crisis of constitutionalism is rapidly undermining the capacity of constitutionalism to enforce even the or- derliness of the coercive society."1 6 With respect to the work of the constitutional theorists, Powell tells us "that constitutional discourse is in serious theoretical disarray," and that the most "clear-sighted" of the theorists are those "who have, in part or in whole, given up on 17 Constitutionalism as anything other than talk." The most prominent themes of Moral Tradition, then, are not nar- rowly "religious" but instead concern any American who has an inter- est in the Constitution under which we live. Powell, however, does not entirely miss the opportunity to provide some particular value for his Christian audience. This value is meant to address the church as "a community where the truth is lived and spoken."' 8 For the church to be such a community, the story that forms the church must be "a real- ity-making claim that tells us the truth about the world and our- 10. Id. at 15 (Joseph Vining). 11. Id. 12. POWELL, supra note 2, at 48-181. 13. Id. at 182-259. 14. Chen, 11 CONST. COMMENTARY at 603. 15. Tushnet, 45 J. LEGAL EDUC. at 305-06. See Chen, 11 CONST. COMMENTARY at 606 (stating that "Powell hits his stride in a methodical refutation" of the efforts of traditional scholars). 16. POWELL, supra note 2, at 10, 264, 277. 17. Id. at 12, 271. Professor Vining suggests that many constitutional theorists do not even themselves believe the theories they seek to advance. Conversation, 75 NOTRE DAME L. REV. at 23 (Joseph Vining). 18. POWELL, supra note 2, at 264-65. 1208 CREIGHTON LAW REVIEW [Vol. 32 selves."1 9 Quite simply, for the church and its members to speak and live such a truth, they must have access to it; thus, Powell provides Moral Tradition to the Christian community so that they can have, speak, and live the truth about constitutionalism, "the most funda- mental mode by which the American republic attempts to channel and mitigate the violence of the state."20 In Powell's eyes, the challenge of living this truth is to "act appropriately in a world in which constitutionalism is one of the most seductive masks worn by state violence." 21 It is to find a way to "pursue with our fellow human beings - who are not members of our religious community - the common good," and even more, "to try to find a way to express the Christian commitment to action for the common good within the bounds of other Christian commitments."22 This article seeks to draw attention to three aspects of Powell's Moral Tradition. First, it seeks to respond to Powell's historical treat- ment of American constitutionalism, which is at the heart of Moral Tradition. This response focuses both on Powell's description of alter- native visions of judicial review and on the subsequent historical pro- gression Powell advances.

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