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7 Bimonthly Rev. L. Books 1 (1996)

handle is hein.journals/bimrvlab7 and id is 1 raw text is: BIMONTHLY REVIEW OF LAW BOOKS Volume 7 Number 1 January-February 1996 JURISPRUDENCE AND LEGAL THEORY The Moral Tradition of American Constitutionalism: A Theological Interpretation. H. Jefferson Powell. Durham, NC: Duke University Press, 1993. 296p. ISBN 0-8223-1314-6 $39.00. Reviewed by William B. Moran This book contributes to the examination of what is arguably the most important issue American society today: To what extent will values, virtue, and God play a role in our culture? According to H. Jefferson Powell, American constitutionalism is a tradition in crisis because it inconsistently claims to be a tradition that has moral commitments while it remains neutral on moral issues. Powell, a professor of law and divinity at Duke University, examines American constitutionalism as a specific political and moral tradition. Will the trend favoring individual preferences continue to dominate over any sense of community values? He uses Alasdair MacIntyre's description of tradition, which is an unusual choice because MacIntyre is an antiliberal philosopher who originally believed that liberalism and tradition were inimical concepts. Liberalism, after all, attempts to free people from tradition. It disdains evaluative judgments and the notion of the common good in favor of the idea that no opinion is superior to another. With all perspec- tives of equal value, each is no more than an indi- vidual preference. Liberalism cannot speak in terms of shared moral principles; thus it cannot speak of any tradition. Although liberalism attempted to be independ- ent of tradition, along the way it developed its own tradition that the good to be preferred is that of the individual's personal notion of good, not some notion imposed on the individual by society. Reason sustains tradition; if a tradition fails to provide an- swers to intellectual or moral challenges, the tradi- tion collapses. Powell explains the historical antecedents of American constitutionalism's moral tradition. The Enlightenment attempted to construct a social or- der that permitted the individual to act autono- mously, free of political restrictions other than those acceptable to the individual. American constitution- alism, springing from the Enlightenment, was an attempt to create a political arrangement based on individualism and reason. However, other influ- ences also were at work. Powell believes that Ameri- can constitutionalism was influenced by civic repub- licanism, which held that government has some responsibility for influencing civic virtue. Thus Prot- estant Christianity and its idea of a freely gathered community played a role in the development of the constitutional tradition. Powell argues that while liberalism made a sharp distinction between the public and private spheres, republicanism and protestantism envisioned a broader public realm that included common com- munity commitments with an overarching goal of following the gospels and God. Still another source of the constitutional tradition was the common law, which provided a method for moral inquiry, reason, and rational argument. With all of these considerations impacting the development of the tradition, Powell tells us that conflict within consensus by means of rational discussion has been a key component of American constitutionalism. (continued on next page) IN THIS ISSUE Disintegrating the Family; Mainstreaming Gays 6 Criminal Matters 10 Intellectual Property 14 Environmental Concerns 16 Interview with Jeremiah Healy Fiction and Biography 20 Nota Bander 22 Books Received 23 18 Bimonthly Review of Law Books I January-February 1996 M

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