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The Breakdown of the Constitutional Tradition: Macintyrian and Theological Responses

Published online by Cambridge University Press:  15 October 2015

Richard P. Church
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In The Moral Tradition of American Constitutionalism H. Jefferson Powell relies on the work of philosopher Alasdair MacIntyre to argue that American constitutional discourse is an intellectual tradition which has reached an unresolvable epistemological crisis. Accepting this crisis, Powell narrates a Christian theological response to that crisis. This article continues to struggle with the questions that Powell's work has raised, seeking to add to Powell's arguments regarding a significant breakdown in constitutional adjudication, to consider what might be labeled as “MacIntyrian responses” to that crisis, and, finally, to present a further Christian theological response to the crisis.

In the first section, I will make the argument that there has been a significant breakdown in the constitutional tradition. This claim is supported by a summary of Powell's argument regarding an epistemological crisis in constitutional law, consideration of the Court's recent trend towards acting with a politicized understanding of adjudication, and analysis of the Court's establishment clause jurisprudence. Section II presents three proposed tradition-dependent responses to constitutional interpretation: the first, a self-styled Aristotelian mode of adjudication; the second, Yale constitutional scholar Jed Rubenfeld's “commitmentarian theory” of adjudication; and finally Phillip Bobbitt's Wittgensteinian rejection of justificatory theories themselves. In considering these responses critically, I will maintain that each fails insofar as they remain at the level of theoretical abstraction without suggesting what substantive community, other than the tradition-rejecting tradition of liberalism, could inform a tradition-dependent mode of adjudication.

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Articles
Information
Journal of Law and Religion , Volume 14 , Issue 2 , 2000 , pp. 351 - 389
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2000

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References

1. My thanks to H. Jefferson Powell and Jed Rubenfeld who directed independent studies toward the completion of this article and whose work both sparked these ideas and informed their fruition; to Stanley Fish for teaching me to read anew; to Judge John T. Noonan, Jr. for remembering the stories of litigants and providing me the opportunity as a judicial clerk to learn the practices of the good judge; and finally, to Stanley Hauerwas for patiendy teaching me, for his guidance, and for his friendship.

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19. Id.

20. 304 US 144 (1938).

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22. 347 US 483 (1954).

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26. 405 US 438 (1972).

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30. Id.

31. Id.

32. See, for example, City of Boerne v Flores, 521 US 507 (1997) (opinion by Justices Kennedy, Stevens, Scalia, O'Connor, Souter, & Breyer); Denver Area Educational Telecommunications Consortium v FCC, 518 US 727 (1996) (opinion by Justices Breyer, O'Connor, Kennedy, & Thomas); 44 Liquormart, Inc. v RI, 517 US 484 (1996) (opinion by Justices Stevens, Scalia, Thomas, & O'Connor); Madsen v Women's Health Center, 512 US 753 (1994) (opinion by Chief Justice Rehnquist, Justices Souter, Stevens, & Scalia (1994)); Bd of Educ of Kiryas Joel Village Sch D v Grumet, 512 US 687 (1994) (opinion by Justices Souter, Blackmun, Stevens, O'Connor, Kennedy & Scalia); Church of Lukumi Babalu Aye, Inc. v City of Hialeah, 508 US 520 (1993) (opinion by Justices Kennedy, Scalia, Souter, & Blackmun); Planned Parenthood of SE Pa v Casey, 505 US 833 (1992) (joint opinion by Justices O'Connor, Kennedy, & Souter, opinion by Justices Stevens, Blackmun, Chief Justice Rehnquist, & Scalia); R.A.V. v City of St. Paul, 505 US 377 (1992) (opinion by Justices Scalia, White, Blackmun, & Stevens).

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45. Everson v Bd of Educ, 330 US 1 (1947).

46. Walz Tax Comm'n of the City of NY, 397 US 664 (1970).

47. Mueller v Allen, 463 US 388 (1983).

48. Bd of Educ of Central Sch D v Allen, 392 US 236 (1968).

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53. Wolman v Walter, 433 US 229 (1977).

54. Lee v Weisman, 505 US 577, 643 (1992) (emphasis added).

55. 515 US 819 (1995).

56. Id at 836-37.

57. There is strong reason to think this is not what the Court was about as evidenced by the above passage which focused on the language of the U of Virginia's prohibition. This language encouraged a blurring of secular and sacred with the term, “ultimate reality.” Further, it is difficult to assess this case's value as precedent because it featured a unique conglomeration of free expression, establishment, and very strongly protected free speech rights.

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60. One issue I do not take up in this regards is Powell's, and most constitutional scholars for that matter, myopic focus on only Supreme Ct decisionmaking. Of course, most constitutional law is worked out at the level of district courts and circuit courts of appeal. Constitutional law may look much less incoherent at this level. This challenge was pressed by Judge John T. Noonan, Jr.

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81. See also Hans-Georg Gadamer on legal hermeneutics in regards to the stance I am working out in this section. Truth and Method 324–30 (Yale U Press, 2d ed Weinsheimer, Joel & Marshall, Donald, trans, 1985)Google Scholar. I am not convinced legal hermeneutics works as well as Gadamer suggests, but the type of jurisprudence he works out is similar to what I am hoping to present here.

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84. Frank Michelman has suggested a similar law as narrative strategy for judicial adjudication. “Jurisgenerative political debate among a plurality of self-governing subjects involves the contested ‘recollection’ of a fund of public normative references conceived as narratives, analogies, and other professional commitments.” Michelman, Frank, Law's Republic, 97 Yale L J 1493, 1513 (1988)CrossRefGoogle Scholar. Although I reject Michelman's contention that we can not have these sorts of narratives regarding the common good, his suggestion for constitutional adjudication also highlights the way a narrative tradition could provide grounds for legal arguments.

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86. 347 US 483 (1954) (overruling Plessy v Ferguson, 163 US 537 (1896) and the Court's position in Plessy that separate is equal).

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89. MacLean, Norman, Young Men and Fire: A True Story of the Mann Gulch Fire (U Chi Press, 1992)CrossRefGoogle Scholar.

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91. Id at 149 (emphasis added).

92. Id at 142, quoting MacLean, Young Men and Fire (cited in note 89).

93. Id.

94. An issue I do not take up in this argument but that may affect this conclusion is how do thick and thin traditions interact. Judge John T. Noonan, Jr. is a determinatively Catholic scholar and jurist who nonetheless does not feel the need to place himself in a largely critical relationship with liberalism (as for example Cardinal Francis George or Stanley Hauerwas might). I take it that Noonan is not concerned with critiques of liberalism precisely because the thick narrative of Catholicism is so determinative for himself that the possibility of being seduced into the liberal tradition within which he works does not concern him. Hauerwas and I consider Noonan's work, as a scholar and jurist, in a forthcoming co-authored article in the Notre Dame L Rev.

95. MacIntyre, , After Virtue at 253 (cited in note 10)Google Scholar.

96. John Milbank has criticized MacIntyre for failing to be consistent to his own position on a similar point. He challenges MacIntyre for arguing generally for virtue and tradition versus particularly from the Catholic Christian tradition. “I do not find him [MacIntyre] sufficiently relativistic or historist.” Milbank, John, Theology & Social Theory: Beyond Secular Reason 327 (Cambridge, 1990)Google Scholar.

97. Rubenfeld, Jed, Reading the Constitution as Spoken, 104 Yale L J 1119, 1122 (1995)CrossRefGoogle Scholar.

98. Id at 1121-22.

99. By “spoken” Rubenfeld means, “Interpretation is speech modeled if it seeks to resolve textual ambiguities by reference to, or to replace a text altogether with, acts of speech or voice.” Id at 1123

100. Id at 1145.

101. Id at 1145.

102. Id at 1150.

103. Id at 1147.

104. Id at 1167.

105. Id at 1170.

106. Id at 1178.

107. It should be noted that Rubenfeld believes there are significant differences between his theory and Dworkin's or other law and literature theories. Id at 1142.

108. Bobbitt, Phillip, Constitutional Interpretation (Basil Blackwell, 1991)Google Scholar.

109. Id at xii.

110. Id at 11.

111. Id at 27.

112. Id at 161.

113. Id at 163.

114. Id at 170.

115. Id at 183.

116. Id at 47.

117. MacIntyre, , After Virtue at 263 (cited in note 10)Google Scholar.

118. Powell, , The Moral Tradition at 261 (cited in note 2)Google Scholar.

119. Id at 261-62.

120. Id at 265.

121. Id at 264.

122. Id at 267-73.

123. Id at 275-76.

124. Id at 285.

125. This argument parallels Yoder's argument in The Christian Case for Democracy, found in The Priestly Kingdom: Social Ethics As Gospel 151–71 (Eerdmans, 1972)Google Scholar. It would seem Yoder makes two mistakes in this essay. First, Yoder seems to imply that Christian's ability to dissent will be dependent on the form of government within which they find themselves. This argument assumes the ability to engage in or effectiveness of Christian dissent is a relevant concern for the church or subject to the structure of the wider society not the faithfulness of the witnessing church. I take it Yoder has taught us that both of these conclusions do not properly describe the world in which Christ is risen. Second, exactly insofar as liberalism dominates with a language that seduces the Christian community in to thinking liberalism and Christianity are compatible, it seems that liberalism actually makes dissent more, not less, difficult. Naming the violence and resisting Nero is obvious, resisting the hidden suppositions of the liberal discourse of proclaimed “neutrality” is not as obvious.

126. Id at 285-87.

127. United States v Carotene Products, 304 US 144, 152 n 4 (1938).

128. Powell, , The Moral Tradition at 289 (cited in note 2)Google Scholar.

129. Id at 289-90.

130. Hauerwas, Stanley, Against the Nations: War and Survival in a Liberal Society 56 (U of Notre Dame Press, 1992)Google Scholar.

131. Id at 59.

132. John Howard Yoder, ThePolitics of Jesus 237 (Eerdmans, 2d ed 1994)Google Scholar.

133. And the devil took him to a very high mountain, and showed him all the kingdoms of the world and the glory of them; and he said to him, “All these I will give you, if you will fall down and worship me.” Then Jesus said to him, “Be gone, Satan!” Matt 4:8-10 (RSV). Yoder discusses the political implication of the three temptations of Christ in The Kingdom Coming found in The Politics of Jesus at 21-59 (cited in note 132).

134. I Cor 6:7 (RSV).

135. Hauerwas, , Against the Nations at 7 (cited in note 130)Google Scholar.

136. Id at 9.

137. Id at 58-59, 77.

138. Yoder, , The Priestly Kingdom at 165 (cited in note 125)Google Scholar. See also Yoder, John Howard, H. Jefferson Powell on the American Constitutional Tradition: A Conversation, 72 Notre Dame L Rev 11, 28 (1996)Google Scholar.

139. You are the salt of the earth …. You are the light of the world. Matt 5:13-14 (RSV). For though we live in the world, we do not wage war as the world does. 2 Cor 10:3 (NIV).

140. Behold I send you out as sheep in the midst of wolves; so be wise as serpents and as innocent as doves. Matt 10:16 (RSV).

141. Remarks of Powell, H. Jefferson, H. Jefferson Powell on the American Constitutional Tradition: A Conversation, 72 Notre Dame L Rev 11, 68 (1996)Google Scholar.

142. Hauerwas, , Against the Nations at 194 (cited in note 130)Google Scholar.

143. Thomas L. Shaffer with Shaffer, Mary M., American Lawyers & Their Communities: Ethics In The Legal Profession 203 (U Notre Dame Press, 1991)Google Scholar.

144. This article was drafted nearly two years before its publication. Upon returning to it, I find that despite all of Yoder's work that both explicitly and implicitly informs this article, my first argument is Powell should be more concerned about making the world turn out right! It seems to me now that this argument runs counter to much of what I am, or should be, about in this paper.

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146. Kant, Immanuel, Metaphysik Der Sitten 231 (Meiner, 1966)Google Scholar, quoted in Baynes, Kenneth, The Normative Grounds Of Social Criticism: Kant, Rawls, Habemtas 21 (State U of NY Press, 1992)Google Scholar.

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149. Brief for Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson as Amici Curie in Support of Respondents 2, State of Wash v Glucksberg, 52 1 US 702 (1997); Vacco v Quill, 521 US 793 (1997) (emphasis added).

150. Lemon v Kurtzman, 403 US 602, 622 (1971).

151. Kant, Immanuel, Foundations Of The Metaphysics Of Morals 28 (Prentice Hall, Beck, Lewis, trans, 1995) (1785)Google Scholar.

152. It is interesting that Guttman and Thompson use the phrase “his or her” in the very sentence in which they argue that “his or her” no longer names a morally signiflcant distinction.

153. Guttman, Amy and Thompson, Dennis, Moral Conflict and Political Consensus in Douglas, R. Bruce, et al, eds, Liberalism and the Good 130 (Routledge, 1990)Google Scholar.

154. Fish, , There's No Such Thing at 136 (cited in note 148)Google Scholar.

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156. Abington Sch D v Scbempp, 374 US 203, 225 (1963) (emphasis added).

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163. Id at 92-94.

164. See generally Yoder, , The Priestly Kingdom at 48–54 (cited in note 125)Google Scholar.

165. In fact, Yoder rejects the very attempt to create the dichotomy between individual and social. See Yoder, , The Politics of Jesus at 108–09 (cited in note 132)Google Scholar.

166. Then the Lord God said, “It is not good that the man should be alone. I will make him a helper fit for him.” Gen 2:18 (RSV).

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