Moral Foundations of Constitutional Thought: Current Problems, Augustinian Prospects 0691078238, 9780691078236

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MORAL FOUNDATIONS OF CONSTITUTIONAL THOUGHT

MORAL FOUNDATIONS OF CONSTITUTIONAL THOUGHT

CURRENT PROBLEMS, AUGUSTINIAN PROSPECTS

Graham Walker

PRINCETON UNIVERSITY PRESS

PRINCETON, NEW JERSEY

Copyright © 1990 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, NewJersey 08540 In the United Kingdom: Princeton University Press, Oxford All Rights Reserved

Library of Congress Cataloging-in-Publication Data Walker, Graham Moral foundations of constitutional thought: current problems, Augustinian prospects / Graham Walker. p. cm. Includes bibliographical references. ISBN 0-691-07823-8 1. United States—Constitutional law—Interpretation and construction. 2. United States—Constitutional law—Moral and ethical aspects. 3. Augustine, Saint, Bishop of Hippo—Political and social views. I. Title. KF4552.W35 1990 342.73'02—dc20 [347.3022] 90-33189 This book has been composed in Linotron Sabon Princeton University Press books are printed on acid-free paper, and meet the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources Printed in the United States of America by Princeton University Press, Princeton, New Jersey 1 0

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To Linda Carol Vandenbergh WHO KNOWS AND LOVES THE REAL

Contents

Acknowledgments

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Introduction

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One Normative Impasses in Contemporary Constitutional Theory

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Normative Presuppositions Normative Evasions NormatweFears Normative Impasses Two The Moral Anatomy of Contemporary Constitutional Theory Varieties of Moral Thinking Teleological Conventionalism Protagorean Conventionalism Neo-Kantian Moral Thinking Substantive Moral Realism Normative Impasses, Revisited Three Augustine's Political Ethics: Skepticism, Ultimacy, and the Good in Politics Normative Perplexities and Augustine Theology, Philosophy, and American Law Augustine vs. Cicero Augustine on Nature, Knowing, and Politics Summary: Augustine and the Normative Impasses of Antiquity Four Augustinian Insight and Current Problems in Constitutional Thought Augustinian Caution: A Preview Moral Nihilists, Manichaean Error Seeking Real Moral Insight

9 13 18 22 23 23 31 34 40 46 61

65 65 73 77 79 108

113 113 116 124

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Augustinian Prudence and Moral Realism Constitutional Meaning and Judicial Power

CONTENTS

137 152

Five Augustinian Tensions and the Constitution of Liberalism

163

Appendix

171

Works Cited

175

Index

183

Acknowledgments

THE WEAKNESSES of my argument as it stands are strictly my own. For

whatever strengths it may possess, however, I am much indebted to oth­ ers: those who kept my spirits up, those who welcomed what I had to say, and, perhaps especially, those who resisted what I had to say. I am in­ debted to Houghton College and its community of scholars, the milieu where I first learned to appreciate the life of the mind in the search for truth; to a small group of friends in Indiana and in Michigan who en­ couraged me through the initial phase of writing; to an anonymous reader for Princeton University Press whose observations aided my discussion of the rule of law in the Introduction and elsewhere in the text; to construc­ tive comments from Walter F. Murphy and from my colleagues William F. Harris II, Ellen Kennedy, and Donald Brand. Most of all I am indebted to Sotirios A. Barber and Gerhart Niemeyer, who were unfailingly gen­ erous with their time, their advice, and their encouragement.

MORAL FOUNDATIONS OF CONSTITUTIONAL THOUGHT

Introduction

WHY CAN'T writers interested in constitutional jurisprudence just keep to law and the Constitution? Why do they have to get tangled up in esoteric and unrelated subjects? Such questions mark a common and healthy sentiment. I used to share it, and in part I still do. Unfortunately, it is a sentiment not likely to find satisfaction any time soon. However much we might prefer that consti­ tutional commentators, judges, and scholars stick to narrowly legal mat­ ters, they don't—especially recently. It's not that they intend to leave their characteristic concerns behind. What usually gets their commentary started, after all, is the desire to blame or praise some ruling of the Su­ preme Court. It's just that there is more to thinking about the Constitu­ tion and the practices of constitutional government than meets the eye. When a judge steps back from his official duties and tries to become the­ oretically self-conscious about his enterprise, or when a scholar advances some reading of the First Amendment or some theory of the scope of judicial review in constitutional cases, a kind of thinking occurs that nat­ urally escalates beyond the strictly legal. For serious thinkers who argue for some view of proper judicial demeanor do more than simply assert their view. They inevitably end up justifying it in broader terms of consti­ tutional order; they ponder, for instance, the place of an unelected judi­ ciary within a democracy. Serious thinkers who promote some reading of the First Amendment do not simply proclaim their interpretation self-evident. They end up founding their argument on some larger notions: on some theory of the proper method of constitutional interpretation or even of interpretation generally. As a matter of fact, writers on constitutional issues have in recent years gone much farther than this, pursuing consequential issues seemingly far afield from their immediate concerns. They have been burrowing deeply into moral philosophy, epistemology, theology, aesthetics, and much else in search of grounds to support their positions. I think they have bur­ rowed their way to dead ends, to what I call below "normative impasses." In order to explain my argument, and in order to suggest ways out of these dead ends, I join in the philosophic melee. I delve into ontology, epistemology, theology, morality, and political philosophy. And, perhaps surprisingly, I enlist Augustine's help to do so. But my aim is not to fur­ ther entangle the Constitution in ultimate questions; my aim is to disen­ tangle it. Though it may not be obvious at first, I turn to Augustine not

4

INTRODUCTION

to take constitutional thought further afield but to bring it back to itself. For an Augustinian way of thinking ultimately offers the sturdiest of rea­ sons why the practices of law and government can—and should—remain concerned with less-than-ultimate matters. But before we can bring constitutional thought back, we must try to see where it has gotten to. To this effort I devote the first two chapters of this book. The first thing to be noticed is that all the important arguments in the field of constitutional theory are normative. They do not simply offer descriptions, they advance prescriptions—prescriptions bearing, for example, on how judges or constitutional interpreters ought to treat some controversial provision of the constitutional text. It is fairly easy to ac­ count for this normative bent, as I will explain. This much, at least, is obvious now: when it comes to constitutional matters, the stakes are high, and serious thought thus moves readily into the normative, pre­ scriptive mode—the mode of the morally authoritative rather than the idly optional. It is, in any event, this normative aspect that causes thinking to veer away from ordinarily recognizable matters of law and the Consti­ tution. For normative theory necessarily implicates, or stands upon, some kind of foundation in morality. This is especially so when it is normative theory about an authoritative constitution, or about interpreting some of the unabashedly moral phrases in its text (like "just compensation," "due process," and "equal protection," which happen also to be the most heavily litigated). Thus when constitutional thinkers present some nor­ mative theory, they rely, either explicitly or implicitly, on some more foundational moral considerations to justify their theory's morally au­ thoritative posture. My review of leading thinkers in the constitutional field bears this out. My review also shows that most constitutional theorists have an odd way of providing for their moral foundations. Most of them deny that their theories—or anybody else's—can really have adequate moral foun­ dations. They profess what I call a nihilist skepticism about moral good­ ness. They thus take a position in what ethical philosophers call "metaethics." (Because this term is often deployed to inhibit nonspecialists from thinking about the biggest issues, I will not use it in what follows.) And they make that position a foundation for their normative arguments about constitutional government. This approach makes nonsense of os­ tensibly normative theories. It also undermines the authority of the Con­ stitution and empties its moral words of any finally determinate meaning. As we shall see, a few solitary voices in the constitutional field have resisted the nihilist consensus about morality. I call them "moral realists" because they hold out for the possibility of anchoring moral consider­ ations in a reality independent of human artifice. Their normative ap­ proaches to constitutional issues retain the prospect of normative coher-

INTRODUCTION

5

ence, and the prospect of finding a real meaning in the Constitution's moral words. Unfortunately, the potent coherence of their moral foun­ dations would tend to produce its own set of problems as applied to the practices of constitutional government. Currently available versions of a moral realist constitutional jurisprudence threaten to equate the Consti­ tution with the Good. They also tend to stumble over the problem of ambiguity and indeterminacy in morals, and to underestimate the poten­ tial willfulness of the Constitution's human custodians. As I see it, then, contemporary constitutional thought faces stubborn impasses at the level of its moral foundations. Tracing these impasses back to contending philosophical traditions sheds light but does not al­ leviate pessimism. I will argue that if we are to make sense of a normative constitutional theory, we must find some better way of thinking about political morality in general. It must be a way of thinking that—for pur­ poses of constitutional theory's normative premises—can account for both our experience of moral goodness and moral indeterminacy, and that therefore can viably admit the possibility of real moral knowledge while retaining the cautionary postures of skepticism. Augustine's theory of political ethics has precisely these qualities. His ontologically founded theory envisions a moral reality at once ultimate and mutable in its relation to law and political rule. My proposal, then, follows directly: that constitutional theory's predicament invites, by its own structure, a kind of Augustinian scrutiny. The third and fourth chap­ ters of this book show how Augustine's philosophical exploration of the problems of goodness, knowledge, and politics makes possible a fresh conceptualization of the rule of law, and how this affords us striking in­ sight into—and a possible exit from—the normative impasses of contem­ porary constitutional thought. In the way it unfolds, then, this is, in a sense, two books—or at least two arguments. The second emerges from the first. The first is my attempt to assess the ways of thinking that dominate the landscape of contempo­ rary constitutional study; it is my diagnosis of the underlying issues of moral theory that subjacently configure the intellectual territory. The sec­ ond is my proposal for clarifying the fundamental and inescapable ques­ tions confronting constitutional thought—questions that remain unan­ swered (or have received at best fragmentary answers). Of course, if my second argument depends on the first, the first does not depend on the second. One might easily embrace the first while reserving judgment on the second. While both parts of the book are likely to raise eyebrows, the second will raise them higher. Unconventional cross-disciplinary proposals al­ ways run the risk of misunderstanding, and under present conditions that risk probably increases when one is consulting an ancient thinker known

6

INTRODUCTION

primarily for his theology. Perhaps a little forewarning may help. Hap­ pily, an initial misunderstanding is already overcome. The attentive reader already sees that my eventual turn to Augustine is not justified in terms of some religious authority posited as inhering in Augustine be­ cause he is Augustine or because he is religious. It is the problems of con­ temporary constitutional thought—their very intellectual structure— that, if I am right about them, invite an Augustinian inquiry. (There are also indications in intellectual history that, as I will show, suggest an Augustinian background to American thought; but I do not finally hang my argument on this suggestion.) Another thing to make clear from the start is that my side trips— through moral theory, and then through Augustine's theology—are not ends in themselves. To begin with, these side trips make possible a deeper understanding of current issues in constitutional thought. What they fi­ nally aim at, though, is a clearer and better way of thinking about consti­ tutionalism and the rule of law. And those who are initially leery of Au­ gustine's theological profile may be surprised at the outcome. For Augustine's thought generates an understanding of the rule of law that prevents law from ever mistaking itself for true morality or the rule of virtue. What makes this possible, as I will explain later, is the ontological footing of Augustinian political theory. It is this that distinguishes an Augustinian version of (and case for) the rule of law from either of its main alternatives. On the one hand, it distinguishes it from various "natural law" theories, whether Aristotelian or Thomist (though accuracy will not permit all Aristotelian renditions of law to carry the label "natural law"). On the other hand, it distinguishes it from the typical liberal theory of the rule of law. Under the natural law scheme, the rule of law turns out to be another guise for the rule of the virtuous taking their cue from the moral dictates of nature or the natural law. Prudence instructs the virtuous that the "rule of law" is a useful intermediary; constitutions become, in effect, a fiction of moral prudence. Under the typical liberal scheme, by contrast, the rule of law does not transmit moral truth; it displaces and eclipses it. I am speaking of liberalism here not, of course, in its daily newspaper sense but in something like its technical, political theory sense: the liber­ alism that insists that the public order and its rule of law operate strictly without reference to any conception of moral goodness or of the good life for man. Under the liberal version, constitutional law is a neutral arbiter among competing "value systems," remaining indifferent among them not as a matter of prudence but of principle. Augustinian thinking insists on the impossibility (indeed on the danger) of equating the rule of law with the rule of virtue just as much as it insists on the necessity of affirming a meaningful connection between legal norms and the highest moral norms. It enables us to embrace substantive

INTRODUCTION

7

goodness while relativizing its embodiment in politics and law. I might even venture that Augustinian thinking provides deeply nonpositivist grounds for an almost positivist vision of law and legal practice. Now, it would be easy enough, and sterile, to proclaim two contradictory atti­ tudes and leave it at that. But as we shall see, Augustine does not merely juxtapose these positions; he places them in tensions whose architecture is explicitly structured. Their structure makes these tensions, I believe, especially fertile for thought. If so, my Augustinian proposal may contrib­ ute fruitfully to contemporary debates about law, justice, rights, and other issues of constitutional order. Of course, by their very character, Augustinian "solutions" to such problems are not apt to be formulaic or neatly systematic. But that in itself may end up revealing something very important about the nature of our problems. By now it should be clear that the argument of this book will bear not only on constitutional matters but also on political theory more gener­ ally—especially on the political theory of modern liberalism. For the nor­ mative impasses of contemporary American constitutional thought mir­ ror the larger impasses of liberalism itself. If Augustine's thought helps us to penetrate the impasses of our constitutional theory, it is because the tensions of Augustine's thought resonate powerfully with the normative ambivalence of America's liberal constitutionalism. And in this case, what resonates can effectively advocate. For, in the final analysis, the Augustinian outlook I recommend speaks for a liberalism, although on de­ cidedly nonliberal grounds. Liberalism grates against moralists because its many artifices deflect law and political deliberation away from the re­ ally substantive moral issues. Now, Augustine is the most severe of mor­ alists. Yet when we consult him, we may end up conceiving real and deeply moral reasons why, at least in the political sphere, a certain artifice may sometimes be desirable and even morally necessary. If an Augustinian outlook can advocate liberalism, it will be on decid­ edly nonliberal grounds that have a lot to do with Augustine's theology, and that leads to a couple of final matters. First, a theology that somehow has politically "liberal" implications has corresponding implications for a certain kind of religiosity; it has im­ plications against a religiosity that would impose itself by public force. This should become especially clear by the second half of chapter three. The argument of this book borrows crucial ideas from Augustine's philo­ sophic rendering of the biblical tradition, but I think it also strongly un­ dermines the moral and political dogmatism sometimes inspired by that same tradition (though this may require us to be more fully consistent with his theology than Augustinians have sometimes been historically). Second, a few fretful readers may already be worrying that they will have to embrace Augustine's theology in order to benefit from the intel-

8

INTRODUCTION

lectual exercise of this book. I can assure them that this is not the case. All of us can benefit from all sorts of intellectual experiments that can shed light in unexpected ways on old problems, even if they remain for us merely experiments. Indeed, the search for truth seems to proceed only when we consider alternatives that oppose our current views. Of course, any time we consider ideas we dislike, we run a risk—the risk that we may end up preferring them. But we welcome the risk because such com­ parisons are the only means of securing a firmer title to the views we persist in. Besides, we always retain the option of reserving judgment, which is precisely what the best of my readers will do. A few final notes on reading are in order. The reader should know in advance that I have let what I consider the pivotal ideas—and the expe­ riences behind those ideas—determine the structure of my argument. Therefore, though I analyze the work of many leading constitutional the­ orists, this work is not a compendium of monographs about them. Read­ ers who want to know my assessment of a particular thinker—such as Robert Bork, Ronald Dworkin, Walter Berns, Michael Moore, or oth­ ers—will find the relevant passages interspersed through the text. Only after reading the work as a whole will the reader clearly see what my assessment of a given thinker really is. I am less interested in providing particular analyses of individual thinkers than in pursuing the problems that plague the enterprise of normative constitutional theory as a whole. To try and make things as clear as possible, I have begun each of the main chapters (one through four) with a paragraph succinctly stating the chapter's argument. What follows in each chapter is an attempt to unpack and defend that preliminary summary.

One Normative Impasses in Contemporary Constitutional Theory

EVERY influential scheme of constitutional theory stands, whether openly or not, on some premises of normative morality. Yet most contemporary American constitutional commentators—on both the political Left and Right—are unwilling to shoulder the normative burdens of their own en­ terprise. Instead they profess to believe that morality is arbitrary and rel­ ative at its foundations. But this view undermines their constitutional scholarship. It certainly makes it awkward to deal with a constitutional text whose pivotal phrases are unabashedly moral in character. On a deeper level, by professing this view they deny what their normative premises require: a real morality, with real normative authority surpass­ ing mere conviction or convention. For nothing arbitrary is finally au­ thoritative. All the same, there remain good reasons to balk at any re­ course to real normative authority in constitutional matters. Contemporary constitutional thinking thus faces seemingly intractable problems at its moral foundations.

Normative Presuppositions That every serious approach to constitutional theory implies some back­ ground normative position, some substantive ordering of political values, is by now hardly a matter of controversy. Once Ronald Dworkin's early essays began making this point, it became difficult to hold out for the alternative, which—increasingly seen as implausible—was the view that constitutional theory could suspend itself in midair, independent of any substantive political morality. But as Dworkin said, any theory of law— and especially American constitutional law—is "normative," necessarily "embedded in a more general political and moral philosophy."1 Whatever their differences with Dworkin, others have come to similar conclusions. Laurence Tribe considers it "pointless" for constitutional 1 Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), vii—Vin (see, in general, 1—13, 131—49); Ronald Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985), 34 (see, in general, 33—71).

10

CHAPTER ONE

theory to flee from reliance on substantive moral premises; he shows how those who have tried to do so end up importing controversial value prem­ ises without admitting or defending them. Walter Berns also faults such approaches for failing to appreciate how the Constitution "was designed with a view to a . .. substantive end." A host of others have made essen­ tially the same sort of observation, including Richard Parker, Michael Perry, and Rogers Smith. All more or less agree with David A. J. Richards that underlying normative issues "control the interpretive issues central to understanding constitutional government."2 It is not surprising that approaches to constitutional commentary and scholarship imply a normative premise, since nearly all of them are pre­ scriptive in character. Some constitutional theorists contend, for example, that the constitutional prerogatives of democratic majorities ought to be recognized as paramount and ought to be largely exempt from judicial scrutiny. Others devote themselves to arguing that certain fundamental constitutional rights ought to be protected from those same majorities. Whatever the burden of their argument, their prescription implicates them in a moral premise. For prescription implies a morally compelling standard empowering prescription. (Of course observations about moral premises would be beside the point if constitutional theorists were offer­ ing their prescriptions as an exercise in idiosyncratic self-assertion. But they are not.) We can hardly blame commentators and scholars for falling into the imperative mode, for there is another factor at work that strongly rein­ forces their normative proclivities. It is the American Constitution itself. After all, the Constitution, simply by being a constitution, is normative by definition: It must function as the authoritative architecture for Amer­ ican public life (or at least for American government). And the text dou­ bly reinforces what the concept requires. In the first sentence, the text magisterially announces that its subsequent prescriptions are justified, not 2 Laurence H. Tribe, Constitutional Choices (Cambridge, Mass.: Harvard University Press, 1985), 9—20; Laurence Tribe, "The Puzzling Persistence of Process-Based Constitu­ tional Theories," Yale Law Journal 89 (1980); Walter Berns, "Judicial Review and the Rights and Laws of Nature," in 1982 Supreme Court Review, ed. Philip B. Kurland, Ger­ hard Casper, and Dennis J. Hutchinson (Chicago: University of Chicago Press, 1983), 55; Richard Parker, "The Past of Constitutional Theory—And Its Future," Ohio State Law Journal 42 (1981), see esp. 229-39; Michael Perry, The Constitution, the Courts, and Hu­ man Rights (New Haven: Yale University Press, 1982), see esp. chap. 1; Michael Perry, "Moral Knowledge, Moral Reasoning, Moral Relativism: A 'Naturalist' Perspective," Georgia Law Review 20 (1986): 995; Michael Perry, Morality, Politics and Law A Bicen­ tennial Essay (New York: Oxford University Press, 1988), chaps. 3 and 6; Rogers Smith, Liberalism and American Constitutional Law (Cambridge, Mass.: Harvard University Press, 1985), 227; David A. J. Richards, Toleration and the Constitution (New York: Ox­ ford University Press, 1986), 18; see also David A. J. Richards, "Moral Philosophy and the Search for Fundamental Values in Constitutional Law," Ohio Law Journal 42 (1981).

NORMATIVE IMPASSES

11

in terms of some privately preferred value system, but in terms of Justice and the general Welfare. Moreover, among the most consequential and disputed parts of the text are those couched unapologetically in the lan­ guage of moral rectitude—such as the Fifth Amendment's requirement of "just compensation" when the state takes property, or the Eighth Amend­ ment's prohibition of "cruel" punishments, or the Fourteenth Amend­ ment's guarantees of "equal protection" and "due process." If constitutional theory is the activity of raising prescriptive arguments, and of doing so in connection with America's most authoritative public norms (or with the constitutional text's brazenly moral words and phrases), it is no wonder that the work of constitutional theorists is hope­ lessly entangled with premises of normative morality. But what exactly is involved when a theory or argument carries nor­ mative premises? Although I will explore this issue more systematically in the following chapter, I can begin briefly here. A theory with normative premises, if it is to make sense of itself, must either have or presuppose adequate answers to normative questions. Such questions arise in connec­ tion with any typical work of constitutional theory: One theorist may advance the view that only when democracy is construed a certain way can the power of a judiciary ever be legitimate. Why, one wants to know, is that version of democracy the rightful one, as against alternatives? An­ other theorist may argue that certain rights are more fundamental than others, and so deserving of special judicial protection against democratic majorities. What justifies, one wonders, that particular claim of funda­ mental rights? Another theorist may insist that constitutional standards be interpreted in one sense, rather than in some other sense that is also possible. Why, one asks, ought we to accept that reading as the authori­ tative one? Such questions look to the unpacking of a theory's normative premises. And where normative constitutional theorists do not immedi­ ately offer answers to such questions, they always presuppose them. Now, being responsible about one's normative premises means presup­ posing not just any answer to a normative question, but a good answer. Or at least it means presupposing that there is some adequate basis on which to formulate a good answer. To put the same thing differently, being responsible means presupposing that there really is something truly normative in which to anchor an answer. Why add the qualifications re­ ally and truly? Because normative questions demand a certain kind of answer. We can finally satisfy a normative question only in terms of a goodness or a Tightness that we recognize as compelling the assent of rea­ son—and as compelling that assent on a moral basis (not on the basis, say, of force, or caprice, or fatigue).3 3 For a contrary view, see Ronald Dworkm's recent assertion that such moral language does not refer to an authoritative moral reality. Rather, according to Dworkin, it simply

12

CHAPTER ONE

Consider a small example from the domain of constitutional interpre­ tation. Anyone who would interpret the Eighth Amendment must con­ front the text's prohibition of punishments that are cruel, or, more pre­ cisely, of punishments that have the quality of being cruel and the quality of being unusual. "Unusual" is the easy part; it requires only an empirical assessment of prevailing practices of punishment. "Cruel" implies a very different kind of inquiry. Indeed, any theory that successfully interprets the Eighth Amendment must include some theory about what a word like cruel really refers to.4 Cruelty would seem to be a quality of human ac­ tions; it denotes a particular kind of moral deficiency that may mark hu­ man actions. Does the quality that this word denotes have a real and in­ trinsic significance? Or is it merely an empty vessel into which any meaning may be poured—such as an interpreter's own private preference, or the meaning that society, or the dominant group in society, gives it, or the meaning that a subordinate group in society gives it? But can society's dominant group be mistaken and self-interested in the meaning it con­ trives for such a word? Can a subordinate group be mistaken? Can an individual interpreter be mistaken? If the word cruel does not correspond to a real quality of human actions but is only a blank vehicle to carry any meaning fabricated for it, then what compels us to accept some interpre­ tation of its meaning as authoritative? More deeply, why then ought we to accept a "prohibition" of "cruel" punishments in the first place? The upshot of such questions is fairly clear. If moral words can never refer to an authoritatively real moral dimension to things, there is no possibility of a successful normative theory of the Eighth Amendment's ban on cruel punishments. But this only begins to illustrate the broader point. A thinker who be­ gins by denying an authoritatively real goodness or Tightness—as does someone who embraces moral nihilism or what is now often called "skep­ ticism"—cannot formulate an adequate approach to normative constitu­ tional theory.5 The reason is obvious. Nothing prescriptive or normative serves to repeat and make more vehement the speaker's moral claims, and thus to qualify the content of those claims as pertaining to the bounded concerns of moral interpretation— not to refer such claims to the truly good or the really right. Ronald Dworkin, Law's Empire (Cambridge, Mass.: Harvard University Press/Belknap Press, 1986), 78—82. But see my dis­ cussion of Dworkin's view in chap. 2 below. 4 Paradoxical though it may seem at this point in the argument, I will in effect argue later—by the time I reach chap. 4—that it may not always be necessary or desirable for judges, in their judicial capacity, to attain a fully successful interpretation of moral words. 5 By nihtlism/skepttcism I mean here not heuristic doubt but the conclusion in which a thinker denies an independently real moral goodness, that is, an intrinsically real moral dimension to reality. J. L. Mackie calls himself a skeptic in this sense. See Mackie, Inventing Right and Wrong (1977), cited by Michael Moore, "Moral Reality," Wisconsin Law Re­ view, 1982, no. 6: 1086. This will become more clear in chap. 2 below.

13

NORMATIVE IMPASSES

skepticism.6

can follow from the premises of nihilist Nothing really nor­ mative can follow, that is, from the denial of real normativity. If there is no real goodness or Tightness, if all we have, at best, are the vagaries of private or socially fabricated conventions, then no moral assessment of human actions is ever truly normative. Moreover, all normative theoriz­ ing is, at least in the final analysis, moot. Indeed, someone who honestly adopts the stance of a nihilist skeptic will be embarrassed by his own prescriptions, for they "hold out a promise on which he thinks he cannot deliver," as Michael Moore puts it.7 Let me run through this again. Constitutional theory—undoubtedly like all normative political theory—cannot avoid reliance upon moral premises. Moral premises cannot avoid referring to the good (or the right) that they inescapably presuppose. The good cannot successfully actuate moral thinking unless it is perceived to be a real and intrinsically moral good; only such a good allows for satisfactory answers to normative questions. Nihilist skepticism cannot provide normative premises because it dismisses normative questions as such, rather than answering them. To say, therefore, that all approaches to constitutional theory presuppose a normative position is to say that by their own logic they all need to sub­ scribe to a belief in an authoritative moral reality in one sense or another. They could perhaps rely on a theory of the (really) good or on a theory of the (really) right, or on a theory of human nature implying one of these. But whatever their preferred version, their normative discourse implicates them in what we might call "moral realism." (This Is not to say, of course, that moral realism is an imperative of all scholarship treating constitu­ tional phenomena.)8

Normative Evasions Yet contemporary constitutional theory shrinks from the normative im­ plications of its own enterprise. Surprising as it may be to those outside 6 See Michael Moore's discussion of this point in "Moral Reality," Wisconsin Law Re­ view, 1982, no. 6: 1070—71. Moore also notes Judge Richard A. Posner's recognition of the normative impotence of such nihilist skepticism, citing Posner's "Utilitarianism, Economics and Legal Theory," Journal of Legal Studies 8 (1979): 103, 110. 7 Moore, "Moral Reality," 1063. 8 It is only to say that moral realism is an imperative of all normative commentary. Schol­ arship about constitutions can easily be nonnormative, merely descriptive or analytical. It might, for example, formulate elegant taxonomies, or investigate whether the terms of a polity's written constitution fit what seem to be the features of its actual constitution. But the most influential and prominent American scholarship in this field unfailingly contains a prescriptive dimension as well. That is, it forms some evaluative judgment and offers, overtly or covertly, some equivalent of an "ought statement" regarding what ought or ought not to be done, or valued, or thought in constitutional matters.

14

CHAPTER ONE

the field, most normative constitutional commentary shuns any form of "moral realism." When they become self-conscious about their premises, most American constitutional theorists inveterately affect the posture of nihilist skepticism about moral value. In doing so, of course, they put their work in tension with the overt character of the constitutional text. They also render impotent their own prescriptions about constitutional interpretation and adjudication. A few brief examples from both sides of constitutional theory's political spectrum can illustrate what I mean. Chief Justice William Rehnquist and former federal judge Robert Bork share a common constitutional philosophy. As expressed in their most theoretically self-conscious essays, this philosophy rests on two basic pil­ lars: a moral nihilism that reduces morality to convention, and a political theory that reduces legitimacy to the will of democratic majorities.9 Bork has asserted unequivocally that morality is never anything more than a "form of gratification" that people indulge, while Rehnquist has insisted that distinctions between right and wrong are radically subjective prefer­ ences, beyond the reach of reason. Hence there exists nothing beyond majority will itself, they argue, that can rightfully bar the majority from establishing, with public force, whichever gratifications or preferences it wills to establish. In other words, Rehnquist and Bork connect the two pillars of their theory by making majority will their conventional surro­ gate for a real morality. They seek to erect on this foundation a normative theory of interpretation (framers' intent) and of adjudication (judicial re­ straint). Such an argument fails them. If there is a good reason why we ought to give primacy to the prerogatives of democratic majority will, it must be a reason with genuine normative force—not merely the "reason" that ma­ jority might makes right.10 But intent on liberating constitutional juris­ prudence from moral philosophy, Rehnquist and Bork deny the existence 9 Robert Bork, "Neutral Principles and Some First Amendment Problems," Indiana Law Journal 47 (1971): 1—11, 18, 26—29; William H. Rehnquist, "The Notion of a Living Con­ stitution," Texas Law Review 54 (1976): 704—6; William H. Rehnquist, "Government by Cliche: Keynote Address of the Earl F. Nelson Lecture Series," Missouri Law Review 45 (1980): 384, 391; see Sotirios A. Barber's analysis of Bork in "The New Right Assault on Moral Inquiry in Constitutional Law," The George Washington Law Review 54 (1986); also see Sotirios A. Barber's "Judge Bork's Constitution," in Courts, Judges, and Politics, 3d ed., ed. Walter F. Murphy and C. Herman Pntchett (New York: Random House, 1986). See Stephen Macedo's analysis of Rehnquist in The New Right v. The Constitution (Wash­ ington: Cato Institute, 1986). Raoul Berger bases his extensive elaboration of a framers' intent theory of interpretation on premises similar to Rehnquist and Bork, and faces similar problems: Raoul Berger, Government by Judiciary (Cambridge, Mass.: Harvard University Press, 1977). 10 Michael Walzer attempts such an argument in "Philosophy and Democracy," Polttical Theory 9 (1981): 379-400.

NORMATIVE IMPASSES

15

of an independently real morality, or at best declare its contents indeter­ minate, and so abjure any recourse to it. By rejecting a moral reality in favor of mere convention, they undercut both their theory of democracy and their doctrines of interpretation and adjudication. For a consistent nihilist skeptic—whose evaluative resources extend no further than vari­ ous personally or socially fabricated conventions—has no truly authori­ tative argument against the substitution of one convention for another, no standard for finally discriminating among conventions, no way to deny that nothing succeeds like success. Though the comparison might disquiet him, John Hart Ely's wellknown substitution of process norms for substantive ones gives his thought a structural affinity with conservatives like Rehnquist and Bork. If Ely's democratic proceduralism is more capacious than Bork's, is it sim­ ply because Ely is a better technician of the democratic process they both revere? The answer must be yes if we take Ely at his word, for he shares Bork's approach to morality.11 Like Bork, he fills the normative void with mere convention. He simply takes democracy as a given, enthroned by currently prevailing convention, and proceeds to find in its requisites the content of constitutional norms.12 Of course Ely elevates a particular ver­ sion of democracy, one that is rather at odds with Bork's. His version requires the judiciary scrupulously to foster the representation of those groups that tend to be squeezed out of democratic processes. On what basis can Ely justify his distinctive recourse to democracy and the prescriptions he derives from it? He flirts with the possibility of a utilitarian justification of democracy, but dismisses it as irrelevant to his analysis.13 Ely's constitutionalism, then, begs the same questions as Bork's. He is, in other words, unable to answer the normative question. His denial of any independent moral reality in favor of ungrounded con­ vention renders his normative theory impotent on its own terms. Laurence Tribe has pointed out that Ely could successfully validate his proceduralism if he were to identify democracy with some substantive norm, if he were to anchor process in some intrinsic source of value. That correction, Tribe argues, could set Ely's process superstructure on a surer 11 John Hart Ely, Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980): 43—72; John Hart Ely, "Foreword: On Discovering Fundamental Values," Harvard Law Review 92 (1978): 31-32; see Sotinos A. Barber, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984), 30. 12 Ely, Democracy and Distrust, 5—7, and see generally 73—183. Here he explicitly relin­ quishes—for purposes of his theory of the judiciary's constitutional review—the possibility of arguing or asserting that democracy is truly worthy of such enthronement. 13 Ely, Democracy and Distrust, 187 n. 14: "nothing in the . . . analysis depends on this claim."

16

CHAPTER ONE

footing.14 Yet Tribe himself spurns the possibility of any legitimate basis for making such a correction. Though he acknowledges that the "flight from substance" is "pointless," he nevertheless dismisses the search for normative legitimacy as "futile."15 Tribe, in other words, explicitly opts for the nihilist horn of the dilemma he poses. Tribe's conclusion about the ultimate groundlessness of morality, though, does not deter him from advancing positions on a host of consti­ tutional issues. Thus he advocates affirmative action remedies, urges strict constitutional gender neutrality, champions the right to abortion, and ad­ vises that the compensation and contract clauses be construed with a greater redistributionist tilt.16 How can we possibly understand the nor­ mative status of prescriptions like these? If we were to take Tribe's overt moral premises seriously, we would seem to have little alternative but to take them as instances of partisan advocacy, or, worse, as matters of sim­ ple willfulness. Michael Perry's moral thinking, mistaken by some for moral realism,17 like Tribe's, also excludes anything like the premises of a moral realism. Perry's recent work makes this clear.18 He argues that the Constitution's key normative provisions symbolize "fundamental aspirations" whose meaning is fundamentally indeterminate. They are indeterminate because we can have no knowledge of any independent moral reality in which the meaning of such aspirations might be anchored. Perry anchors the mean­ ing of these indeterminate principles instead in "tradition," conceived in an entirely historicist manner. This "tradition," which he considers the only possible locus of morality, is historically contingent. It has no intrin­ sic content; it provides no independent point of reference. Human will— with all its contingency and flux—is as much the creator of Perry's "living tradition" as its creature.19 Like most contemporary constitutional theorists, Perry will not root the meaning of moral words in a reality whose existence is independent of human artifice. Morality becomes, in his hands, merely a matter of 14 Laurence Tribe, "The Puzzling Persistence of Process-Based Constitutional Theories," Yale Law Journal 89 (1980): 1063-79. 15 Laurence Tribe, Constitutional Choices (Cambridge, Mass.: Harvard University Press, 1985), 3—20. On page 5: "I genuinely believe in the ultimate futility of the quest for an Archimedean point." 16Tribe, Constitutional Choices, 165-245; Laurence Tribe, Prepared Statement on S. 158, Senate Subcommittee on Separation of Powers, The Human Life Bill: Hearings on S. 158, 97th Cong., 1st sess., I, 249—52. 17 Ely, Democracy and Distrust, 181; Richards, Toleration and the Constitution, 21. 18 Michael Perry, Exxon Lecture at the University of Notre Dame, 20 November 1986; Perry, "Moral Knowledge," 995ff.; Perry, Morality, Politics and Law, chaps. 1, 2, and 6. 19 Perry, Morality, Politics and Law, chaps. 2 and 6, esp. pp. 28-33,136—42.

NORMATIVE IMPASSES

17

socially fabricated convention.20 This position threatens the bulk of Per­ ry's jurisprudence, especially since he seeks to erect that jurisprudence on a moral foundation. For as I have argued, and will argue further below, at the moment morality is conceived to be ultimately a matter of conven­ tion, it effectively ceases to be normative. Though hardly exhaustive, this brief look at current thinkers is enough to establish my central point: They deny any moral reality beyond the contrivances of convention. As I shall show, the same is true of most other leading constitutional theorists, including Walter Berns, Rogers Smith, and possibly even Ronald Dworkin. To be sure, some contemporary thinkers, notably John Courtney Murray, Michael Moore, Sotirios Bar­ ber, Stephen Macedo, and David A.J. Richards, have attempted "moral realist" approaches to constitutional theory,21 but the mainstream has shunned such alternatives. By presuming the merely conventional status of all moral principle, constitutional theorists cripple their own prescriptive arguments.22 They also adopt a frame of mind ill-attuned to the Constitution as a norm or to the normative thinking and language of the framers or anyone else. It was, after all, the founding generation's belief in real and intrinsically valid natural rights—rights possibly "endowed by their Creator" and cer­ tainly not just fabricated by human will—that seems to have prompted them to recognize and embody certain normative standards in the Con­ stitution. They did not view morality the way a nihilist skeptic does, nor do men and women today in the typical activities of everyday life.23 20 See

my further discussion of Perry's conventionalism in chap. 2. Courtney Murray, We Hold These Truths. Catholic Reflections on the American Proposition (Garden City, N.Y.: Doubleday Image Books, 1964); Michael Moore, "A Nat­ ural Law Theory of Interpretation," Southern California Law Revtew, 58 (1985) (hereafter cited as "Interpretation"); Moore, "Moral Reality"; Barber, On What the Constitution Means; Barber, "The New Right Assault on Moral Inquiry in Constitutional Law"; Ma­ cedo, The New Right v. The Constitution·, Richards, Toleration and the Constitution·, Rich­ ards, "Moral Philosophy and the Search for Fundamental Values in Constitutional Law." 22 I am arguing here (and elsewhere in this work) that normative theories about the nature and practices of constitutionalism—theories about such things as how one ought to inter­ pret the constitution, or about how constitutional adjudication ought to be carried out— have to be regarded as grounded somehow in a morally authoritative, nonconventional re­ ality in order to be truly normative. Sophisticated legal positivists, notably H.L.A. Hart, have argued that considerations strictly internal to law, by contrast, may be "normative" as law without such an ultimate grounding in reality. As I explain in the Appendix, my view does not immediately contradict theirs, although in the final analysis my proposal may un­ settle their scheme. 23 Outside of academic discourse, that is. Michael Moore rues the "conceptual schizo­ phrenia" by which academics disjoin their nihilist skepticism from daily life, singling out thinkers like Richard Rorty. Moore, "Interpretation," 310. 21 John

18

CHAPTER ONE

Normative Fears Yet the thinkers I have considered are busy with the work of normative constitutional theory. They therefore take a normative position despite their professions of nihilist skepticism. What accounts for this evasion at retail of the normativity that their arguments entail at wholesale? What explains this lip service to moral nihilism, this effectively pretextual de­ nial of the premises of a moral realism? To some extent the moral posture of contemporary constitutional the­ orists probably reflects the governing orthodoxy of academic social thought generally, which often reflexively assumes the relative or merely conventional nature of morality.24 Further, constitutional law has its own governing environment, which includes a recent tradition of nihilist skep­ ticism, expressed in a recourse to "morals" understood as merely conven­ tional. Justice Oliver Wendell Holmes, Justice Felix Frankfurter, and Judge Learned Hand helped to establish such an attitude in the American legal mind,25 as did thinkers associated with "legal realism."26 Operating in this environment, contemporary constitutional theorists may disregard the possibility of moral realism simply because it is unfamiliar. But this only pushes the puzzle back a generation or two, and it fails to explain the mainstream's resistance to today's moral realist alternatives, whose sophistication in terms of constitutional theory far exceeds what Justice Holmes rejected.27 I suspect there is another reason for constitutional theorists' deepseated aversion to a truly normative understanding of the good or the right. Like those in earlier periods, contemporary theorists may fear the consequences of such a theory. And with good reason. Although ulti­ mately a necessary foundation for any kind of normative theory, an ex24 See Edward A. Purcell, Jr.'s general account of this prevailing academic culture in his The Crisis of Democratic Theory (Lexington, Ky.: The University Press of Kentucky, 1973), 13-73, 197-217, 235-66. 25 See, for example, Oliver Wendell Holmes, "Natural Law," Harvard Law Review 32 (1918): 40, 44, in which he reduces morality to "deep-seated preferences which cannot be argued about": Felix Frankfurter, Rochin v. California, 342 U.S. 165, 169 (1952), where he restricted himself to the "accepted standards of decency of English-speaking peoples"; Learned Hand, The Spirit of Liberty (1959), 93, where he wrote that "man and man alone creates the universe of good and evil." Moore summarizes this material in "Moral Reality," at 1064-67. 16 Jerome Frank, Law and the Modern Mind (New York: Brentano's, 1930); Karl Llew­ ellyn, The Bramble Bush (Dobbs Ferry, New York: 1960). For a discussion of legal realism see A. J. Beitzinger, A History of American Political Thought (New York: Harper &c Row, 1972), 491-93. 27 For example, in his recent Law's Empire, Ronald Dworkin fails even to cite Michael Moore, despite Moore's trenchant criticism of Dworkin's approach.

NORMATIVE IMPASSES

19

plicit recourse to an authoritatively real morality seems risky in the con­ stitutional context. It may foster a preference for the rule of moral philosophers over the rule of law. It may tempt constitutional scholars and justices of the court to hold forth openly like "Platonic guardians"— a fear expressed by such disparate voices as former Chief Justice Warren Burger, federal judge Robert Bork, and Justice William Brennan.28 Their fears do not seem groundless, and though contemporary versions of con­ stitutional "moral realism" attempt to allay such fears,29 they do not wholly succeed, as we shall see later. Such fears have a certain theoretical cogency, at least in some areas of constitutional theory. For example, even if it is sometimes necessary to refer pivotal questions of constitutional meaning to a larger moral reality, the attempt to do so seems to threaten law itself. Expressions of such a fear appear repeatedly in the writings of current conservative opponents of moral theory in constitutional law.30 Can a belief in an independently real moral goodness avoid the tendency to collapse law and politics into morality? If it cannot, it is unclear how law can have the delimitation necessary to make sense of law as law. In order for law to be law, it must be something finite and definite, with meaningful boundaries. To retain that quality, law has to be something less than the comprehensive imper­ ative to goodness and justice31 (for that imperative seems to be boundless and infinite, at least in relation to human beings). Otherwise it is hard to 28 Warren Burger in Plyler v. Doe, 457 U.S. 202 (1982): dissent; Robert Bork, "The Con­ stitution, Original Intent, and Economic Rights," San Diego Law Review 23 (1986): 832; Brennan, speech at Georgetown University, 12 October 1985, reprinted in New York Times, 13 October 1985, 36 (cited by Bork at 825). 29 Michael Moore and Sotinos Barber both argue, for example, that an authentic moral realism will recognize what Barber calls "the intractably provisional qualities" of moral and constitutional answers (Barber, On What the Constitution Means, 121). Thus Barber argues that those who take seriously the process of moral philosophy will necessarily eschew dog­ matism and coercion, and thus could not possibly let themselves rule as "kings." I will return to Moore's and Barber's arguments in the chapters that follow. 30Bork, "Neutral Principles," 30—35; Bork, "The Constitution," 825; Walter Berns, "Taking Rights Frivolously," in Liberalism Reconsidered, ed. Douglas MacLean and Clau­ dia Mills (Totowa, N.J.: Rowman & Allenheld, 1983): 63ff.; Edwin Meese III, "The Moral Foundations of Republican Government," in Still the Law of the Land? ed. Joseph S. McNamara (Hillsdale, Mich.: Hillsdale College Press, 1987), 63—78; J. Clifford Wallace, "Whose Constitution? An Inquiry into the Limits of Constitutional Interpretation," in Still the Law of the Land? 1-13; Gary L. McDowell, Equity and the Constitution (Chicago: University of Chicago Press, 1982). 31 This basic point has been widely accepted in the history of the philosophy of law. See, for example, Thomas Aquinas, Summa Theologtae, trans, the Fathers of the English Domin­ ican Province (New York: Benziger Brothers, 1947), 1—2, q. 96 art. 2, q. 94 art. 6; Thomas Hobbes, Leviathan (Middlesex, England: Penguin Books, Ltd., 1983), esp. pt. 2; John Aus­ tin, The Province of jurisprudence Defined (London, 1832), generally; H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).

20

CHAPTER ONE

see how the rule of law can retain one of its central virtues—reasonable predictability even to those inclined to disobey. Furthermore, a commit­ ment to the existence of an authoritatively real morality comes up against the question of ambiguity. Who can deny that moral ambiguity and even moral indeterminacy are a fact of life—especially in political matters? If the standard of Tightness has to be real, it is hard to see how there can ever really be satisfactory answers in the kinds of hard cases that the law must treat in the course of things. Indeed, experience suggests that these theoretical worries make even more sense on a practical level. If constitutional law is in the final analysis nothing less than morality whole, then who could safely be given the stewardship of so boundless a standard? For the most compelling kind of skepticism is not so much about morality as about men. It does not re­ quire going back to Thomas Hobbes to find cause for pessimism about mankind's moral nature, or to recognize what storms of contention can be stirred by questions of moral rectitude.32 We could go to Locke or to the writers of The Federalist Papers, or to Chief Justice John Marshall, for a similar outlook on human moral nature.33 Indeed our own experi­ ence can make us chary of a power to announce definitive moral truth. We know from experience that if people claim to have figured out the problems of moral theory, their problem-solving confidence is likely to be overblown, and their readiness to impose their solutions is apt to be dan­ gerous.34 In other words, in view of the potential harm of defective moral the­ ory—of moral theorizing run amuck—it may seem safer to disavow moral realism altogether. This is probably the bottom line of Judge Bork's view. I suspect, for example, that his strictures against moral philosophy and normative morality are motivated not so much by an aversion to moral philosophizing as by an aversion to the objectionable moral theo­ ries proffered by constitutional theorists—especially those who have re­ cently licensed themselves as moral philosophers.35 The same may be true of Walter Berns and some other academic commentators.36 32

Hobbes, Leviathan, 1:11-13. John Locke, Of Civtl Government (Second Treatise) (South Bend, Ind.: Gateway Edi­ tions, 1955), sees. 13, 123, 127; The Federalist, 1, 6, 10; Robert K. Faulkner, The jurispru­ dence of John Marshall (Princeton: Princeton University Press, 1968), chap. 1, esp. 9—20. 34 This was essentially the argument of certain morally relativist academics of the 1930s and 1940s, which they deployed as a "counterattack" against the attempt to associate the value of democracy with real morality. See Purcell, The Crisis of Democratic Theory, 115— 58. 35 I draw this conclusion from a conversation I had on this subject with Robert Bork, 3 April 1987, in Philadelphia. 36 Berns, "Taking Rights Frivolously," 63ff.; also, Walzer, "Philosophy and Democracy," 379ff. 33

NORMATIVE IMPASSES

21

The fears of such thinkers are not arbitrary; they reflect an experience of reality, not simply paranoia. Their fears thus possess a kind of nor­ mative force of their own. As such, they suggest a basis for concluding that moral realism, too, might somehow fail to provide the kind of nor­ mative foundations required by the enterprise of constitutional theory. The trouble is, of course, that whatever its practical and political ap­ peal in a pluralist society, the alternative to moral realism—that is, nihilist skepticism—is intellectually untenable. This "solution," whether openly defended or not, is that for the sake of domestic tranquility constitutional thinking ought to dismiss the possibility of any really authoritative norms and take refuge instead in some version of mere convention. As we have seen, this slights the normative character of the Constitution. More broadly, it undercuts the basic prescriptive enterprises of constitutional scholarship, for no one can successfully advocate mere convention as a norm. And such convention is indeed mere convention once it is declared that there is no moral reality by which convention might be anchored or judged. Now, in the hope of fending off moral realism, some might defend a reliance on moral convention by noting that the best of our privately or socially devised conventions can embody real moral considerations. But those who make that case have admitted the superior authority of a moral reality to a moral artifact; they have left off being conventionalists and have returned unawares to the basic premise of moral realism—with all the problems moral realism entails. And if they have returned to "moral realism" this way, their return probably lacks both a reasoned defense of the values in question and a reasoned analysis of their proper meaning. Such a return to moral realism is not only unfruitful, but is also apt to transform its un-self-conscious realism into dogmatism—inadvertently, to be sure, but none the less effectively. Similarly, it may be possible to convince judges that they ought to re­ frain from engaging in moral philosophizing like Platonic guardians in the course of their judicial duties. But scholars who successfully formulate the case for so restraining judges would assume the role of "Platonic guardians" themselves. For their case can only rely on considerations of political and moral philosophy; consequently, their attempt to restrain judges from philosophy, especially if it is successful, will demonstrate not the irrelevance of moral philosophy to constitutional jurisprudence, but their own reliance on normative premises that are truly compelling.37 Increasingly, then, the issue is whether constitutional thinkers are will37 Michael Walzer's carefully crafted argument for judicial restraint, predicated on prem­ ises of normative democratic theory, illustrates this point nicely: Walzer, "Philosophy and Democracy," esp. 387-97. See also Walter Berns's argument along these lines, in "Judicial Review," 49—83; also Robert Bork's, in Tradition and Morality tn Constitutional Law (Washington: American Enterprise Institute, 1984).

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CHAPTER ONE

ing to assume responsibility for these premises. If not, we might at least consider whether silence, rather than ostensibly normative commentary, might be the only responsible course.

Normative Impasses Contemporary constitutional theory faces a stubborn set of problems. Al­ though the field's leading practitioners profess a nihilist skepticism about morality, none can successfully escape a discourse that presupposes a moral reality. The field cannot maintain itself as an enterprise on nihilist or merely conventional foundations. Nor, for good reasons, can it easily brook the alternative—approaching constitutional meaning and law through a "moral realist" quest for the good. This schizoid situation surely warrants a certain pessimism about the field of normative consti­ tutional theory. Such problems, of course, are not unique to constitutional thought. They are problems of social thought and moral theory in which consti­ tutional theory is embedded. They reflect distinctively modern tensions between moral "objectivity" and "subjectivity," between moral confi­ dence and skepticism, between the need for the truly good and the fear of its abuse. Any satisfactory resolution of such tensions will, of its own weight, press beyond the confines of constitutional theory toward the larger philosophic questions of the ontological, epistemological, and con­ sequent political status of morality. By their own structure, the impasses of normative constitutional theory already suggest the general kind of answer they need. As I shall argue below, they need an answer that is capable of detaching "moral realism's" assets from its liabilities. I shall show that an answer distinctly suited to such a task is available in the moral and political thought of St. Augus­ tine. For Augustine's thought anticipated—perhaps even precipitated— some of the "modern" problems of moral thought. Augustine's affirma­ tion of authoritatively real goodness unites with his profound and ontologically founded respect for moral contingency and indeterminacy—re­ spect, in a word, for the mutability of moral reality in human experience. His way of thinking is especially relevant to the question of morality in the context of modern pluralism, since he envisages fundamental disuni­ ties and lack of moral consensus in political society. Because of all this, and because intellectual history suggests connections between Augustine and American constitutionalism, we might look to Augustine for some basic tools with which to begin untangling the problems of moral theory that plague contemporary constitutional thought.

Two The Moral Anatomy of Contemporary Constitutional Theory

To SHOW how the normative impasses of contemporary constitutional theory invite an Augustinian scrutiny, I must retrace my steps. This re­ quires a kind of side trip into moral theory proper, in order to place the tensions of normative constitutional theory in philosophic context. This excursion will enable me to clarify and reinforce my claim that most lead­ ing theorists are moral nihilists. It will amplify my argument that neither nihilist skepticism nor moral realism provides satisfactory normative premises for constitutional theory. And it will show why it is necessary to go in every way beyond the parameters of current constitutional thinking if we are to make sense of a normative constitutional jurisprudence.

Varieties of Moral Thinking The various moral presuppositions of constitutional theorists—since they are in fact moral premises and not simply technical legal premises—bear a resemblance to several standard kinds of moral thinking. Looking at moral thinking in its classic categories will illuminate the moral premises of contemporary constitutional scholars by situating those scholars in pertinent philosophic traditions. It will reveal how far these basic options in moral theory provide solutions to the fundamental normative prob­ lems of the field. Now those who think about morality usually end up evaluating partic­ ular human acts and attitudes. But of course "applied ethics" is only the easiest and most noticeable aspect of moral thinking. And the answers it gives often stand upon answers to some prior, and bigger, kinds of ques­ tions. Everyone who thinks carefully about moral matters has, or relies upon, some answer to the foundational question about morals, which is something like this: "What is there that is authoritative in the moral sense?" or more simply, "What is the good?" And if judgments about particular human acts vary, so do ways of thinking about this founda­ tional question. Let me propose arranging the several basic kinds of moral thinking at

CHAPTER TWO

24

Teleology End or substance of the good (right for an end)

Realism Good has an independently real existence (and is knowable in some degree)

Conventionalism Good is a contingent human artifact

Deontology Right independent of the end or good

FIGURE 1

the foundational level according to two sets of criteria as follows.1 In fig­ ure 1, the vertical axis opposes teleological to deontological theories of the good. The horizontal axis opposes conventionalist to realist theories. The distinction between teleology and deontology is familiar territory to anyone who has taken a course in ethics. Teleological theorists say that the good must be thought of in terms of its end, purpose, or essential substance. For them, moral thought at its highest level is a matter of the mind's attaining some grasp of the essential character of the good (what­ ever that turns out to be); moral action is action that adjusts things with a view toward fostering or attaining that good. Deontological thinkers instead see the good not in terms of its substance but in terms of its form alone—or, as they sometimes put it, in terms of "the right" or "duty" for its own sake rather than for the sake of "the good." For deontologists, then, moral thought is less a matter of what moral conclusions one comes to than how one reasons to those conclusions; moral action is action in accord with such thought, irrespective of whether it moves things closer to a substantively worthy end state. Of course teleological thinkers may also concern themselves with form and right, but they justify such con­ cern by reference to a higher moral end. The division between realism and conventionalism treats a related but ultimately more decisive set of issues. Moral realism, as I use the term here, regards the good, whatever it may be, as a reality whose existence is independent of human artifice. That independent reality might be taken as ultimately located, as the American Declaration has it, either in "Nature" or in "Nature's God"—or perhaps elsewhere. Whatever its locus, the good can be authoritative for human beings and human communities precisely because it is a reality indepen1 With

thanks to L John Roos for contributing to the formulation of this scheme

MORAL ANATOMY

25

dent of their manipulation. Human caprice or self-interest form neither its existence nor its essential character. Moral conventionalism denies what realism affirms. It asserts that whatever "the good" may be for us, it is a convention rather than an independent reality. Conventionalists insist that the good cannot, in the final analysis, be treated as anything more than a contingent human arti­ fact—whether of personal, social, or historical manufacture. Convention­ alists are thus nihilists, since the essence of moral nihilism is the dismissal of real moral goodness. But they may be nihilists in one of two ways. They may deny the existence of an independently real good; that is, they may be ontological nihilists. We shall see some of these in our review of con­ temporary constitutional theorists. Or they may simply deny that we can know anything about such a good even if it does exist; in this case they are better described as epistemological nihilists, and there are even more of these in the ranks of constitutional writers. Every conventionalist is a nihilist of one kind or the other. There is a symbiosis between conventionalism and nihilism. Nihilism is the actuating premise of conventionalism; either variety of nihilism generates a conventionalist outcome. More simply, conventionalists are conventionalists because they are nihilists. After all, if one thought real goodness were available, why would one claim that only artifacts are available? In the absence of the real, only the man-made remains. And the nihilists we are talking about are not the nihilists of literary and political legend—wild rampaging destructors. They are usually ordinary human beings; they will not simply let the moral void remain empty. They will let it be stocked with various standards of "goodness." Indeed, their in­ sistence on the absence of a real goodness can spawn a fervid attachment to conventional standards. Yet they will affirm that all such standards, however beloved, are merely conventional. Whether gaily or glumly, they will regard such moral standards, at base, as artifactual rather than as able to be anchored somehow in the real. Moral realists, as we have seen, believe that moral considerations can have firmer foundations than this. If I am to speak carefully, I must note that moral realism—as I use the term here—takes the good to be firmly founded in two distinct yet parallel senses. I have explained the first sense: realists believe that in the final analysis the good is a morally authoritative reality that transcends the relativities of culture, social power relations, and private preferences.2 Although its expressions may be multifaceted, the good is thus ultimately a self-consistent reality against which moral 2 I am borrowing some serviceable terminology here from Daniel R. Heimbach, "The Moral Accountability of Law: A Critique of H.L.A. Hart's Concept of Law with Supple­ mentary References to Reinhold Niebuhr" (Ph.D. diss., Drew University, 1988), 131.

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convictions or conventions can, when appropriate, be measured. The sec­ ond dimension of moral realism is parallel to—and nearly as important as—the first. The second dimension is this: Moral realism regards the good as somehow accessible to human reason. Some might be inclined to give this second component of realism the label of foundationaltsm. But because that term can be misleading, I prefer to set it aside for now.3 The fact that one credits the existence of an independently real goodness hardly requires that one claim to know all about that goodness; one may posit its existence without knowing much of anything about its content. It is clearer to say simply that moral realism's ontological affirmation en­ tails epistemological possibilities. That is, realism implies the possibility of the human mind's actually attaining some real if incomplete glimpse at the nature of goodness (or of Tightness).4 For if a moral realist regarded the nature of goodness as strictly inaccessible to the mind, his or her belief in an independently real good would be inoperative.5 Logically, of course, a realist notion of the rational accessibility of the good could fall within a wide range of degrees, extending from a bare minimum to a fulsome confidence in the manifest intelligibility of the good. In the course of this work, and especially in chapter 4,1 will argue for a non-foundationalist view of moral knowledge that prefers the cautious, minimalist end of this spectrum—if it is on the spectrum at all. All of this should go a long way toward clarifying the distinction be­ tween the conventionalist and realist positions in moral theory. But keep3 Foundationahsm seems often to be the attitude of those who regard knowledge of the good as easy, obvious, or straightforwardly "objective." I will criticize such foundationalism in chap. 4. More modestly, foundationahsm can mean affirming simply the possibility of knowledge of the good. In this sense, moral realism implies foundationahsm; however, foundationahsm even in this restricted sense does not necessarily imply realism. For outright moral nihilists, like the late J. L. Mackie, are "foundationalist" in both the modest and lavish senses. They claim to have secure, objective knowledge of the realm of moral reality; that is, they claim to know for sure that there is none. Michael Moore has pointed this out effectively in "Interpretation," 312. See also Michael S. Moore, "A Natural Law Theory of Precedent" (Paper presented at Columbia University School of Law, 18 November 1985), 77-78. 4 Michael Moore, the foremost contemporary moral realist in legal theory, is clearly a realist in the first sense. Although he formally disclaims realism in my second sense, it nev­ ertheless applies, since Moore believes we can attain better theories about moral facts, and can know that they are better. (Moore, "Interpretation," 358.) When I take up a discussion of "correspondence epistemology" below, I will argue that Moore's thinking must be real­ ist—however minimally—in the second sense. See Moore, "Moral Reality," 1106—13; Moore, "Interpretation," 311—13. 5 Justice Rehnquist, for example, implies that he "believes" in a real morality, but since he regards its structure as opaque to reason, he rules it out of normative reasoning, out of public life, and out of judicial reasoning. Rehnquist, "The Notion of a Living Constitution," 167. As Stephen Macedo notes, this effectively makes him what I am calling a nihilist skep­ tic. Macedo, The New Right v. The Constitution, 34.

MORAL ANATOMY

27

ing these categories straight is hard because of two muddles that mark current thinking. For one thing, conventionalists often like to term their nihilism skepticism. For another, some thinkers who are very fond of con­ ventions are not conventionsfois. The term skepticism in its classic sense meant simply a posture of doubt for the sake of sturdy inquiry. This classic skepticism recognized that if doubt is heuristic, it is necessarily provisional in character. But heuristic doubt is not the posture of the conventionalist thinkers who dominate contemporary constitutional theory. Typically, their "skepticism," as skepticism, is either spurious or incoherent; it is not an attitude of doubt but of certainty. These thinkers are not doubting the ultimate soundness of some proposed moral standards, nor are they wondering whether the good is an independent reality that we can know or glimpse. Rather, they have come to the settled conclusion that there is no such reality, or that it is unavailable to our minds, or that it must in all instances be treated as if it were.6 In other words, the ostensible "doubt" of such a "skeptic" is really the certainty of the nihilist (whether ontological or epistemological). And as I illustrate with various constitutional theorists, many set out to make that nihilist conclusion a premise for normative arguments. Now the nihilist appropriation of the term skepticism impoverishes the vocab­ ulary of moral theory. It ought to be rued, and it ought not be permanent, even though usage may saddle us with it for now. Skepticism, in its au­ thentic sense, is a highly serviceable cast of mind most needed by—and most suited to—moral realists. By the time the argument of this book concludes, I will come to praise what I call a "proximate skepticism"— that is, a realist skepticism—that I find in selected constitutional theorists and in Augustine. In the meantime I will generally refer to contemporary moral skepticism as nihilist skepticism. The other muddle stems from the fact that those who respect moral conventions are not necessarily conventionalists. The reason for this is clear, at least upon reflection. Conventionalists need to deny that there are moral realities—since if realities were admitted they would, at least sometimes, invite moral inquiry into a realm beyond conventions and would be capable of delegitimizing conventions. Realists, however, have no need to deny that there are moral artifacts—and no need to deny that artifacts can genuinely deserve our respect. In fact realists are the only ones capable of making such an argument. Consider someone who says that we ought to adhere to some humanly formulated moral conventions (some "value system") because they are good conventions. Such a person is making a straightforward moral realist argument, that is, the argument 6 This is the sense of the late J. L. Mackie's influential proclamation of moral skepticism: Mackie, Inventing Right and Wrong (1977), cited by Moore, "Moral Reality," 1086.

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that some sets of conventions really are worthy of our respect as against alternative possibilities. Or consider someone who takes a similar but more subtle tack. Such a person may argue that it is better7 for individu­ als, or societies, to order their lives according to sets of inherited moral conventions rather than always trying to get a fresh fix on the ultimate moral dimension of reality. (Many serious thinkers have taken this view, and I shall come to some of them in the course of this study.) Such a person is not a conventionalist. His (or her) discourse credits the existence and relevance of the real in moral matters. For his argument consults, at least implicitly, what he considers the real in order to prescribe the gen­ eral use of the conventional. Unless his argument is tautological or in­ valid, he does not found its premises on its conclusions. He does not merely note that our conventions dictate that we abide by our conven­ tions. Rather, he argues that we really ought to abide by them, notwith­ standing other possibilities. If it makes sense, his argument in effect is this: By consulting real moral considerations some of the time (or at least once), we learn that we should content ourselves with conventional con­ siderations most of the time. Then again, there is the sort of thinker who reveres moral conventions of various kinds as useful or as potentially or inchoately indicative of moral truths. As I will argue later (in chap. 4), there are in fact "moral realist" reasons for denying that all our conventions are merely artifac­ tual. Only conventionalists are compelled to regard all conventions as artifactual—for the simple reason that they dismiss real goodness or rightness. As conventiona/i'sis, they insist that all we have to go by are variously stipulated "value systems" that cannot ultimately be anchored in an independently authoritative reality. They must so insist, because otherwise they would have to acknowledge the possibility of appraising the artifactual in the light of the real. There is irony lurking here: The conventionalist position makes it hard to give convention its due, pre­ cisely because it decisively enthrones convention. As I have argued above and will below, it is this conventionalism—founded on nihilism—that un­ dermines so much contemporary constitutional commentary. Having gotten the categories straight, we may identify thinkers in terms of both sets of criteria simultaneously. This will illustrate salient features of their thinking, and will roughly map four basic traditions of moral thought, as shown in figure 2. Plato, Aristotle, and Aquinas represent a way of thinking about the good that is both teleological and realist. For them, the good has a final end or essence that is substantively moral. And whatever the metaphysi7 Better, perhaps, because safer, or nobler, or apt to produce more morally tolerable con­ ditions, or apt to produce more pleasure, or more in keeping with the real conditions of human survival or of human reasoning, etc.

MORAL ANATOMY

29 T

Aquinas Plato Aristotle

Bentham Hobbes Mill (Mill?)

R

C

Kant

Protagoras

D

FIGURE 2

cal ultimacy of its existence—whether in Platonic transcendence, nature, or grace—the good is definitively not merely an artifact of man. More­ over, it is in some way and in some degree capable of being known. Kant's moral thought is similarly realist, but not teleological. That is, Kant regards the good as a reality whose existence and structure are not a function of human artifice. He regards it as a reality discoverable in the innately given structures of human reason and volition. A "good will," which Kant calls the only unequivocally good thing in the world, is good in terms of the structure of its willing rather than the excellence of its objects. In other words, he is interested neither in the ontological status of the good nor in its content, but instead in its right form.8 As such, Kant offers not so much an alternative kind of metaphysical thinking (versus that of the classics) as a substitute for metaphysical thinking altogether.9 From this perspective, the right structure of the rational will is the source of moral imperatives and the basis of law and the social contract. The moral theories of Bentham and Hobbes, on the other hand, are 8 1 am adumbrating here the unmistakably deontological ambition of Kant's moral think­ ing. The enduring appeal of Kant's moral theory to students of politics and law has consisted primarily in this deontological ambition. Like any great thinker, however, Kant displays countervailing philosophic tendencies. Kant's moral deontology coexists with a remarkably teleological theory of history that envisions a historical convergence of the right and the good. (See Kant's On Perpetual Peace and his Idea for a Universal History with Cosmopol­ itan Intent.) My suspicion is that Kant's dominant deontology undermines his nascently teleological moral history. But I must leave such questions to Kant scholars. 9 W. H. Walsh, 4tImmanuel Kant," Encyclopedia of Philosophy (New York: Macmillan,

1972),319.

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teleological but not realist. They are teleological thinkers because they justify their ethics by reference to a governing end. For Bentham's utili­ tarianism, the end is pleasure. For Hobbes, the governing end is peace, or in the final analysis, survival. They are conventionalists because whatever normativity their theories have is simply posited or stipulated, not given in the nature of reality. This is because pleasure and survival, while not themselves simply matters of convention, are not in themselves compel­ ling on a moral basis. For example, the observation that people seem gen­ erally to pursue pleasure and avoid pain does not make for the prescrip­ tion that they ought to. History and ordinary experience show that the pursuit of individual or group gratification can produce blameworthy or even reprehensible behavior. Similarly, the observation that many—even most—people in fact con­ sider self-preservation the highest good does not mike for the prescrip­ tion that they ought to. Indeed, history is full of stories of moral heroes who—to the acclaim of their fellows—spurned self-preservation for the sake of a higher good. Nor is it easy to invest "survival" with an ultimate moral authority by pitching it at the level of a social community or the human race instead of at the level of the individual. For the desirability of the preservation of the race is not simply self-evident. Nor is it universally agreed upon; we have certainly heard existentialist misgivings on the sub­ ject, not to mention those inclined to suicide or terrorism or both. Hobbes and his philosophic heirs gamble that the majority of people do desire human survival, either expressly or tacitly. If they do, however, it can only be because such people think that there is something about humanity, either individually or corporately, that makes it in fact worthy of preser­ vation. That is, if human survival is a morally authoritative first principle, it is not because varying numbers of people stipulate its moral authority but because of some intrinsic worth or excellence that mankind in fact comprises and that people can recognize whether or not they do. But to push to this level of analysis, as we must, is not only to push beyond but also to obviate the Hobbesian approach to morality. For such an analysis locates the ultimate ground of moral authority not in the stipulated desir­ ability of human survival but in the intrinsic good of human nature it­ self—a good begging to be inquired into. Probably because Hobbes him­ self recognized that his theory has no properly normative foundations, the bottom line of his political theory is coercion, not moral obligation. As Leo Strauss noted, this is what makes Hobbesian "modern natural right" thinking radically different from classical thinking about right and good.10 Utilitarian and Hobbesian moral theory represent, then, a kind of te10 Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 35—80, 165-251. See Hobbes's Leviathan 1: 14; 2: 20.

MORAL ANATOMY

31

leological conventionalism. For the principles they select are not mere ar­ tifacts of convention, but the normativity attributed to them is. John Stu­ art Mill, insofar as he is a utilitarian, faces the same difficulty; to the extent that he attenuated his utilitarianism by applying qualitative stan­ dards to pleasure, his thought may fit elsewhere on my philosophical map.11 Protagoras, who proclaimed that man alone is the measure of all things, represents here a way of thinking that is purely and unequivocally conventionalist.12 For while the putatively normative principles of utili­ tarianism and Hobbesianism retain some connection to nature (pleasure and survival), the Protagorean outlook turns entirely from nature to man and his artifice. Solicitude for any justifying telos drops away entirely. Such thinking is thus neither realist nor teleological, and its nihilist skep­ ticism may dress in many garbs. As such, Protagoras prefigures positiv­ ism, (strict) historicism, existentialism, and a number of other movements of thought that make contingent human agency the only touchstone of goodness. Let us consider how these larger and older categories of moral thinking relate to the thinking of contemporary constitutional theorists, some of whom I earlier passed over rather quickly. Doing so will complete the task of discovering how far the classic options in moral theory provide solutions to the problems of contemporary constitutional thought. (Fig­ ure 3 portrays in rough terms what I have in mind.)

Teleological Conventionalism Walter Berns seems to rescue conservative constitutional theory from a simple majoritarian legal positivism like that of Robert Bork. Berns finds in "natural rights" a fundamental basis—higher than mere majority will—for the meaning of normative constitutional standards. As Berns says, the Constitution "was and is designed to secure rights and, in that respect, is informed by moral principle." But since Berns explicitly derives his theory of these rights from Hobbes, his position suffers the problems that plague Hobbes's fundamentally nonmoral theory of the good.13 11 J. S. Mill, Utilitarianism, esp. chap. 2. For a discussion of the "other Mill" who had a vision "of a proper moral and social order," see Gertrude Himmelfarb, On Liberty and Liberalism: The Case of John Stuart Mill (New York: Alfred A. Knopf, 1974), ιν—vn, and generally 1—85. 12 See Plato's portrayal of Protagoras in Theaetetus (152 a) and Cratylus (386 a). 13 "Walter Berns, "Judicial Review and the Rights and Laws of Nature," 56. Because of his reliance upon Hobbes, Berns is now very far from being the Aristotelian that Rogers Smith takes him to be, see Rogers Smith, Liberalism and American Constitutional Law, 18 Iff. Hobbes, after all, openly rejected and aspired to replace the Aristotelian thinking of "the schools" (Leviathan 1: 1-15; 4: 46).

CHAPTER TWO

32 T

Murray Barber Moore

(Ely?) Berns

R

C Tribe Perry

Dworkin ?

Dworkin?

. , c smith Ely

(Smith?)

Carter Rehnquist

Richards

Bork D

FIGURE 3

Berns's rights turn out not to be intrinsically moral in character, and the basis they provide for the meaning of constitutional norms turns out to be fundamental, in a manner of speaking, but not really normative. Hobbesian natural rights and natural laws, as Berns acknowledges, have no intrinsically moral content, for "there is no basis in nature for opinions of good and bad." Opinions of good and bad acquire a sem­ blance of normative force when a human reasoner calculates their conduciveness to domestic peace, or ultimately to survival pure and simple.14 Since natural rights values thus rest upon an instrumental calculation whose outcome is not given in the nature of reality but stipulated (one way or another) by a calculator, their normative status turns out to be at base a matter of convention. Berns does not seem to notice this, but the impact of a Hobbesian conventionalism emerges elsewhere in his work. According to Hobbes, alternative notions of morality, which might seek to establish their validity on some real basis independent of the Hobbesian calculus, threaten his natural rights political construct and must there­ fore be scuttled. Indeed, dispute about "the Doctrine of Right and Wrong" is one of the main causes of the brutish instability that Hobbes's natural rights calculus rectifies.15 Hobbes solves this problem by forbid­ ding discussion of any moral doctrine except what the sovereign ordains. 14 Berns, "Judicial Review and the Rights and Laws of Nature," 60; see also Walter Berns, "The New Pursuit of Happiness," The Public Interest, no. 86 (Winter 1987): 68. See Hobbes, Leviathan 1: 14, 15. 15 Hobbes, Leviathan 1: 11, 15.

MORAL ANATOMY

33

Berns's solution is, at least effectively, the same. Declaring commercial activity, not moral inquiry, to be "America's business" (and so taking up the Lockean variant of Hobbesianism), Berns would deflect moral inquiry away from the public sphere and sequester it in the private. All active defense of principle—even principled defense of Hobbesian liberalism it­ self—is to be discouraged as a danger to domestic peace. Echoing Hobbes, Berns regards the "so-called intellectuals" who engage in such moral discourse as "the greatest threat to representative government."16 Berns, of course, mounts his own principled defense of his Hobbesian position. It is unclear by the terms of his theory what the status of his own arguments could be. The underlying Hobbesian logic of Berns's system "destroys an essential condition for its own acceptance."17 Because of such unresolved inner tensions, and because its Hobbesian roots sap it of any truly normative potency, Walter Berns's constitution­ alism emerges, in spite of itself, as another variety of conventionalist moral theory. As such, it fails to offer an adequate basis for the normative tasks of even its own constitutional theory. John Hart Ely, at least in his tentative recourse to utilitarianism, faces the normative problems of classical utilitarianism. In a 1978 article, Ely toyed with the possibility of a utilitarian justification for the value of his kind of democracy.18 Why did Ely do this? He undoubtedly felt compelled to explore some kind of moral justification for democracy. On democ­ racy, after all, hangs his entire jurisprudential edifice, and from it he de­ rives and justifies all the virtues of his democratic proceduralism—such as its protections of participation and representation. And there is war­ rant for a certain uneasiness on his part. "Democracy" is equivocal; it comes in versions contrary to Ely's. Neither the justification nor the de­ sirability of the particular version of democracy beneath Ely's theory is self-evident. Utilitarianism is not up to the tasks Ely considers giving it because its own scheme is normatively equivocal. Ely admits his uneasiness at the possible utilitarian validity of a system in which the majority systemati­ cally promotes its own "utility" at the expense of the minority. Even if 16 Berns, "The Constitution as Bill of Rights," in How Does the Constitution Secure Rightsf ed. Robert A. Goldwin and William A. Schambra, (Washington: American Enter­ prise Institute, 1985), 60—69; also Berns, "The New Pursuit of Happiness," 73—76; and Berns, "Taking Rights Frivolously," 63—64. 17 Barber, "The New Right Assault on Moral Inquiry," 292, and see generally 266—75. I have generally followed Barber's interpretation of Berns. See also Sotinos A. Barber, "Epistemological Skepticism, Hobbesian Natural Right, and Judicial Self-Restraint," The Review of Politics 48 (1986): 388-97. 18 John Hart Ely, "Constitutional Interpretivism: Its Allure and Impossibility," Indiana Law Journal 53 (1978): 399, 405—8. Bork also publicly flirted—at least in passing—with utilitarianism in "Neutral Principles and Some First Amendment Problems," 18.

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calculations of pleasure-utility led rational people to value Ely's better brand of democracy—an arguable point—this would be only a matter of description, not prescription. There remain values higher than utility that people do seek and maybe ought to seek whether they do or not.19 Ely admitted that it might be necessary to "qualify" utilitarianism with sub­ stantive norms. But he does not seem to recognize that in doing so he would slip (as Mill did) out of utilitarianism and into some variety of the morally substantive ethics he so resolutely spurns.20

Protagorean Conventionalism In any case, since Ely himself dismisses his flirtation with utilitarianism as irrelevant to the central thrust of his work, it is reasonable to place Ely in the category of moral theory in which he seems to place himself in De­ mocracy and Distrust. There, Ely does not attempt to justify the value of democracy but simply takes it as given by prevailing conventional atti­ tudes. "We," he says, have always "accepted the notion" of representa­ tive democracy.21 Since in Ely's view there is no substantive moral basis on which it could be justified anyway, this convention will have to do. In abjuring any real morality and unapologetically setting his celebrated the­ ory on a conventionalist foundation, John Hart Ely joins company with many others, including those with whom he most disagrees. For at the level of moral theory, the majority of constitutional theorists both "conservative" and "liberal" follow the moral conventionalism of Protagoras. They share the "Protagorean fascination"22 for reducing all realities—in this case normative realities touching on constitutional meaning and practice—to manageable size, subject to human artifice and control. There is a certain logic to this. If man alone is to be the measure of all things, then any natural or moral reality surrounding man, with an existence and order independent of him and his will, looms as a threat. It implies a real and external order of things to which man might be subject, and suggests the very real possibility of a measure independent of human control. By contrast, Plato, Aristotle, and classic Hebrew and Christian thought—and even the typical hard science researcher of today—submit themselves with a kind of wondering inquiry to a reality beyond them­ selves. But an intellectual engagement with reality on those terms elimi19

See Michael Moore on this point, "Interpretation," 391. Ely, "Constitutional Interpretivism," 406; Ely, Democracy and Distrust, 43—72. 21 See Ely, Democracy and Distrust, 5 and 187 n. 14. 22 Jacob Klein, The Lectures and Essays of Jacob Klein (Annapolis, Md.: St. John's Col­ lege Press, 1986), 107-15. 20

MORAL ANATOMY

35

nates man's will as the ultimate measure. Protagorean man makes him­ self, and in order to do that successfully he must regard himself as "making" everything else. Indeed, Plato presents Protagoras's doctrine as pertaining in the first instance to perception of physical nature, making the natural realities around us wholly dependent on human perception and construal, thus making ontology strictly contingent on human epistemology. The modern technological impulse to bend nature to man's purposes, whatever they may be, thus manifests a Protagorean outlook.23 When it comes to morality, the Protagorean mind-set feels compelled to knock morality down from its commanding heights. It needs to exclude any order of goodness that could function as a measure independent of man. As in the case of contemporary constitutional scholars, it may do so by declaring real goodness nonexistent, radically indeterminate, or strictly unknowable. But since goodness nevertheless remains an ineluc­ table category of thought, the Protagorean mind-set substitutes some "good" that is in one way or another a contingent human artifact. It may construe its "good" in terms of any number of conventional standards: contemporary consensus, future consensus ("progress"), tradition,24 his­ tory, or majority will—to mention only those conventions with currency in contemporary constitutional theory. As such it is not monolithic but variegated; yet all its varieties share in the monolithic denial of any real standard of goodness beyond convention. And Protagorean convention­ alism has a kind of deontological aspect: If such conventionalists wanted to justify their particular preferences for one variety of conventional mo­ rality over another, they could not do so by reference to some intrinsically authoritative value but only by reference to some conventional consider­ ation. That is to say, they could not justify their preferences adequately. Conventionalists thus could not logically object to adding to the above list such indecorous varieties of convention as individual will-to-power and nihilistic self-assertion. Their posture of nihilist skepticism would, in the final analysis, render any objection normatively impotent. Plato rec­ ognized such moral implications of Protagoras's doctrine; he carefully rebutted the Protagorean epistemology that attempts to subjectivize and relativize our knowledge of goodness and justice.25 Although I cannot 23 Such compulsions of the modern technological enterprise have been well examined else­ where. See, for example, Jacques Ellul, The Technological Society, trans. John Wilkinson (New York: Knopf, 1964); Jacques Ellul, The Technological System, trans. Joachim Neugroschel (New York: Continuum, 1980); George Parkin Grant, Technology and Justice (Notre Dame, Ind.: University of Notre Dame Press, 1986). 24 I mean tradition and history understood as fundamentally artifactual; see my discus­ sion of moral reality in history in chap. 4. 25 And also, 1 might add, of beauty; see Cratylus and Theaetetus, in The Collected Dia­ logues.

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pursue it here, it is worth pondering the enduring appeal of Protagoras's intellectually tenuous stance. It may be that we are attracted to the Protagorean attitude because it flatters man, flatters us in a way that other outlooks cannot. Whatever the underlying impetus may be, the Protagorean mien of much of contemporary constitutional theory seems unmistakable. We have seen several examples of this already. Chief Justice William Rehnquist and former judge Robert Bork make majority will the conventional "good" of their jurisprudence, but, as nihilist skeptics, do not and cannot justify it.26 The normative foundations of John Hart Ely's democratic proceduralism face similar problems. Laurence Tribe, although sensitive to the normative requirements of constitutional theory, despairs of any but a Protagorean solution. Michael Perry seems to disclaim a moral nihilism, yet the historicist way in which he conceives his recourse to a "living tradition" also reduces to an effectively nihilist conventionalism, as I argued above. Perry consid­ ers the living, developing tradition of our society's morality to be the proper "non-originalist" ground for the meaning of contested moral phrases in the Constitution.27 At the same time, Perry wants participants in the tradition to ferret out any "negative realities" within it by main­ taining a "critical distance" from the tradition. They can only do this, however, from the vantage point of elements of the tradition itself.28 No other kind of critical distance is possible. For Perry denies that anyone's mind has access to criteria of goodness or rationality that have indepen­ dently real moral authority. Nevertheless, though our minds are incapa­ ble of ultimately appraising it by any independent criteria, Perry some­ how believes that we can evaluate a tradition as a whole in terms of its "health" and that a tradition can progress and improve.29 He suggests that we can only set about improving our given tradition the way a spider improves her web—by standing on one part of the web while respinning another. "A person can revise an aspect of her web of beliefs .. . only by reference to other aspects of her web of beliefs." The same holds for im­ proving the "web" of a tradition as a whole.30 Perry's metaphor seems to overlook the fact that the webbed habitat a spider spins for herself is teth­ ered to nonweb reality at its corners—and is indeed quite untenable with26 Bork seems to adhere more resolutely and consistently to a nihilist skepticism than does Rehnquist, however. Compare Bork's "Neutral Principles and Some First Amendment Problems" with Rehnquist's "The Notion of a Living Constitution." 27 Perry, Morality, PoltUcs and Law 139—42, and chap. 6 generally. i 28 Perry, Exxon Lecture; Perry, Morahty Politics and Law, 28—33, 41, 138—39. y 29 Perry, MoraUty Politics and Law 31. i 9 30 Ibid., 31; see also Michael Perry, "Moral Knowledge, Moral Reasoning, Moral Rela­ tivism," 1029ff.

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out such tethers. But given Perry's historicism and his doctrines of moral knowledge, his webs must suspend themselves in space. Perry's doctrines not only make impossible decisive criticism of a web of moral beliefs—a tradition—from any outside vantage point, they also make it impossible to justify distinguishing any really better from worse internal vantage points within the tradition. Thus the critical mind is left no place to stand. Mere convention cannot provide any ultimately deci­ sive evaluation of convention. Perry's moral epistemology leads directly to his irrevocably historicist approach to constitutional morality.31 Per­ ry's "epistemological relativism" derives from Richard Rorty,32 and is subject to the kind of rebuttal offered by Plato to the subjectivist episte­ mology of Protagoras; it comes down to a sophisticated solipsism that cannot consistently be maintained.33 Perry's well-known interest in theology may seem to mitigate against interpreting him as a Protagorean conventionalist. But even religion pro­ vides Perry no reliable vantage point, no access to independently real cri­ teria of truth from which to assess and evaluate. Perry's view of the hermeneutics of sacred texts, for example, is deeply historicist and conventionalist. He refers the meaning of such texts not to their possible source in an authentic divine revelation, but only to the history of their interpretation and their uses.34 The deep structure of Perry's histori­ cism—like any form of historicism—is conventionalist and has no place for real religion any more than for real morality. As I shall argue below, however, there may be a potent quasi-religious impulse in Perry's work, and this not in his discussions of religion but in the overtly "transforma­ tive" aspirations of his political and judicial theory.35 Perry's constitutionalism claims simply to oppose naive foundationalism—the overconfident view that moral truth is easily intelligible and de­ monstrable. But the very possibility of a truly authoritative moral reality becomes itself a casualty in Michael Perry's historicist barrage against foundationalism. And with real morality done in, it is hard to see how 31 Despite its different political colors, Perry's historicism bears a certain resemblance to that of Robert Bork and of the late Alexander Bickel (in his later works). Alexander Bickel, The Morality of Consent (New Haven: Yale University Press, 1975); Bork, "Neutral Prin­ ciples and Some First Amendment Problems." See Ely's lament for Bickel's joining Bork in a Burkean historicism, Democracy and Distrust, 71—72. 32 Perry, "Moral Knowledge, Moral Reasoning, Moral Relativism," 1049ff.; Perry, Morality, Politics and Law, 39—54. 33 Plato, Cratylus 386ff. Michael Moore has recently been making the same point: Moore, "Moral Reality," 1105—56; Moore, "Interpretation," 288-337, 376—98. 34 Perry, Morality, Politics and Law, 136—45; esp. 290 n. 60. 35 Ibid., 150-79 and elsewhere. This potent transformative impulse belies his ostensibly cautious and nonabsolutist moral epistemology. In this respect he may have a strong affinity to the critical legal studies movement, as I shall argue below in chap. 4.

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Perry's own normative constitutionalism avoids becoming a casualty as well. Lief Carter's aesthetic constitutionalism proceeds from Protagorean premises like Perry's, and arrives at a similar destination—albeit by a dif­ ferent route. The practice of constitutional law, Carter notes, cannot es­ cape "the persistent demand for goodness in law." Yet, as Carter sees it, modern critical doctrine—as developed by Gadamer, Habermas, Rorty, and Fish—has discredited every philosophic attempt to supply that de­ mand. These thinkers have persuaded Carter that it is a mistake to think legal texts have a determinate meaning that interpretation can discover. Moreover, they have persuaded him that goodness and truth are twin mirages. Truth, such as it is, is radically subjective and "private." We do not discover it, we "create" it.36 Similarly, the Supreme Court does not interpret constitutional law; "it makes it."37 Thus "the person who claims to 'search for truth' "—whether moral truth or the true meaning of legal texts—"is either confused or dishonest." The function of courts is to dis­ pense justice; however, justice itself is only a "temporary experiential state." "Experiencing justice is simply one species in the genus 'shock/zap' that includes poetry, visual and plastic arts, dramatic and musical per­ formances, and so on."38 Since it seems to need a kind of goodness and meaning that do not exist, "modern jurisprudence is in a bind." It can escape if its practitioners will abandon their discredited aspirations and "employ instead aesthetic cri­ teria of good performances." If they understood themselves better, Su­ preme Court justices would know they are not grounding their decisions in objective textual meaning or in real normative standards. They would understand their decisions to be "constitutional performances" that, if they are effective, produce in participants and onlookers a "conviction of political goodness," a "sense" of a morally good community—a momen­ tary sense of completeness such as audiences feel immediately after the close of a fine concert.39 Carter recommends this way of conceiving judicial practice as the most accurate description of actual practice. But his tone is no less prescriptive than descriptive. He laments the "failure of modern jurisprudence," eval­ uates the Supreme Court as "woefully out of touch," and berates the 36 Lief H. Carter, Contemporary Constitutional Lawmaking: The Supreme Court and the Art of Politics (New York: Pergamon Press, 1985), 4, 2, 9, 106. 37 Ibid., 11. Carter means that the Court does not" 'interpret the Constitution' in the way most readers presumably understand the term." He does speak of interpretation, but as the idiosyncratic ascription of meaning rather than its discovery. 38 Ibid., 168,12,10; also ibid., 8, where Carter attributes the rhetoric of zap to adherents of the "critical legal studies movement." I will return to this movement in chap. 4 below. 3' Ibid., xu, 1, 163, 8, xv; see generally 135—95.

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Court's "glib recitation" of legal formulas.40 He offers his aesthetic juris­ prudence as a needed corrective. In effect, he prescribes it as the best re­ sponse to the hermeneutic and normative void that modern critical doc­ trine forces us to see. Carter's prescription is hard to receive. For his argument claims ratio­ nally to prescribe the suspension of our rational powers. In order to make sense of constitutional law, Carter admits, "we need genuine faith in the existence of moral principles." But such principles do not exist. Therefore courts must practice, and we must welcome, a kind of willing delusion: we must allow a performance to persuade us—temporarily—of the exis­ tence of something nonexistent. Feeling must stand in for truth, aesthetics must impersonate ethics. We must let art do for us what reality cannot. "The trick," says Carter, "is to find ways of fantasizing about experiences whose accuracy we trust in spite of the deeper knowledge that we fanta­ size."41 Now, Carter's scheme only makes sense if the radical relativism and hermeneutic deconstruction of modern critical doctrine are true.42 For if some degree of real knowledge of real goodness were available, art would not have to stand in. This means that the strength of Carter's position hangs on the determinate meaning and real truth of a doctrine that denies the possibility of determinate meaning or real truth. Indeed, if we follow Carter in admitting the conclusions of critical doctrine, we would do well to bring it to bear on the task of understanding the meaning and authority of critical doctrine itself, as well as of Carter's constitutional argument. The dead end is obvious. The denial of determinate meaning can itself have no determinate meaning even in its denial. The denial of normative authority cannot itself be a normative argument. Probably the best thing to say is that deconstruction applies well to deconstructionism but to nothing else. Aside from that negative benefit, serious critical doctrine stultifies itself rather tidily. The sum of all this is that Carter's aestheticism is only compelling if the critical doctrine of Gadamer, Rorty, and others is true. But if critical doc­ trine is, in fact, true, then it is, in fact, not true. Hence, whether modern 40

Ibid., 36, xv, 13, 153. Ibid., 137, xvi. 42 He says rather mildly near the beginning of his book, "I do not challenge the conclu­ sions" of modern critical doctrine (p. 9). In fact, not only does he not challenge them, but he is enough persuaded by them both to elaborate and to defend them at length (see gener­ ally 4—11, 59—63, 98—187). The fact that people increasingly "live in different worlds" (p. 9) renders normative standards hopelessly controversial, and makes normative disagree­ ments impossible to navigate. At the same time, modern critical doctrine impresses Carter as the "dominant and central position in twentieth century philosophy" (p. 5; emphasis in original). The impossibility of consensus on truth has apparently managed to produce a true consensus against truth. 41

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critical doctrine is true or not, Carter's scheme is untenable as a prescrip­ tive position.43 Of course, such a disadvantage does not necessarily make it academically disreputable or unattractive. Under certain conditions, self-induced fantasy might seem like an appealing escape. But it cannot be defended as a solution we ought to adopt. Carter realizes that modern critical doctrine makes reality profoundly dark. Aesthetic activity, says Carter, "is what protects us from the dark."44 It would be more honest to say it is a diversion from a dark that seems so unnatural that we would rather forget it than face it. Still, as I have argued above and will below, contemporary constitu­ tional theory is indeed in what Carter calls a "bind." He understands that bind better than most: constitutional jurisprudence needs real normative authority but cannot stomach the side effects of contemporary theories that claim to provide it. I will return to Carter's way of thinking in chap­ ter 4, after I propose that the need for normative goodness corresponds not to a void but to a reality.

Neo-Kantian Moral Thinking Against all these varieties of conventionalism, several contemporary con­ stitutional theorists have looked to the Kantian version of moral realism for the normative foundations that their enterprise requires. Since Kant­ ian moral thinking has long been central to the political philosophy of liberalism, its appearance in American constitutional scholarship is to be expected. David A. J. Richards, Ronald Dworkin, and Rogers Smith sit­ uate themselves explicitly in this family of moral theory. The attraction of this brand of theory for legal and political questions is not hard to understand. Substantive morality is unfailingly controver­ sial. A Kantian-deontological political ethics aspires to dodge that contro­ versy. As I suggested above, it sidesteps consideration of a substantively moral grounding of the good, while nevertheless finding something solid and real in which to anchor prescription. It does not seek to understand the relation of goodness to being. It leaves that question aside because it is concerned not with goodness but primarily with rationality in morals.45 In a Kantian-deontological approach, the touchstone of goodness is the rational manner in which moral judgments and the "social contract" are 43 My analysis of Carter and critical doctrine parallels Michael Moore's analysis of simi­ lar thinkers in "Interpretation," 311—12. 44 Carter, Contemporary Constitutional Lawmaking, 160. 45 See, for example, John Rawls, A Theory of Justice, (Cambridge, Mass.: Harvard Uni­ versity Press/Belknap Press, 1971), 130—35, 395—452, where he discusses goodness as ratio­ nality.

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made (rather than the substance of those judgments or that contract). In such considerations, it grounds all the prescription it needs. According to David Richards, John Rawls's contemporary elaboration of such an ethic makes possible a normative constitutional theory free from the disadvantages of utilitarianism, positivism, and "metaphysical" natural law theories. Richards looks particularly to the contractarian fea­ tures of Rawls's social contract theory of political justice. The rational requisites of that contract provide a basis for the Constitution's funda­ mental rights, especially "the inalienable right to conscience," and the corresponding value of liberal toleration. For Richards, such contractar­ ian thinking has a historical as much as a contemporary philosophical basis. Richards uses the insights of Rawlsian contractarianism as a key to unlock (and to construe) the best features of the political philosophy of John Locke and of leading framers of the Constitution.46 Whether or not the framers are susceptible of a Rawlsian interpreta­ tion, Richards's attempt to avoid Protagoras by turning to Kant and Rawls faces some difficult questions. Honoring "the concept of persons as free, rational and equal"—this concept, which actuates the proceed­ ings of the social contract and which "constitutional government digni­ fies, and progressively elaborates"47—implies a commitment to a substan­ tive good, not merely a rational or formal one. Can this commitment be justified strictly within the deontological bounds of Richards's theory? Rawls himself found it necessary, in order to generate his two principles of justice, to impute a substantive but "thin" theory of the good to those rationally contracting in the "original position."48 Rawls imagined his thin theory to contain only a neutral, noncontroversial conception of the good. Yet its substantive commitments have been attacked as anything but neutral, and seem to implicate even Rawls in the kind of substantively moral vision of the good that his Kantian theory eschews.49 Perhaps in anticipation of such reproaches, Richards mentions an al­ ternative normative basis for his constitutional outlook. Although he himself avoids stepping outside the boundaries of deontological Rawlsian ethics, he suggests that others could come to similar conclusions—about toleration and the right to conscience and other matters—on a substan­ tive Christian basis like that developed by St. Augustine. Such an "inter­ nally religious perspective," he notes, can adequately defend the dignity, 46

Richards, Toleration and the Constitution, 3—64, 52-128. Ibid., 62. 48 Rawls, A Theory of Justice, 395—424. 49 Thomas Nagel, "Rawls on Justice," in Reading Rawls: Critical Studies on Raivls' A Theory of Justice, ed. Norman Daniels, (New York: Basic Books, 1975), 7—10; Nagel cited by Alan Gibson, "Rawls's Thin Theory of the Good," seminar paper, Department of Gov­ ernment, University of Notre Dame, 1987. 47

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freedom, and rationality of persons by discerning in them the inviolate image of God.s0 Ronald Dworkin's thinking is more complex. Dworkin observed in 1971 that his constitutionalism "presupposes a certain objectivity of moral principle."51 Since then he has set about giving that moral "objec­ tivity" a distinctly neo-Kantian flavor by referring it to the "better philos­ ophy . . . now available" in Rawls's theory of justice.52 The problems in­ herent in such a deontological theory, coupled with evidence of a sophisticated conventionalism in his most recent work, afflict Dworkin's thinking with a certain normative ambivalence. At its deontological bottom line, Dworkin's thinking faces the same sort of daunting question as Richards's. Why are people due the "equal concern and respect" so central to Dworkin's jurisprudence? As we have seen, Dworkin's theory may have trouble justifying an answer without stepping outside the bounds set by Kant and Rawls. Yet Dworkin does have a way of handling questions of political morality—including ques­ tions of the meaning of moral terms in the Constitution. Such questions fall within the competence of the enterprise of moral interpretation.53 Moral interpretation, like all good interpretation, says Dworkin, is con­ structive. It takes as its raw material existing moral practices, precepts, and convictions (or in the related case of legal interpretation, legal texts, practices, precepts, and convictions). These it construes so as to put them in their best light, with as few stray elements as possible.54 Although this enterprise is essentially occupied with construing conventions, Dworkin is eager to elude the nihilist skepticism this seems to entail. Moral inquiry, he says, takes place strictly inside the bounds of the interpretive enter­ prise, and then enterprise confers on moral "claims all the meaning they need or could have." From inside this enterprise, any radically and com­ prehensively skeptical attitude toward morality is rather beside the point and is in any event "implausible."55 Nevertheless, he admits that the activity of moral interpretation is en­ tirely compatible with what he calls "external skepticism"—a compre­ hensive denial of the real truth value of all moral judgments. External skepticism regards all moral opinions as "projected upon, not discovered in, 'reality.' " In other words, Dworkin's "external skepticism" is, in my 50

Richards, Toleration and the Constitution, 128. Ronald Dworkin, Taking Rights Seriously, 138. Dworkin's essay "Constitutional Cases" first appeared in 1971 in the New York Review of Books. 52 Dworkin, Taking Rights Seriously, 149. 53 Ronald Dworkin, Law's Empire, 45—86. 54 Stray elements that do not fit into the construction must be set aside, but the aim of constructive moral interpretation is to minimize such strays. 55 Dworkin, Law's Empire, 83—84, 266—75. 51

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terms, nihilist skepticism. Dworkin says that one might hold to such ex­ ternal skepticism "in a calm philosophical moment," but only when "dis­ engaged" from ongoing moral/interpretive controversies. Although Dworkin does not commit himself to "external skepticism," it clearly ap­ peals to him. He scoffs disparagingly, for example, at attempts to found moral claims on "atmospheric moral quaverings," on some "noumenal" fact, or on a "bizarre metaphysical base."56 Dworkin's practice confirms what his words suggest, for his moral con­ structivism makes most sense in the light of what he calls external skep­ ticism. After all, the possibility of real standards of goodness anchored in a reality existing independently of convention would confound his scheme. It would require his "enterprise of interpretation" to take on a whole new category of moral raw material above and beyond convention. Given their independent reality, those real standards might not be espe­ cially malleable to constructive construal. "External skepticism," on the other hand, denies the existence of such real moral goodness. If there is no such goodness impinging on them, then "internal" practitioners of constructive interpretation are free to construe internal reality as they see fit. For the confines of their enterprise are wholly conventional. Now, at one point Dworkin pointedly disavows "conventionalism."57 Yet his ju­ risprudence marches under the banner of "law as integrity,"58 and he con­ cedes that "integrity" and conventionalism are essentially the same thing. The latter is but a "softer" version of the former. He admits, furthermore, that "I have been careful. . . to describe law as integrity in a manner that is impeccable from the external skeptic's point of view."59 Even if Dworkin admitted to embracing "external skepticism"—what I call nihilist skepticism—he would deny the suggestion I have just made that this shapes his moral and legal thinking. For such external skepti­ cism, he says, "is a metaphysical theory, not. .. [a] moral position." And the "practices of interpretation and morality" are concerned with "moral rather than metaphysical mistakes."60 For Dworkin, in other words, goodness is strictly divorced from being, law is in an entirely separate realm from metaphysics. Why are they separate? Dworkin does not say, but his epistemology furnishes an answer. Dworkin's is a kind of coher­ ence epistemology, according to which moral (and factual) beliefs are jus­ tified not by corresponding to the truth of "external" reality, but by fit­ ting well with a constructive "internal" synthesis of all our other beliefs 56

Ibid., 80-81. See generally 78—86. Ibid., 114-50. 58 Ibid., 164—275, and throughout the book. 59 Ibid., 127-28, 267. 60 Ibid., 79, 83. 57

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and practices.61 Critics may charge that this takes a lot of "fancy foot­ work."62 But the procedure works out fine for Dworkin since "external skepticism" denies the existence of any metaphysical realities to which moral beliefs might correspond even if they tried.63 The portrait of Dworkin emerging here seems to have familiarly Protagorean features. Integrity, even in ordinary usage, is more a matter of self-consistency than of alignment with some independently good mea­ sure of reality. Dworkin's "law as integrity," the apogee of constructive moral interpretation, operates as a form of conventionalism under the shadow of "externally skeptical" (read nihilist) presuppositions. Al­ though I will not defend such a "construction" of Dworkin here, it is worth noting that a small literature has begun to develop around the question of Dworkin's nihilist skepticism and positivism.64 I refrain from defending this view of Dworkin because his approach to constitutional issues often seems to imply some basis in real, not just con­ ventional, morality. Consider, for example, Dworkin's "concepts/concep­ tions" distinction, which he has deployed so effectively against moral and legal positivism. According to the scheme of Law's Empire, the anatomy of that distinction falls strictly within the boundaries of the enterprise of 61 In general, Dworkin's distinction between "external" and "internal" implies an unnec­ essary bifurcation of reality. For example, a goodness whose existence is independently real and not artifactual need not be encountered as "external" to human experience. It is possi­ ble, after all, that the good be realized (by us) through the course of experience—even through the course of political development—without thereby giving us warrant to claim that we conferred being on the good. As I argue below (in chap. 4), transcendent moral meaning can be realized within the confines of history and experience without slighting the reality of that meaning. 62 Moore, "Interpretation," 395. Fancy, because existing beliefs and practices are some­ times seriously defective—as in the cases of Nazism and slavery, which Dworkin wrestles with in Law's Empire at 102—3, 219. Compare the problems of Dworkin's rejection of any correspondence epistemology with the similar problems of Michael Perry (above), whose "epistemological relativism" is supposed to permit improvement of the "living tradition" even while it denies any criteria independent of the tradition by which its elements could be assessed. Compare it also to the attempted rejection of correspondence epistemology by Michael Moore (below). 63 Still, as I noted above, Dworkin does not commit himself to external skepticism. In­ deed, he appears uneasy with the external (ontological nihilist's) skeptic's implicit claim to have gotten a peek at "the 'fabric' of the universe." Dworkin, Law's Empire, 80,267. Com­ pare Michael Moore, "Interpretation," 312; and Moore, "A Natural Law Theory of Prec­ edent" (referred to hereafter as "Precedent," 77-78. 64 Michael Moore, "Interpretation," 298-301,309 n. 64; Michael Moore, "Metaphysics, Epistemology, and Legal Theory," Southern California Law Review 60 (1987): 453—506; Gary J. Jacobsohn: The Supreme Court and the Decline of Constitutional Aspiration (Totowa, N.J.: Rowman &c Littlefield, 1986), 49—50. On this point Jacobsohn cites also David A.J. Richards, "Taking Taking Rights Seriously Seriously," New York University Law Re­ view 52 (1977): 1276—79; and John Griffiths, "Legal Reasoning from the External and Internal Perspectives," New York University Law Review 53 (1978): 1124—1149.

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moral interpretation and its conventional subject matter—and is thus subject to the scorn of external (nihilist) skepticism. Yet the function of "concepts" in Dworkin's jurisprudence implies a locus of moral meaning far more secure than this. There may, in any case, be more to Dworkin's moral premises than meets the eye. Even in Law's Empire, Dworkin, like David Richards, leaves the door open to the possibility of putting his scheme on a more substantive moral footing. Some may wonder, Dworkin admits, whether Hercules, his exemplary judge, might hold a conception of law that "is really two conceptions: law as integrity supplemented, when integrity gives out, by some version of natural law theory."65 Even if this were true, Dworkin notes, it "is not a very important objection." For though integ­ rity is "distinct from justice and fairness," it is "bound to them in this way: integrity makes no sense except among people who want fairness and justice as well." Such remarks remain perhaps intentionally ambigu­ ous. But they function as a hedge against the "external skepticism" that Dworkin seems otherwise to fancy. Rogers Smith, while standing in the same family of moral theory as Dworkin, seeks to amend the neo-Kantian liberalism of Rawls and Dwor­ kin by drawing on the early liberalism of John Locke. Smith thinks neoKantian thinking needs amending because it fails to perform certain func­ tions that are crucial for constitutional jurisprudence. By contrast, the moral realism of the old higher law traditions—though now discredited— was able to justify constitutional and judicial checks on majority will in a way that neo-Kantian theory cannot. Also, the old substantive morality could have rescued the principle of "equal concern and respect" from its basic precariousness within a deontological-Kantian framework—which precariousness I have already noted in the cases of Richards and Dwor­ kin.66 To supply the normative needs of constitutional theory, Smith recovers Locke's notion of "rational liberty." Its Lockean liberal pedigree makes it compatible both with American tradition and with Rawls and Dwor­ kin. "Rational liberty" can stand in the gap once filled by the older mo­ ralities without their illiberal side effects. It can explain why individuals deserve equal concern and respect, and it can provide the normative guid­ ance needed to navigate the "fundamental values" jurisprudence undergirding the Supreme Court's practice of counter-majoritarian judicial re­ view.67 65 Dworkin, Law's Empire, 263. Here Dworkin refers to such real morality under the rubric of "natural law." 66 Rogers Smith, Liberalism and American Constitutional Law, 185—225, 90-91, 174— 80, 230, 191. 67 Ibid., 198-259, 230.

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What is the essence of this very serviceable "rational liberty"? Smith connects it closely with the ideal of rational self-directedness; but rational self-directedness is no amendment of Rawlsian theory but only a reitera­ tion of one of its central aspects.68 As it turns out, demarcating the mean­ ing of "rational liberty" is at base the prerogative of the community it informs.69 In other words, rational liberty is itself merely a creature of convention. It ultimately places little moral constraint on the community it informs, for its content is ultimately controlled by majoritarian pro­ cesses. For example, any judicial decisions, even if based on the value of rational liberty, could legitimately be annulled "if they seriously violated a prevailing consensus"—simply by removing the subject matter from ju­ dicial jurisdiction.70 A subjectivist epistemology whose roots are similar to Perry's (and possibly to Dworkin's) may account for Smith's apparent resort to conventionalism.71 Having rendered up its essence to mere convention, "rational liberty" is disabled from performing the normative functions for which Smith originally recruited it. Still, Smith's jurisprudence is instructive, for it highlights both the real normative requirements of constitutional theory and the difficulty of satisfying those requirements from a neo-Kantian starting point.

Substantive Moral Realism If neo-Kantian solutions prove somewhat precarious at best,72 or lapse into moral conventionalism at worst, constitutional theory can turn to a more forthright variety of moral realism in search of the normative basis it requires. Indeed, the most surefooted moral realists in contemporary constitutional scholarship are those whose thinking in one way or an­ other recalls the traditions of higher classical philosophy. Such thinking appears in the work of Michael S. Moore, Sotirios A. Barber, and the late John Courtney Murray, S.J. All three join in repudiating Protagoras. All 68

Rawls, A Theory of Justice, 142—50, 513—20. Liberalism and American Constitutional Law, 213. 70 Ibid., 230. 71 Like Perry, Smith cites the authority of Richard Rorty, who denies the possibility of the human mind gaining any undistorted access to reality. Smith notes an affinity between Locke's antiessentialism and Rorty's pragmatic conventionalism. Smith, Liberalism and American Constitutional Law, 211, 296 n. 8. 72 Hadley Arkes's new formulation of constitutional theory, premised on a kind of Kant­ ian (not neo-Kantian) moral theory, suffers no such precanousness; however, it portends other dangers akin to the dangers of "substantive moral realism" that 1 adumbrate here. See Hadley Arkes, Beyond the Constitution (Princeton: Princeton University Press, 1990); and see my further comments below at n. 127. 69 Smith,

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three agree that the good has a real existence above and beyond mere convention, that human knowledge of it is not trivial, and that this moral reality can undergird the tasks of constitutional interpretation and adju­ dication. Some of their emphases differ. Moore, who has mounted the most ex­ haustive elaboration of moral realism in its legal implications, seeks to exonerate the notion of a real morality from the indictments of contem­ porary philosophy. Barber has addressed himself particularly to the ques­ tions of constitutional interpretation and judicial review, seeking the an­ swers that real, rather than conventionalist, moral inquiry may provide. Murray, the "leading modern Catholic commentator on American con­ stitutional principles,"73 articulated an unabashedly Thomistic theory of natural law. With these differences of emphasis come differences of sub­ stance. Although all envision a nexus between moral reality and law, they differ somewhat in their conception of that nexus. They also differ in their accounts of moral epistemology. They are united, however, in a certain realist ontology. I will consider these in reverse order. A realist ontology essentially vindicates the common human perception that nature, in both its physical and moral dimensions, really does exist. Its existence and its fundamental structure are not merely ascribed by convention. Aristotle furnished the enduring philosophical articulation of such a realism. To most people, of course, this is no theory but the ordi­ nary experience of all people everywhere, as they continually bump up against a reality around them that is not of their own making. For Aristotle as much as for Moore, Barber, and Murray, this reality includes the reality of moral goodness. Murray's view is that "the order of being that confronts [man's] intelligence" contains "an order of 'oughtness' for his will."74 The others might express themselves differ­ ently, but all agree on the existence of a morally authoritative reality that somehow inheres in the very nature of things. This moral reality provides what all Kantian thinking lacks—a conception of goodness that is not only formal but also substantively moral. Moore notes that a realist theory of being75 implies a realist theory of the meaning of words—both words denoting natural kinds of objects and words denoting moral qualities (like "the great phrases of the federal Constitution"). That is, it implies that the things that words refer to— Moore gives as examples such things as "death" and "equality"—refer to 73

Smith, Liberalism and American Constitutional Law, 180. We Hold These Truths, 328. He continues: "the moral order is a prolongation of the metaphysical order into the dimensions of human freedom." 75 Or, a "realist metaphysics," as Moore prefers to call it; "Interpretation," 312, 371, 74 Murray,

397.

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realities whose existence and character are not simply stipulated by con­ vention.76 Of course, the bulk of contemporary philosophy—picking up where Protagoras left off—has taken vigorous exception to this kind of think­ ing.77 Michael Moore tackles the criticisms. First, he challenges the mod­ ern critics' typical bifurcation of reality into physical facts and moral "facts." For the arguments by which they typically disavow real moral facts and qualities, if valid, would undermine the real existence of the nonmoral facts that the critics are loath to derogate. For "the truth of a moral judgment is just as much a matter of fact as is the truth of a scien­ tific judgment."78 Second, Moore argues—with notable success—that any scientific or philosophic discourse, including discourse aimed against a realist ontology, becomes incoherent apart from the assumptions of a re­ alist ontology.79 Moreover, the practitioners of such discourse, such as Richard Rorty, suffer from "conceptual schizophrenia: when writing they propound subjectivist epistemology," but "when it counts, in daily liv­ ing," they are realists.80 In all, the burden of Moore's argument seems to be that "our practices with regard to thinking about and describing the world [whether scientifically or morally] are realist in their metaphysical presuppositions." And a realist theory of being and morality is the most coherent account, the best explanation, of these practices.81 Whether or not Murray and Barber would take the same approach to these problems, they would certainly endorse Moore's embrace of a moral realist ontol­ ogy· The epistemology implied by such an ontology is another matter. Ac­ cording to Murray and Barber, the ultimate check on the soundness of our moral theories and beliefs is their correspondence to reality. To carry out such a check, the human mind must have at least some access to that reality. For moral realism requires "a realist epistemology, that asserts the real to be the measure of knowledge, and also asserts the possibility of intelligence reaching the real, i.e., the nature of things."82 Some form of 76 Ibid., 393; Moore, "Moral Reality," 1144; "Interpretation," 288—337; Moore, "Prec­ edent," 81—83. 77 Among contemporary thinkers, Moore notes J. L. Mackie, Hilary Putnam, Richard Rorty, Owen Fiss, Stanley Fish, and Sanford Levmson. Moore, "Moral Reality," 1086, n. 57; Moore, "Interpretation," 280 n. 4, 309—11. 78 Moore, "Moral Reality," 1105—49; Moore, "Interpretation," 388. 79 It is incoherent, says Moore, for thinkers like Richard Rorty, Owen Fiss, Stanley Fish, and H. G. Gadamer to hold as true a position that denies the possibility of true positions. Moore, "Interpretation," 309—13. 80 Ibid., 310 (emphasis in original). 81 Ibid., 311; see generally 309—13, 397-98; also Moore, "Precedent," 71—84. 82 Murray, We Hold These Truths, 327.

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correspondence epistemology characterized the thinking of Aristotle, of Plato, and of Murray's authority, Thomas Aquinas. Moore shuns this correspondence epistemology as naively foundationalist. Truth itself is somehow a matter of correspondence to reality, he says, but our knowledge of it is not. For Moore asserts that our minds cannot have even the slightest direct glimpse at reality. It is "an illusion" to think that one can know reality directly or "see the world unmediated by human theory."83 This assertion is central to Moore's argument. It is a pivotal part of his strategy to vindicate realism against the reproach of the nihilist skeptic. The argument seems adroit. If we deny correspon­ dence epistemology, he maintains, we effectively "deny the skeptic any vantage point from which to be skeptical."84 (Moore acquiesces to the nihilist skeptics' self-designation as "skeptics.") For the skeptic's defini­ tive dismissal of any moral reality beyond mere convention reveals the skeptic's bald foundationalism. The skeptic's dismissal, says Moore, pre­ supposes some kind of undistorted "peek at the universe" by which to gain the knowledge he claims to have—that is, the knowledge that the universe contains no real order of goodness. To assert the belief that ul­ timately all is chaos, the nihilist skeptic implicitly claims an "illicit . . . glimpse 'into the void.' " The nihilist skeptic "adopts the God-like per­ spective that is external to the practice of science itself."85 In what he admits is the "trickiest" part of his argument, Moore claims he "needs no such God-like aspirations" in order to assert his belief in the natural reality of order and moral truth. To justify his ontological and moral realism as true, Moore need not "stand outside" the epistemological lenses of human theory. He need only observe that "internal to sci­ ence," our practices and theories in fact presuppose the true existence of a larger ordered reality. For example, when we justify scientific general­ izations like "emeralds are green," or "lemons exist," we do not just ac­ cept such beliefs as "some arbitrary matter of convention." Rather, "we accept them as true, i.e., corresponding to how the world is." Similarly, when we justify a belief in the moral rightness of promise keeping, we do not "just accept, e.g., that promises should be kept, but we accept it as true."86 83 Moore, "Moral Reality," 1106—16; Moore, "Interpretation," 312; Moore, "Prece­ dent," 77-84. 84 Moore, "Interpretation," 312. 85 Ibid., 312; Moore, "Precedent," 77—78. This virtually replicates Dworkin's comments in Law's Empire, 80, 267. 86 Moore, "Interpretation," 312; Moore, "Precedent," 76—79, 82. The scientific theories and moral beliefs we do have, he notes, contain certain "ontologically committing" parts that commit us to the real existence of the things—be they "natural kinds" or "moral kinds"—into which we inquire ("Precedent," pp. 78, 82—83).

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By asserting that our minds can attain no vantage point on moral real­ ity that is not mediated by man-made theory, Moore adroitly defangs the nihilist skeptic. He does not, of course, eliminate the need to evaluate the merits of our particular theories about the content of moral reality—such as, for example, theories about what equality really means or what it en­ tails in particular situations. Since he has denied a correspondence epistemology, Moore adopts for this purpose what he calls a "coherence epistemology." According to this view, evaluating one's particular moral theories and beliefs is not a matter of gauging how well they correspond to the real structure of the reality they aim to express. Instead it is a matter of doing one's best to show that one's theory "coheres well with every­ thing else one believes." It is thus a matter of entering into "what Rawls calls 'reflective equilibrium.' "87 Since a theory cannot be compared to reality directly, this is the only way any theory—whether moral or scien­ tific—can be evaluated or justified. The odd fact is that although Moore strongly faults "conventionalist[s] of the Dworkin coherence-type,"88 his thinking bears a striking resem­ blance to theirs at the level of epistemology. For example, Richard Rorty, Michael Perry, and Ronald Dworkin—all of whom fall in Moore's cate­ gory of "deep conventionalists"—also eschew correspondence epistemol­ ogy in favor of coherence epistemology.89 Now Moore is anxious to set apart his theory of truth (which he calls an "implicit" correspondence theory) from his emphatically noncorrespondence theory of knowledge (his "coherence epistemology"). But the larger logic of Moore's thinking may not permit him to repudiate a correspondence epistemology alto­ gether. Let me explain. We have seen how the repudiation of any real glimpse at the nature of reality is a pivotal part of Moore's attack on nihilist skepticism. This re­ pudiation is also the basis for the self-effacing caution that Moore urges on those who would embrace moral realism. For example, in his passages treating epistemology Moore insists that our moral conclusions are al­ ways provisional and that our confidence in them must therefore be mod­ est. This is because the "nature of goodness" is something we can only have "developing theories" about. After all, since correspondence-knowl­ edge of goodness itself is excluded, all that our developing theories can offer are better coherence-syntheses of our beliefs about goodness. "Thus 87Moore, "Interpretation," 312; Moore, "Moral Reality," 1112—13; Moore, "Prece­ dent," 72—75; see also Rawls, A Theory of justice, 579. 88 Moore, "Interpretation," 365. 89Ibid., 299, 309 n. 64, 310. Perry seems at one with Moore when he joins Rorty (Moore's nemesis) in scoffing at correspondence epistemology as the "copy theory of truth." Perry, "Moral Knowledge, Moral Reasoning, Moral Relativism," 1053—56; Perry, Moral­ ity, Politics and Law, 41.

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the realist can be no more certain than anyone else" that some particular moral belief he holds is correct. In this, even realists face the problem of "underdetermination"—when our current knowledge of moral meaning "runs out" even though moral meaning itself does not. Thus our moral knowledge must ever be "admittedly imperfect."90 Yet Moore asserts confidently in the same breath that this admittedly imperfect knowledge "can get better." Underdetermination may be a per­ petual constraint, but it is one against which progress can always be made in a given instance. The moral phrases of the American Constitution, for example, "have a very definite meaning which it is the business of a pro­ gressively better moral theory to reveal." And Moore proclaims himself "optimistic" about achieving such progress.91 Optimism about progressively better moral theory is highly problem­ atic in the light of the rest of Moore's theory. How would Moore be able to identify a theory of some particular moral quality as a truly better the­ ory of the real thing it aims to express? Recognizing such a truly better theory implies attaining at least some reliable glimpse at the moral dimen­ sion of reality—a glimpse unmediated by merely man-made theory—by which one could evaluate the theory as better. It implies more, that is, than just a knowledge of the theories that oneself and others have held. For otherwise one could not know that a theory was really better. One could only know that it was "better" than, or, more strictly, that it dif­ fered from the conventional standard of previous human attempts at a cohering construction of human theories. Though Moore's ability to rec­ ognize a better theory implies some actual knowledge of the reality that theory approximates, Moore nevertheless denies that anyone can possess that kind of reliable knowledge either prior to or after the coherencechecking process. Of course Moore may not really be prepared to claim that he or anyone else could recognize a particular theory as better. His stated optimism, after all, is only that moral theory can get progressively better overall, over time. But even this more diffuse optimism seems to entail a belief that the coherence-checking procedure can actually be converging, how­ ever slowly, on truth itself. If we take Moore at his word, this belief in convergence is not supported by some true, advance glimpse at the point of convergence by which to anticipate and recognize progress toward it. It must therefore be supported—at least—by a yet more diffuse and deeper belief, namely, the belief that natural and moral reality actually does have a real and ordered existence upon which our knowledge can converge (accompanied by the corresponding belief that the human mind 90 91

Moore, "Interpretation," 358, 371, 309, 358. Ibid., 358, 309, 287.

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is equipped to move toward that reality). To put it more simply, Moore must have reason to believe in advance that the nihilist skeptic is mis­ taken. In fact, this merely restates the ontological realism that is Moore's most basic premise. As we have seen, Moore claims that this basic confi­ dence in the character of reality cannot and need not be justified from any vantage point outside the existing theories that we are coherence check­ ing. It suffices, Moore says, to notice that our theory and our scientific and moral practices in fact presuppose the existence of a reality upon which our knowledge can converge.92 Although I will restate and reexamine these problems later in this work, it is worth noting here my doubt that a strictly coherence kind of epistemology provides sufficient grounds to vindicate that faith in progressively better moral theory—and that faith in reality—that are of the essence of Moore's moral realism. For Moore insists vigorously that "realism is both true and 'true' relative to our convictions."93 He is clearly eager to affirm the former. Yet it is hard to see how his denial of glimpses at reality undistorted by man-made theory can permit him to affirm anything beyond the latter. These complex epistemological matters do not stand alone, but figure as foundations for Moore's theory of legal interpretation and adjudica­ tion. The trouble is that there is an unresolved tension in Moore's epistemology between his antifoundationalist caution and his optimistic faith in progressively better moral theory. There is a corresponding tension in Moore's view of judicial practice. The difference is that this tension seems to get resolved. On the one hand, Moore honors caution by granting that judges might do well to refuse a "Solomonic role" and accept "a humbler, more con­ strained mode of decisionmaking." This caution stems primarily from his epistemology. Remember, since no one—judges included—has any real peek at the nature of goodness, moral conclusions are always provisional. All judges can have are "developing theories" about the moral qualities to which legal text often refers. Moore also offers certain "rule of law virtues" as the justification for a non-Solomonic judicial demeanor.94 His discussion of such virtues is a good one. On the other hand, that good discussion seems to have little cash value. Because for all Moore's epistemological and rule-of-law disclaimers, law in the hands of his exemplar judge cannot finally be distinguished from that judge's own best current theories of goodness and justice. Attaining the best current theories will require a good moral realist judge to be "in 91 Ibid., 312; Moore, "Precedent," 78, 82—83; and see my discussion of this point several paragraphs above. 93 Moore, "Interpretation," 312. 94 Ibid., 314, 358,313-18.

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session with himself" as "a sensitive moral being." But judges, once they "engage in that moral reasoning which makes legal reasoning possible," should actively enjoin their best fresh and current reading of the dictates of moral reality and not be "obeisant to the conventional moral judg­ ments of their society." Other things being equal, where a judge's moral conclusions are at variance with "conventional mores," the presumption should apparently be in favor of the judge's own opinion. Apparently otherwise his decisions risk being held "hostage . . . to popular (rather than to the right) moral judgments."95 Moore gives examples of how this presumption would work in action.96 Of course other things are not always equal. Because they are not, Moore retains one important operational constraint on this morally in­ spired adjudication. The constraint is, in essence, a judge's own prudence. A judge must "use his own best judgment" in figuring the weight of prec­ edent and other rule-of-law virtues, and must then "balance" such factors against his own moral interpretation of law or against his own judgment of what justice requires in a particular case. As Moore himself points out, there is nothing odd or unique to him about this kind of reliance on ju­ dicial prudence.97 What is odd is its relationship to Moore's epistemology. One would have thought that Moore's stark antifoundationalism— with the caution and tentativeness it entails—would produce a judicial demeanor that is strongly self-effacing and self-doubting. One would have thought it would make judges careful always to hold their own moral findings at an exceptionally critical arm's length, and that it would make them especially uncomfortable with the idea of giving themselves the benefit of the doubt. Now, it is easy to accept Moore's earlier argu­ ment that a conventionalist theory of morality is false. But it is hard to see why—on Moore's premises—conventional (that is, popular, widely held) moral views should be presumed more "out of sync" with moral reality than an individual judge's moral theories (when these differ). If anything, Moore's coherence epistemology might be expected to give the presumption to "conventional mores" since those mores have been sub­ jected to a wider, albeit un-self-conscious, kind of coherence check than any judge could ever perform. That might be expected, especially since by 95

Ibid., 393, 398, 288, 376, 379. examples he gives are not constitutional cases, but illustrate the point. An Iowa judge, says Moore, should have ignored a conventional consensus in rural Iowa about a child's need for a stable environment, and should instead have awarded custody to a Cali­ fornia parent who could have guaranteed the child's "right" to a "creative and stimulating environment." ("Interpretation," 391 n. 203.) Federal judge Learned Hand, if he had been Moore's kind of moral realist, could have seen the need, when faced with a case involving a father's mercy killing of his financially burdensome retarded child, to affront "conventional moral judgment" and acquit the father ("Interpretation," pp. 392—93). 97 Moore, "Interpretation," 387—88, 391, 397 (371-76 on precedent). 96 The

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Moore's own account the people who hold "conventional mores" can be counted upon to be everyday realists rather than conventionalists. But Moore's antifoundationalism does not seem to have this effect on his theory of judicial practice. I suspect we can understand why. Moore's moral realist judge, like Moore himself, will be optimistic about attaining progressively better moral theory. If so, it only makes sense that, unless a judge's own prudence suggests otherwise, a judge's current version of bet­ ter moral theory gets the benefit of the doubt. At least in terms of judicial practice, then, Moore resolves his epistemological tensions in favor of optimism rather than tentativeness. He effects a practical fusion of law and morality and recommends a judicial moral activism whose only con­ straint is its own prudence. This is admittedly my interpretation of Moore's judicial practice, but I think it fits. It fits in still another way. Moore's morally inspired judicial practice should come as no surprise, for his cautious epistemological disclaimers x do not alter the deeper logic of his political and legal thinking. Like Ar­ istotle and Cicero before him, Moore seems to regard the attainment of justice as the paramount function of all civil law. Accordingly, sound legal interpretation and adjudication imply "nothing less than a worked-out blueprint of the good and just society." Moore believes constitutions are simply such blueprints "written down." And Moore would thus have Su­ preme Court justices construe the Constitution so as to make it just such a blueprint. "For only in the light of such an end state" can a judge inter­ pret and apply the law. After all, since "the great clauses of the Consti­ tution" in fact "name real moral qualities," they generate "a realist inter­ pretation theory." And as Moore sees it, such a realist theory of interpretation "necessitates the construction [by judges] of a theory of a good society."98 Moore does not make it easy to demarcate his final view of the nexus between morality and law. But if I am right in discerning a tension in his thinking here, between epistemological reticence and epistemological op­ timism, and between juridical restraint and moralizing vigor, then I am probably also right in discerning which side of these tensions Moore opts for in practice. The tensions in Moore's thought, of course, may be healthy and even necessary, as I shall argue later. What Moore fails to provide, however, is a satisfying account of his resolution in favor of one side rather than the other for purposes of judicial practice. His strongly normative judicial practice remains anomalous by the terms of his epistemology. Though his epistemology differs, John Courtney Murray's view of the practical nexus between morality and law resembles Moore's view. For 98

Ibid., 385-86, 394.

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Murray, as for Aquinas before him, "the premises of [civil] law are ulti­ mately found in the moral law," and human legislation consequently "look[s] to the moralization of society." The natural moral law offers positive legislation "an ideal of justice" at which to aim." Still, Murray, like Moore, does attempt to temper the nexus. He too tempers it with prudence. Prudence must pilot law's innate moralizing ambitions—prudence exercised by legislators and judges. Legal prudence must assess the likely consequences of its moral activism, including the impact of activism on precedent and its potential for successful enforce­ ment.100 Such considerations allow Murray to speak of "the differenti­ ated character of law and morals." Yet the differentiation seems to be, in principle, provisional. For moral reality looms large and available, and public law is essentially a reflection of it, however incomplete. Prudential considerations alone limit the extent of that reflection. Murray makes much of the limits, and in this respect he is more circumspect than many Thomistic natural lawyers.101 Still, for all Murray's caution, he, like Moore, makes no convincing demarcation between morality and law. Thus, activism on behalf of moral reality is, at least in principle, always in order. Activism may be tempered—perhaps substantially—but its re­ straint can only be a matter of immediate prudence. Just such a prudence is also Sotirios Barber's counsel to judges. Barber notes that prudential restraint is fully consistent with a strategy of judicial power. Indeed, it amounts to one element of a legitimate activist strat­ egy—so long as that strategy is in the service of justice, virtue, and the agenda of moral reality. This does not trouble Barber. He is an unapologetic friend of judicial power and advocate of judicial activism.102 And he supports that stance by arguing that key provisions of the Constitution make no sense apart from a moral reality. Still, Barber's nexus of real morality and law differs from the others. He seems more reluctant to fuse them either at the level of principle or practice. For, there exists, in prin­ ciple, says Barber, a normative gap between law and human will. All of us have some inclination against aligning ourselves with law and the moral reality behind it. Indeed, law makes sense as law only in the pres­ ence of disinclination to follow the law; if people innately and automati­ cally did what the law would require, there would be no need for law to require it. This disinclination afflicts judges as much as anyone else. As long as we remain short of "perfect congruence," we must accept the "in" Murray, We Hold These Truths, 166, 332. 100 Since in a way these too involve moral concerns; Ibid., 165—67. See also Moore on this point, "Interpretation," 387—88. 101 Murray, We Hold These Truths, 156—74 and esp. 167. 102 Barber, "Epistemological Skepticism," 385, 394, 396; Barber, "The New Right As­ sault," 295; Barber, On What the Constitution Means, 220 and elsewhere.

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tractably provisional quality" of all attempts to reach the moral meanings embedded in the constitutional text.103 While Moore also notices our "admittedly imperfect knowledge" of goodness, he is also sure this knowledge "can get better" and, as we have seen, he admits to being "op­ timistic" about the prospects.104 For reasons that I will inquire into later, Moore's optimism seems to exceed Barber's. Now, Moore's realist posture (apart from certain features of his epistemology) has, in general, an unmistakably Aristotelian flavor. Moore's affinity with Murray on the nexus of morals and law is no surprise, since it recalls the affinity between Aristotle and Aquinas. Aristotle regarded nature as real and as normative. He also regarded the establishment of justice and the inculcation of virtue as paramount tasks of the polis—a view held also by Plato, adopted by Cicero, and reflected later in the thought of Aquinas. Whether learned directly from Aristotle and the clas­ sics or not, this is Moore's view, and the same notion reaches Murray via Aquinas. Another notion that reaches Murray is "natural law," whose Thomistic formulation is etched indelibly on Western thought. "Natural law" is one way of expressing the Aristotelian conception of nature as normative.105 Both Murray and Moore readily label themselves natural law thinkers. Of course, Moore would likely be uncomfortable with some of the con­ tent of Murray's natural law, for Moore's natural law theory owes little to Aquinas. To Murray, as to most Thomists, the essential content of the natural law is reasonably determinate. Although as a "natural" law, it is allegedly independent of the need for any divine revelation, its content mirrors traditional Judeo-Christian moral precepts. Moore's work re­ veals him to be more concerned—so far at least—with defending the pos­ sibility of a moral reality than with specifying its content.106 Whatever their variations on the moral realist theme, these constitutional theorists attain a certain intellectual success where moral conventionalists fail and neo-Kantians falter. Their success as normative theorists stands out especially in a field whose unavoidably normative basis is more often dodged than addressed. Of course, their basic answers are far from self-evident. Moore, for 103

Barber, On What the Constitution Means, 17, 120, 160, 218, 219, 121. "Interpretation," 358, 287; see also 371. 105 Aristotle, of course, never spoke of a "natural law," and arguably might never have used such language since he ultimately referred the good not to any codification but to the natural animate standard of the good man, be he phronimos or spoudatos. The rhetoric of "natural law" gained prominence later, with the Stoics. 106 In fact, the tenor of Moore's work suggests that he might consider the identification of moral reality with Judeo-Christian tradition to be yet another suspect form of convention­ alism. See my discussion of "moral reality in history" below. 104 Moore,

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one, is keenly aware that the basic realist ontology of nature and morals is controversial in academic circles. Yet Moore defends such ontological realism as inherent even in the arguments of its detractors.107 More con­ troversial still is the notion of a correspondence epistemology, which Moore rejects. Yet, as I have suggested above and will elaborate below, this too has its plausible defense. While it seems hard to prove, it is argu­ ably less inconsistent and more viable than the alternatives—such as a nihilist/sub]ectivist epistemology, or a denial of anything beyond formal knowledge of the good, or a denial of unmediated real glimpses at the nature of the good. In any event, by asking the right questions and by offering defensible parameters for their answers, the contemporary moral realists achieve what all forms of conventionalism fail to achieve (and what neo-Kantians may achieve precariously at the cost of their Kantianism): truly normative theory, the kind that constitutional jurisprudence requires.108 Unfortunately, moral realism's success remains incomplete in both in­ tellectual and applied terms. Conventionalism may be intellectually un­ tenable because its moral nihilism renders it normatively impotent—and thus incoherent as prescriptive constitutional theory and out of tune with the American constitutional text. But moral realism is unsatisfactory as constitutional theory for its own set of reasons. Leading versions of con­ temporary moral realism face certain intellectual problems that manifest themselves in stubborn problems of a practical and political nature. Such problems engender legitimate anxieties that moral realism does not ade­ quately quell. We have met these problems already.

The Experience of Indeterminacy Moral realism, for all its virtues, seems to make its adherents inclined to discount our basic experiences of moral indeterminacy, or rather to dis­ count the lessons we draw from those experiences. If, as contemporary moral realists seem to hold, moral reality is an object "out there," and if moral judgment is a matter of accessing that object and determining its bearing on particular circumstances, then any indeterminacy must be ap­ parent rather than real, a provisional shortfall of moral knowledge rather than of reality itself. Now, certainly there are easy instances where the good is obvious. But politics in general, and constitutional law in partic107As I have noted above, see Moore, "Moral Reality," 1105—49, Moore, "Interpreta­ tion," 288—313 and elsewhere 108 Of course the magnitude of the moral realists' intellectual success remains a relative thing—relative to the shortfalls of constitutional theory premised on moral conventional­ ism

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ular, face tangles whose resolution in moral terms often strikes us not only as difficult but as hopeless. In light of such experiences, moral real­ ism can leave us unsatisfied. Michael Moore has a good answer to this reproach. He grants that circumstances can confront us with genuine moral dilemmas that reveal the failure of all prior specifications of moral reality. He regards this as an ever-present but ever-provisional problem that can be explained in strictly epistemological terms. The problem simply shows that our minds have not yet fully plumbed the complex depths of moral reality. Hard cases like Karen Quinlan's, for example, do "not entail that meaning itself has run out, only that our present knowledge of it has." And constitu­ tional values such as "equal protection" can be illuminated, as we have seen, by "progressively better moral theory."109 Indeed, Moore's moral realism seems averse to binding itself to any prior specifications; moral-legal judgment must be done fresh each time. Otherwise prior specifications become conventionalist tethers. Thus Moore's moral realist judge must "let his emotions grapple" with the full panoply of circumstances and moral reality. The anguish of this process enables a judge to avoid "wooden-headed" judgments.110 If my reading of Moore is correct, however, the anguish apparently need not deter the judge from implementing his blueprint of a just society as vigorously as his own immediate prudence will permit.

Moral Reality in History Moore speaks to the question of indeterminacy, but the very indeterminacies of his solution generate an opposite problem.111 For if Moore is right about what moral realism entails in practice, then there is a basis for David Richards's uneasiness with it. Under such a jurisprudence, Rich­ ards thinks, "history and convention are implausibly dismissed on the assumption . .. that the preservation of the integrity of moral reality so requires."112 Why does this objection matter? Because it is possible, after all, that the historical record of past human experience might furnish some substantially accurate information about the content of moral re­ ality—thanks to the real discoveries of earlier generations.113 Indeed, Fa109

Moore, "Moral Reality," 1149—52; Moore, "Interpretation," 309. "Interpretation," 392—93. 111 This recalls how Moore's strategy to defang nihilist skepticism also deprives his own "moral realism" of any epistemologically secure place to stand. 112 Richards, Toleration and the Constitution, 29. 113 Such considerations might seem to offer a certain rescue of conventionalism. They can rescue conventions, but they cannot rescue conventionalism as conventionalism. For with110 Moore,

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ther Murray's moral realism, with its venerable Thomistic specifications, has it this way. We might grant, of course, that any prior specification of moral reality must be subject to the provisional doubt that permits its reaffirmation. Still, if recourse to moral reality must be absolutely fresh every time, then moral—and so legal and constitutional—judgment must proceed as if moral reality had never shown its face before in the course of the history of human experience. Realist moral judgment, or at least Michael Moore's version of it, thus seems to dispense with a safeguard against real mistakes it might make.

Morality vs. Politics and Law However it resolves that point, moral realism poses another more signif­ icant problem. Whether it refers to prior specifications or finds the blue­ prints of moral reality fresh each time, the mind-set of moral realism in­ stinctively collapses politics and law into morality.114 That instinct cannot be entirely mistaken; we have seen in the case of nihilist skepticism that sundering them absolutely makes no sense. Yet the deep logic of contem­ porary moral realism seems to suggest that law is coextensive in principle with morality, and constitutional law with Moore's "blueprint of a good and just society." On these terms, it is hard to see what remains of law as law, or of jurisprudence as a viable activity distinct from moral inquiry.115 Even those who accept a good measure of prior specification recognize moral reality as monumental in its implications.116 Yet an essential virtue of the rule of law is its regularity and predictability, especially for those inclined to disobey.117 By this virtue, law flows as a canal between levied banks; moral realist jurisprudence dismantles the dikes and makes law a boundless ocean. Moore's concept of legal reasoning as an unpredetermined fresh recourse to moral reality only intensifies this problem. Rogers Smith accuses moral realism of harboring the ambition "to de­ fine and inculcate virtue publicly."118 As I have suggested above, he may out bringing to bear some normative criteria on the moral information that historical records offer, there is no way to discriminate among the many mixed signals such informa­ tion gives. If those criteria are themselves merely conventional, any discriminations are in­ conclusive. If those criteria are real, such "conventionalism" is actually a form of moral realism. See my discussion of Michael Perry's "living tradition" above, and of Erie Voegehn and Edmund Burke in chap. 4. 114 Sotinos Barber's discussion of the normative gap between law and human inclination, noted above, may exempt him at this point; I will return to this point in chap. 4. 1,5 See my further discussion of this point in chap. 4. 116 Murray, We Hold These Truths, 297. 117 See my more detailed discussion of the rule of law in chap. 4. 118 Smith, Liberalism and American Constitutional Law, 183.

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not be far wrong. For all its sophistication, contemporary constitutional moral realism seems to retain intact the classical idea of a politics whose paramount tasks are establishing justice and forming virtue. Insofar as liberalism posits a morally "neutral" state that promotes no normative conception of the good life for man, that classical idea challenges modern liberal political theory at its roots. The challenge probably prostrates lib­ eralism, but the challenge itself is vulnerable to a more basic challenge.

Mistrust of Human Nature For if political society is the order of justice, and if law is morality whole, then a kind of bottom-line fear emerges. Who can be trusted with custody of so momentous a task and so boundless a standard? The bottom line, in other words, is a skepticism not so much about morality as about hu­ manity. A certain mistrust of human nature is hardly alien to American constitutionalism. I have already noted its appearance in Hobbes, Locke, The Federalist Papers, and John Marshall. Such an attitude retains cur­ rency still, not out of reverence for those authorities but because their misgivings resonate with common experience. Today's conservative op­ ponents of moral inquiry in constitutional matters, for example, fear moral realism primarily because they fear moral realist judges will get moral reality wrong—either inadvertently or willfully.119 Even Michael Moore senses that "the determinative arguments" con­ cern the fear that "realist judges pose grave dangers of serious moral mis­ takes being imposed on hapless litigants and on the rest of us."120 Against mistrust of human nature, Moore's moral realism, much like other cur­ rent varieties, comes up short. For moral realist jurisprudence, since it has recourse in principle to the boundless reaches of moral reality, offers little to hem in errant judges.121 The moral realist answer to "the possibility of serious judicial misadventure"122 seems to be essentially that of Plato's Republic, where the guardians—who must ultimately be philosopherkings to make the system work—are logically constrained only by their own virtue. Barber suggests that enthroning the philosophic process itself precludes any philosopher-judges actually ruling—or misruling—as kings. I will return to Barber's suggestion in chapter 4. For his part, 119

See my discussion and citations in chap. 1. Moore, "Interpretation," 392. 121 According to Moore, this is presumably not a problem for virtuous judges. If they get it right, so to speak, they will encounter the definite content of moral truth, which is "just as constraining" on judges as deciding "cases on the basis of factual truths." Moore, "Inter­ pretation," 388. 122 Perry, The Qonstitution the Courts and Human Rights, 125; cited by Moore, "Inter­ i pretation," 392 n. 205. 120

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Moore has a "simple intuition" that moral realism is safe on this score. "My simple intuition," he admits, "depends on our not having moral lep­ ers on our benches."123 Moore's intuition will scarcely assuage the fears of those who mistrust human nature—especially since we live, as Moore himself notes ruefully, in "a society that has lost its faith in there being real values."124 Yet, Moore's insistence that judges not be "obeisant" to conventional moral beliefs may loom all the larger to him in such a society. Moore's exem­ plary judge, for example, facing a case involving a father's mercy killing of his financially burdensome retarded child, may well be compelled by moral reality to affront convention and acquit the father.125

Normative Impasses, Revisited Although the thinkers I have considered hardly form an exhaustive roster, they are broadly representative of contemporary constitutional theory. Their approaches illustrate aptly the moral rudiments of the field. I can leave aside a fuller development of their individual theories because my review sufficiently reveals the various impasses that their moral thinking begets. My portrayal of the basic alternatives in moral theory, as diagrammed in figures 1—3 above, revealed four basic possibilities. Each scheme of constitutional jurisprudence draws on the resources of one of these stan­ dard varieties. But my tour of contemporary constitutional theory in its four moral branches was disappointing. Theories in each variety fell short as constitutional theory and seemed to reflect shortcomings of corre­ sponding background traditions of moral and political philosophy. Only those on the realist half of my philosophical map proved able to offer a genuinely normative account of the good, in which an adequate norma­ tive approach to constitutional issues could be grounded. Yet, only those toward the ideological half of the map seemed able to ground and justify the putatively normative principles they offer. This left substantive moral realism, whose contemporary renditions fell before their own set of prob­ lems. Put more simply, almost all leading constitutional theorists are nihilist skeptics when it comes to morality. Their skepticism denies any moral good beyond mere convention or merely subjective personal conviction. Even what I have called "teleological" conventionalism—as in John Hart Ely's proposed utilitarianism or in Walter Berns's Hobbesian natural 123

Moore, "Interpretation," 392—93. Ibid., 393. The scientific and moral practices of that society, of course, continue to imply a faith in real values in spite of the loss of that self-conscious faith. 125 Ibid., 392. 124

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rights ethic—reduces to the same basic conventionalism. This conven­ tionalism fails its constitutional adherents. For constitutional theory is inescapably normative and prescriptive, while conventionalism is intrin­ sically impotent as a normative theory.126 By its integral nihilism, the con­ ventionalist account of morality slights the overt character of the consti­ tutional text, and insults the moral realist thinking of the founding generation or any other generation of Americans. Moreover, it insults it­ self. For a thoroughly consistent conventionalism cannot even affirm its own antirealist stance as true—since by its own account there is no truth, or in any case no true knowledge of truth. The few current constitutional scholars who eschew conventionalism are intellectually sturdier, but face their own daunting problems. Those who have attempted a neo-Kantian moral realism—if they avoid sliding into conventionalism—have difficulty justifying their value premises, however thin those premises may be.127 The thinking of substantive moral 126 I am arguing here (and elsewhere in this work) that normative theories about the na­ ture and practices of constitutionalism—theories about such things as how one ought to interpret the Constitution, or about how constitutional adjudication ought to be carried out—have to be regarded as grounded somehow in a morally authoritative, nonconventional reality in order to be truly normative. Sophisticated legal posmvists, notably H.L.A. Hart, have argued that considerations strictly internal to law, by contrast, may be "norma­ tive" without such an ultimate grounding in reality. As I explain in the Appendix, my view does not immediately contradict theirs, although in the final analysis my proposal may un­ settle their scheme. 127 As this manuscript goes to print, Hadley Arkes is offering a sturdily normative and largely Kantian theory of constitutional meaning and constitutional adjudication, in Beyond the Constitution. He bases his argument on the moral position staked out in his earlier First Things (Princeton: Princeton University Press, 1986). (Compared to the thinkers I've been discussing in the preceding few pages, Arkes's premises are more Kantian than neo-Kantian, perhaps because they are informed by a large dose of Aristotle.) Arkes argues that one must reach beyond the text of the Constitution to first-order moral principles that stand over and above the Constitution, and that owe none of their validity to it. Not recognizing such recourse to morality, says Arkes, is an intellectual failure that the Bill of Rights fosters by indirection and legal positivism purposely abets. It accounts for the convoluted reasoning that characterizes so much of our legal and constitutional discourse. To restore an intelligi­ ble and worthy rule of law, we must recover "the principles of moral reasoning that stood antecedent to the Constitution . . . [and that] furnished the understanding of the Founders when they framed the Constitution" (manuscript chap. 9). By these principles we can assess the reasons justifying the prescription or proscription of various acts. The argument echoes Arkes's First Things: The logic of law is neither analytically distinct nor separable in practice from the logic of morals. He now adds that the presence of law in the form of a constitution should not divert our attention from this fact. Arkes's argument illustrates the power of his mind, but it also illustrates the dangers of a moral realism as applied to constitutional matters. The dangers exactly parallel those of the moral realists I discuss in this chapter. Arkes says, in effect, that a constitution should be a windowpane, letting in on public life as much of the pure light of moral principle as pru­ dence determines feasible. Prudence may find that conditions require slow going sometimes, but the goal is to arrive at the point where the glass is no longer even noticed because of the brilliance of the sunlight. This scheme of things seems to evacuate the very notion of a

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realists is less precarious, but almost for that very reason poses problems when applied to the enterprises of constitutional interpretation and ad­ judication. The natural law schemes of John Courtney Murray and Mi­ chael Moore stumble over our experiences of moral indeterminacy, threaten to inundate constitutional law with morality, and underestimate the potential abuse of an open-ended moral jurisprudence by errant judges and legislators. Michael Moore's attempt to deflect such re­ proaches leads him to buy into the epistemological apparatus of conven­ tionalism. As I have argued above, his bid to "deny the skeptic any van­ tage point from which to be skeptical"128 also denies a realist like himself any adequate vantage point from which to affirm realism as true. Sotirios Barber's moral realism seems more promising, though the cautionary ca­ veats he offers probably do not satisfy those who fear that errant judges will be emboldened by Barber's strong promotion of judicial moral activ­ ism. (I will return to Barber's jurisprudence, as well as Moore's and the others', in succeeding chapters, especially the fourth.) As I have said above, I remain uncertain on where Ronald Dworkin's influential jurisprudence fits into this picture. But this uncertainty does not alter the picture. If the moral foundations of Dworkin's theory turn out to be conventionalist, his thinking suffers the congenital defects of such conventionalism. If he successfully secures his foundations on a Rawlsian-Kantian basis, he partakes of the problems of moral realism. Indeed, a realist reading of Dworkin's unfettered judicial activism might vividly illustrate realism's dangers.129 In sum, then, moral realism endangers constitutional theory while con­ ventionalism makes nonsense of it. This situation justifies a certain pes­ simism about the field of normative constitutional theory. If these stub­ born problems admit of any solution, it would have to be one that detaches realism's normative assets from its liabilities. It would have to preserve a real normative morality without losing the benefits of a skep­ tical attitude and the security of stipulated convention. In a sense, of constitution; it reduces a constitution to a fiction of prudence. If, in the final analysis, this is what constitutions are, why then bother with them at all? Why not just set about making sure that those who hold the levers of power are virtuous and prudent? Such an approach, of course, cannot satisfy powerful doubts that we have (based on experience, not just the­ ory) about the virtue or good will of human beings. Nor can they satisfy the doubt that follows from those doubts—doubt about the wisdom of founding a political order on the sanguine assumption that human beings holding power will be apt to, or can be made to, possess those qualities sufficiently. 128 Moore, "Interpretation," 312. 129 According to Jeremy Rabkm, Dworkin's aspirations to moral transformation make him so dissatisfied with "the limited but real community of living Americans" that he effec­ tively seeks to "reinvent 'the community' "—a feat that usually requires not law but "a great many bayonets to put over." Jeremy Rabkin, "Law's Umpire," New Perspectives 18 (1986): 30.

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course, this was the aim of all the thinkers treated above. Yet their solu­ tions invariably slid into one set of problems or the other. The most care­ fully elaborated solution—Michael Moore's sophisticated moral real­ ism—managed to implicate itself in both sets of problems at once. Stanley Brubaker seems to see the configuration of these problems es­ pecially clearly. Brubaker addresses them by juxtaposing his moral realist "ontological confidence" against his "epistemological skepticism."130 By this procedure Brubaker remains a kind of nihilist skeptic in practice— and prescribes strict judicial restraint on that basis—while intending at the same time to retain the normative prestige of realism. Now, affirming ontological confidence implicates Brubaker inescapably in at least some epistemological confidence. Yet his nihilist skepticism overcomes his ap­ parently sterile ontological confidence and in practice he "acts the onto­ logical skeptic."131 Lacking an account of the relationship between its two parts, his theory remains anomalous. Brubaker tackles the right prob­ lems, but does not dispel a fundamental pessimism about normative con­ stitutional theory. My pessimism recalls Paul Brest's gloomy assessment of the "essential contradictions of normative constitutional scholarship." Brest laments that all normative theories are equally vulnerable to criticism of their nor­ mative premises. I will, of course, deny that all are equally vulnerable: Moral realism easily outweighs conventionalism on intellectual grounds. Still, in view of moral realism's own problems, my conclusion amounts to much the same thing. I agree with Brest that "the central issue" of what he calls the fundamental rights controversy—and of what I would call more broadly the problem of the moral foundations of constitutional thought—"is not susceptible to resolution within its own terms." Neither has it proven susceptible to resolution in terms of any of the standard options in moral theory, as I have argued above. Brest sought a way to live with this inconclusiveness. I will argue that the problems point by their own structure to a solution along the lines first framed by St. Au­ gustine's political ethics. Brest acknowledged that these problems will ad­ mit of no solution "until despair or hope impels us to explore alternatives to the world we currently inhabit." It may be that in turning to Augustine I am heeding Brest's words.132 130 Stanley C. Brubaker, "Reconsidering Dworkm's Case for Judicial Activism," Journal of Poltttcs 46 (1984): 511, 514, 516; Stanley C. Brubaker, "Taking Dworkin Seriously," The Review of Politics 47 (1985): 62. 131 Barber, "Epistemological Skepticism," 383. 132 Paul Brest, "The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship," Yale Law Journal 90 (1981): 1063-1109, esp. 1105 and 1109.

Three Augustine's Political Ethics: Skepticism, Ultimacy, and the Good in Politics

AUGUSTINE has the kind of theory that normative constitutional scholar­ ship needs in order to come to grip with its difficulties. In this chapter I will explain that claim a bit more thoroughly, and then set forth the gen­ eral dimensions of Augustine's relevant thought. The most basic reason that constitutional theorists ought to give Augustine their attention is that his answers address their problems better than other available answers. This may be because Augustine dealt with normative impasses of antique thought resembling those of contemporary constitutional theory. More­ over, Augustine is a recognized precursor of the moral and theological culture that informed the American founding. For these reasons and more, American constitutional theorists will find in Augustine a way of thinking able to penetrate their contemporary problems of moral theory and political practice.

Normative Perplexities and Augustine The turn to Augustine follows primarily from what we have discovered about the nature of constitutional theory's underlying problems of moral theory. We saw that both the text of the American Constitution and the practices of constitutional commentary imply premises of normative mo­ rality. We saw that those attempting theories of constitutional interpre­ tation and adjudication rested pivotal parts of their arguments on some theory about the reality (or unreality) of moral goodness. But their think­ ing foundered on a basic problem of moral theory looming behind their constitutional theories: the problematic reality of our moral experience. Our experience of this world encounters both moral order and disorder, both moral goodness and moral indeterminacy. Our experience also en­ counters, in ourselves and others, a capacity for willful wrongdoing whose exercise effectively clouds the sense of order and sharpens the sense of indeterminacy. Though for different reasons, the constitutional theorists we have con­ sidered do not account adequately for this mixed moral experience. Their theories tend to fall awkwardly on either side of the problem. On the one

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hand, most leading constitutional theorists seem to fasten selectively on the experience of moral indeterminacy. They profess a global skepti­ cism—really a nihilism—about moral goodness. Accordingly, they at­ tempt to rest their ostensibly normative theories of constitutional inter­ pretation and adjudication on conventionalist premises that, because they fundamentally deny real goodness, render their "normative" theories fun­ damentally untenable. As we have seen, their approach is untenable philosophically: By denying any real moral good it begs the very norma­ tive questions whose answers it cannot avoid presupposing in order to carry out its arguments. Their approach is also untenable practically: It does not comport with the language of the Constitution or with the think­ ing of most Americans in any period of our history. On the other hand, the few "moral realist" constitutional theorists honor our experience of moral goodness but have trouble incorporating an account of the other experience—that of moral indeterminacy. As I have argued above, in a scheme like Michael Moore's, indeterminacy ends up being always serious but always provisional, maybe more appar­ ent than real. Because they have trouble with indeterminacy, the moral realists' doctrines of constitutional interpretation and adjudication, while more tenable than those of their morally skeptical colleagues, still en­ counter legitimate objections. As we have seen, one such objection is the fear that their theories threaten the distinction between constitutional law and morality. Another is the related fear that their theories blur the dis­ tinction between law and the will of judges, thus possibly licensing serious judicial misadventure. Now the contemporary moral realists understand such fears. To say that they have trouble explaining moral indeterminacy is not to say they ignore it. Michael Moore in particular takes pains to account for both aspects of moral experience in his theory. I think that the shortcomings of Moore's moral realist theory of law illustrate the need for a way of thinking like Augustine's. To explain why this is so, I need to restate what we have learned about the strengths and weaknesses of Moore's theory. As we have seen, Moore adopts ontological realism as his most basic theoretical position. He thus explains the experience of moral order by asserting the reality of a goodness that exists independently of human artifice. But Moore—much like Ronald Dworkin and Stanley Brubaker— decides to attempt a strictly epistemological explanation of the experience of indeterminacy. This induces his fateful assertion that the human mind cannot have even the smallest grasp of truth "unmediated by human the­ ory." No one can have any undistorted "peek at the universe" and see something of reality as it really is. The best one can do is to fashion "a

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theory as to how that undistorted world really is."1 As we have seen, Moore thus hopes to defang the nihilist skeptic. But he thus creates the problem of evaluating competing theories about the reality nobody really has any access to. He turns this problem over to the coherentism of Quine and Rawls. Since our "factual beliefs"—whether about the physical world or the moral world—cannot in any degree be "inferenceless readoffs of reality," any theory "is justified only by showing that it coheres well with everything else one believes."2 This solution is problematic for Moore, especially since he would presumably have judges undertake such coherence checks in order to get at the moral interpretation of law and the Constitution.3 A preliminary problem stems directly from experience. Experience alerts us to the possibility that the conglomeration of moral beliefs that we (or our judges) attempt to make cohere may contain both inadver­ tently and willfully erroneous beliefs. Among "our beliefs," for example, may be rationalizations for actions committed in bad conscience. Moore knows that our beliefs can be at least inadvertently mistaken;4 after all, weeding out mistaken or inadequate beliefs is the purpose of checking them against other beliefs in the first place. Yet by the logic of Moore's kind of coherence-check procedure, erroneous beliefs cannot be set aside in advance (since there is no way to know they are erroneous apart from the procedure itself). Erroneous beliefs will be included among those be­ liefs that we try to fashion into a coherent whole against which to check some particular belief. The presence of such error cannot help but influ­ ence the outcome of the checking procedure; depending on how serious it is, it can skew the point of "reflective equilibrium" and thus distort the findings. And it is little use promising that coherence checkers will operate in good faith. For one thing, we know from experience that willfulness 1 Moore, "A Natural Law Theory of Interpretation," 312; "A Natural Law Theory of Precedent," 78; see also Moore, "Moral Reality," 1106-16. See my discussion of Moore in chap. 2, which I am only restating in a somewhat different light; see also my further discus­ sion of Moore in chap. 4. 2Moore, "Moral Reality," 1110, 1111—12 (emphasis added); see also Moore, "Prece­ dent," 74—77. Moore refers his solution of this problem to W. V. Quine, From A Logical Point of View (1961) and John Rawls, A Theory of Justice·, see Moore, "Moral Reality," 1106—13, and Moore, "Interpretation," 312 n. 75. 3 My purpose here is not to reject coherentism per se, only the kind of coherentism that Moore adopts—one that denies the possibility of unmediated glimpses of reality and thus excludes any such insights from affecting the coherence procedure. For this makes the co­ herence procedure turn wholly upon itself, that is, wholly upon human artifice and mere human convention. As I will argue below in chap. 4, if the coherence-check procedure re­ mains open to all varieties of insights, it can have an important place in evaluating our beliefs about reality. 4 See, for example, Moore, "Precedent," 84, 93.

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can become unconscious; as in the form of long-cherished rationaliza­ tions, it indeed operates most powerfully that way. For another, such a promise would imply what Moore denies: It would imply having some access to a real standard of "good faith" that can be relied upon before coherence checking gets underway. Although he comes close to acknowl­ edging them,5 Moore fails to make provision for these potential failings of his coherentist solution. Indeed, Moore is apparently rather sanguine about such problems arising in a legal context. As I noted above, he counts upon the likelihood of "our not having moral lepers on our benches."6 I think the problem of "moral leprosy" is a serious one—and not just in our judges but in ourselves.7 Augustine will propose to us both that the problem is a serious one and that it has serious ramifications for all polit­ ical and legal action. But even if we leave aside the problem of moral lepers, the kind of coherentist solution Moore adopts is problematic because it makes mere and fallible convention (our theories and "our beliefs") the only available vantage-point on a reality whose main attraction was supposed to be its real existence independent from human convention and human will. Man-made theory and mere convention become the funnel neck through which any and all knowledge of moral reality must pour. Whatever does not make it through the funnel is not available. This is a rather awkward position for an ontological realist, especially for one who insists that moral reality—as opposed to mere moral convention—is a necessary foundation of legal interpretation and adjudication. Yet once Moore chose to account for indeterminacy by denying the possibility of real if incomplete glimpses at the nature of goodness, there was little alternative. Having borrowed an epistemological tenet from conventionalism, he had to do what conventionalists also find it necessary to do: He had to rescue a functional semblance of moral knowledge by means of a procedure turning wholly upon convention. I expect that Moore would resist this 5 Moore, "Interpretation," 392 n. 205, 393 n. 209. Yet even here, Moore discusses the potential failing of his theory in epistemological terms only. He does not address the possi­ bility of bad will. Instead, he notes the possibility that "many judges are simply not up to the kind of systematic moral reasoning" he describes. 6 Moore, "Interpretation," 393. Needless to say, there are many who would contend that judicial moral leprosy is a real problem in an era when over half of our federal judges have been appointed by Ronald Reagan. Conversely, those who claim to worry the most about moral failings of the judiciary are often enormously pleased with the moral quality of the Reagan judiciary. 7 Sotinos Barber seems to think so, too; see his On What the Constitution Means, 17, 42, 120-21, 218—19. I return to Barber's observations in chap. 4, where I argue that they rep­ resent an unconscious and undeveloped form of Augustine's ontology.

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interpretation of his coherentism. To see why—and to see why his resis­ tance may fail—we must go further. As I have shown above, when he is not discussing epistemology, Moore seems to imply the possibility of attaining some degree of unmediated real knowledge of goodness.8 He is optimistic, for example, about attaining "progressively better moral theory"—better not as theory about conven­ tion but as theory about moral reality.9 And as I have shown above, he is optimistic about moral realist judges using such progressively better the­ ory as the foundation of their prudent judicial moralism. What are we to make of Moore's optimism about moral theory getting better in fact and not just "better" in relation to prior human artifice? Could it be that Moore's realist stance implies what his epistemology de­ nies him? Although I will return to these questions in the final chapter, it seems fair to note again that, if Moore's optimism about progressively better moral theory is real, it implies that the ongoing process of coher­ ence checking our moral theories can or will eventually converge on a true account of the good. But this hangs on one of three other beliefs. One possibility is that Moore knows or believes in advance that the raw material of coherence checks—the conglomeration of "our beliefs"— is in fact more true than false already, and thus poses no significant dan­ ger of leading coherence checkers astray. Moore cannot believe this.10 He denies anyone, himself included, any such advance peek at the truth status of beliefs. Moreover, he insists that no belief can be justified as true in advance of submitting it to a coherence check from which such peeks are excluded. By his premises there is thus no justified knowledge or belief— including an advance belief about "our beliefs"—available prior to, and valid independent from, coherence checking. A second possibility is that Moore believes that coherence checkers in fact possess some real and accurate prior information about the eventual point of convergence—that point at which the moral findings of coher­ ence checking will actually converge on a true account of the good. With that information about the eventual point of convergence, they could rec­ ognize progress toward it and could thus affirm their faith in progres­ sively better moral theory. This possibility Moore also denies. No one, he says, has such a direct, prior peek at reality; that was the reason for re­ sorting to his version of coherentism in the first place. With that possibility excluded, Moore's program looks rather shaky. But at least his optimism must implicate a third thing. He must possess a 8 See my discussion in chap 2, where I note that Moore asserts his realism "is both true and 'true' relative to our convictions " Moore, "Interpretation," 312 9 Moore, "Interpretation," 309, 312 10 In one passage Moore almost seems to make such a claim, though, as I am arguing here, he cannot mean it unequivocally, see Moore, "Precedent," 77, bottom

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diffuse but profound kind of faith: a faith in the coherent and ordered character, not so much of our beliefs, but of the reality that our beliefs aim to express. It is a faith not only in the orderly goodness of reality, but in human nature too, since Moore's scheme implies that the human mind is capable of increasingly aligning itself with that orderly goodness. This faith must be somehow prior to and independent of any particular coher­ ence checking procedure—since any claimed glimpses at the nature of re­ ality, glimpses that might support that faith, are excluded from the pro­ cedure. As I have noted before, this faith is Moore's basic premise of ontological realism (or "metaphysical realism," as he usually prefers to call it). Such a faith in the ordered character of reality may turn out to be war­ ranted. But it is neither uncontroversial nor universally shared. And it is hard to see how that faith could be vindicated in terms of Moore's own epistemological scheme. His own premises deny the possibility of attain­ ing some direct if incomplete glimpse at reality by which to affirm the soundness of his faith. The sole reason he can allow himself to adduce for his faith is that we cannot and need not finally vindicate such faith. It suffices, Moore says, to see that our given "practices with regard to think­ ing about and describing the world" reveal us to be "both metaphysical realists and (as a special case of that) natural lawyers." That is, our prac­ tices "internal to science" in fact presuppose the existence of an ordered reality upon which our knowledge can converge. We need not try to "stand outside" our conventionally given theories and practices; only conventionalists or nihilist skeptics need to do that. Moore, after all, claims to use coherence epistemology only to justify some particular moral belief in the light of other beliefs; he does not try to step outside and justify his larger faith as a whole. Therefore, Moore says, "we do not face a vicious circularity here any more than in science."11 Does this sufficiently vindicate the faith on which Moore's larger moral realism stands? At one time, Moore's observations about the givenness of "our practices" might have seemed like reason enough for his faith. But we realize now that there are other kinds of practices among which we might choose, and that we must somehow evaluate if we are to choose wisely. I doubt, for example, that someone who shares neither a prior faith in reality, nor Western scientific practices with their ontologically confident presuppositions, can be persuaded by Moore's optimism about better moral theory. Whether Moore could in fact succeed in persuading such a person is beside the point. The question is whether Moore's theory can provide rationally compelling grounds capable of persuading some11 Moore, "Precedent," 77; Moore, "Interpretation," 311, 397; Moore, "Precedent," 78; Moore, "Interpretation," 312; Moore, "Precedent," 80—81.

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one whose own initial starting point is outside the particular givenness of Moore's own culture with its characteristic vocabulary and practices. If not, his moral realism is captive to the cultural relativism and convention­ alism he so convincingly resists. We are thus obliged to return to the question of whether Moore's the­ ory of moral realism implies what his epistemology denies him. The an­ swer seems to be yes. His faith in the convergence of moral theories on moral truth depends finally on a certain faith in the character of reality. He has to believe, in advance, that the nihilist skeptic is wrong. He has to believe, that is, that reality is good and that its goodness coheres. But it would seem that this faith can only be affirmed if we can have at least some slight access—not mediated by human convention and merely manmade theory—to a picture of the whole as seen from some outside van­ tage point. Successfully vindicating Moore's ontological faith seems to require the possibility of somehow attaining the kind of unmediated glimpses at reality that he disparages as "God-like."12 The bottom line of all this is that Moore's attempt to formulate a strictly epistemological account of the experience of moral indeterminacy jeopardizes his own ontological realism and ends up making his faith in progressively better moral theory seem rather anomalous. Moreover, though I will not repeat the argument here, it seems to me that Moore's moral epistemology also makes his morally inspired judicial practice anomalous.13 Since Michael Moore's is the most fully elaborated scheme of moral realism presently available in the legal and constitutional field, his im­ passes clarify what kind of theory a successful moral realism needs. If there is a viable moral realist approach to constitutional theory, it must viably explain our profoundly mixed moral experience. In respect to our experience of order and goodness—and in respect to intellectual sound­ ness—it must affirm, as Moore does, the independently existing reality of moral goodness. And, unlike Moore, it must affirm the possibility of at­ taining some reliable, real glimpse at the nature of that goodness. But it must also account more successfully than Moore does for our experience of moral indeterminacy. And it cannot dismiss our fear of willful human error. It must be able, that is, to explain the "down side" of moral expe­ rience and take seriously the implications of that experience for the moral interpretation of the Constitution as law and for other issues in constitu­ tional theory. Augustine's moral and political thought offers a way to do this. I will argue that Moore's moral realism can borrow a needed adjustment from 12 Moore, 13

"Interpretation," 312; Moore, "Precedent," 77. See my discussion of Moore's judicial moral activism in chap. 2.

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Augustine's thought at precisely those points at which Moore's theory reaches tensions and impasses. For Augustine, too, has an ontological faith. He too believes that human moral knowledge can converge upon real moral truth. A vindication of Augustine's beliefs starts not from the practices and presuppositions of Western language and science, but from basic human experience lying behind all such practices. And his approach suggests that allowing the possibility of a certain glimpse at a "God-like" perspective can provide an account of this experience that is more intel­ ligible than the kind of account that Moore offers. Augustine is an ontological realist who, unlike Michael Moore, can incorporate the down side of moral experience without buying into the theoretical apparatus of conventionalism. Augustine will help us see a way to make better sense of moral experience—and with it, normative constitutional theory—by going beyond merely epistemological or ana­ lytical considerations to ontological considerations. After we have ex­ amined his thought, we will see how we can viably detach moral realism's assets from its liabilities by reaching to a certain kind of ontological po­ sition. Nature itself, Augustine will propose, is vitiated. The vitiation is not intrinsic to nature; otherwise it would not make sense to speak of it as vitiation. Moreover, the ultimate reality of goodness (God) is not vitiated. Rather, the good of nature exists in a vitiated condition. Augustine un­ derstands nature's vitiated condition in explicitly ontological terms as a "contraction of being." Human being in particular, he argues, chronically exists in a contracted condition less than its true nature. This situation has complicated but not eliminated the human ability to know the good directly.14 Augustine's ontological position allows scope for our ordinary experi­ ence of the world. As I shall argue, it accounts for our experience of moral order. It preserves the possibility of real knowledge of real goodness by identifying an ontologically secure point—beyond politics, law and his­ tory—where human knowledge and will can converge on true goodness. Its account of vitiation takes seriously our experience of moral indeter­ minacy without lapsing into the self-stultifying doctrines of epistemolog­ ical nihilism. And as he develops it, Augustine's ontological understand­ ing of the tensions of moral experience has important consequences for politics and law. Of course some—though hardly all—of the foundations of Augustine's theory are theological. It is not on that basis that his theory recommends 14

The nature of this complication will become clearer after we have been exposed to Augustine's thought more directly, and espeaally after1 return to these questions in relation to Michael Moore in chap 4

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itself to constitutional theory. Rather, the appeal of Augustine's thought consists in its ability to perform crucial tasks of moral theory that con­ temporary constitutional theory has proven unable to perform on its own terms, or on terms of alternative moral or political theories. It is this con­ sideration that justifies giving our attention to Augustine—a turn from which some constitutional scholars might otherwise be deterred by the potent theological component of Augustine's thought.

Theology, Philosophy and American Law Borrowing concepts from theological sources is hardly a new departure in American constitutional analysis. Abraham Lincoln's portrayal of America's founding ideals in terms of biblical imagery, and his discussion of law as America's "political religion," are etched indelibly on the na­ tional memory.15 Analogies between scriptural and constitutional inter­ pretation have been a recurrently American theme. Michael Perry has called attention to such themes recently by insisting on the relevance of "our religious self-understanding" to constitutional interpretation and by discussing the "prophetic" aspect of constitutional judgment. He also re­ formulates the parallel interpretive traditions of scriptural and constitu­ tional text.16 Milner S. Ball, in a provocative recent contribution, argues that the deepest authority of the Constitution's moral meanings is to be found in its origins as a replay of the fundamental "story" whose deep structure and source flow from the biblical Genesis into the American political ex­ perience and American law courts. Moreover, Augustine's influential ren­ dition of that story becomes an important resource for Ball's exploration of American legal process.17 David Richards has also recently identified Augustine's thought as di­ rectly relevant to the issues of constitutional meaning. Richards considers the "Augustinian integrative synthesis" to be the "first great interpretive moment in Western culture." As I have noted above, he cites Augustine— in particular, Augustine's theory of personality—in support of his conten15 Lincoln, "Address to the Young Men's Lyceum of Springfield," 27 January 1838; "An­ nual Message to Congress," 8 December 1863, in Abraham Lincoln, Collected Works, ed. Roy P. Basler (New Brunswick, N.J.: Rutgers University Press, 1953), vols. 1 and 9. 16 Perry, The Constitution, the Courts, and Human Rights, 97-103; Michael Perry, Mo­ rality, Politics and Law, 136—45. 17 Milner S. Ball, The Promtse of American Law: A Theological, Humanistic View of Legal Process (Athens, Ga.: University of Georgia Press, 1981), 11—28, 37—39, 92.

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tion that respect for conscience and moral autonomy ought to be the gov­ erning constitutional ideals in cases of individual rights.18 The work of Reinhold Niebuhr provides further evidence of Augus­ tine's usefulness to the modern mind in sorting out intellectual perplexi­ ties of law, politics, and morality. Niebuhr sought a corrective to the po­ litical naivete of the Left and the obduracy of the Right, one that would neither stifle viable reform nor fall prey to acrid realpolitik. He found this in Augustine's thought. Augustine provided the intellectual wellsprings of Niebuhr's progressive political activism as well as his mistrust of govern­ ment power.19 Edward A. Purcell, Jr. has signaled the significance of Nie­ buhr's Augustinian reflections for the problems of modern legal theory.20 When they consult Augustine, thinkers like Ball, Richards, and Nie­ buhr are not turning to something extraneous but to a seminal part of the larger tradition out of which American politics and law have developed. As the first, and for centuries the most "muscular," philosophical articu­ lation of the Christian mind, Augustine figures importantly in Western thought. Jaroslav Pelikan has argued recently that most of the history of Western thought can be considered as much "a series of footnotes to Au­ gustine" as to Plato.21 Augustine, for example, has been credited with anticipating certain insights of Descartes and Hobbes, and of modern his­ tory and psychology.22 He may be one of the first major Western thinkers both classical and somehow strikingly modern. If the contemporary dis­ cussion finds Michael Moore and Sotirios Barber arguing a distinctly clas­ sical version of constitutional norms against the Hobbesian natural rights basis favored by conservatives like Walter Berns, then a thinker who stands historically and theoretically between those two traditions may be well placed to illumine the discussion. 18 David A.J. Richards, Toleration and the Constitution, 25, 86—89, 128. See my discus­ sion of Richards's use of Augustine's theory of personality in chap. 2. 19 See Reinhold Niebuhr, The Nature and Destiny of Man 2 vols. (New York: Charles Scnbner's Sons, 1941—1943); Reinhold Niebuhr, The Children of Light and the Children of Darkness: A Vindication of Democracy and a Critique of its Traditional Defense (New York: Charles Scnbner's Sons, 1944); and Reinhold Niebuhr, Christian Realism and Polit­ ical Problems (New York: Charles Scnbner's Sons, 1953), 1—14, 95—146, esp. his essay, "Augustine's Political Realism"; and Reinhold Niebuhr, "Beyond Law and Relativity," in Faith and History (New York: Charles Scnbner's Sons, 1949), 171—95. 20 Purcell, The Crisis of Democratic Theory, 154—56, 243—47. 21Jaroslav Pelikan, The Mystery of Continuity (Charlottesville, Va.: University Press of Virginia, 1986), 140. 22 Charles Norris Cochrane, Christianity and Classical Culture (Oxford: Clarendon Press, 1940), 377; Ernest L. Fortin, "Augustine's City of God and the Modern Historical Consciousness," Review of Politics 41 (1979): 323—43; Gerhart Niemeyer, "Are There 'In­ telligible Parts' of History?" in The Philosophy of Order, ed. Peter J. Opitz and Gregor Sebba (Stuttgart: Klett-Cotta, 1981), 312-15; Pelikan, The Mystery of Continuity, 141, 151.

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For American jurisprudence such considerations strike close to home in still another way. Historians have produced innumerable studies on the Protestant sources of American culture and politics.23 While I am not competent to assess such studies, Augustine's place as the intellectual fa­ ther of Protestantism is widely recognized. Martin Luther's years as an Augustinian monk were the seedbed of his Protestant conversion. Luther, Calvin, and most other Reformers explicitly claimed fidelity to Augustine as they set about repudiating the medieval consensus. It has been said that the Reformation, considered inwardly, was simply the triumph of Augus­ tine's theology over his ecclesiology.24 Whatever their singular distor­ tions, all theologies deriving from the Reformation draw—usually self­ consciously—from Augustine's legacy. This includes the American branches of Protestantism. My use of Augustine for contemporary con­ stitutional theory makes no attempt to defend a justifying historical link; however, it will come as no surprise to those who have made related his­ torical claims. Still, I think the basic justification for turning to Augustine has to do less with history than with the needs of contemporary constitutional the­ ory. If, as I have argued, American constitutional interpretation is an en­ terprise whose text and practice inescapably implicate normative prem­ ises, and if contemporary attempts to understand its premises have led to the impasses I have shown, then Augustine's thought is well worth con­ sidering. Augustine crystallizes the modern tensions between morality and skepticism, and makes sense of those tensions in a way that seems to succeed where others have faltered. I recommend Augustine's way of thinking about political morality, in other words, for its power to make the problems we face more intelligible. For I am persuaded that both the character of our problems, and the way toward their resolution, will ap­ pear in sharper relief after we have been exposed to Augustine's thought. And even without embracing Augustine's theological premises as true, we can benefit from this kind of payoff. 23 Among them, Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought since the Revolution (New York: Harcourt, Brace, 1955); Alan Heimert, Religion and the American Mind. From the Great Awakening to the Revolution (Cambridge, Mass.: Harvard University Press, 1966); Alan Heimert and Reinhold Niebuhr, A Nation So Conceived: Reflections on the History of America from Its Early Visions to Its Current Power (New York: Charles Scnbner's Sons, 1963); Cushing Strout, The New Heavens and Earth: Political Religion in America (New York: Harper Sc Row, 1974); John Patrick Diggins, The Lost Soul of American Politics: Virtue, Self-Interest, and the Founda­ tions of Liberalism (New York: Basic Books, 1984). 24 On these points see Pelikan, The Mystery of Continuity, 147—49. On p. 148 Pehkan quotes Benjamin Warfield, Calvin and Augustine (Phillipsburg, N.J.: Presbyterian and Re­ formed, 1954), 322: "The Reformation, inwardly considered, was just the ultimate triumph of Augustine's doctrine of grace over Augustine's doctrine of the church."

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Augustine himself would hardly object to having us approach his phi­ losophy on those terms. For he held neither his theological premises nor his political conclusions simply "on faith." As we shall see, he rejected Tertullian's fundamentalist anti-intellectualism; he portrayed the em­ brace of certain biblical notions not as a substitute for understanding but precisely as the best means toward a rational understanding of reality. Augustine, after all, did not come to his own theological position through a leap of faith. He came to it as the result of a long journey of philosophic assessment, in the course of which the sterility or incompleteness of other philosophic alternatives underscored the potency of the answer he even­ tually embraced.25 Part of the payoff of turning to Augustine, indeed, consists in observing the interplay between Augustine's thought and the philosophic alterna­ tives of his own day. For Augustine deployed his philosophic firepower against antique versions of nihilist skepticism and political moralism. His attempt to overcome the normative impasses of antiquity will end up shedding light on positions in current constitutional thought—since some older traditions prefigure contemporary thinking (as I have suggested above in chap. 2 and will argue at greater length in chap. 4). Of course, because Augustine is not primarily a legal theorist, and because theology informs his analysis, Augustine's thought does not seem particularly ac­ cessible to us "as is." The payoff will depend on translating the benefits of his way of thinking into the more secular idiom of our contemporary concerns. Yet, such a translation, if it is to be successful and fair, must first attempt to understand Augustine as he understood himself. Augus­ tine believed that his way of thinking hung together as a whole, that in the final analysis, it cohered only at a high level. As I have suggested, the aspect of Augustine's thought to which we must finally look to make sense of it is therefore neither a theory of the nature of law, nor even a theory of the nature of morality. We must look at it as an ontology. We must look at it, that is, as a theologically informed theory of the nature of nature itself—of being, which for Augustine necessarily and con­ sciously bore on political existence as well. If we are to minimize the risk of distortion, a careful understanding of such thinking is the precondition of any attempt to discover its secular payoff for the problems of contemporary constitutional theory. I try to present such a careful exposition in the following pages. For I doubt that Augustine's way of thinking can do for secular problems what secular problems, on their own terms, require, unless we first consider all its rel25 The best account of this intellectual journey is Augustine's Confessions (Middlesex, England: Penguin, 1979). I will return to the themes of this paragraph later in this chapter and in chap. 4.

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evant aspects—theological ones included—before returning to our secu­ lar concerns. The reader who is eager for the secular payoff of Augustine's thought may want to skip ahead to my summary of Augustine at the end of this chapter, and to the Augustinian exploration of American constitutional thought that I offer in the following chapter. Such an approach will nat­ urally leave the reader wondering about the referents of some of my later arguments. But if the payoff of Augustine's thought seems promising enough, such a reader will undoubtedly want to return and attempt to understand its philosophic and theological foundations.

Augustine vs. Cicero The tenor of Augustine's approach emerges in his well-known disputa­ tion with Cicero's political theory.26 In De Republica, Cicero defines the res publica (republic) as the res populi and a populus, (a people) as "a multitude joined together by one consent of law and their common good." Augustine seizes on the word law (tus) in Cicero's definition. On Cicero's own terms ius bespeaks iusticia, justice. Augustine thus proposes that, from Cicero's perspective, "where there is no true justice there can be no ius either."27 What Augustine finds bound up in Cicero's definition, in other words, is the full normative panoply of classical political science. It is at this political science that Augustine is setting his aim. From Plato and Aristotle, through the Stoics, and into Roman times, classical think­ ing had in one way or another regarded politics as, in Aristotle's phrase, "the master science of the good."28 While not itself the highest science, politics was nevertheless to perform a kind of architectonic function by aiming to fully establish justice in human affairs and by fostering virtue 26 The exposition of Augustine's thought that I present in the following pages is, obvi­ ously, an interpretive exposition. Any interpretation must contend with certain textual problems and some countervailing tendencies between Augustine's early and his more ma­ ture thought. Without denying such difficulties, I maintain that, with respect to the key ideas, my exposition generally represents the essence of Augustine's mature thought—es­ pecially with respect to those matters that bear on my larger argument in this work. Since my argument is that the basic logic of Augustine's thought illuminates the problems of con­ temporary constitutional theory, secondary interpretive issues can remain secondary. In my references I alert the reader to the interpretive authorities whom 1 have sometimes followed. 27 Augustine, City of God, 2:21 and 19:21, where Augustine quotes Cicero's De Repub­ lica. I am using R. A. Markus's translation of these particular passages, in order to better grasp Augustine's sense: R. A. Markus, Saeculum: History and Society m the Theology of St Augustine (Cambridge: Cambridge University Press, 1970), 64. Markus's interpretation informs my understanding of Augustine's dispute with Cicero. 28 Aristotle, "Nicomachean Ethics," trans. W. D. Ross, in Introduction to Aristotle, ed. Richard McKeon (New York: Modern Library, 1947), 1: 2—7.

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in the citizens under its care. Cicero's definition of the essence of political society reflects the classical legacy to which he is heir. The nature of Augustine's disagreement with Cicero is less important than what it provides Augustine an opportunity for: to dissent from this strongly normative political science. Augustine proposes that "if there is no ius where there is no justice, then"—by Cicero's definition—"there never was a Roman republic."29 For, "according to the above definition, there can be no people, and therefore no republic, where there is no jus­ tice." And Rome lacked justice even by Cicero's report. But, of course, there was a Roman people. To express better what he considers the reality of political experience, Augustine replaces Cicero's value-laden definition with a more neutral and empirical one.30 A people, he says, is better un­ derstood as "an assemblage of reasonable beings bound together by a common agreement as to the objects of their love."31 From this definition emerges a rather different picture of the res publica or political society. Since people direct their love to radically divergent objects, it is a picture of political society riven by fundamental cleavages of what we might to­ day call "values." It is thus a mistake to imagine that the political state rules over simply "one people." Yet Augustine notes that, for all their deep-rooted differences, political society's divergent groups have an inter­ est in maintaining "a common agreement among men regarding the ac­ quisition of the necessaries of life," foremost among which is "earthly peace."32 To the provision of these, political rule may usefully turn its attention. This way of thinking does not blind Augustine to political morality. Indeed, his moral indictment of Rome surpassed even Cicero's in severity, delivering what we might in our day call a total critique of Rome as "void of true justice."33 But by "accepting the more feasible definitions of a re­ public," he granted that "there was a republic of a certain kind, and cer­ tainly much better administered by the more ancient Romans than by their modern representatives."34 In keeping with his definition, Augustine traces the superiority of the early Romans back to their "love of praise." By this love they had suppressed "the desire of wealth and many other vices."3s Of course, from Augustine's perspective, such "virtue" was 29 Augustine, City of God, trans Marcus Dods (New York Modern Library, 1950) 19 21 Further quotes from this work will be from this translation 30 See R A Markus's discussion of this point in Markus, Saeculum, 64—65 31 Augustine, City of God 19 24 32 Ibid , 17, 26 33 Ibid , 24 Gerhart Niemeyer has elaborated the notion of "total critique" in his Be tween Nothingness and Paradise (Baton Rouge Louisiana State University Press, 1971) esp chaps 1—3, 3—102 34 Augustine, City of God 2 63 35 Ibid 5 13

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tainted. Any virtues "are rather vices than virtues so long as there is no reference to God in the matter."36 Yet they made the Romans "good ac­ cording to a certain standard of an earthly state."37 Augustine counter­ poises his absolute moral judgment, in other words, with his insistence that fundamentally dubious human virtues can produce relatively better and worse states. As the experience of Rome attests, this relative differ­ ence is of great moral consequence, if only in its own sphere. Taken as a whole, Augustine's rebuttal to Cicero amounts to a certain demotion of politics from its classical heights. For Augustine seems to place the accent on affect rather than norm, and seems to refer the tasks of politics to the provision of peace as a kind of least-common-denominator for a fundamentally mixed multitude. What permits Augustine to oppose Cicero in this oddly modern manner? Assuming Augustine be­ lieves in the reality of goodness and justice, why does he refuse to join Cicero in referring politics to those values directly? And what justifies his juxtaposition of absolute and relative moralities in politics? To under­ stand Augustine's initially paradoxical posture—what Reinhold Niebuhr calls his "political realism"38—we must step back from his rejoinder to Cicero and explore its philosophic and biblical foundations with some care.

Augustine on Nature, Knowing, and Politics Augustine articulated a conception of nature—of its first principles and of man—that, as one interpreter puts it, sought "to do justice to all as­ pects of experience," and by its basic logic to offer "a way of escape from the insoluble riddles of Classicism."39 On this new picture of the nature of reality, he bases a subtle, multitiered political ethics that defies classi­ fication in modern categories. Of course, Augustine's ethics also resists classical categories. For Augustine introduces certain categories of thought drawn, not only from the findings of reason but also from the Bible taken as a source of divine revelation. He takes reason seriously, though; his own logic requires him to. Thus, Augustine deals with biblical categories philosophically rather than simply religiously and so crafts a way of thinking that speaks to the philosophical traditions he challenges. 36

Ibid. 19:25. Ibid. 5:19. 38 Reinhold Niebuhr, "Augustine's Political Realism," in Christian Realism and Political Problems, 119—46. 39 Charles Norns Cochrane, Chrtstiamty and Classical Culture, 399. I am indebted to Cochrane for some aspects of the interpretive exposition of Augustine that follows (as noted). 37

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Accounts of Nature The classical accounts of nature had been problematic. On the one hand, some ancient traditions had dismissed nature, denying that it was a for­ mative category of order for human thought. The Sophists had opposed Socrates on this point, insisting that the fond wish to discover the order of nature give way to convention, since, as Protagoras had said, man is really the measure of all things.40 Later, gnosticism and its Manichaean variant would give a religious gloss to such a posture. They dismissed nature without pretense to philosophy by insisting that nature and its or­ dered patterns were the malign creation of an evil Power. Nature, such as it was, aimed to ensnare man; deliverance consisted in knowing this and consequently in flouting nature.41 On the other hand, the higher philosophic schools heeded, in one way or another, the Stoic exhortation to "follow nature." For whatever the popular appeal of sophistry and Manichaeism, their dismissal of nature held little attraction for the Socratic tradition to which the Stoics be­ longed. Plato, Aristotle, and proponents of virtually every serious branch of classical thought embraced "ontological realism." They assumed, that is, the reality and integrity of nature and sought to give an account of it— of its foundations and of its material and moral regularities—that could vindicate that assumption.42 Neither ancient account of nature quite squared with experience. For one thing, human beings do not experience themselves as self-existent, nor do they experience the reality around them as a human artifact or as a mere projection. For another, nature's patterns seem generally protec­ tive and sustaining. They may appear at best unpredictably benign or at worst ambivalent, but they rarely loom as fundamentally malign. These features of human experience consistently diminish the appeal of soph­ istry and Manichaeism. Yet, neither is nature experienced as an integral order, for nature's order does seem fickle and maddeningly partial—es­ pecially in its moral dimension, but also in the physical. The mind tracks down order and pattern, then loses the scent. We are persuaded of an order of goodness inhering in the very nature of things; but on the at­ tempt to trace its lineaments, it becomes a will-o'-the-wisp. 40

See my discussion of Protagoras above. Gnosticism flouted nature either through asceticism or libertinism, and either through attempting to withdraw from natural reality or through attempting to remake it radically. The same basic impulse actuated all its versions. See Hans Jonas, The Gnosttc Rehgton (Boston: Beacon Press, 1963), 31—97, 206-88. 42 See Eric Voegelini S account of classical thinking about nature in his essays, "What Is Right by Nature?" and "What Is Nature?", in Anamnesis (Notre Dame, Ind.: University of Notre Dame Press, 1978), 55-88. 41

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Serious classical philosophy recognized this checkered experience of re­ ality and sought to accommodate it in a unified account of the whole. But while it resisted the Manichaean reduction, classicism's own accounts in­ variably distilled into various unbridgeable dualisms: between form and matter, intelligible and material, thought and sense, soul and body, the one and the many—all of which reproduced the original Greek opposi­ tion between Parmenides's stable being and Heraclitus's flux.43 In each case the former category signaled coherence, while the latter gave recog­ nition to compelling intuitions about indeterminacy and the precariousness of being in general—intuitions that Heraclitus signaled, Protagoras reified, and the Manichees sacralized. By Augustine's time, philosophy had hardened around these dualisms. Idealism pitted itself against mate­ rialism, various forms of dogmatism opposed academic "skepticism," and Augustine knew all the arguments firsthand.44 Because proposed so­ lutions were either arbitrary or utterly nondiscursive, none successfully made sense both of being and of the corrosive forces to which it is chron­ ically subject; or to put it otherwise, none had given an account of good­ ness that also made sense of evil.

Being, Goodness, and God The Bible supplied Augustine with an insight that he thought capable of satisfying the classical aspiration to understand reality. Genesis an­ nounced the central point: Deus creator omnium, God is the creator of all things.45 However daunting the task of assessing the Hebrew and Christian claim to have received authoritative revelation, and however problematic the related claim of Hebrew exceptionalism, the idea of God's creation became a powerful tool in Augustine's philosophically trained hands. There was more to it, naturally, than a stark claim of creation, for this creator-God had revealed his character substantially (even if not compre­ hensively). He was the original of all being; "I Am" is the proper name 43 See Cochrane, Christianity and Classical Culture, 422-55. Aristotle's location of the level of substantial form "in" things rather than "above" them attempts to bridge the dis­ continuity between form and matter. Yet, as Cochrane says, for all Aristotle's solicitude for the individual instances of being, "he fully agrees with Plato in supposing that the individual substance possesses significance only, so to speak, as the 'carrier' of a type" (p. 82). This way of thinking cannot do justice to human personality; at the highest level, for example, it submerges individual mind in the agent intellect. 44 Cochrane, Christianity and Classical Culture, 164ff., 431. 45 Gen. 1:1. The Latin phrase is from a hymn of Ambrose; see Augustine, Confessions 9:12; also Augustine, City of God 11:4.

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he gave for himself.46 Furthermore, this God who is, is unequivocally good. Such was the unanimous conclusion to be drawn from the experi­ ence of Hebrews and Christians, from the records of their prophets, and, most of all, from history's encounter with Jesus Christ, God incarnate. Finally, this God is personal. The Bible portrayed him as neither simply anthropomorphic (as the poets had it) nor subpersonal (as certain philos­ ophers had it) but as it were suprapersonal, personality in trinity. Thus the nature of things at the highest level was hospitable to human person­ ality. Accepting such a God as the source of all being revised classical ontol­ ogy and made it possible to affirm nature more comprehensively than was previously possible. In one sense, of course, taking God as the source of being denied nature certain dignities that classical thought had tried to attribute to it. For "the Author of all natures" created nature ex nihilo, out of nothing. Consequently, "no created thing is co-eternal with the Creator."47 Yet creation gives nature a more secure dignity than positing an eternal nature. Because God is, all nature not only is but its very being is at base unimpeachably good. The idea of creation overruled antique derogations of material nature and forbade the spurning of body in favor of soul. Indeed human nature itself received its most unqualified affirma­ tion in the incarnation.

The Order of Created Being Of course, created reality is what it is. It is creature, not creator. Only God "supremely is." Only his being is self-existent and immutable. Cre­ ated things "have not absolute being in themselves, nor are they entirely without being." Their being is "mutable." "If it did not sound nonsensi­ cal," says Augustine, "I should say that it was nothing and yet something, or that it was and yet was not."48 The mutable being of creatures is ca­ pable—as God's being is not—of dwindling and even of terminating, re­ verting to the nothingness out of which it was created. Happily, however, God dispatches his unseen "power which pervades all things, and is pres­ ent in all without being contaminated, which gives being to all that is, and modifies and limits its existence; so that without Him it would not be thus « Exod. 3:13, 14. 47 Augustine, City of God 12:1, 16, 25; 14:16; see also Augustine, Confessions 13:2. 48 Augustine, Confessions 7:11 and 12:6. As Vernon J. Bourke says of Augustine's theory of being, "The being of God is being in the fullest sense; the being of all else is really some sort of precarious composition of being and non-being." Vernon J. Bourke, Augustine's View of Reality (Philadelphia: Villanova Press, 1964), 13.

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or thus, nor would have any being at all."49 This sustaining permeation of nature is not pantheism. Although nature is not independent of God, God is "independent. . . of what He makes." For it is "of His own gra­ tuitous goodness He creates, since from eternity He dwelt without crea­ tures in no less perfect a blessedness." As it is, then, "the things which He made are indeed good because from Him, yet mutable because not made out of Him, but out of nothing."50 God's creative energy sets all nature in order and juxtaposes its muta­ bilities so that in some respects "the beauty of the course of this world is achieved by the opposition of contraries, arranged, as it were, by an elo­ quence not of words but of things." Even when it comes to things that menace mutable humanity, such as "fire, frost, wild beasts, and so forth," Augustine bids us see "how admirable these things are in their own places, how excellent in their own natures, how beautifully adjusted to the rest of creation, and how much grace they contribute to the universe by their own contributions as to a commonwealth."51 God arranges this commonwealth by endowing each created thing with an ordering love. All natures "possess a kind of attraction towards [their] own proper position and natural order." This holds for the inanimate as well as the sentient. "For the specific gravity of bodies is, as it were, their love, whether they are carried downward by their weight, or upwards by their levity."52 By this love they "preserve such being as they have re­ ceived." And though the lower ranks of created things variously come into being and perish, this is all according to "the Creator's law," the "general scheme of the government of the universe."53 Man, however, possesses a higher kind of love, as befits a higher rank of being. "In my case, love is the weight by which I act."54 This love is voluntary. Human nature was "created so excellent, that though it be mutable itself, it can yet secure its blessedness by adhering to the immu­ table good."55 By loving the good that reason grasps, man's will can re­ main "steadfast in the love of that higher and changeless good by which it was illumined to intelligence and kindled into love."56 Man's will thus maintains a voluntary order of love coinciding with the order of his being. 49

Augustine, City of God 12:25. Ibid., 17 and 12:1. 51 Ibid. 11:18,22. 52 Ibid., 28, emphasis added. Augustine has a triadic interpretation of nature in terms of "measure, number and weight" (as m Wisd. 12:20), or "mode, species and order." See Bourke, Augustine's View of Reality, 18ff. I am focusing on the third principle, that of weight, order, or love. 53 Augustine, City of God 12:5. 54 Augustine, Confessions 13:9. 55 Augustine, City of God 12:1. The qualities of reason and will also characterize the angels, according to Augustine. 56 Ibid. 14:13. 50

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For as Augustine muses in the Confessions, the nature of human nature is such that "unless my being remains in Him, it cannot remain in me."57

The Fall It did not remain in Him. Our first parents voluntarily defected, and by the very logic of being, their defection had to affect their nature. Whether the narrative of Adam's willfulness reports literal history or symbolizes some ineffable moral event in man's infancy, the purport is the same: Man's primordial choice "vitiated and altered" human nature, "and on account of it this nature is subject to the great corruptions we feel and see, and to death, and is distracted and tossed with so many furious and contending emotions, and is certainly far different from what it was be­ fore sin."58 Man turned away freely by his own will, and so "stripped" himself of the permeating grace by which his nature had originally cohered.59 The autonomy he sought turned out to be a kind of freedom contrary to his nature: "By aspiring to be self-sufficing, he fell away from Him who truly suffices him." "By craving to be more, man becomes less"—less of what he is, not other than what he is. For "man did not so fall away as to become absolutely nothing; but being turned towards himself, his being became more contracted than it was when he clave to Him who su­ premely is." To experience this is "not quite to become a nonentity, but to approximate to that."60 The primordial choice made this contracted condition of being perva­ sive and chronic. Because of Adam's solidarity with all nature and his regency over it, the entire natural order suffered a certain contraction of being whose imponderable effects the Bible does not dwell on and Augus­ tine develops only minimally. More to the point, because Adam's sin in­ evitably altered his very nature, and because God made humanity with a corporate dimension rather than atomistically individual, contraction of being afflicts all subsequent human generations.61

Human Nature and the Fall The human choice could have such monumental consequences not by vir­ tue of some flaw in human nature but precisely because of its singular 57

Augustine, Confessions 7:11. Augustine, City of God 13:3; 14:12. 59 Ibid. 14:1, 17; Augustine, On the Trinity 12:11 (16). 60 Augustine, City of God 14:13. 61 Gen. 3:14—19; Rom. 8:19—22; Augustine, City of God 14:4 and 13:3, 14. 58

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excellence. Man is the apogee of creation. Augustine discerns a certain triadic structure in all nature, and he recognizes in man "the image of God, that is, of the supreme Trinity." This image, though "neither coeternal, nor . . . consubstantial with Him—is yet nearer to Him in nature than any other of His works." As God is one essence but three persons of Father, Son (Logos) and Holy Spirit, so man's nature is a trinity of being, reason, and love—or as Augustine also has it, of being, reason, and will.62 Love and will are commensurate terms; will is the faculty that freely su­ perintends the love of the rational creature. Man's freedom thus further manifests the image of God, whose uncoerced goodness of will is the orig­ inal of all freedom. Now, Augustine's trinitarian theory of human nature has its limits. But to Augustine those limits are probably virtues. As the insight of God as Trinity explicates a nevertheless irreducible mystery, so the image of God in man illuminates human nature while rendering it still impervious to mechanical or reductive formulations. For by this account, human nature holds together when human love turns freely to the source of its being and so permits God's personal presence to permeate the man he created in his own image. Man's bodily existence does not figure directly in the image of God, for God is not material body but immutable uncreated spirit. But that does not reduce the body to some extraneous appendage to the soul. God put soul and body together. "The soul, then, lives by God when it lives well, for it cannot live well unless by God working in it what is good; and the body lives by the soul when the soul lives in the body, whether itself be living by God or no."63 While the hierarchy here echoes classical anthro­ pology—an anthropology that, however cautiously, regarded the body as a sort of natural encumbrance on the soul—Augustine had something else in mind. They "are in error who suppose that all the evils of the soul proceed from the body." For it was not "the corruptible flesh that made the soul sinful, but the sinful soul that made the flesh corruptible."64 God indeed created soul and body in such an organic union that human nature in its ultimate fulfillment will not be "deprived of the body, but . . . clothed with its immortality."65 Thus that momentous first sin that vitiated so excellent a nature had its locus in the soul, not the body, and, within the soul, in the will, not the reason—although its aftermath afflicted all of these. Augustine analyzes 62

Augustine, City of God 11:26; Augustine, Confessions 13:11. See Gen. 1:26, 27. Augustine, City of God 13:2. 64 Ibid. 14:3. Indeed, if it were otherwise, if the nature of flesh were intrinsically corrupt, the incarnation would have been impossible. 65 Ibid. So Christ, after his resurrection, possessed a transmuted but still material and human body. See also Augustine, City of God 15:7: "This flesh, then, is to be healed, be­ cause it belongs to ourselves: it is not to be abandoned to destruction as if it were alien to our nature." 63

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the structure of this primal defection of will philosophically. For Augus­ tine, will is essentially voluntary love, as we have seen. "The right will is .. . well-directed love, and the wrong will is ill-directed love."66 Love's proper object is the good; love's natural object is being. These amount to two ways of putting the same thing, since goodness refers ultimately to being. Thus "defection from that which supremely is, to that which has less of being—this is to begin to have an evil will." Adam's sin, in other words, was not strictly speaking a mutiny from good to evil. For defec­ tions of will "are not to evil things, but are themselves evil; that is to say, are not towards things that are naturally and in themselves evil, but the defection of the will is evil, because it is contrary to the order of nature, an abandonment of that which has supreme being for that which has less."67

Evil and the Fall There is no efficient cause of this bad will. Evil does not cause it; it is and causes evil. By a bad will the good creature inordinately (rather than ordinately) loves a good less than its highest good, whereby it "becomes evil in the good, and wretched because deprived of a greater good."68 God created the conditions that permitted such misdirection of will: He gave reason and love (free will) to a mutable creature, that is, to one created out of nothing. "[N]ature could not have been depraved by vice had it not been made out of nothing."69 But these conditions made a bad will possible, not necessary. Indeed, the purpose of the conditions was rather to honor and adorn man, to facilitate his high dignity—a purpose for which they are indispensable. Thus emerges Augustine's analysis of evil. Evil is a special case of mu­ tability in good creatures possessing both love and reason.70 Their willful turning—away from God the wellhead of their being, their highest good—is vicious because it is hurtful, and hurtful "because it corrupts the good of their nature."71 Their turning vitiates their nature by dissipating their store of being; by detaching them from God it propels them back 66

Ibid. 14:7. Ibid. 12:7 and 8. 68 Ibid., 6-8. 69 Ibid. 14:13. 70 Gerhart Niemeyer, "Augustine's Political Philosophy?" in The Christian Vision: Man in Society, ed. Lynne Morris (Hillsdale, Mich.: Hillsdale College Press, 1984), 58: "Evil is a special case of mutability in creatures which have desire as well as intelligence." For Au­ gustine, of course, this includes both angels and men. 71 Augustine, City of God 12:3. 67

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toward the nonexistence out of which God created them. Evil, in other words, is not an independently existing nature. In a manner of speaking, it is of the essence of evil that it has no essence, for it "falls away from essence and tends to non-being."72 That evil is parasitic on being is an­ other way of saying that it is parasitic on good, since it is "from the abun­ dance of your goodness that your creation subsists."73 Countering the Manichees, "It is not nature, therefore, but vice which is contrary to God."74 Once goodness of will is forfeited, and once nature is vitiated, these considerations take on a new aspect. Evil assumes a semblance of exis­ tence in man's now-fractured nature. Chronic deficiency of being perpet­ uates deviation of will and becomes a tenacious complex of rebellion against the order of being and nature. For in rebelling against God, man consigned himself "not to live in the absolute independence he affected, but instead of the liberty he desired, to live dissatisfied with himself in a hard and miserable bondage" to sin. This moral "sickliness," this proneness to sin, is "the punishment of the first disobedience." Yet as Augustine asks, "what but disobedience was the punishment of disobedience in that sin? For what else is man's misery but his own disobedience to himself?"75 Still, for all this, depravity remains parasitic and cannot eclipse the pri­ ority of being and goodness. For example, "no sin is committed save by that desire or will by which we desire that it be well with us, and shrink from it being ill with us."76 Even a depraved will remains so contingent on the true order of being that the things it wrongly desires can only be things good in themselves. (It may perhaps desire wrongly ordered states of affairs, but such states of affairs can only be composed of existing na­ tures that are good in their natures.) As Augustine elaborates, "Vice can­ not be in the highest good, but it cannot but be in some good. Things solely good, therefore, can in some circumstances exist; things solely evil, never; for even those natures which are vitiated by an evil will, so far indeed as they are vitiated, are evil, but in so far as they are natures they are good."77 By such an analysis of evil Augustine accounted for "the whole viciousness of human life" without abandoning the concept of nature. Primeval 72 Augustine, The Cathohc and Mantchaean Ways of Life, trans. Donald A. Gallagher and Idella J. Gallagher, m The Fathers of the Church, vol. 56 (Washington: The Catholic University of America Press, 1966), 66, or 2:2 (2). 73 Augustine, Confessions 13:2. 74 Augustine, City of God 12:3. 75 Ibid. 15:6 and 14:15. According to Augustine, the same logic animates fallen angelic nature, reinforcing and compounding the problems of human depravity. 76 Ibid. 14:4. 77 Ibid. 13:3. This applies even to Satan, the demonic prince of fallen angels.

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vice vitiated nature, but it did not abolish it. "For there is no vice so clean contrary to nature that it obliterates even the faintest traces of nature."78 This holds for human nature. Sin "contracted" man's being but did not extinguish it. It garbled the image of God he naturally bears, but did not efface it. Nature in its fallen condition—and fallen human nature in par­ ticular—exists in a chronically deficient but real continuity with its true and original order. Man's native endowments are thus attenuated but not lost.

Freedom and Virtue in Fallen Man Consider the implication for freedom and for virtue. Although Augustine is a vigorous champion of free will, he argues that man no longer pos­ sesses the good of freedom in its entirety.79 For the will is only "truly free when it is not the slave of vices." Such it was as originally given by God. But after the fall—that is, after man freely misused his original freedom— man's will is encumbered by a proneness to vice, a disinclination to virtue. Under these conditions, what is virtue's "occupation save to wage per­ petual war with vices—not those that are outside of us, but within; not other men's, but our own [?]"80 Virtue is not a matter of consolidating moral achievements but of prosecuting "this intestine war." Still, man's will is not so encumbered that he cannot recognize his moral deficiencies and counter them. But doesn't his inherited depravity render his moral efforts futile? No, since "there is everywhere present One who makes manifold use of creatures . . . to assist his efforts."81 This assistance is grace, so called because it is offered gratuitously, not in view of merit (which fallen man lacks). Grace to strengthen the will is available 78

Ibid. 14:5 and 19:12. The Free Choice of the Will (De libero arbttrio), trans. Robert P. Russell, in The Fathers of the Church, vol. 59 (Washington: The Catholic University of America Press, 1968),3:18-19. 80 Augustine, Ctty of God 14:11 and 19:4. 81 Augustine, The Free Choice of the Will 3:19 (p. 213). If the viceful propensities of human nature are a matter of just penalty for Adam's sin, how can God offer to undo the effects of that penalty without casting doubt on the justice of the penalty? Isn't there a crosscutting tension here that delegitimizes either his justice or his mercy? There is indeed. Ac­ cording to Augustine (following core tradition of Christian orthodoxy) this tension resolves in the sacrificial, substitutionary death of Jesus Christ, God incarnate. By receiving in him­ self the ultimate penalty for sin—physical and spiritual death—God satisfies the costly con­ ditions that allow him to offer his grace to men who do not merit it. Through the risen Christ this grace commonly benefits all mankind. But it is most effectual in those who use their remaining freedom to wholly welcome it—resulting in their conversion, spiritual re­ generation, and eventually in their bodily regeneration (resurrection). 79 Augustine,

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to everyone.82 With its assistance many have "triumphed over error and lust."83 The freedom that fallen man retains, then—and this enabled by grace—is the freedom to choose to avail himself of this everywhere-present help, or to shut himself up against it.84 Indeed, the pursuit of virtue without reference to God cannot help but go awry at some point. "For though the soul may seem to rule the body admirably, and the reason the vices, if the soul and reason do not them­ selves obey God . . . they have no proper authority over the body and the vices." Those who imagine their virtues to be self-referential—desirable simply for their own sake, as classical thought had it—disregard the con­ stitution of man's being. Consequently they end up veering off into graver vice as they pursue virtue. At the least their posture offends justice, that virtue that gives everyone his due, since they withhold what is due to God. Worse, the virtues they do possess are "inflated with pride, and are there­ fore to be reckoned vices rather than virtues." For there is "no true virtue except that which is directed towards that end in which is the highest and ultimate good of man."85 Still, though virtue is attenuated in the fallen condition, it cannot help but bear at least some resemblance to true virtue. All virtue, says Augus­ tine, is a function of love, originating in that loving affect that is the de­ terminative "weight" or center of gravity of human personality. It is "a brief but true definition of virtue to say, that it is the order of love."86 If our love is defective ("inordinate"), our virtue will be correspondingly defective. But if our love is rightly ordered ("ordinate"), our virtues will line up accordingly; as Augustine observes, "we do well to love that which, when we love it, makes us live well and virtuously."87 An ordinate love orders its affections to its objects by priority and quality. And al­ though the only proper object of paramount love is God himself, there nevertheless remain better and worse, nobler and baser objects of love 82 Augustine, The Retractations, trans. Mary Inez Bogan, in The Fathers of the Church, vol. 60 (Washington: The Catholic University of America Press, 1968), l:ix, 2 (p. 42). 83 Augustine, The Free Choice of the Will 3:19. This "triumph" is not absolute in this life, for the fallen condition will persist until the end of the age when God's sovereign power will renew all things beyond time and history. Only then will all disinclination to virtue fall away. (See my further discussion of this point below.) Note also Augustine's qualifications on even Christian virtue in City of God 19:27. 84 Henri Bergson's thought seems to resemble this feature of Augustine, when Bergson draws his distinction between the open soul and the closed soul. Henri Bergson, Two Sources of Morality and Religion, trans. R. Ashley Audra et al. (Garden City, N.Y.: Doubleday, 1935), 49-68. 85 Augustine, City of God 19:25; 5:12. 86 Ibid. 15:22. True virtue and good will thus are equivalent qualities, for we recall that "The right will is . . . well-directed love, and the wrong will is lll-directed love" (14:7). 87 Ibid., 22.

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short of God.88 The early Romans and their political and military leaders, for example, loved honor more than bodily pleasure. They restrained many vices for its sake. "Every other desire was repressed by the strength of their passion for that one thing." But as they were loath to subsume their love of glory to love of God, their virtues were hopelessly unstable. For one thing, since their aim was glory their virtues were "the slave of human praise," a fickle commodity. For another, having garnered praise they succumbed readily to pride. Finally, having secured glory, they (and especially their descendants) were apt to shed even the "virtues, such as they were," that they had attained. This is not surprising since "they who restrain baser lusts . .. by desire of human praise, or, at all events, restrain them better by the love of such praise, are not indeed yet holy, but only less base." Nonetheless, in keeping with the fact that the order of nature is vitiated not effaced, the Romans' virtues "resembled" true virtue.89 This resemblance makes a major difference in the moral quality of a po­ litical culture, in its viability, and in its place in God's providence.

Knowledge and Fallen Man The fallen condition of his nature presents problems not only for man's freedom and virtue but also for his rational powers. Man's reason, of course, did not cause his fall. Indeed according to the Genesis account, reason resisted it—resisted, that is, until the will that had turned man's love from God also wrested reason away from its natural objections. Be­ cause love and reason are inseparable complements in man, the vitiation of human nature inescapably affects human thought. Fallen will, which habitually turns from being at the most fundamental level, inclines fallen mind to turn from truth about being.90 Still, man's wondering curiosity and his aspiration to understand the unity and coherence of things reflect the original of his reason anchored in the persisting image of God. The aspiration to know, in other words, is natural to man. And it is not in vain. God has designed the order of being around man with an intelligible structure amply accessible to man's mind. But how does the mind conduct its knowing vocation? And what can it reliably know? Augustine's answer to such questions is a kind of phe88 These distinctions make sense even in the fallen condition because the fall did not efface nature's moral order. 89 Augustine, City of God 5:12—13, 18—19. 90 Of course, the fallen condition of the body and its emotions can also befog the mind's operations in other ways, viz., through illness and dysfunction. See Augustine, The Literal Meaning of Genestsi vol. 2 (New York: Newman Press, 1982) 19:20 (42—43).

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nomenology of the human mind.91 To begin with, the mind can know with certainty the irreducible elements of its own consciousness. "For we both are, and know that we are, and delight in our being, and our knowl­ edge of it."92 Human consciousness, that is, inescapably implies existence, knowledge, and will, for I can say that I am, I know, and I will. I am a being which knows and wills; I know both that I am and that I will; and I will both to be and to know. In these three—being, knowledge, and will—there is one inseparable life, one life, one mind, one essence; and therefore, although they are distinct from one another, the distinction does not separate them.93 But in these three, when the mind knows itself and loves itself, a trinity re­ mains.94

Moreover, says Augustine, "no true-seeming illusion disturbs us" in this. For we know these basic realities of selfhood not via any intermediating "bodily sense" or "delusive representation of images," but directly—"by our own consciousness of their presence, and because we see them with our own most truthful interior vision."95 To such an assertion the Academicians—the leading fourth-century philosophers of skepticism or what I have called epistemological nihil­ ism—were sure to raise the question, What if the mind is deceived in this knowledge, its conclusions mistaken? Augustine scorns their taunt. "I am not at all afraid of the arguments of the Academicians," he comments, for if I am deceived, I am. For he who is not, cannot be deceived; and if I am deceived, by this same token I am. And since I am if I am deceived, how am I deceived in believing that I am? For it is certain that I am if I am deceived. Since, therefore, I, the person deceived, should be, even if I were deceived, certainly I am not deceived in this knowledge that I am. And, consequently, neither am I deceived in knowing that I know. For, as I know that I am, so I know this also, that 1 know. And when 1 love these two things, I add to them a certain third thing, namely, my love whic?< is of equal moment. For neither am I deceived in this, that I love, since in those things which I love I am not deceived.. . . Further, as there is no one who does not wish to be happy, so there is no one who does not wish to be. For how can he be happy, if he is nothing?96 51

See Cochrane, Christianity and Classical Culture, 403ff. Augustine, City of God 11:26. 93 Augustine, Confessions 13:11. 94 Augustine, On the Trinity, 9:v, 8 (p. 277). The triune unity of these three aspects of human selfhood, says Augustine, can be likened not to a mixture of oil and water but to a drink made from water, wine, and honey; On the Trinity 9:iv, 7. 95 Augustine, City of God 9:26, 28. 96 Ibid. 11:26. 92

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The mind's direct, unmediated knowledge of itself, in other words, is necessarily exempt from the scorn of radical skepticism. For who, Augus­ tine asks, can successfully deny that he "lives, remembers, understands, wills, thinks, knows, and judges?" For even if he doubts, he lives; if he doubts, he remembers why he doubts; if he doubts, he understands that he doubts; if he doubts, he wishes to be certain; if he doubts, he thinks; if he doubts, he knows that he does not know; if he doubts, he judges that he ought not to consent rashly. Whoever then doubts about anything else ought never to doubt about all of these; for if they were not, he would be unable to doubt about anything at all.97

If Augustine underscores the reality of self-knowledge, it is not to pre­ occupy the mind with itself. Direct and undistorted knowledge of one's own being, knowing, and willing is but prologue. The mind's vocation, after all, is to know and understand being, that which is. Man's mind may be the locus of his own knowing, but it is neither the totality nor the pinnacle of being. Rational thought naturally calls itself to know an in­ telligible, existing reality that includes but also far transcends rational thought itself. According to Augustine, the mind knows this reality by "seeing" it. Mental seeing occurs in three ways.98 Corporeal vision sees external, physical reality. Spiritual vision perceives and organizes images from the external world; most routine thinking occurs at this level. Cor­ poreal and spiritual vision are fallible, subject sometimes to the illusions of sense and the chimera of imagination. Intellectual vision, on the other hand, is free from any "true-seeming illusion" because it glimpses purely intelligible objects directly and without any intermediating images. What are these objects of "our most truthful interior vision"?99 They include "the mind itself"—the basic elements of selfhood considered above. More significantly, however, they include such things as beauty, justice, charity, "kindness, goodness . . . and the rest, by which we draw near to God."100 At the level of intellectual vision, the analogy with seeing partly breaks down. Intellectual vision cannot err the way eyesight can. For while eye­ sight has its retinal and neural mediations, intellectual vision is the mind's strictly unmediated (and thus undistorted) glimpse of certain realities. This glimpse is necessarily incomplete in this life, but it is nonetheless accurate and reliable as far as it goes. It affords what we might call an 97

Augustine, On the Trinity 10:xiv, 14. Augustine, The Literal Meaning of Genesis 12, chaps. 6, 7, 11-14, 24—25. See also Bourke, Augustine's View of Reality, lOff. My discussion here generally follows Bourke. 99 Augustine, City of God 11:26, 28. 100Augustine, The Literal Meaning of Genesis 12:24 (50); see also Augustine, Confes­ sions 10:34; see also Augustine, On the Trinity 12:14 (23). 98

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epistemological vantage point on the good that seems to be more than simply formal but less than fully substantive.101 Since intellectual vision, though limited, is somehow unmediated, "there is no deception in intel­ lectual vision."102 The only possibility of "error" in intellectual vision is in its not being used. Indeed, according to Augustine, accurately "seeing" a glimpse of immutable realities like goodness and justice is not so much a matter of perfecting one's vision as of opening one's eyes to them.103 Noted Augustine scholar Vernon Bourke describes what Augustine has in mind here as "imageless intellection."104 As such, it asserts the possibility of the kind of reliable glimpse at the nature of reality—and at the nature of goodness—that Michael Moore and most other contemporary Ameri­ can constitutional theorists dismiss as unsophisticated.105 Augustine would be unmoved by such objections to the notion that immutable realities can be, in some real if incomplete degree, directly present to the mind. Those wishing to deny their presence, he seems to say, will be hard put to make sense of rational activity in their absence. Just as the apparently preliminary mental activity of doubting turns out to be founded upon secure knowledge of the larger truth of consciousness and selfhood, so human experience is replete with evaluative judgments 101 Augustine's epistemology—and his understanding of intellectual vision in particular— is far more complex and subtle than I can present here. (Although I have not relied on him here, a good source for further study is Ronald H. Nash, The Light of the Mind: St. Augus­ tine's Theory of Knowledge [Lexington, Ky.: University Press of Kentucky, 1969].) Augus­ tine's idea of a true glimpse at immutable realities figures as part of his larger theory of knowledge, by which the mind is illuminated by "the Light that never changes," by the "immutable Truth which is above our minds." See Augustine, Confessions 7:10 and 12:25; and see Augustine, On the Trinity 11:2, 12:14, 15:12; and Augustine, The Literal Mean­ ing of Genesis 12:6. This light or truth makes reality intelligible through a process that can be experienced and understood, but that is impossible to formulate reductively. For though the immutable realities are somehow directly present to the mind, they require imagery as soon as communication about them is attempted. (I return to this problem in chap. 4, under "Moral reality in history.") Right action, of course, does not necessarily entail communi­ cation, and some theory of functionally mystical experience—experience of the unmediated immutable realities—may be a good way to understand intuitive moral decision and intui­ tive right action. These are questions that I hope to take up in a later work, since such puzzles of moral epistemology seem increasingly to dominate contemporary constitutional theorizing. 102 Augustine, The Literal Meaning of Genesis 12:14 (29). 103 In contrast with the mind's corporeal and spiritual (ordinary mental) vision, Augustine says, intellectual vision "is not deceived. For either it understands, and then it possesses truth; or if it does not possess truth, it fails to understand. And so it is one thing for the soul to err in the objects which it sees and another for it to err because it does not see." The Literal Meaning of Genesis 12:25 (52). 104 Bourke, Augustine's View of Reality, 10. 105 Moore, "Moral Reality," 1110; and see my discussion in chap. 2 of Ronald Dworkin and Michael Perry.

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that are viable only in relation to some reliable glimpse of an immutable larger reality. Aesthetic judgments—as aesthetic judgments rather than as mere caprice masquerading as aesthetic judgment—entail some true glimpse of beauty in itself or true beauty.106 Moral judgments entail some true glimpse of goodness and justice. Distinctions between just and unjust actions, for instance, are intelligible only insofar as they refer their more immediate objects to justice itself; otherwise such distinctions are so much unintelligible flotsam on an empty sea. And the requirements of intelligibility are not in vain—inasmuch as nature itself is not in vain but created by God. Augustine thus banks on the reality—and on the real if partial accessibility—of that "immutable Truth which is above our minds." For however misleading our bodily senses may be, we possess "a far superior sense, belonging to the inner man, by which we perceive what things are just, and what unjust—just by means of an intelligible idea, unjust by the want of it."107 Now intelligible ideas like justice are no more self-existent or self-contained than is the rest of existing reality. As God is the source of all being, so he is the ground of all intelligibility. Intelligibility, after all, is a func­ tion of being; a thing can be known only if it is. God is the only complete and self-sufficient instance of being. Only he wholly merits the title "I am." Augustine does not make the intelligible ideas like beauty and justice into concurrent deities, co-eternal with God. Rather, he regards them in some way as qualities of being at the highest level. It is not as if they possess some kind of independent value that they confer on being; rather, they derive their value from being—that is, from God. The same point may be transposed into equivalent terms. Just as God is the only complete instance of being, Augustine argues, so he is the only simple instance of goodness. "By this Good have all others been cre­ ated"—and as such created good things are not simple but complex.108 On this account, even a discussion of what we sometimes call "simple justice" is already out at one remove in complexity. If they are to be fully understood, therefore, the intelligible ideas by which our mind operates at the highest levels must be referred to God, the "good which alone is simple and therefore alone immutable."109 And thus in the final analysis of both being and goodness, it is God who imparts intelligibility to all things. This does not yet satisfy the problem of transcendence, with which clas106

Augustine, Confessions 10:34. Ibid. 12:25; City of God 11:27. ios Augustine, City of God 11:10. See Cochrane's discussion of this point in Christianity and Classical Culture, 409—10. ι°» Augustine, City of God 11:10. 107

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sicism had struggled so long.110 Even if God is the one who effectuates human knowledge, just how can he do so, seeing that all the purely intel­ ligible things man needs to know far transcend man's mutable mind? Au­ gustine finds his answer in the Bible, which reveals Jesus Christ as the locus of God's radiating intelligibility. As God the Father is "I am," so God the Son is "Logos."111 Christ can fulfill his Logos function because he is "begotten," a metaphor expressing the fact that, unlike created things, he is a good as simple as his begetter. Thus, while Christ's office is distinct from the other persons of the Trinity, he "is equally with them the simple Good, unchangeable and co-eternal." Christ is both the one through whom God created the intelligible structure of the world and "the Light which enlightens every man that comes into the world."112 His omnipresent "light" illumines all things, up to and including the pinnacle of being and goodness. For by taking on human nature, God himself be­ came sufficiently and intimately—though not comprehensively—intelli­ gible "in the face of Christ."113 The affirmation of Christ as Logos may have seemed whimsical to the classical mind, but it also came as something of a shock. If it was true, it meant that the principle of all intelligibility was not sequestered in some transcendent realm eclipsing man's existential experience. It was instead present in a homely and accessible form, capable of honoring individual instances of created being even as it illumined them. For this God-man was a Logos as familiar as human personality—and just as hard to cap­ ture in any reductive formulation. Now, things like goodness and justice are not objects of intellection only. Given their intimate connection to being, and to God and Christ, they are also objects of love. But this is precisely the department in which fallen man is deficient. If it weren't for the fallen condition, Augustine might agree with Plato that knowledge is virtue. As it is, however, fallen man's will tends to turn away from the good that intellectual vision equips him to know. Augustine finds it necessary in a fallen world to insist that "he is not justly called a good man who knows what is good, but who loves it."114 110

See Cochrane, Christianity and Classical Culture, 417—28. John 1:1; Augustine, City of God 10:24. 112 Augustine, City of God 11:9—10; cf. John 1:3, 9. 113 2 Cor. 4:6. Of course Augustine insists that in this life no man can see God simply and directly, for God cannot be reduced to some kind of "object" of thought or perception, since he is the ground of all thought and all being. Augustine discusses the difficulties of conceptualizing our knowledge of God in Confessions 6:1, On the Trinity 5:i, 3, and else­ where. (See Cochrane, 408—9.) With the Apostle John, Augustine is eager to affirm that although "no man has ever seen God, the only Son, who is in the bosom of the Father, he has made him known." (John 1:18.) 114 Augustine, City of God 11:28. 111

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This way of thinking was at odds with the ideal of knowledge to which much of classical thought subscribed in Augustine's day. Julius Caesar himself had summarized that widely accepted ideal as "truth appre­ hended in the cold light of reason, free from hatred and love, anger and pity, the passions which obfuscate the mind."115 The trouble with this notion, by Augustine's reckoning, is its assumption that reality is essen­ tially dispassionate. If being is instead suffused with the love in which all things cohere and cleave to their place in being—or depart from that place by a defecting love—if this is so, then to demand the "cold light of rea­ son" is to demand a posture that is impossible. And because impossible, it cannot help but be misleading. The assumption that reality is dispas­ sionate is to Augustine already in itself a departure from the pursuit of truth that classicism professed. This stands out most clearly in the matter of moral epistemology. For the good—which intellectual vision equips the mind to grasp so directly—is not something about which the mind can be neutral. Indeed, at this level, the attempt to be neutral toward being will derail thought; scholarly detachment will lead to scholarly error. Keeping the intelligible realities like justice accurately in view requires loving them—a risk against which "the cold light of reason" rebels. Far from being fundamentally opposed to one another, then, love and reason are in the final analysis inseparable. Augustine thus freshly conceives truth in general and moral truth in particular. As one interpreter says of Augus­ tine's Christian insight, considered "as truth it may be described as reason irradiated by love; as morality, love irradiated by reason."116 Thus nothing could be more misleading than posing the question of true knowledge as a choice between dispassionate science and supersti­ tious faith, or between objectivity and subjectivity.117 The real choice is between two kinds of faith, or rather between two loves—the one em­ bracing the order of being, the other rebuffing it. One might be tempted to regard this kind of thinking as subjectivism, but the label does not fit. What Augustine has in mind is hardly subjective in the modern, relativistic sense. If we must use modern terminology, it is more accurate to say that Augustine urges objectively valid standards for a subjectivity that no one should—or can—avoid. In this respect, Augustine's epistemology has been likened to Michael Polanyi's conception of "personal knowl­ edge."118 If the question of true knowledge turns out to coincide with the ques­ tion of rightly ordered love, then it is not hard to understand why the 115

Sallust, Cato 51 1-2, cited by Cochrane, Christianity and Classical Culture, 506 Cochrane, Christianity and Classical Culture, 506 117 See Cochrane's discussion, in Christianity and Classical Culture, 412 118 Gerhart Niemeyer, "Reason and Faith The Fallacious Antithesis," Modern Age 25 (1981) 7 116

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good is such a perennial subject of human controversy. It is not that good­ ness is no longer a reality after the fall, nor that it is opaque by definition to the mind of fallen man. Goodness itself persists, but the good of man's nature is vitiated, and the seat of that vitiation is the will, man's voluntary love. To Augustine, the bottom-line problem of moral epistemology is not epistemological at all. It is instead a problem of love. For the primary moral realities are in principle directly accessible to intellection, even for fallen man. (The myriad entailments of goodness and justice in the infi­ nitely varying circumstances of life are, of course, another question.) Hu­ man fallenness, after all, is strictly speaking not a matter of the nature of man or of the nature of his mind, but of the bent of his will. Fallen man spurns the good he knows and so cannot persist stably in his knowledge of it. It is in this sense that fallenness hampers man's moral knowledge— not because it eliminates his capacity to know the good, but because it renders him averse to embracing it and so to acknowledging it. Of course, people do not consistently and invariably refuse the good, for then they could scarcely think; by Augustine's account of the fall, remember, nature is vitiated but not extinguished. Nor does some deter­ minism render people simply incapable of embracing the good; some do embrace it, and among such, goodness is not fundamentally controver­ sial.119 Indeed, as we have seen, man is not so fallen that he cannot rec­ ognize his fallen condition and regret it; even without labeling it "fallen­ ness," all individuals perceive something morally deficient about themselves and about their race. And if the propensities of fallen human nature are not intrinsically culpable to an individual, persisting in them is.120 Willfully neglecting their repair lets viceful predilections gradually harden into "a kind of second nature" in which their exercise ceases to be a matter of conscious choice. Augustine comments that, like the slith­ ering movements of a snake, "so the slippery movement of falling away from the good takes possession of the careless little by little. . . ."121 The larger ramifications are staggering, considering how the individual hard­ ening process must be reinforced by the willfulness layered up in sur­ rounding human culture—since culture consists in accumulated patterns of human affect and choice. Under such conditions of reverberating de­ pravity, the reality of goodness might end up seeming very obscure in­ deed. 119 These are the people who belong to Augustine's "city of God," which we will consider shortly. Such people are not exempt from the epistemological problems induced by fallen will, although, to the extent that their wills are being set to the right, they are in a better position to overcome them. 120 Augustine, The Free Choice of the Will 3:19. See my discussion above of freedom and virtue in fallen man. 121 Augustine, Ctty of God 12:3 and On The Trinity 12:11 (16).

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Still, the fundamental obstacle to knowledge of the good is not obscu­ rity but pride. Preferring self-love to love of being in general, man loses his grip on true knowledge of the good. This loss is not merely passive: Pride also actively fuels the fabrication of ersatz truth. Because "the soul loves its own power, it slips from the common whole to its own particular part" by erecting fragmentary surrogates and pet versions of the good. Spurning its true moorings in being, the mind spins on itself. Today we might call this "ideology"; Augustine calls it "the fornication of the fan­ tasy."122 This is a maelstrom, but its alternative is unappealing to fallen man, since it involves renouncing his pretensions and submitting himself in loving embrace of the intelligible realities—realities that propel his mind upward through the mutable to the immutable and finally to the God against whom he is in deep-seated rebellion. Given the problems that the fallen condition imposes on mankind's no­ etic powers, how can Augustine be so sure his own basic grasp of reality is sound? Indeed, how can Augustine be sure he is not erecting his own pet version of reality? These are daunting questions. After all, Augustine himself is obviously fallible, partaking of the fallen condition no less than other men. He would doubtless answer that the truth of nature's intelli­ gible structure is not a matter of his, or anybody else's, private interpre­ tation. It is fully in the public domain—fully open, that is, to the reason­ ing mind of anyone who approaches it in good faith. Before such an honest mind, the logic of being readily unfolds itself. Yet there is more to Augustine's confidence. He believes that he pos­ sesses a standard by which to check and supplement all such reasoning— the Holy Scriptures. God has not stood by silently while man gropes and winnows for truth; rather, as would be expected from a loving Father, he has spoken to man—through the prophets and through Christ. And what man learns from the Hebrew and Christian Bible confirms and completes the findings of the honest mind. The Bible confirms, for example, the best conclusions of Platonism about the goodness and immutability of the di­ vine.123 The Bible completes, for example, the ontological desiderata of Aristotle by "filling in the gaps" of his philosophical theology with the God who supremely is.124 The Bible also supplies critical insights about the architecture of man's fallenness, about the incarnate Christ as Logos, and much else besides. The Scriptures serve as a point of reference, a kind of check on Augus­ tine's thought. But they are not, as with certain contemporary constitu122 Augustine, On The Trinity 12:9 (14); see Cochrane, Christianity and Classical Cul­ ture, 418, 448-49. 123 Augustine praised Socrates and Plato as the pagan philosophers who closest ap­ proached the truth; see Ctty of God 8:3—11. 124 On this point, see Niemeyer, "Augustine's Political Philosophy?" 55.

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tional theorists, a "coherence check" turning wholly upon "our beliefs" and excluding the possibility of real glimpses at reality.125 That kind of coherence check is scant help amid the maelstrom of man-made "truths." The Scriptures serve for Augustine rather as a sort of "reality check," a compass and rudder of truth to navigate the vagaries of the fallen world. For Augustine believes that the Bible offers undistorted access to the one strictly unimpeachable source. He knows its contents are not the specu­ lative constructions of his own mind; he accepts their claim to be the authoritative and special revelation of God himself. As such, they are not subject to the obfuscations of the fallen condition—except perhaps mar­ ginally in transmission, and perhaps in their interpretation on peripheral points of nuance. The acceptance of Scripture is to Augustine's mind no derogation of man's reason, simply a recognition of its limits and of the constitution of being in which it operates. If the Scriptures are what they claim, then they issue from the same source as all knowledge; they are an expression of the very same intelligibility that bathes all being. This is why Augustine is not in the least squeamish about his dictum crede ut intellegas.126 "Believe in order that you may understand," says Augustine. For just as loving goodness is the condition of knowing it, so faith makes possible an un­ derstanding of reality in general that is more complete and intellectually satisfying than is available from any humanly devised perspective. (The parallel is more clear if we keep in mind that as Augustine sees it, biblical faith presses beyond mental assent to loving embrace.) But genuine understanding is the goal, and in this, Augustine opposes Tertullian, whose hope for a clean break with classicism had led him to celebrate faith as the acceptance of absurdity.127 Credo quia absurdum, Tertullian had announced, thereby inciting generations of Christians— and others—to construe faith as a substitute for understanding. With Au­ gustine, by contrast, the authority of scripture is embraced as a means to understanding reality. Augustine himself had embraced the scriptural ac­ count only after his own intellectual journey had convinced him of the sterility or fragmentary quality of philosophic alternatives.128 Only when some rational understanding of reality is attained can Christian wisdom 125

Such as Ronald Dworkin and Michael Moore. See my discussion in chap. 2. takes this famous phrase from Isaiah 7:9, in the Greek Septuagint transla­ tion (which he regarded as a specially ordained and preserved rendering of the original texts). 127 See Cochrane on Tertullian in Christianity and Classical Culture, 222—24, and his discussion of the contrast with Augustine on 400-2. 128 The preeminent account of Augustine's philosophic and spiritual journey remains his Confessions. See also Frederick van der Meer, Augustine the Bishop: The Life and Work of a Father of the Church, trans. Brian Battershaw and G. R. Lamb (London: Sheed & Ward, 1962). 126 Augustine

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really be called Christian wisdom.129 "Far be it from us," Augustine says, "to suppose that God abhors in us that by virtue of which He has made us superior to other animals. Far be it, I say, that we should believe in such a way as to exclude the necessity either of accepting or requiring reason; since we could not even believe unless we possessed rational souls."130 Of course, the question of whether Augustine's confidence in the Scrip­ tures is warranted—and of what criteria would enable us to tell—these are the subject of another discussion entirely. Yet if the Scriptures turned out to be what they purport to be, they would be a clear antidote to pet versions of the good, to the man-made ideological "truths" that Augus­ tine is so concerned to avoid.

History and the Two Cities One thing Augustine gained from the Hebrew-Christian Scriptures was a sense of history. Themselves the fruit of a long historical experience, the Scriptures invested history with a meaning unforseen by Greek and Ro­ man classicism—or by anyone else in antiquity, for that matter. Apart from a few poets and chroniclers, the classical mind was interested not in history but in nature.131 Serious philosophy had always sought to strip away the layers of flux, of which history seemed but one, to get at the elemental fixities of reality, whatever they might turn out to be. Or else it had collapsed history into the fixity of nature by depicting it as a cycle of eternal recurrence. By working from what the Bible supplied, Augustine honored both na­ ture and history by recognizing history as, in a manner of speaking, the career of nature. To Augustine's biblically formed mind, historical move­ ment and contingency were not froth on the surface of nature. History was the drama by which nature—taken as the true order of created be­ ing—was lost and will be regained. Creation precedes this drama; its movement begins with the fall. It is punctuated by sacred events, includ­ ing the exodus, the giving of the Law, incarnation, redemption, and final judgment. Its movement ends at the arrival of the kingdom of God, the restoration—and transformation—of all things. These events effectively 129 This means, of course, that Christian wisdom can be real but must necessarily remain short of completion in this life. 130 Letters 120.3 (to Consentium). Cited by Cochrane, Christianity and Classical Culture, 401. 131 On this point see Niemeyer, "Are There Intelligible Parts of History?" 302-3.

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punctuate the movement of history because they are not of the same qual­ ity as the movement itself; they are irruptions of the eternal into time.132 Because of their status in nature, human beings are at the center of this drama. And human nature is by nature contingent on human will, the voluntary fidelity or defection of love. In the disposition of his love, man's choices either secure the blessedness of his being, or induce its unnatural deformity—that is, its contraction back toward nothingness. For created being has only two fundamental directions: Either it flows toward its full­ ness or ebbs toward nonexistence. History—the temporal succession of human experience—thus becomes the stage for the drama of good and evil, which is in other terms the drama of the movement of created be­ ing.133 Since human beings have an associative nature, what they do with their love is not a solitary affair. "Accordingly, two cities have been formed by two loves, the earthly [civitas terrena] by the love of self, even to the con­ tempt of God; the heavenly [civitas del] by the love of God, even to the contempt of self."134 "The former, in a word, glories in itself, the latter in the Lord. . . . The one lifts up its head in its own glory; the other says to its God, 'Thou art my glory and the lifter up of my head.' "135 By Augus­ tine's account, "this whole time or world-age"—this saeculum between the fall and the kingdom—"in which the dying give place and those who are born succeed, is the career of these two cities."136 The choice of loyalty that aggregates people is a real choice made by discrete individuals in concrete historical circumstances. And because the choice always remains the same choice, each "city" exists in a kind of historical continuity with itself over time. Thus, Augustine's distinction between the two citizenries is not conceived as an ahistorical abstraction. Nor does it consist in imag­ ining the ideal as against the real. The distinction may spring from Au­ gustine's ontological insights, but it also accords with an empirical obser­ vation of the quality of God-centered versus self-centered human lives.137 The one city maintains a real, if unperfected, grip on true virtue—be132 Borrowing Eric Voegehn's phrase: Voegelin, Anamnesis, 117. See also Niemeyer, "Are There Intelligible Parts of History?" 311. 133 See Gerhart Niemeyer's discussion of Augustine on this point, in "History and Civili­ zation," Anglican Theological Review, supp. ser., 7 (1976): 91. 134 Augustine, City of God 14:28. Of course "contempt of self" is only a proximate ne­ cessity in view of the fallen condition. In this condition, truly prioritizing the love of God requires denying the autonomous pretensions of the fallen self. In the unfallen order of nature, the two loves are not in conflict. Even now, that "contempt of self" that renders love of God preeminent makes not for the demolition of the self, but for the best maintenance of the true self. 13s Augustine, City of God 14:28, quoting Ps. 3:3. 136 Ibid. 15:1. 137 I am paraphrasing Niemeyer, "Augustine's Political Philosophy?" 60.

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cause it orders its virtues to the true good. The other city's virtues are chronically unstable, depending on tenuous remedies for disorderly pas­ sions. The one city enjoys an increasing degree of real freedom in its moral action—because it avails itself of the enabling grace available to all. The other hardens its bondage to vice because it declines that grace. The one grows in moral understanding, while the other's vision of the good is endarkened by the failure to embrace and do it. The virtues of the civitas terrena, says Augustine, are not viable because its citizens deny their true natures and build their lives on a falsehood. "When, therefore, man lives according to himself—that is according to man, not according to God—assuredly he lives according to a lie."138 Liv­ ing according to God integrates human personality and human commu­ nity; living according to man fragments them. Thus only in opposition to the heavenly city is the earthly some kind of unity. In almost Hobbesian terms Augustine describes how "this city is often divided against itself by litigations, wars, quarrels." In it "the strongest oppress the others, be­ cause all follow after their own interests and lusts, while what is longed for either suffices for none or not for all, because it is not the very thing. For the vanquished succumb to the victorious, preferring any sort of peace and safety to freedom itself; so that they who choose to die rather than be slaves have been greatly wondered at."139 This condition is not surprising since "the founder of the earthly city was a fratricide." Cain's unprovoked murder of his brother Abel illustrates the conflict between the heavenly and earthly cities. But the murderous quarrel between Rom­ ulus and Remus, mythic founders of Rome, illustrates the enmity char­ acteristic of merely man-centered community.140 The Patriarchs and the chosen Hebrew people figure prominently in Augustine's history of the heavenly city. That particularist phase is pro­ logue to Christ, whose death and resurrection have a universal signifi­ cance open to all who will embrace it. But if the city of God now appears as the Christian church, it is emphatically not the temporal institution but the mystical body of Christ—the Church universal. Indeed, some people may turn out to have belonged to the "heavenly fellowship" despite out­ ward affiliations to the contrary. Accordingly, Augustine fastidiously avoids identifying the cwitas det with the institutional church—or the ci­ vitas terrena with the political state. For, as he says, "the two cities are commingled" until the end in every sphere of life.141 138

Augustine, City of God 14 4 Ibid 15 4, 18 2 140 Ibid 15 5 141 Ibid 18 47 and 19 26 13>

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Their commingling is possible because they are not, after all, alien to one another. The contrariety between them is not of nature but of will.142 As this life "is common to both cities, so there is a harmony between them in regard to what belongs to it." Indeed, however disordered the loves of the earthly city, "the things which this city loves" are hardly evil in them­ selves. "For it desires earthly peace for the sake of enjoying earthly goods," and such things "are good things, and without doubt the gifts of God." These things are used "by both kinds of men and families alike, but each has its own peculiar and widely different aim in using them."143 The heavenly city does not become entangled in earthly goods but orders their use to the true and final good of man. The earthly city either be­ comes fixated on the things themselves or orders their use to ephemeral God-surrogates that inflame rather than heal human wounds. The two cities move forward together through history, toward their respective ends at history's close. The earthly city moves toward the end of the evil it has chosen; "and by the end of evil we mean, not that which abolishes it, but that which completes its development"—eternal death, "the supreme evil."144 The city of God moves toward the culmination of its choice, in brief, eternal life. This good will be fully realized beyond time and history when God establishes his heavenly kingdom. "There our being will have no death, our knowledge no error, our love no mishap." This is "that final peace to which all our righteousness has reference," in which "our nature shall enjoy a sound immortality and incorruption." All disinclination to virtue will drop away; we "shall have no more vices ... as we shall experience no resistance from ourselves or from others." Human nature in its true normative order will then be regained. But not until then. In the meantime, even the city of God dares to claim no per­ fection. "Our very righteousness, too, though true in so far as it has re­ spect to the true good, is yet in this life of such a kind that it consists rather in the remission of sins than in the perfecting of virtues."145 All history moves forward toward this end, but not in some manifestly intelligible linear progression.146 The sequence of sacred events may punc­ tuate Augustine's history, but it does not transform universal history into an intelligible whole. The punctuating events, God's mighty interven­ tions, are the only strictly intelligible insights into the whole. The whole itself is beyond human grasp. To think otherwise is to entertain a remark142 Ibid. 11:33: "the one [is] both by nature good and by will upright, the other also good by nature but by will depraved." See Cochrane, Christianity and Classical Culture, 515—16. 143 Augustine, City of God 19:17; 15:4; 19:17. 144 Ibid. 19:1,4; emphasis in original. 145 Ibid. 11:27-28. 146 See generally Niemeyer, "Are There 'Intelligible Parts' of History?" esp. 311.

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able hubris. Taking the Bible at its word, Augustine expects no further history-transforming interventions until the second coming of Christ. All history in the meantime is, as it were, homogeneous.147 Jesus himself had admonished that "no man knows the time nor the hour" of his coming.148 Augustine accordingly rejects as "audacious presumption" all conjecture about the pattern of events leading up to that coming.149 History moves toward this climax not by human agency but by God's unfathomable providence. Since man remains fallen until after he is re­ stored, Augustine repudiates "the idea of a final end within the range of human achievement."150 There is no attaining of "Christian times" in this saeculum.151 In Augustine's telling of Roman history, even the relatively virtuous and Christ-honoring reign of Theodosius assumes no definitive status in the flow of history, much less that of Constantine with its over­ blown Christian pretensions.152 Furthermore, the thousand-year reign of Christ and the saints, described in the last book of the Bible, is not to be taken literally as a final phase of history but as a metaphor for the greater reality beyond history.153 In thus rejecting all chiliasm, Augustine force­ fully addressed the very point at which the Christian mind was susceptible to certain allures of Manichaean gnosticism. Those Christians who, going beyond even Tertullian, regarded nature as not simply fallen but radically extinguished, would be ripe for a summons to repudiate existing order and radically reconstruct. The summons to usher in the kingdom by hu­ man effort—effort presumably blessed by God—could prove dangerously seductive, as later developments in Christian Europe showed.154 Augus­ tine's admonitions stood to detoxify such an activist chiliasm. Divine agency, he insisted, will bring history to a close; God needs no assist from any human project to move history forward. The normative paradigm of this life for the city of God is thus not chiliastic activism but pilgrimage. The heavenly city only "sojourns on earth." Its true citizenship, like its true good, lies elsewhere. The heavenly citizens "use as pilgrims such advantages of time and of earth as do not 147 Markus, Saeculum, 20—21. This is not to say, of course, that Augustine did not antic­ ipate or welcome God's intervention by miracle and grace in human lives; only that such events would have no direct bearing on the shape and quality of history as a whole. 148 Mark 12:32. 149 Augustine, City of God 18:52. 150 Markus, Saeculum, 83. 151 This was Augustine's mature view. See Markus, Saeculum, 53ff. 152 Augustine, City of God 5:25, 26. 153 Ibid. 20:7, 9. 154 See Norman Cohn, The Pursuit of the Millennium (New York: Oxford University Press, 1961), esp. 13—126.

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fascinate and divert them" from their true end.155 "And it is a great thing, so to spend this life, along which we walk as those returning home."156

Politics, Peace All of this brings us back finally to politics. Politics finds its place within the constraints of the historical interim in which we live, our fallen saeculum in which nature remains vitiated. Augustine stands on this point when he rejects Cicero's highly normative theory of politics. According to Augustine, that theory mistakes the character of the human reality it addresses. Given the fragmentation of human love in this age, and so of human personality and community, the political state cannot imagine it­ self to be ruling over one people. The multitude it manages neither pos­ sesses nor is capable of approaching consonance. Tragically, its values, that is its loves, are dissonant. And although Augustine's most fundamen­ tal cleavage is between those who love God and those who spurn him, in principle, the number of dissonant groups is as large as the number of objects that may attract a false and fragmented love. Thus it is that, in Gerhart Niemeyer's words, we note "the emergence in Augustine's thought of an independent political function beyond and besides the mutually exclusive loyalties within the culture, the perception of an autonomous task of political rule."157 This is so even though Au­ gustine provides no fully developed theory of the political state. What he provides is a reflection on its fundamental tasks. These reduce to the com­ mon interest that both its "cities" have in the basic goods of this life, none of which is more basic than a modicum of "earthly peace."158 The civitas dei, for its part, transcends politics. It "calls citizens out of all nations, and gathers together a society of pilgrims of all languages, not scrupling about diversities in the manners, laws, and institutions whereby earthly peace is secured." So far as is possible "without injuring faith and godliness," the heavenly city "desires and maintains a common agree­ ment among men regarding the acquisition of the necessaries of this life, and makes this earthly peace bear on the peace of heaven."159 Due to "the very great mutability of human affairs," earthly peace is chronically unstable. With all their roiling enmities even in peacetime, 155

Augustine, City of God 19:17; allusions to Heb. 11:13 and Phil. 3:20. Augustine, On the Trinity 12:10 (15). For Augustine's comments on his own personal experience of this pilgrimage, see his Confessions 12:16. 157 Niemeyer, "Augustine's Political Philosophy?" 67. 158 Augustine, Ctty of God 19:17. ,s« Ibid. 19:17. 156

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"the peace of unjust men is not worthy to be called peace in comparison with the peace of the just." Only the peace of heaven can truly be called "the peace of the rational creatures, consisting as it does in the perfectly ordered and harmonious enjoyment of God, and of one another in God." Only this peace fulfills the true nature of peace, which Augustine formu­ lates as "the tranquility of order."160 Yet, because peace is a good of nature, every form of peace, however truncated, partakes somehow of the nature of true peace.161 Fallen man is still man. He cannot shed the lingering structure of his original nature. He "cannot help loving peace of one kind or another." Despite the inevi­ table shortfalls of peace in this life, "there is no word we hear with such pleasure, nothing we desire with such zest." "Miserable," says Augustine, is the "people which is alienated from God. Yet even this people has a peace of its own which is not to be lightly esteemed." It is to this peace that politics is ordered—"the temporal peace" that the two cities "to­ gether enjoy."162 There is of course one department of temporal life in which the two "cities" ' interests are irreconcilable. In a way that almost suggests the religious neutrality of the modern liberal state, Augustine notes how "it has come to pass that the two cities could not have common laws of reli­ gion." For the heavenly city "has been compelled in this matter to dis­ sent" and thus to face "anger and hatred and persecutions."163 According to Augustine, political rule would not be necessary accord­ ing to the true, unfallen order of nature. God "did not intend that his rational creature, who was made in His image, should have dominion over anything but the irrational creature—not man over man, but man over the beasts."164 Politics is a provisional, palliative measure made nec­ essary by the fallen condition. Thus Augustine links politics at its essence to coercion. In this respect—especially in view of his famous adumbration of the libido dominandi, the lust of ruling165—Augustine upends classical political science and appears, in the modern sense, acutely realistic. Still, such realism does not detach politics from moral parameters. Au­ gustine never suggests that the tasks of politics—the "laws and institu­ tions whereby earthly peace is secured"—should not be informed by the good. For though Augustine develops no full-fledged theory of the func160Ibid.

17:12-13, 17. "even what is perverted must of necessity be in harmony with, and in dependence on, and in some part of, the order of things, for otherwise it would have no existence at all." Augustine, Ciiy of God 19:12. '62Ibid., 12, 11,26. 163 Ibid., 17. 164 Ibid., 15. 165 Ibid., 15 and elsewhere. 161 Since

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tioning of the political state, the moral context he gives it is clear. Politics functions not in a morally blank world but in a fallen one; not in one in which the order of moral goodness is effaced or unavailable, but in one in which the good is vitiated, endemically obscured by bad human will, but just as compelling as ever. Augustine is happy for political rule to orient itself by the good as may be feasible. He hardly proscribes such political promotion of virtue as may be feasible. But feasibility follows the constraints of the fallen con­ dition of nature; both the tasks and the tools of political rule are limited in scope. For one thing, only the "exterior man" is susceptible of rule, and this but unevenly. A poor means of inculcating virtue, political regulation is more a matter of "intimidating the evil and enabling the good to live more quietly among them." For "the effect of law is to condemn the act, without removing the evil disposition."166 Only grace can do the latter, and the choice to receive grace can hardly be settled by law.167 Indeed, in man's fallen condition, legal imperatives can have a perverse effect on man's will. In an allusion to the Apostle Paul, Augustine notes that "pro­ hibition increases the desire of illicit action," unless through spiritual re­ generation the good is so "loved that the desire of sin is conquered by that love."168 Because spiritual regeneration is in fact possible in this life, those who take seriously Augustine's portrayal of the biblical outlook will hardly sit around waiting for the kingdom of God to arrive. They will actively inculcate virtue and extol the grace that makes virtue viable. But they will use the political state only marginally, if at all, as the vehicle of their activism. In all, then, politics seems to have lower and safer tasks than those imagined by Cicero's classical idealism. It does not figure in the rescue of created being from its fundamental instability. It does not regenerate man. It does operate in a moral universe. Prudence seems to have a place in such a scheme—especially prudence that can orient itself by the true order of goodness found in nature and revelation (which are ultimately consonant). Such a political prudence may do what it can to minimize evil and maximize good as long as it does 166 Both quotations from Letters 153:16; cited by Cochrane, Christianity and Classical Culture, 509. I am following Cochrane's discussion on this matter of law and virtue. R. A. Markus notes that this is Augustine's mature view of law, developed after a flirtation in his early postconversion years with a classical and almost Thomistic notion of law's morally ennobling tasks—a notion he later dropped as ill-attuned to the realities of the fallen con­ dition and the central necessity of grace; Markus, Saeculum, 87—95. 167 In Augustine's late writings, a call for the persecution of heretics seems to belie this logic of his other mature thinking on this point. Even there, however, his concern might best be interpreted more as a concern for a temporal ecclesiastical and social order than an imag­ ination of forced conversion. 168 Augustine, City of God 13:6; see Paul in Rom. 7.

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not imagine itself to be operating in the true order of nature; as long as it remains mindful of the chronic, the "structural" limitations of the fallen condition; as long as it does not think it can eventually transform its lim­ ited community into the ultimate form of community;169 as long, that is, as it stays within the horizons of history and remains vigilant against the temptation to mistake its proximate activities for "the reality itself, when that which we wait for shall have arrived."170

Summary: Augustine and the Normative Impasses of Antiquity Augustine revised antiquity's accounts of nature by reorienting them in the light of the biblical categories of creation and fall. This revision had profound consequences for human experience at every level, and not least for questions of morality and political rule. By recognizing God—the "I am" revealed in the Hebrew Scriptures— as the source and ground of all being, Augustine unequivocally affirmed nature's goodness. Not only had a good God created nature, but his per­ vading power also sustains it. Yet, created things, made out of nothing, are mutable and so capable of retracting toward nothingness. Man, whose rational nature enabled him freely and lovingly to cleave to the ground of his being, or to defect, chose the latter. Thus man fell. What Augustine calls "contraction of being" henceforth afflicts all nature. The vitiated condition of human nature manifests itself in viceful proclivities that cannot be overcome so long as man insists on aspiring to be his own point of integration. History thus becomes the drama of nature's loss and eventual restora­ tion, or in other terms, a kind of movement of created being. Man, cre­ ated in the image of God at the apogee of nature, both affects and is affected by this historical movement. Although all his native endowments are attenuated because of the fallen condition, he remains free to direct his love to what imparts coherence to his nature. The fundamental choice between loving God and loving self without God aggregates people into two "citizenries." One orders itself to man's true good, and overcomes its ontic instability at the close of history. The other does not. Politics faces the daunting task of managing a fundamentally mixed multitude comprised of both groups. The political task is unromantic and unenviable because it has nothing to do with the central drama of history, nothing to do with bringing the movement of being to fulfillment. Good­ ness is real enough to those in political life, but the good of human nature is vitiated—and will remain so until the close of any age in which politics 169 170

Cochrane, Christianity and Classical Culture, 509. Augustine, City of God 5:24.

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might figure. Thus, the human material available in this historical interim is, on the whole, not amenable to being formed into a community of vir­ tue. Of course, the law of the political state is useful, but since it can only touch what Augustine calls the "exterior man," the possibilities of incul­ cating virtue through law are narrow. Political rule does what good it can while the real drama proceeds on other levels. If Augustine's thinking forbids both moral idealism and moral vacuity in politics, it is because he recognizes nature as both created and fallen— as well as permeable to the interventions of a transcendent God. These insights, admittedly received by faith, kept Augustine from falling in step with either of two basic tendencies of ancient thought. "Nature is intact," proclaimed devotees of Plato and Aristotle, all Stoics, and the Pelagian Christian heretics of Augustine's own day. "Nature is undone," cried Manichees and the nihilist Academicians, the former believing it simply, the latter believing they must proceed at all times as if it were true. (To this group might be added those Christians taking Tertullian's reflections, or something like them, as their pattern of thought.) Of course, neither maxim could be adopted without disavowing some feature of experi­ ence—which their respective devotees set about carefully and elaborately to do. Augustine instead offers a ringing affirmation of nature combined with a realistic appraisal of the partly vitiated condition in which it presently exists. Nature's perdurance testifies to its potent pedigree. Nature's elusiveness testifies to its tragic rending. Nature is, so to speak, one whole fine cloth, but temporarily ripped. Or it is a handsome Grecian urn with classic lines, but damaged and fragile, leaking the water that by right it ought to hold; an urn not shattered but fractured down one side and up the other—which only its potter can restore. The basic insight that Stoics and classic Greek philosophers had was correct. But carried beyond basic insight it fell easily into essentialism and fueled implausible and ominous projects of virtue. The Manichaean insight was also nearly correct. But the sense of flux they seized upon was attributable not to a radical problem with nature requiring nature's disavowal. What they had was rather a genuine glimpse of the vitiation of a fundamentally good nature, a nature origi­ nally and at base good, a nature temporarily destabilized by the sin of the rational creature and to be restored. Mistaking the nature of nature in this way led Manichaean gnosticism into errors far graver than those of higher classical philosophy, and Augustine's refutation was accordingly far more passionate.171 For their assertions directly impugned the good­ ness of God the creator. Furthermore, by asserting that nature is undone 171 Augustine, City of God 11:22; Augustine, Confessions 5; The Catholic and Manichaean Ways of Life.

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Gnostic thought licensed itself to spin its speculative constructions of re­ ality unconstrained by any stabilizing anchor in nature. Such speculations could sanction ascetic quietism and withdrawal from the world as easily as libertinism and even projects to radically remake this evil world.172 (And as we have noted, Christians who combine too radical a view of the fall with chiliastic expectations are susceptible at least to the last of these alternatives.) The skeptical impulse was also correct, though if it had taken itself seriously, it would have recognized itself as only provisionally correct. As a procedural desideratum, doubt makes sense in a world whose order is not always what it seems. But as a pervasive intellectual posture it is, Augustine says, "madness,"173 and he invested no little energy in seeking to refute it.174 Augustine thus embraced what the Academicians were un­ willing to admit: that no significant doubt is possible except on the pre­ sumption of actual knowledge.175 Presuming the absence of knowledge might discourage projects of virtue or world-transforming reconstruc­ tions. Strictly speaking, of course, the absence of knowledge justifies nothing more than silence or nihilism. There is no doubt that the ancients were aware of the problem of ontic instability, of the precariousness of being in the world as we experience it. If their accounts of that problem were unsatisfying, it was, according to Augustine, because any attempt to make nature cohere "on its own terms" cannot possibly succeed. Nor can man successfully make sense of himself simply in terms of man. For nature cannot become other than what it is; it is not self-existent any more than man himself is self-made. Acknowledging this freed Augustine to receive what he considered bibli­ cal wisdom. That wisdom informed his portrayal of the creation and sub­ sequent "contraction" of being, culminating in a "rescue" of being through God's grace—which is, for the citizens of the civitas dei who receive it, a matter both of theory and experience. It is not, Augustine will say, that nature once was self-explanatory, intelligible on its own terms but, now fallen, requires the noetic mediation of grace and revelation. Rather, its intrinsic order consisted from the beginning in its permeation by grace, and was always intelligible to the rational creature only so long 172 See Jonas, The Gnostic Religion, 31—97, 206—88; and see Gerhart Niemeyer's elabo­ ration of "totalitarian activism" as a modern parallel to gnosticism in his Between Nothing­ ness and Paradise, 103-38. 173 Augustine, City of God 19:18. 174 See his Answer to Skeptics (Contra academtcos), trans. Denis J. Kavanagh, O.S.A., in The Fathers of the Church, vol. 1 (Washington. The Catholic University of America Press, 1948). 175 I am paraphrasing Cochrane, Christianity and Classical Culture, 431. See also my more detailed discussion of this point above.

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as that creature cleaved to its creator. Thus Augustine is not in the least squeamish about relying on scriptural insight. At this point, of course, Augustine's thought cannot successfully divest itself of tensions. In the limit case, Augustine relies on the Scriptures to distinguish between what pertains to man's fallen condition and what to his true nature. One may wonder what there is in this process to prevent it from arbitrarily assigning what is and what is not "nature." But if Au­ gustine is right about the nature of being, and the relation of transcen­ dence to history, the possibility of an authentic divine revelation is plau­ sible, at least in principle. Such, of course, Augustine takes the scriptures to be. In any event, Augustine's political reflections remain undeniably strik­ ing by contrast to ancient competitors—and to modern ones. Augustine abjures all wishful thinking; he avoids all "idealism" about human nature and politics. He has a kind of hard-headed "realism" about morality and politics with which even the most cynical legal realist would feel comfort­ able—at least initially. Taken as a whole, his teaching on politics amounts to a principled ar­ gument against a politics of principle—not, of course, against a politics that consults principle, but against one that takes the attainment of prin­ ciple to be its prime task. As we have seen, this is because politics is, in essence, a provisional palliative made necessary because nature—and with it human nature—is tragically vitiated. As such, politics is at its heart connected to coercion, and only tenuously to virtue. It is true that human nature needs to be ordered to some anticipated point where knowledge in fact converges on the good—and where experience converges on true vir­ tue and on the fullness of being that human nature craves. Without ex­ actly speaking of it in such terms, Augustine acknowledges such a point of convergence. But it is strictly beyond the boundaries of politics. It is beyond even time and history. Divine agency alone can deliver the human condition from its ontic—and moral—instability. Politics and law figure only marginally, if at all, in this salvific project. Conceiving politics oth­ erwise is lethal. As applied to the tasks of political rule, Augustine's outlook may be taken as a kind of substantive and principled justification for a policy of muddling through. History is moving forward with the highest moral stakes for all human beings, requiring the focused and active moral strug­ gle of all. But political history remains a rather modest affair. I wonder if it is permissible to translate Augustine's attitude into Aris­ totelian and Platonic terminology which he would not have used. If so, we might discover that, in its basic logic, Augustine's thought need not intrinsically oppose Cicero—or Aristotle and Plato—with regard to the natural function of the political state. Perhaps by nature the polis does

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properly aim at fully establishing true justice and inculcating virtue in the citizen. For even if this be granted, even if classical political science saw through accurately to the intrinsic structure of nature, a basic problem remains: that nature is vitiated. The picture must be corrected for the vitiation. Augustine undertakes that correction. What Aristotle's political prudence wisely surveyed as the "different capacities" of peoples, accord­ ing to which moralizing legislation must vary,176 Augustine recognized as not merely local or cultural but also universal. In effect, he makes the fractured condition of nature, endemic in this saeculum, bear on Aris­ totle's "capacities." In Aristotelian terms, fallenness is an ultimate fact about all particulars, a fact that prudence (practical reason) must there­ fore take into account.177 This fallen condition, Augustine advises, is only susceptible of repair by the finger of God. In the meantime, the polis must first provide our minimum requirement—enough peace to get us by until nature is restored, until at the close of time the polis of man receives a philosopher-king who is up to the task. 176 Aristotle, Politics 7:vn, 5 (1328 a 21—1328 b 3); see also 7:ii, 17-18 (1325 a 7—1325 a 15). 177 Aristotle, "Nicomachean Ethics" 6:vn.

Four Augustinian Insight and Current Problems in Constitutional Thought

AUGUSTINE'S way of understanding nature, knowledge, and the moral possibilities of politics begins to penetrate constitutional theory's nor­ mative impasses. Of course, Augustine can hardly address the particulars of current controversies. But he can help us navigate their headwaters. For one thing, Augustine's insights help us diagnose impulses propelling current thinkers. For another, his insights summon an ontologically founded prudence that can alleviate key debilities of contemporary "moral realism" in constitutional theory. Augustine's way of thinking provides additional and deeper grounds for some arguments in the cur­ rent debate over constitutional meaning and judicial power, while provid­ ing a basis for discounting at least some others.

Augustinian Caution: A Preview Augustine provides a more successful way than is currently available in the constitutional field of embracing substantive goodness while "relativizing" its embodiment in politics and law. His way of thinking corrects contemporary moral realism by preserving the ordinary assumption that we can have some kind of unmediated grasp of moral reality, while also finding substantive, nonnihilist reasons for the cautionary postures of skepticism. He does this by pushing beyond moral and epistemological considerations to ontological ones. If the contemporary moral realists rightly tell us that normative constitutional theory cannot successfully evade reference to the good, Augustine reminds us that the question of the good cannot finally evade the larger question of being, the prior ground of all moral considerations. On this score, Augustine, like the con­ temporary moral realists, would resist any radical bifurcation of reality into "fact" versus "value," into "is" versus "ought." Yet Augustine's un­ derstanding of being enables him to extend such insights to the level of moral experience in a cautious and almost equivocal manner. Augustine's ontology explains our morally checkered experience of this world by framing in philosophic terms the biblical ideas of creation and fall. All nature was created by a good God who made its being contingent

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upon his own. As created, human nature and human mind are accord­ ingly finite but fulfilled. But by a primordial choice man freely forfeited his proper nature, thus falling away from himself as much as from his creator. This forfeiture is not limited to humanity. The unnatural con­ traction of human being affects the entire order of nature (because of human solidarity with, and regency over, it).1 The fallen condition can frustrate the human mind's attempt to gain moral insight from "nature," because nature is vitiated. The original or­ derly goodness of human nature is fractured (though not effaced). Hap­ pily, our minds can still discern the lingering potency of what remains of nature's original goodness. Our minds can also directly encounter intel­ ligible realities like goodness, justice, and beauty, which inform but also transcend nature itself. Yet the fallen condition hinders the human mind's inquiry into goodness—but not for simply epistemological reasons. The most prominent feature of the fallen human condition is an unwillingness to love the good, whether the good of nature or the good that transcends and animates nature. This unwillingness is manifested in a chronic disin­ clination to virtue. Together, these can effectively obscure or derail moral knowledge.2 As long as this condition persists, man can recognize, but never man­ ages to fulfill, the promise of his nature. C. S. Lewis expressed the Augustinian view when he called this "a good world that has gone wrong but still retains the memory of what it ought to have been."3 It has not, of course, gone wholly wrong; its continued existence is itself good, as is its knowledge of its own breached yet normative order. As Augustine por­ trays it, the intrinsic goodness of nature in general—and human nature in particular—is vitiated but not effaced. The heart of the problem is a deeprooted ontic and moral instability, and this problem far exceeds the com­ petence of politics and law.4 Thus, while Augustine's thought underscores the conclusion that any attempt to deny the good is hopelessly incoherent, it puts that finding on a deeper footing that inspires political and legal caution. In Augustine's terms, outright nihilist skepticism—the denial of any moral reality be­ yond mere convention—is as culpable as it is incoherent. Yet Augustine's insights warrant a kind of proximate skepticism, especially in the political realm.5 In Augustine's terms, a posture of outright neutrality toward the 1 Augustine, City of God 13:13 and 14:4, 12, 13; see my exposition of Augustine's con­ ception of the fall in chap. 3. 2 See my explanation of Augustine's view of knowledge, love, and fallen will in chap. 3. 3 C. S. Lewis, Mere Christianity (New York: Macmillan, 1960), 48. 4 Augustine, City of God 19:11—26; see my discussion of this point in chap. 3. 5 Ibid. 12:3, Augustine, Oti the Trinity 12:9 (14) and 11 (16); see my discussion of these points in chap. 3.

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good is strictly speaking impossible. At least at base, such neutrality is a feint that jeopardizes the moral knowledge of those who affect it.6 Yet Augustine's insights warrant a certain semblance of neutrality on the part of the political order and its rule of law.7 As we have seen, these tensions have a deeply rooted ontological basis. So long as the vitiated condition of man's being persists, Augustine might say, fusing law and goodness is just as impossible as divorcing them. Of course Augustine is not alone in advising such caution. We have seen how some constitutional scholars advocate caution on the basis of an ontological nihilism about morality (Robert Bork) or an epistemological nihilism (William Rehnquist and Stanley Brubaker) that moots their own advocacy. And, of course, moral realists, too, speak of caution. We have seen how Michael Moore advises caution on the basis of an epistemological doctrine that makes his ontological realism anomalous and un­ dercuts his faith in "progressively better moral theory." We have seen how Sotirios Barber recommends caution in view of the "intractably pro­ visional quality" of our moral reasoning and in view of a disinclination to obedience that characterizes judges and all subjects of law. Augustine's kind of caution stands out because he grounds it fully and self-consciously in ontological considerations. By its very character his ontology does justice to both poles of the morally checkered human ex­ perience.8 It credits ordinary presuppositions about real knowledge of moral goodness, while offering an account of the moral indeterminacy that we also experience, and while respecting the cautionary implications of that indeterminacy for political and legal decision making. Such, in brief, is the character of Augustine's insights about nature, knowing, and politics, and his reflections obviously extend to subjects well beyond the conventional borders of American constitutional juris­ prudence. All the same, his reflections are not extraneous. Constitutional theorists have been burrowing deeply into these very subjects in recent years, seeking grounds for their normative theories. If they have indeed burrowed their way to dead ends, to what I have called normative im­ passes, then the situation invites a kind of Augustinian comment on con­ temporary constitutional thinking. That task I take up below. Of course I can pretend to achieve no more here than a preliminary exploration. I will begin by tracing what our survey of Augustine helps us understand about contemporary moral nihilism ("skepticism") in the constitutional field, and about the problems of moral knowledge more generally. I will then turn my attention more fully to contemporary moral realism. 6 Augustine, City of God 11:28; Cochrane, Christianity and Classical Culture, 412ff.; see my discussion of this point in chap. 3. 7 Augustine, City of God 19:12, 17, 26; see my discussion of this point in chap. 3. 81 will return to this important point later in this chapter.

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Moral Nihilists, Manichaean Error As I have argued above, the majority of leading constitutional commen­ tators premise their analyses on one version or another of a convention­ alism rooted in nihilist skepticism. If we take our bearings from Augus­ tine, we can detect in such thought the resonance of familiar errors. Recalling the Academic Skeptics and Manichees with whom Augustine disputed in antiquity, today's leading constitutional writers pronounce nature void of moral order. But like the Manichees, they do not stop there. Nature's indeterminacy vexes them, and thus they seek, in a man­ ner of speaking, to make an alternative nature according to a goodness of their own design—a design that, of course, they cannot ultimately defend as normative.9 When I offer some examples below, the aptness of this parallel will become more clear. It is revealing that when these theorists express their skepticism about a truly authoritative morality, their pronouncements seem to embody not a heuristic and therefore provisional doubt but an apparently settled con­ clusion. The conclusion may seem initially to come in two versions. It may be the conclusion, like that of the antique Academicians, that doubt must be chronic, and even the smallest degree of true moral knowledge perpetually out of reach. Or it may be the conclusion, like that of the Manichaean Gnostics, that real goodness simply has no existence in this fundamentally indeterminate nature in which we find ourselves trapped. In the case of the theorists we have considered, the former conclusion seems in any event to slide into the latter. Let me explain why I think that is the case. If their position is one of pervasive doubt, it is, as Augustine said, per­ vasive madness. For one thing, no significant doubt is even possible, as Augustine showed, except on the presumption of some actual knowl­ edge.10 For another, intensive, pervasive doubt is self-stultifying. Logi­ cally it ought to spiral its adherents away from scholarly discourse and into simple silence. It does not have that effect. Instead these nihilist skep­ tics are busy with the prescriptions of constitutional commentary and ad­ vocacy. Where they do address the question of normative authority, they implicitly claim a normative status even for their pronouncements of moral nihilism itself. Of course, that very nihilism makes such a claim 9 My interpretation of today's nihilist skeptics as Manichaean Gnostics owes much to Erie Voegelin's reflections in Science, Politics and Gnosticism, trans. William J. Fitzpatrick (Chi­ cago: Henry Regnery Press, 1968; German original, 1959); and to Voegelin's The New Science of Polttics (Chicago: University of Chicago Press, 1952). 10Augustine, City of God 11:26; Augustine, On the Trinity 9:v, 8 and 10:xiv, 14; see Cochrane, Christianity and Classical Culture, 431; and see my discussion of this point in

chap. 3.

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indefensible on its own terms and strictly incoherent. And it renders equally incoherent all the prescriptive scholarly discourse ostensibly founded upon the nihilist pronouncement concerning morality. If inco­ herence is the fruit borne by contemporary nihilist skepticism, it provides a first clue that what may have started out as skeptical doubt has in fact slid into Manichaeism. But there is more. As we have seen, most of these thinkers are appar­ ently undaunted by incoherence. Where this is the case, it is because, as Augustine observed of the Manichaeism of his day, the actuating impulse is more religious than intellectual in character. It is a matter, as we might prefer to say, of their fundamental orientation toward being. The old Manichees did not turn away from the order of being because it is morally blank; they proclaimed reality blank and malign because they had already rebuffed it. For, true moral knowledge, as Augustine says, does not boil down to a choice between objective surety and subjective morass, or be­ tween hard science and soft faith. The real choice is, as it were, between two qualities of faith or two loves. The Manichaean mind renders itself blind to the order of goodness and being because it refuses to love them. We will understand neither its errors nor its compulsions if we imagine them to be simply intellectual. By Augustine's account, of course, even such errors are susceptible of reasoned analysis; there are good reasons of both thought and experience for judging the Manichaean stance to be erroneous. This leads us to the final step in the slide to Manichaeism. For the func­ tionally religious impulse that inures the Manichaean mind to intellectual incoherence also prompts a certain quality of action. Indeed, how con­ temporary nihilist skeptics react to their (effectively Manichaean) void is instructive. According to Augustine, remember, their own human nature, though fallen, is not effaced. As a result, they cannot simply let the void be. Proclaiming that nature fails to stock itself with moral content, they license themselves to do the job—even though their own account of real­ ity makes this ultimately impossible to defend. As I have argued, leading contemporary constitutional theorists fill the moral void with surrogates that, because they can only be conventional, are devoid of authentic nor­ mative authority. These surrogates range all they way from "generally accepted" standards and idiosyncratic conceptions of "democracy" to radically "personal" conviction. Among such surrogates also figure lux­ uriantly elaborated epistemological schemes that recall at least function­ ally—and certainly all unintended—the speculative excrescences of orig­ inal Manichaeism and other forms of ancient gnosticism.11 These differing surrogates inspire different kinds of action. 11

See Hans Jonas's account of this speculation in his The Gnostic Religion, 101—238.

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Like its ancient Manichaean parallel, this contemporary skepticism typically takes one of two basic forms: quietism or reconstructionism. Though informed by the same outlook, these two forms differ in the na­ ture of their errors and in the magnitude of their practical dangers. "Quietism" seems to characterize the judicial restraint doctrine ema­ nating from the legal positivism of William Rehnquist, Raoul Berger, and Robert Bork. Because he professes a nihilist skepticism, Robert Bork la­ bels all moral considerations "forms of gratification." Because he is hon­ est, he adds that there is thus "no principled way" for anyone, whether judge or citizen, to undertake moral evaluation or to navigate competing moral claims.12 This means, of course, that those charged with interpret­ ing the Constitution in a principled way must be baffled when they con­ front provisions that, on their face, direct them to moral considerations extending beyond merely conventional morality. From this positivist baf­ flement, Bork produces a normative prescription: that constitutional in­ terpreters, as constitutional interpreters, ought to remain not only baffled but also immobilized in such instances. Such is the foundation that Bork has articulated for his categorical doctrine of judicial restraint.13 A similar quietism is at work in the thinking of Walter Berns. Following the unmistakably Manichaean pattern of thought of his mentor Thomas Hobbes,14 Berns asserts that nature is in itself morally blank. Its very blankness threatens human survival. By means of an instrumental calcu­ lation, human beings can rescue themselves from their morally formless native context. They can do so by forming a political order based on fear of death and desire for the one value that counts even though (or perhaps because) nature does not provide it: peace. The very survival of this polit­ ical order depends on deflecting citizens away from vexatious and trou­ blesome deliberations about real goodness.15 According to Berns, the Constitution embodies just such a calculation. Any overtly moral stanThe epistemologies I have in mind are those of Rorty, Gadamer, and Fish, reflected in the constitutional theories of Michael Perry, Lief Carter and others. The parallel between an­ cient Manichaean speculation and the elaborate epistemological schemes of contemporary thinkers is, I believe, a promising one—which I cannot pursue further here. 12 Bork, "Neutral Principles and Some First Amendment Problems," 10. 13 Now, according to Bork, when they are acting not as interpreters of law but as makers of it, citizens may exercise their will by statute or constitutional amendment and thus fur­ nish new increments of positivist convention. Such new increments of law can then be inter­ preted by interpreters since they are strictly expressions of will and have nothing to do with any independent reality of goodness. Since Americans do not typically approach their law­ making tasks with such a mind-set, Bork's approach presents problems to which I will re­ turn below when I deal more directly with the question of constitutional meaning. 14 See Voegelin's interpretation of Hobbes as a Mamchaean Gnostic in The New Science of Politics, 152-62, 179-87. 15 Berns, "Judicial Review and the Rights and Laws of Nature," 56ff.; Berns, "The New Pursuit of Happiness," 72—77. See also my discussion of Berns and Hobbes in chap. 2.

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dards in the constitutional text ("just" compensation, "due" process, "equal" protection) must therefore be filtered through this calculation. Once filtered, such standards can be interpreted narrowly and without the kind of moral deliberation or moral judgment that can undermine confidence in a Hobbesian state. Thus, giving Bork's logic a Hobbesian twist, Berns also prescribes stringent restraint as a pervasive posture for the Court. And in doing so, he seems to flirt with an especially virulent kind of nihilism, since the success of his argument for restraint would require the neutralization of human reflective and critical faculties.16 The moral Manichaeism of such conservatives tends to blind them to the moral dimensions of constitutional text. In consequence, their doc­ trines would tend to deprive the Court of critical resources with which to foil errant majorities. Yet their "quietism" nevertheless has something to recommend it: It at least roughly respects the silencing implications of the normative emptiness it professes. The same cannot be said for its contemporary obverse. The sworn en­ emies of judicial restraint are typically themselves nihilist skeptics of the Left, who exhibit a worrisome kind of reconstructionist ardor that is, by its own admission, without foundations. These reconstructionists may exhibit varying degrees of zeal, but their Manichaean tendency is con­ stant: They regard nature as a moral void, and they react by taking it upon themselves not only to fill the void but actively to reconstruct it in the process. Thus we discover that the same basic ontological stance that makes quietists despair of action impels reconstructionists toward com­ pulsive action.17 And that stance, of course, makes it impossible to justify either posture. Manichaean reconstructionism can sometimes pose as morally inspired reformism. Laurence Tribe probably represents this sort of thing at its most inchoate and least dangerous level. Tribe, as we have seen, despairs of finding any real moral good by which to justify normative constitu­ tional advocacy, but proceeds anyway.18 Michael Perry does the same but with greater subtlety and elaboration. As I have argued above, Perry's resort to a living moral "tradition" actually results from his abandon­ ment of real moral goodness in favor of an ultimately idiosyncratic and historicist convention. And I have noted how Perry justifies this turn in 16 See Sotinos Barber's argument to this effect in "The New Right Assault on Moral In­ quiry in Constitutional Law," 266—75, 289-95. 17 See Voegelm's parallel analysis of different thinkers in Science, Politics, and Gnosti­ cism, 99—100 and elsewhere; David Walsh cites this material in "Voegelin's Response to the Disorder of the Age," The Review of Politics, 46 (1984): 267—72. See also Niemeyer, Be­ tween Nothingness and Paradise 103-38. 18 Tribe, Constitutional Choices, 3—20,165—245; see my discussion and citations of Tribe in chap. 1.

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terms of an epistemological relativism—elaborated at great length—that moots all justification.19 Now, Perry's work should not for all that be jettisoned; indeed, by Augustine's logic it is impossible for any human reflection to be wholly erroneous. Perry's discussion of the "prophetic" role of courts and judges, for example, seems to express an important, if partial, insight.20 But Perry's Manichaean compulsions emerge unmistak­ ably when he admits that, fundamentally, his project aims to "transform" the existent and inadequate American polity. By the terms of his "trans­ formative politics," constitutional adjudication becomes a distinctly salvational affair. In what can only be (given his other affirmations) an ex­ pression of willful assertion against the void, Perry's constitutionalism and constitutional jurisprudence become a matter of "realizing our true selves" and "achieving well-being."21 While Ronald Dworkin may or may not share Perry's fundamental skepticism, their projects have similar lineaments. One of his critics, in fact, accuses Dworkin of what I am calling Manichaean tendencies, not­ ing that Dworkin is vexed by "the limited but real community of living Americans" and captivated by "the imagined community of intellectual speculation." This, says the critic, makes Dworkin want to "reinvent 'the community' "—a feat that usually requires not law but "a great many bayonets to put over."22 Of course if Dworkin turns out to be a moral realist of some kind, his musings might instead reveal a reformer whose impatience is at least coherent. Perry's impatience is not coherent. According to his system, the goals of true selfhood and "well-being" have no natural content and thus no determinate meaning. Yet this does not blunt the Manichaean ardor of attaining them. It heightens it. For given the right circumstances, Perry himself can exercise a formative influence on prevailing convention. And Perry's moral epistemology effectively makes such convention the only supply from which meaning can pour into such goals, as into dry and empty shells. While even Perry retains a certain reformist posture, the fact is that Manichaean reconstructionism can, by virtue of its integral nihilism, pose as anything at all. The so-called critical legal studies movement, for ex­ ample, pursues an agenda whose daring Manichaeism far outstrips Perry. 19 Michael Perry, "Moral Knowledge, Moral Reasoning, Moral Relativism," 1024—39, 1049ff.; Perry, Morality, Politics and Law, chap. 2. See my discussion of Perry above, esp. m chap. 2. 20 On Perry's prophetic role, see Morality, Politics and Law, 139—51 and elsewhere. One wonders, of course, how the content of judicial "prophecy" could be justified, within Perry's scheme, as having any real truth value. 21 Perry, Morality, Politics and Law, 159. 22 Jeremy Rabkin, "Law's Umpire," 30.

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Among leading members of the movement are Roberto Unger and Mark Tushnet.23 Critical legal studies has not appeared in my analysis to this point because its impact on constitutional theory has been marginal—at least so far. But it deserves comment here. Eschewing Perry's protracted epistemological explanations, adherents of critical legal studies— "crits"—unambiguously proclaim all moral and legal principles to be merely empty shells. Though they learned the empty shells theory from the "legal realists" of an earlier generation, they unabashedly draw the conclusion that the legal realists— like Perry—were loath to own up to: anything goes. Legal actors can therefore spurn, at least inwardly, all pre­ tense of principled legal interpretation and instead do whatever a pruden­ tial assessment reveals as effective for reaching their preferred goals. For most crits, the preferred goal is "the cause of socialism."24 Tushnet urges, for example, that writers of briefs in constitutional cases pretend to hold whatever principled theory happens to further their own favored agenda in a given instance.25 Of course, the agenda itself cannot be held or de­ fended on grounds of principle—since there are none—but apparently only as a matter of passionate conviction.26 Now, even the crits have yet to own up fully to the nihilistic implica­ tions of their position.27 Their commitment to socialism seemingly atten­ uates their nihilism. But that commitment masks nascent nihilism rather than attenuating it. People often favor certain socialist policies on the ba­ sis of what they take to be real moral considerations. Consistent crits, by contrast, will tolerate no such coherence. Their project is not a matter of bringing experience into alignment with what is right by nature. There is 23 Mark V. Tushnet, "Following the Rules Laid Down: A Critique of Interpretivism," Harvard Law Review 96 (1983): 781ff.; Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge, Mass.: Harvard University Press, 1986). For an incisive analysis of Unger, see Stephen Holmes, "The Professor of Smashing," The New Republic, 19 October 1987, 30-38. 24 Mark V. Tushnet, "The Dilemmas of Liberal Constitutionalism," Ohio State Law Jour­ nal 42 (1981): 424. 25 Tushnet, "The Dilemmas of Liberal Constitutionalism," 424—25. If he is ever nomi­ nated to the federal judiciary, Tushnet may have a hard time justifying such published po­ sitions to his senatorial inquisitors—unless, of course, he and his critical comrades have by that time succeeded in raising the consciousness of the polity sufficiently to disabuse Amer­ icans of a belief in real goodness. 16 Thus the commitment to socialism is anomalous on the crits' own terms. Socialism poses as a normative and even world-comprehensive answer to political economy (and in its original forms, to the human condition more generally). But the crits, like Tushnet, pro­ claim that normative questions can find "no general answers, but only tentative ones based on the exact conjuncture of events when the question is asked." Tushnet, "The Dilemmas of Liberal Constitutionalism," 425. 27 If Augustine's insights are correct, it may be impossible for any human being to own up to them fully.

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no right by nature. Nature's indeterminacy is precisely its deficiency.28 Crits are angry that the establishment has turned indeterminacy to its ad­ vantage; they want to impose their better brand of order. They are not fundamentally interested in enhancing nature, since there is none, but in dismantling and replacing prevailing convention, after an unspecified rev­ olution, with a kind of convention more to their liking. And their project logically disclaims any obligation to justify its actions. Lief Carter identifies with the critical legal scholars without exactly be­ coming one of them. As we have seen, he embraces their conclusion that nature is indeterminate, that meaning and goodness are nothing more than experiences of "intersubjective zap." He would fill the loss of real meaning and real goodness with the art of good "constitutional perform­ ances."29 This scheme has a familiarly Manichaean ring. Still, a Manichaean interpretation does not seem to fit Carter quite as well as it does the crits. The difference is not so much one of substance as of tempera­ ment. The crits are grim and angry about nature's indeterminacy and its present uses. Carter's tone is good-natured and amiable. The action he advocates is aesthetic and even "playful"30 rather than pretentiously rev­ olutionary. Moreover, Carter's aestheticism is undoubtedly on to some­ thing. It is true that his premises make his aesthetic prescription an unten­ able solution to what he aptly calls the "bind" of contemporary constitutional jurisprudence.31 But with different premises, aestheticism might make more sense. There is a long and profound tradition that con­ nects beauty with truth and goodness.32 In Carter's scheme, however, beauty displaces truth and goodness. His is an ersatz aestheticism made necessary by the stipulated nonexistence of what it displaces. Carter is also on to something in his intuition that moral indeterminacy precludes a narrowly mechanistic and legalistic jurisprudence. He is on to something in his intuition that normative authority is not properly a mat­ ter of univocal principles or of proof of the "mathematical" model, but somehow of direct experience or even of "relationship." He is on to some­ thing for which Augustine's premises offer a more viable explanation than Carter's own. Augustine would say that the "persistent demand for 28 Hans Jonas's explanation of contemporary existentialism as a modern-day version of Mamchaean gnosticism underlies my discussion here: Jonas, The Gnostic Religion, 320-40 ("Epilogue: Gnosticism, Existentialism, and Nihilism"). 29 Carter, Contemporary Constitutional Lawmaking, 8, 163; see my discussion of these points in chap. 2. 30 Carter, Contemporary Constitutional Lawmaking, 190—95. 31 As I have argued in chap. 2; Carter's premises are those of modern critical doctrine as developed by Gadamer, Habermas, Rorty, and Fish. 32 Carter mentions the romantic poet Keats's notion to this effect (Contemporary Consti­ tutional Lawmaking, 187). He could have mentioned Aquinas, Augustine, and ancient clas­ sical philosophers like Plato.

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goodness in law"33 corresponds not to a void but to a reality of goodness. He would say that the partial indeterminacy resulting from the vitiation of nature frustrates our experience of that reality. The original goodness to which the "persistent demand" corresponds, he might say, is indeed ultimately exemplified "relationally," in the Trinity of God—and penultimately in the human relationship to that God. The presently vitiated condition of nature—especially of our own human nature—affords us an experience of goodness that is real enough but that is accompanied by a simultaneous, though subsidiary, experience of natural moral indetermi­ nacy. (And on the basis of this theological understanding, Augustine ar­ gues that law and politics can proceed adequately without championing this or any other theological understanding.) Such an approach will undoubtedly seem fantastic to the modern crit­ ical mind. Carter, at least, prefers his own "script" to possible theological ones.34 He prefers his ungrounded aestheticism, which lets us fantasize "about experiences we trust in spite of the deeper knowledge that we fantasize."35 Whatever one may say about Carter, what we find in Michael Perry and the critical legal scholars resembles the error of Manichaean reconstructionism that Augustine recognized long ago. However startling their transformative projects, the animating error of such reconstructionists is the same as that of their quietist enemies: a fundamental antagonism to­ ward being and a denial of goodness, resulting in a compulsion to supply on their own the awful shortcomings of reality. Because the error is the same, the pronunciamentos of Manichaean skepticism thus fall as easily from the pens of "conservative" as of "liberal" constitutional commen­ tators. Judge Bork's dictum that morality is an empty front for gratifica­ tion—and that there is thus no principled way to consider it—could in­ deed receive no heartier endorsement than from the most rabid of the critical legal scholars. By Augustine's account, the error of all such Manichaeism is palpable. Its own foundational incoherence testifies against it as contrary to reason. Yet this perversity may well be a part of its potency. For its incoherence is a symptom of something deeper than defective reason alone. On an Augustinian analysis, the incoherent rejection of nature expresses a rebel­ lious antipathy to the person of God, the creator, whose goodness forms the very grounds upon which stand all knowledge and all reasoning. 33

Carter, Contemporary Constitutional Lawmaking, 2—4. See Carter, Contemporary Constitutional Lawmaking, 153, where he recognizes but dismisses Milner Ball's biblically informed conception of courtroom theater and legal pro­ cess. 35 Carter, Contemporary Constitutional Lawmaking, xvi; see my discussion in chap. 2. 34

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Seeking Real Moral Insight Such errors of ontological attitude obviously influence the moral epistemologies of those who hold them. The epistemological errors of nihilist skeptics are thus relatively easy to identify from an Augustinian perspec­ tive. More complex are the epistemological shortcomings of some of those adhering to an ontological and moral realism. Yet our exposure to Augustine's way of thinking helps us identify needed adjustments even in the moral epistemologies of the moral realists, as we shall see.

"Objectivity" and "Foundationalism" From an Augustinian perspective, a basic deficiency of many contempo­ rary thinkers is their conception of the relation of mind and morality. What would true knowledge of an independently real moral goodness have to involve? Many seem to agree on an answer: They apparently sub­ scribe to the answer that the good, to be anything real or relevant, would have to be known "objectively." It would have to be, that is, an object of dispassionate rational inquiry analogous to the objects of the other sci­ ences. Though this attitude is mostly typical of moral nihilists (conven­ tionalists), it is not altogether alien to moral realists. On the one hand, nihilist skeptics who deny any real moral goodness beyond convention often do so on the grounds that moral propositions fail to measure up to this standard of objectifiable knowledge. Their re­ action is what one might expect from a "disappointed absolutist" (bor­ rowing H.L.A. Hart's apt phrase).36 Since the good does not seem to them a readily manifest object of calculative reason, they conclude that it does not exist. For example, typical of the thinking of conservatives like former judge Robert Bork and Chief Justice William Rehnquist is Rehnquist's argument for democratic legal positivism on the ground that morality cannot be "logically demonstrate^]."37 Typical of liberal thinking is Laurence Tribe's argument that the search for normative legitimacy in law is "futile" because there is no uncontroversial "archimedean point" on which moral knowledge might stand.38 Michael Perry, for his part, prefers the morally amorphous convention of his "tradition" apparently 36 H.L.A. Hart, The Concept of Law, 135; brought to my attention by Barber, On What the Constitution Means, 14. I make no pretense, of course, that my larger analysis matches Hart's; see the Appendix. 37 Rehnquist, "Notion of a Living Constitution," 167; see also Bork, "Neutral Princi­ ples," 10—11, where he argues that morality reduces to claims for gratification that cannot be rationally ordered or evaluated. 38 Tribe, Constitutional Choices, 3—5.

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because his epistemological relativism makes him despair of any hard ob­ jective knowledge of real goodness.39 On the other hand, those who hold out for real morality are capable of subscribing differently to the same error. John Courtney Murray, for ex­ ample, seems willingly to shoulder the onus of asserting a moral realism implying the possibility of straightforward objective knowledge of moral reality. Murray invokes a "natural law" whose fundaments are manifest to natural reason.40 The natural law rubric is specially problematic be­ cause it implies that goodness is essentially lawlike in character. Indeed, the traditional metaphors of natural law (self-evident first principles of the natural law, from which are derived second principles, and so forth) conjure up a code in the sky spelled out in golden letters not of Hammu­ rabi but of nature. It is hard to imagine a rubric capable of more effec­ tively reducing the good to an object of dispassionate rational inquiry like any other.41 Now if the same sort of objectifying premise informs these differing conclusions, the former conclusion will grate more against Augustine than the latter. Denying the good altogether is worse than misconceiving it. But Augustinian thought addresses the misleading premise of both er­ rors. "Foundationalism" is, in a way, the common flaw. By foundationalism I mean not a recognition that the good is accessible to our minds— in this sense, Augustine is, as we have seen, a foundationalist par excellence42—but a foundationalism that objectifies the good. By Augustine's account, goodness cannot be reduced to an object of disinterested rationality because when it comes to the good, there is no disinterested rationality. Goodness and being are ultimately one, and our minds cannot be neutral about either; love and reason are inseparable complements of the human constitution. If, as Augustine conceives it, truth is reason irradiated by love, and morality is love irradiated by rea­ son, then the question of moral epistemology appears in a new light.43 Love bears directly on knowledge. Though Augustine acknowledges an 39

Perry, "Moral Knowledge, Moral Reasoning, Moral Relativism," 1049ff. Murray, We Hold These Truths, 326—28, etc. 41 If the typical Thomistic account of natural law deserves such criticism, Thomas Aquinas's own theory of natural law may not. See, for example, E. A. Goerner, "On Thomistic Natural Law: The Bad Man's View of Thomistic Natural Right," Pohttcal Theory 7 (1979): 101—22; and Goerner, "Thomistic Natural Right: The Good Man's View of Thomistic Nat­ ural Law," Political Theory 11 (1983): 393—418. 42 Augustine, City of God 11:26, 28; Augustine, Literal Meaning of Genesis 12:24, 50— 52; Augustine, Confessions 10:34; see Vernon J. Bourke, Augustine's View of Reality, IOff.; see my discussion in chap. 3. 43 See Cochrane, Christianity and Classical Culture, 506; Augustine, City of God 11:28; and my discussion of this point in chap. 3. 40

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order of goodness in the universe to which the human mind can attain,44 he regards love of that good as the gateway and guarantor of knowing it. If goodness is a "natural law," it cannot be some kind of lawlike code inscribed in nature, whose provisions one could consult with a lawyerly, noncommittal attitude. It may be instructive to note that, even today, many of those who place themselves self-consciously in the Augustinian theological tradition are uncomfortable with the objectifying rubric of natural law.45 The same was true of Reinhold Niebuhr in his day.46 Such thinkers affirm with Augustine that dispassionate objectivity is not the condition of moral knowledge. Loving the good one knows—and so do­ ing it—is the condition of true, viable, and thriving moral knowledge. One of the marks of the present condition of human nature is precisely the failure to love the good adequately. If Augustine is right about the human condition in this unstable age, we should not expect what Lau­ rence Tribe and many others (like Paul Brest and Lief Carter)47 seem to expect, that is, some kind of inverse correlation between controversiality and truth. Their expectation is perhaps not intrinsically wrong; in the original (true) nature of things, the inverse correlation would hold be­ cause human reason and human love would be intact. But they are not intact, Augustine argues, and our expectations must be revised accord­ ingly. Thus, if anything, we might rather expect the most important truths to be hopelessly controversial, especially in society at large, because of disordered and dissonant loves.48 Indeed, even those whose love is in the process of being properly oriented must be self-critical about their moral beliefs (at least until beyond history they shed the last vestiges of their 44 Gerhart Niemeyer's formulation: Gerhart Niemeyer, "What Price Natural Law?" American Journal of Jurisprudence 27 (1983): 1; see generally Niemeyer's discussion of morality and reason in this essay, esp. 6—13. 45 Niemeyer, "What Price Natural Law?" 1—13; Carl F. H. Henry, God, Revelation, and Authority (Waco, Texas: Word Books, 1976), 394 and elsewhere; Donald G. Bloesch, Es­ sentials of Evangelical Theology, vol. 2, Life, Ministry and Hope (San Francisco: Harper & Row, 1979), 240—41. Henry and Bloesch are uncomfortable with "natural law" for the same reasons that they doubt the viability of "natural theology." 46 Reinhold Niebuhr, "Love and Law in Protestantism and Catholicism," in Christian Realism and Political Problems, 147—74. "The whole concept of natural law," Niebuhr comments at one point, "rests upon a Stoic-Aristotelian rationalism which assumes fixed historical structures and norms which do not in fact exist. Furthermore, it assumes a human participation in a universal reason in which there is no ideological taint. The moral certain­ ties of natural law . . . are all dubious. . . . The final dyke [s*c] against relativism is to be found, not in these alleged fixities, but in the law of love itself" (172-73). See also Niebuhr's "Beyond Law and Relativity," in Faith and History, 171—95. 47 Brest, "The Fundamental Rights Controversy," 1063ff.; Carter, Contemporary Con­ stitutional Lawmaktng, 1—13; see my comments on Brest and Carter in chap. 2. 48 Recall here Augustine's conception of political society's intractable "value" cleavages; Augustine, City of God 19:17, 24, 26; see my discussion of these points in chap. 3.

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own defective love and disinclination to virtue).49 In these fallen circum­ stances, Augustine might say, moral obscurities are bad enough without aggravating them by a pretense of dispassionate objectivity. For the mind that affects dispassionate objectivity in moral inquiry has willingly erred already, and its findings will be at best inadequate and at worst malig­ nant.50 Of course not all constitutional scholars build their theories on the dis­ passionately objective view of moral knowledge. Sotirios Barber, for one, believes that moral and legal disagreements presuppose objectively right answers, and that the reasoning that gets at those answers is hardly a dispassionate affair. The process of "giving and exchanging reasons" for our actions, he holds, presupposes a desire to be and to appear rational. Those who reason most successfully will be those who "love and follow the ways of the truly inquiring mind." While Barber emphasizes the pro­ cess of reasoning itself, he also acknowledges what Augustine insists on: that the process is instrumental. Reason at its best it is not a matter of loving the process but, as Barber says, of "loving truth."51 Barber also argues that, because the American Constitution is a normative and mor­ ally aspirational document, rational reaffirmation of the Constitution necessarily "entails a desire really to be good or to achieve goodness as a society."52 At least on the question of moral "objectivity," then, Barber has come to conclusions reminiscent of Augustine's—though by a some­ what different route. Barber does not situate the "love" that conduces to moral knowledge in a larger ontological framework (at least not self-con­ sciously). Instead he explains it in terms of the entailments of rational discourse and of the logical relation between law and subject. Are such considerations sufficient to explain what Barber also notices: that a persistent human disinclination to be good resists the desire to know the good?53 Disinclination is important in Barber's scheme; from it he adduces the need for "reflective self-criticism" by judges and others.54 When I return to this point later, I will propose that Barber's insights about disinclination, morality, and law need an ontological, not merely analytical, basis in order to be successfully affirmed. 49

Augustine, Ctty of God 19:27; see my discussion in chap. 3. my discussion of Augustine's outlook on human will and moral knowledge in chap. 3 under "Knowledge and Fallen Man." 51 Barber, On What the Constitution Means, 224 n. 43 and 135—36. 52 Ibid., 115; emphasis added. There is a hint of this kind of thinking in Michael Moore, when he speaks of the "desires" of "a rational agent" for objects with "desirability charac­ teristics"; Michael Moore, "A Natural Law Theory of Precedent," 69. 53 Barber, On What the Constitution Means, 17, 42, 114, 120—21, 160. 54 Ibid., 60, 218-19. 50 See

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Michael Moore's Foundations I said above that Augustinian thought resists the natural law approach as improperly foundational. Paradoxically, Michael Moore, the foremost contemporary advocate of a self-styled "natural law" jurisprudence steers clear of objectifying foundationalism. But he does so only by paying a price that by Augustinian standards is too high—and that ought to be too high by Moore's own standards as well. To explain I must restate some of what I said about Moore in previous chapters. Michael Moore steers clear of objectifying foundationalism by explic­ itly rejecting the correspondence epistemology of traditional natural law­ yers. Moore holds that our minds can have no experience of reality unmediated by man-made theory, and thus no direct glimpse at the nature of moral goodness. His staunch insistence on this point almost rivals that of the conventionalists who make the same claim.55 Yet in Moore's case this epistemological starting point does not yield a conventionalist out­ come. Although the good is not an object of which we can have even the slightest direct knowledge, Moore believes that it is real; even though we cannot know the good in itself, he believes it can inform our moral—and so legal—reasoning. How can the good inform our thinking when our mind has no real access to it? Moore has an answer. Though the absolute denial of any unmediated perception implies a kind of epistemological darkness, Moore uses his "coherence epistemology" to let in the light of day. As we have seen, ac­ cording to this epistemology, we check the accuracy of a moral belief not against real goodness but against our own most coherent construction of all our other moral beliefs set in "reflective equilibrium."56 Moore is care­ ful to note that the moral findings of such coherence checks are always tentative and provisional; indeed, his denial of unmediated perception excludes dogmatically settled conclusions.57 Yet as we have seen, some­ how Moore is optimistic about attaining "progressively better moral theory"58 via the coherentist procedure. This optimism supports Moore's theory of morally inspired judicial decision making, which I have elabo­ rated above.59 (In this effectively self-confident judicial moralism, Moore's family resemblance to the "natural law" tradition becomes ap55 See Moore, "Moral Reality," 1106—12; Moore, "A Natural Law Theory of Interpre­ tation," 312; Moore, "Precedent," 78. 56 Moore, "Interpretation," 312; Moore, "Moral Reality," 1112—13; Moore, "Prece­ dent," 73—80; see my discussion of Moore in chap. 2. 57 Moore, "Interpretation," 309, 358, 371, and elsewhere. 58 Ibid., 309. 59 See my interpretation of Moore's morally minded judicial activism in chap. 2.

{

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parent even though his initial epistemological position deviates from the thinking of traditional natural lawyers.) To the Augustinian mind, Moore's kind of coherence procedure is, de­ spite its own caution, potentially naive. It does not adequately appreciate or protect itself from the taint that attaches to all convention in the fallen condition. Of course one hardly needs Augustine's biblical insights about the fall to realize that the conventions ("our beliefs") that we construc­ tively equilibrate are bound to contain error, possibly even grave evil. As I have argued above, the presence of such error among the beliefs that are to be cohered threatens to skew the findings of even the most conscien­ tious coherence checkers.60 Because Moore's epistemology parallels Ronald Dworkin's, a brief comparison with Dworkin can clarify this problem. As I suggested above, Dworkin seems to favor an "external" or "metaphysical skepticism" that is essentially a nihilism denying the good any independent ontological status.61 Moore obviously rejects such an ontological position. Yet the question of whether Dworkin is an "external skeptic" is, in a sense, moot, since Dworkin, like Moore, would allow the human mind no real glimpse at the nature of moral goodness even if such goodness did exist. And also like Moore, Dworkin claims that moral reasoning can check its findings, not against a truly authoritative reality, but only against the most coher­ ent construction or "best account" of "our common practices."62 (Re­ member "law as integrity," Dworkin's interpretive ideal.)63 The discom­ fort of holding this position becomes evident when Dworkin struggles manfully with the interpretive status of slavery and nazism. Nazi prac­ tices, Dworkin forces himself to admit, are indeed one "strand in the rope . . . of the general practices and institutions" that coherence checkers must reflectively equilibrate.64 To Moore's mind, slavery and nazism undoubtedly figure among those "conventional" moralities whose existence just proves his point that all "mere convention" must be held under suspicion.65 But Moore's episte60 See my discussion of this point in chap. 3 under the heading "Normative Perplexities and Augustine." 61 If this is his view, he probably holds it for what I have been calling here a "foundationalist" reason—that the good must be dismissed because, as he says, it is not plain to the mind in "atmospheric moral quaverings" or as an objective "noumenal metaphysical fact." Dworkin, Law's Emptrei 80—81. 62 Ibid., 86; compare Moore, "Moral Reality," 1106—13; and Moore, "Precedent," 73—

80. 63

Dworkin, Law's Empire, 164—275, etc. Ibid., 219 (where he discusses the pre—Civil War Fugitive Slave Act), 103 (where he considers the Nazi legal system). 65 Nazism, at least, is an explicitly artifactual belief system; however, what we usually think of as "conventions" grow and persist over many generations of cultural experience. If 64

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mological starting point makes it hard for him to explain how he will protect the integrity of his coherentism against that taint. It prevents him from setting aside, in advance of coherence checking, the perverse moral beliefs supporting slavery and nazism. And of course slavery and nazism are only the most egregious and easiest examples of the kind of moral beliefs that (experience suggests) are rationalizations for actions commit­ ted in bad conscience. In the light of Augustine's theory, it is hard to trust that a cohering construction of all "our beliefs" can be counted on to equilibrate out such false beliefs. If Augustine is right that this world is caught up in a maelstrom of man-made truths and partial and pet ver­ sions of the good, Moore's procedure is rudderless.66 If we adopt it, the justification of our belief about goodness would seem to be hostage to sin. Yet to this charge, too, Moore has an answer. Like Dworkin, Moore undoubtedly believes that the coherence-check procedure will reliably identify the moral beliefs supporting slavery and nazism as ill-attuned to the rest of our beliefs, and will therefore conclude (with the requisite bow to epistemological tentativeness) that those beliefs must be regarded as wrong. But even if we let Moore assume—I would say implausibly—that the coherence-check procedure can be relied on to get it right in such cases, Moore still faces the larger question we have considered before: How can he vindicate that assumption on his own terms} To put it more broadly, how can Moore vindicate his optimism about progressively bet­ ter moral theory—and thus his theory of moral adjudication—without abandoning his epistemological first premise, and without scuttling the cautionary caveats that are supposed to protect against willful dogma­ tism? How can he viably explain his escape from the epistemological darkness that his absolute denial of unmediated perception seems to cre­ ate? I argued above that Moore's confidence in progressively better moral theory implies that the ongoing process of coherence checking our moral theories can or will converge on a true account of the good.67 (Of course to anticipate convergence is not to claim imminent arrival, only to believe that there exists some point, however defined, at which convergence can or will occur.) And I noted that Moore's confidence further implies either both kinds of beliefs count under Moore's scheme as "convention," he is failing to recognize an obvious distinction. If he has failed to make that distinction—and it seems to me he has— it helps explain why he is so adamant about judges not being "obeisant to the conventional moral judgments of their society." Moore, "Interpretation," 288; see my view of Moore's theory of judicial practice in chap. 2; see my treatment of "moral reality in history" below. 66 See Augustine, Ο» the Trinity 12-9 (14); see Cochrane, Christianity and Classical Cul­ ture, 418—49; see my discussion of the maelstrom in chap. 3. 67 See my discussion of this point in chap. 3, under the heading "Normative Perplexities and Augustine."

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(1) some reassuring advance knowledge about the actual truth status of that conglomeration of "our beliefs" whose reflective equilibrium is the avenue toward truth, or (2) some advance glimpse of the eventual point of convergence itself, by which to recognize progress toward that point. But by the terms of his epistemological first premise, Moore cannot pos­ sess either kind of knowledge prior to or apart from the coherence-checkmg procedure. Yet Moore does, in fact, believe that this procedure, as a whole and over time, is conducive to truth. His confidence still needs to be explained. As it turns out, Moore apparently regards his confidence in the heuris­ tic value of the coherence-checking procedure—and his confidence in the progressively better moral theory it produces—as a function of a larger belief that is self-explanatory. That larger belief is his faith in reality—in the coherent and ordered character of physical and moral reality (that reality about which our scientific and moral theories hypothesize with ever-increasing success). This is Moore's basic premise of ontological and moral realism. It is the necessary prior ground of his epistemological at­ titude because, apart from this larger faith in reality, there would be no reason to expect that our moral theories could converge on moral truth. Without it he would lack even a preliminary reason to trust the "progres­ sively better" quality of the results of coherence checking. For if moral reality were fundamentally malign or unordered or incoherent, we could not possibly expect coherence checking to make progress toward better theories of the good. We could not anticipate the convergence of our in­ creasingly coherent theories on a truth that did not in fact cohere itself. Or if we managed with great effort to construct some semblance of co­ herent theory, we could have no confidence that it expressed any reality beyond our own artifactual construction. Ronald Dworkin seems content to let such "external" issues hang in suspense; the internal "practices of moral interpretation," Dworkin insists, can proceed with efforts at coher­ ence irrespective of the fact that a philosopher (like Dworkin?) can, "in a calm philosophical moment," recognize that reality is ultimately a moral chaos.68 Michael Moore, to his credit, cannot be content with Dworkin's anom­ alous solution.69 Yet, can Moore successfully assert his own belief that moral reality is essentially orderly and that its goodness coheres? Because his epistemological first premise forbids it, Moore cannot defend this be­ lief by asserting the possibility of attaining some direct if incomplete glimpse at the intrinsic character of reality. Instead, as we have seen, 68

Dworkin, Law's Empire, 78—86 for example, Moore, "Interpretation," 299, 309 η 64, 310, see also Moore, "Met­ aphysics, Epistemology, and Legal Theory," 494-506 69 See,

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Moore defends his belief by arguing that it finally cannot and need not be defended directly. We need only see that it is already implicit in "our prac­ tices with regard to thinking about and describing the world."70 In other words, our conventions "internal to science" presuppose the existence of a coherent larger reality upon which our knowledge can converge. To justify Moore's faith in moral reality we thus need not indulge in the "il­ lusion" that we can "stand outside" our given conventions and theories and get a "peek" or a "glimpse" at the nature of reality. That kind of move, says Moore, is only for nihilist skeptics.71 This argument seems attractive until we realize that if he continues to deny the possibility of a direct perception of reality, Moore's recourse to the presuppositions of "our practices" is itself simply another recourse to mere convention. If "our practices" are to be the touchstone, Moore must be able to offer and defend reasons for starting from these practices and not others. For the practices of Western science are not the only kinds of practices available. While Moore would be reluctant, with reason, to call such practices "science," non-Western cultures practice other kinds of conventions; some of their practices presuppose precisely the negation of Moore's ontological faith in the coherent and ordered character of real­ ity.72 Moore cannot be content to let his theory be hostage to the moral and cultural relativism that his moral realism so stoutly resists on other counts. Yet the only way he could begin to defend his ontological faith successfully would be by allowing the possibility of our minds actually getting a glimpse at some vantage point external to all that is merely con70Moore, "Interpretation," 311; see my fuller exposition of Moore's thinking at this point in chap. 2. 71 Moore, "Precedent," 76—82; Moore, "Interpretation," 312. Moore could elaborate this defense of his moral realist premise by calling realism "properly basic," necessarily assumed but unjustifiable, as it is in vogue in certain circles to argue about belief in God. But this approach has a major disadvantage. The parallel theological argument, offered most prominently by Alvin Plantinga, ends up conceding that nonbelief in God can also be properly basic. Thus if Moore were to entertain this approach he might end up having to concede that an ontological nihilism about morality is as "properly basic" as his realism, and he will be no further along than he was already. See Alvm Plantinga, "Reason and Belief in God," in Faith and Rationality, ed. Alvm Plantinga and Nicholas Wolterstorff (Notre Dame, Ind.: University of Notre Dame Press, 1983), 16—93. 72 Consider, for example, the philosophic and linguistic practices of consistent adherents to the higher forms of Buddhism and Hinduism. (Michael Perry, in fact, notes the affinity of his interpretive and moral position to that of Hindu Vedanta and Mahayana Buddhism; Morality, Politics and Law, 143, 184.) Consistent adherents to contemporary critical and deconstructiomst doctrine would present a similar challenge. Of course, as Moore shows, and as my discussion of Lief Carter and the critical legal scholars also shows, it is very difficult for such thinkers to be consistent practitioners of their professed critical premises. I think the "difficulties" of these Westerners arise, at least in part, because they live and think in the cultural shadow of Athens and Jerusalem and haven't yet succeeded in getting out from under it.

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ventional. It would have to be a glimpse at the kind of vantage point on reality that, under the influence of his epistemology's first premise, Moore deprecates as "God-like."73 The odd fact is that, in a certain unexpected sense, Moore's theory al­ ready entails a glimpse at such a "God-like" perspective. Indeed, as it stands, Moore's defense of his basic realist ontology by recourse to "our practices" stands more in debt to Augustine himself than Moore may re­ alize. For the givenness of our scientific and moral practices, with their ontologically confident presuppositions, is itself the legacy of Athens and Jerusalem.74 And Augustine's potent formulation of that legacy was by all accounts one of the most influential avenues for its transmission to the developing mind of European civilization. In any event, the upshot is by now fairly clear: Moore's epistemological first premise undermines every attempt to defend his more basic ontological first premise. If Moore remains faithful to his assertion that no real glimpses of reality are possible, he has no way of letting light into the epistemological darkness that that assertion creates. Without actually possessing at least some real glimpse of truth unmediated by convention, his "realism" must itself be merely conventional, and his moral realist perspective on law and the American Constitution must remain, on its own terms, insufficiently persuasive. There must be a better way to handle these problems. Moore's fellow moral realist, Sotirios Barber, has already foreseen something of what is required. Barber remains open to the possibility of some kind of unme­ diated knowledge of goodness. He also argues that our relationship to the Constitution as subjects and interpreters presupposes the possibility of our attaining "congruence" with the Constitution's moral aspirations. To exclude coercion or dogmatism in these matters, Barber insists that on­ going rational argument and self-criticism are necessary if we are to stay on course. Perhaps for the same reason, he is also careful to note that the "point at which the Constitution becomes congruent with our inclina73 Moore, "Interpretation," 312; Moore, "Precedent," 77. In a recent critique of Dworkin, Moore has restated his ontological realism by acknowledging and defending the need to presuppose the existence of such an external vantage point. But he holds steadfastly to his epistemological first premise: He continues to hold that our minds can attain no access to such a vantage point—no access that is not mediated by human convention. Moore, "Metaphysics, Epistemology and Legal Theory," 494—506; he reaffirms his denial of un­ mediated access to reality at 495 n. 169. 74 For a searching inquiry into the ontologically confident presuppositions of Western science, see Stanley L. Jaki, The Origin of Science and the Science of its Origin (Edinburgh: Scottish Academic Press, 1978); also Stanley L. Jaki, The Road of Science and the Ways to God, The Gifford Lectures 1974—75 and 1975—76 (Chicago: University of Chicago Press, 1978).

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tions occurs in a place beyond the Constitution as law."75 Augustine, as we have seen, places the point of congruence not only beyond law but altogether beyond the political community and its coercive possibilities; he places it, indeed, beyond history as we know it. I will argue later that, because Augustine adduces ontological reasons in support of these con­ clusions, his way of thinking offers Barber's insights a needed ground and completion. I am arguing here that Augustine's way of thinking offers Moore's in­ sights a needed correction—a correction that Barber's observations begin to indicate. Augustine's theory recommends itself both for its ability to address Moore's theoretical impasses and for its better account of the ordinary scope of human experience. By reminding ourselves briefly of Augustine's way of thinking, we can attempt to translate some of Augus­ tine's answers in terms of Moore's problems. Of course, no more than a suggestive summary of these matters is possible here. All nature was created (and is sustained), Augustine proposes, by a good God who chose to make not co-equal gods but finite creatures whose being is contingent upon himself. At the apogee stood human na­ ture, endowed with a rational mind and a free will; these faculties enabled man to cleave in loving freedom to the One around whom his nature cohered. This "unmediated" natural relationship to the highest good or­ dered human experience and amply satisfied the human mind. It enabled knowledge of absolutes, though (in view of natural human finitude) not absolute knowledge. Thus the ontological situation of true human nature presented epistemological limits but no epistemological problems.76 Yet according to Augustine's biblical account, nature is no longer in­ tact. Its vitiated condition entails both ontological and epistemological problems. The loss occurred when humankind freely forfeited its own nature and in doing so compromised all else as well.77 Nature's ontic in­ stability makes it an unreliable guide even to the truth about itself. Thus although the human mind enjoys some kind of direct, unmediated percep­ tion of nature, the pursuit of natural moral truth will produce results that are partially reliable and frustratmgly incomplete. But that does not foreclose our possibilities of real moral insight. For by Augustine's account, goodness itself is not simply a good of nature; it is not finally what Moore calls a "natural kind."78 Though goodness an75 Barber, On What the Constitution Means, 59—60, 114—15, 120—21, I will return to this feature of Barber's argument below 76 See my fuller explanation of Augustine's thought on these points in chap 3 77 For Augustine's doctrine of the fall, see his Ctty of God 13 3 and 14 4, 12, 13, see also my discussion in chap 3 78 Moore, "Interpretation," 291—309, Moore, "Moral Reality," 1122, Moore, "Prece­ dent," 83—85

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imates and permeates nature, it is ultimately a transcendent reality, some­ how a reflection of the one transcendent God, in whom goodness and being are interchangeable. This kind of goodness is obviously not vitiated by the fall. This avenue of moral insight is thus more promising, especially since Augustine believes the human mind retains its ability to experience reliable glimpses of such transcendent goodness.79 But the fallen condi­ tion nevertheless presents problems here as well. For human knowledge of transcendent goodness is hindered and complicated, not by any vitia­ tion of that goodness itself, but by human bad will—that is, by a disincli­ nation to recognize the requirements of a goodness that indicts human vice.80 This problem is especially daunting in the political context, Au­ gustine advises, since the political community is by nature a mixed mul­ titude, and since the function of political rule is to restrain the vices of the multitude through coercive means that can scarcely inculcate virtue.81 By means of this kind of explanation, Augustine's theory accounts for the experience of indeterminacy and the simultaneous experience of goodness and order. His account identifies, and explains the possibility of a reliable glimpse of, the kind of outside vantage point on reality that Michael Moore's theory needs and implies. The glimpse at this vantage point allows Augustine to defend his basic ontological and moral realism (that basic premise that, as we have seen, is necessary to the normative and rational discourse of our constitutional scholarship). For not only is an unmediated glimpse at reality possible to man, but God has also con­ descended to allow a real glimpse of God's own perspective on reality— a glimpse at nature as fundamentally good but presently vitiated. And Augustine's account of the vitiation of nature in general—and of human nature in particular—offers compelling ontological grounds, especially in politics, for the kind of epistemological caution that Moore sometimes advocates.82 In one sense, Moore's theory of moral knowledge tries to proceed as if original nature were intact, as if the only limitations facing us are those of our original finitude. Of course, from an Augustinian perspective this means that Moore is not entirely mistaken; in a way his attitude reflects a glimpse at nature's true and original order. For if nature and human nature were in their original condition, coherence checking would un79 Augustine, Ctty of God 11:26, 28; Augustine, Literal Meaning of Genesis 12:24, 50— 52; see also Bourke, Augustine's View of Reality, IOff. 80 See Augustine, The Free Choice of the Will 3:19; and On the Trinity 12:9 (14); see my discussion of this point in chap. 3. 81 See my discussion of Augustine's conception of politics in chap. 3. 82 I say "sometimes," since, as I have argued above, his epistemological caveats seem to fall aside when it comes to his theory of active, morally inspired judicial decision making; see my discussion of this point m chap. 2.

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doubtedly produce dependable results (although by Augustine's account of the original condition, it would hardly have been necessary). As it is, however, Moore's attitude not only runs afoul of Augustine but also of ordinary experience. For as I have argued above,83 his theory does not satisfactorily explain the "down side" of human moral experience—our encounter with what seems to be a stubborn vein of moral indeterminacy running through reality, and a vein of willfulness and vice running through human nature. Moore's merely epistemological explanations do not do justice to this aspect of basic human experience. Augustine's ac­ count of reality arguably accords better with the fundamentally check­ ered character of human experience as a whole. I noted above how Augustine helped transmit the legacy of Athens and Jerusalem on which Moore seems to stand. Being closer than Moore to the original source of that legacy, Augustine could not simply proceed as if its practices were given or its presuppositions uncontroversially as­ sumed. Manichaeism, with its depiction of reality as a kind of malign void, was vigorously offering itself in the marketplace of ideas. Progeny of the higher classical tradition—like the philosophies of the Stoics and of Cicero—were offering an opposite message about nature and advocat­ ing along with it a judicious but idealistic political moralism. Augustine had to defend his theory against both. I cannot here provide anything like a complete defense of the potency of Augustine's philosophy as against its original or current competition. But I can attempt to sketch a preliminary defense of that potency in terms consonant with Moore's own. Such a defense, I think, would proceed as follows. It would attempt to validate Augustine's way of thinking not merely by reference to the practices and conventions of Western science or morality, nor merely by reference to our linguistic conventions of de­ scribing the world. It would push deeper, to the basic human experiences that are prior to all such conventions. It would argue that Augustine's account of reality best explains those basic experiences. To do so it would explain the possibility of an unmediated glimpse at a fundamentally good and ordered reality, and it would attempt to portray the encounter with this reality as the most plausible explanation of our experiential encoun­ ter with the good. It would also explain the idea of nature and man as presently vitiated, and would portray that vitiation as the most plausible available explanation of what I have called the "down side" of moral experience. It would argue that understanding our experiences to contain some unmediated glimpses of such a reality provides the most coherent 83 See my discussion in chap. 3 under the heading, "Normative Perplexities and Augus­ tine."

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account of our experience—that is, the best available corroborating syn­ thesis of all dimensions of experience. At this point, the argument becomes one whose terms are familiar to Moore. Such an argument would be a kind of "coherence justification" for (among other things) what Moore calls "foundationalism." It would be, that is, a coherence justification of the possibility of direct, unmediated glimpses at reality. But it is a "coherence justification" with a dif­ ference. Once this coherence justification is accepted, it opens the possi­ bility—and indeed the necessity—of moving at least sometimes beyond strictly coherence justifications. Once thinkers reach that point, they can never again look at the world in the same familiar and self-contained way. If they reach that point, they are on the threshold of a place where claims to direct insights about being and goodness will be taken seriously and evaluated.84 This is admittedly perilous territory. Yet I suspect that if we try out Augustine's ontological insights, the profound caution they engen­ der will keep us from harming ourselves or others as we explore that ter­ ritory.

Augustinian Prudence and Moral Realism Let us step back from the particular complications of Moore's view and return to a wider assessment of contemporary constitutional moral real­ ism. If we set moral realist theories like Moore's against the nihilist, morally conventionalist thinking that dominates the mainstream of contemporary constitutional theory, moral realism's promise stands out in sharp relief. This larger context reminds us that the moral realists' theories of consti­ tutional interpretation and adjudication are of a superior quality for at least the preliminary reason that they are rationally coherent. Their nor­ mative theories presuppose a good that they regard as real rather than illusory. From an Augustinian perspective, today's moral realism in con­ stitutional theory thus surpasses today's nihilist skepticism on intellectual grounds for the same initial reason that Cicero's classical political ideal­ ism was preferable to antique Skepticism and Manichaeism: Moral real­ ism aspires somehow to retain a real connection to a given, nonconventional moral reality that it knows is not of its own making. All the same, as we have seen, contemporary moral realists have their own real short­ comings. 84 That evaluation may itself involve considerations of coherence—but not a cohering construction of mere relativities or mere conventions. As my discussion here suggests, mak­ ing coherent sense of human experience must be an important aspect of evaluating any belief at this level.

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Neo-Kantian Straits David Richards has attempted to associate Augustine with a kind of neoKantian version of contemporary moral realism. According to Richards, Augustine's theory of human personality could be enlisted in support of the neo-Kantian imperative to respect persons as rational and autono­ mous.85 This is true. Augustine's theory of persons, however, rests on pre­ cisely the sort of substantive values that Kantian contractarianism is sup­ posed to bypass. The appeal of contractarianism is its claim that it discovers, by looking to the processes of rationality and contract alone, a deontological surrogate for any teleological substance of the good.86 If Richards were in fact to rest his contractarianism on Augustinian personhood, he would be grounding the requisites of the social contract in some­ thing "teleological" and consummately noncontractual. For Augustine's theory of personality figures in a moral and ontological context whose culminating feature is the goodness of God himself. Of course, one might derive a theory of human dignity and human personality from premises other than Augustine's. But such alternative premises would end up being just as consummately noncontractual as Augustine's. This probably ex­ plains why Richards is careful to hold his Augustinian suggestion at arm's length. An Augustinian perspective can underscore what others have also ob­ served: that often deontological considerations can only successfully be justified by teleological ones. If there is a place for the values of process— which there undoubtedly is—their justification must be other than pro­ cess. If there is a place for contract-based values, their justification must be other than contract simply. Those who would make sense of contractbased values must embark, like Moore, Murray, Barber, and Augustine, on the journey toward substantive moral goodness—though they may well shrink back in anticipation of the journey's possible destination. Now, the fact that Augustine's thought opposes more than supports Kantian deontology does not prevent him from being useful to neoKantian moral realists. As I have argued above, normative neo-Kantianism is a precarious enterprise. Richards's suggestion that Augustine might shore it up illustrates that unsteadiness. It also recalls a question posed by Richards's professedly neo-Kantian colleague Ronald Dworkin. Is it nec­ essary, Dworkin wonders, for his own scheme of "law as integrity" to be supplemented by some version of real morality "when integrity gives 85 Richards, Toleration and the Constitution, 91-92,128,303; see my discussion of Rich­ ards in chap. 2. 86 See my discussion of Kantian deontology in chap. 2.

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out"?87 Dworkin does not exactly say, but Richards's Augustinian sug­ gestion seems to me like an answer to the question.

Substantive Moral Realism, Revisited The substantive moral realists know just what to do when convention runs out. Indeed, they argue against relying on mere convention in the first place. An independently authoritative moral reality, argue thinkers like Moore, Murray, and Barber, is the only satisfactory source of nor­ mative authority, and thus of some of the premises needed to mount nor­ mative arguments in general, and in particular to interpret and justify the Constitution as "the supreme Law of the Land." By Augustine's account, they are surely right about this, though not always about what follows from it. How does the good bear on political existence and legal practice? In closer terms, how can a moral reality inform constitutional theory and thus the practices of constitutional interpretation and adjudication? The contemporary moral realists like Moore, Murray, and Barber generally frame their answer to such questions in terms of prudence. They argue that once we accept the real existence of the good, and once we begin exploring its content, its bearing on law and judicial practice is to be set­ tled at the level of prudential judgment. Prudence pilots the moralizing ambitions that moral realists consider intrinsic to law in general, and to the American Constitution in particular.88 This answer, as we know, can make cautious souls jittery.89 All the same, when the moral realists resort to prudence—like Aristotle before them90—they may be essentially on the right track. From an Augustinian perspective, we might say that their pru­ dence simply needs a better understanding of its limitations. Augustine gives prudence its needed context. This context consists of what Augustine regards as fundamental insights about being, nature, and political order. Because it has recourse to these insights, Augustinian pru­ dence offers a fertile basis for thinking about the rule of law as embedded in, yet distinct from, moral goodness. It thereby makes it possible to fore­ see a viable union of moral realism with the cautionary attitudes of a proper "skepticism." An Augustinian kind of prudence can, in other 87

Dworkin, Law's Empire, 263. Murray, We Hold These Truths, 165—67; Moore, "Interpretation," 376—96; Barber, "Epistemological Skepticism," 385, 396; Barber, "The New Right Assault," 295. See my discussion of moral realist prudence in chap. 2. 89 See my discussion and citations, in chap. 1, of political conservatives' fears of a judicial activism with moral realist premises. 90 See my comments on Aristotelian prudence at the conclusion of chap. 3. 88

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words, detach moral realism's normative assets from its liabilities. It can correct contemporary moral realism in the four general areas in which, as I proposed above, it seems to encounter legitimate objections. These areas concern (1) the experience of indeterminacy, (2) moral reality in history, (3) the distinction between morality and law, and (4) mistrust of human nature. Some of what I have to say here will echo interpretations offered earlier of Murray, Barber, and especially of Moore; where this is the case I will allude to my earlier arguments without recapitulating them. I believe Augustinian prudence also has something to say about moral realism's more particular concerns with constitutional interpretation and adjudication. I will consider the four general areas of correction before turning to those more particular concerns. THE EXPERIENCE OF INDETERMINACY

Experience sensitizes us to the fundamental moral ambiguities of this life, and especially of politics and law. The problem is, however, that while a nihilist or skeptical conventionalism makes too much of this experience, contemporary moral realism either makes too little of it or has trouble giving a satisfactory account of it. But the experience of indeterminacy does not daunt Augustine. Indeed, he would rather expect such an expe­ rience in view of the contracted condition in which all created being— especially human being—presently exists. For by Augustine's account, this tragic contraction has rendered nature itself partly unstable and un­ naturally plastic. Thus, with Augustine's theory, the roots of indetermi­ nacy can be explained not merely in epistemological terms, as Michael Moore tries awkwardly to do, but in more coherent ontological terms. Of course the experience of indeterminacy is hardly absolute. It is ac­ companied by another human experience, an experience of order, of ap­ parent glimpses at a coherent moral goodness that seems both to inhere in and to transcend the nature of things. To the Augustinian mind, this experience is an encounter with the goodness and being imparted to na­ ture by creation. The moral realists are thus right in discerning that reality is not by nature morally indeterminate; its indeterminacy is real but par­ tial. For nature's creation was so potent that its fundamental goodness, while vitiated, is far from extinguished. Of this experience of order, of course, nihilist skepticism tends to make too little, and moral realism too much. Neither outlook possesses the resources needed to make sense of the profoundly checkered human experience. Whether or not one accepts the particulars, one can recognize that biblical ideas equipped Augustine to formulate a philosophic account of this checkeredness whose basic logic

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can corroborate experience without truncating it at any point.91 Quite apart from theological considerations, the need to make sense as coher­ ently as possible of human experience ought to make us receptive to an ontological outlook with this kind of basic logic. This purely secular need ought to make us receptive, that is, to an ontology that perceives and explains both the goodness and the contraction of being. And Augustine's theory has another attractive feature. Unlike other accounts,92 Augus­ tine's induces no compulsion to flinch or flee from the tensions of being, because it has reason to anticipate a final resolution of tension—when being will regain its fullness, and experience its unalloyed goodness.

MORAL REALITY IN HISTORY

What we normally call history is in other terms the accumulated record of experience. The problem of moral reality in history is therefore simply the problem of moral experience in longer sweep. If we can make sense of our experience of the good, we can also make sense of the notion that the "received wisdom" of history can contain a record of real moral in­ sight.93 And if there is thus reason to think such insight is available, pru­ dence dictates that moral realist judges use it to assist in the moral inter­ pretation of law and to help protect against the possibility of their own real mistakes. There is, after all, no point in forgetting the hard-won gains of earlier ages, no point in relinquishing knowledge that has succeeded in the past with problems akin to those of the present. Yet this is precisely what a moral realist like Michael Moore is in danger of doing. As I noted above (in chap. 2), Moore seems averse to letting moral reasoning have recourse to prior specifications of the content of the good. This aversion seems to make David Richards's point about a moral realist compulsion to preserve a pristine moral reality by dismissing history.94 For Moore demands that moral—and so legal—judgment be done absolutely fresh each time so as to avoid lapsing into woodenness or, worse, convention91 See Cochrane's discussion of this strength of Augustine's thought: Cochrane, Christian­ ity and Classical Culture, 399—455. 92 See Cochrane, Christianity and Classical Culture, 411—33, where he reviews such com­ pulsions of the philosophic alternatives of Augustine's own day. " Such received wisdom might include, for example, ancient and widely held moral be­ liefs like the Ten Commandments (at least their second table) or, perhaps better, the findings of an effort to identify those mores on which all or most of the world's great religions and cultures display agreement. I intend these examples to illustrate, not exhaust, what I have in mind here. M Richards, Toleration and the Constitution, 29. Of course Richards himself faces an equally daunting set of questions. Given his own premises, one wonders whether his solici­ tude for history expresses a desire to retain moral knowledge or is that of a deep conven­ tionalist for a favored kind of moral convention.

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alism.95 In Moore's scheme, any "received wisdom" will be given short shrift in practice. As I have argued above, if a judge's own individual pursuit of moral truth contradicts "received wisdom," Moore would have the judge give his own findings the benefit of the doubt.96 But history records experience. To depreciate the record of that expe­ rience for fear of conventionalism is tantamount to accusing experience itself of being somehow merely conventional. Moore's ontological real­ ism should prevent him from regarding our experience of reality as merely conventional.97 Yet Moore's attitude suggests that any discursive account of a real experience of moral goodness reduces to merely conventional status because it has passed from experience to lip to pen and has, in that form, been honored and transmitted to others. All of this implicates questions about moral experience that are far more profound than we have considered so far, and far beyond the scope of this study. For if the problem of moral reality in history is really the problem of experiencing the good and of expressing that experience, then we have walked right up to the perennial philosophic problem of tran­ scendence. For as Augustine argues in company with Plato, we cannot make sense of our experience of goodness unless we regard the good as a transcendent reality. The transcendence of the good, of course, reflects back on man, who is mysteriously equipped to experience and somehow to know such a good. But the very transcendence of the good means that any immanent attempt to express it discursively has to be a rather dicey affair. As Socrates recognized, the attempt to capture the experience of goodness in discursive terms risks damaging the very thing it aims to ex­ press.98 In view of that risk, Moore's uneasiness about "received wisdom" has merit. But Moore overreacts. From the fact that the transcendent good cannot be fully captured as if it were strictly immanent, it does not follow that it cannot be grasped at all; therefore neither does it follow that no 95 Moore, "Moral Reality," 1149—52; "Interpretation," 392-93. See my discussion of Moore in chap. 2. 96 See my interpretation of Moore's theory of legal practice in chap. 2. As I note there, my interpretation of Moore in that department may be controversial but is, I think, warranted. 97 This is in fact the case where, for example, he talks about our encounter with, and our attempt to understand, the natural reality of death: Moore, "Interpretation," 291-301. Yet Moore's denial of unmediated knowledge creates a problem here that I take up immediately below. 98 Thus the philosopher seems to be at a loss for words when he returns to tell the inhab­ itants of the cave of his exposure to the direct sunshine of the good (Republic 7:514a—519c). Thus, also Diotima initiates Socrates into a direct experience of the beautiful and the good that fails of discursive reduction (Symposium, 201d—212b). Thus also, Socrates himself re­ frained from recording his dialogues and discourses in written form; Plato had to violate his master's dictum to preserve his words for posterity.

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specification of the good can exceed merely conventional status. Moore, of course, would be uncomfortable with this line of reasoning. He has denied, after all, that our minds can have any direct, unmediated grasp of reality. Accordingly, he has had to resort to what (by his account) seems to be mere convention as the basis of his "coherence check" on moral beliefs. And as we have seen, this solution has gotten his own realism into trouble. For without access to truths unmediated by convention, his re­ alism must itself be merely conventional. In other words, by excluding direct knowledge of the good, Moore has created a darkness that makes his attempted escape anomalous. And if he is loath to regard historically communicated human experience as a possible source of moral truth, his reluctance stems at least in part from this epistemological imbroglio. There is a better "moral realist" approach to these problems. Augus­ tine's account of being and of human nature explains man's capacity to experience a transcendent and intelligible goodness, and thus his capacity to record, in historically transmitted form, evidence of the trans-histori­ cal. For according to Augustine's account, the good, though transcendent, may be directly and truly grasped even if not fully captured." Augustine thus provides good reasons for a historical inquiry like that of Eric Voegelin. Voegelin mined history in search of the best and most effective sym­ bols by which past illuminative experiences of moral truth had been ex­ pressed.100 He did not unearth these symbols for their value as historical relics. He saw them rather as means by which to enter into the experi­ ences of transcendent order that originally generated them.101 Since tran­ scendent reality is perennially the same, such symbols, though retrieved from the past, could help reveal malignant experiences and distorted mo­ ralities in the present. Voegelin's pursuit of the moral findings of history recalls Edmund Burke, whose historical approach to morality so attracted Alexander 99 This kind of account enables Milner Ball to argue that a historical standpoint can also be a transcendent moral standpoint, and as such can be highly useful to law. He argues, for example, that freedom from prejudice is better achieved from such a historical-transcendent standpoint (as offered by the Hebrew-Christian tradition) than from a merely abstract moral one (like Kant's). Milner S. Ball, The Promise of American Law, 68. 100 The main fruit of this quest was Voegelin's Order and History, vol. 1, Israel and Rev­ elation (Baton Rouge: Louisiana State University Press, 1956); vol. 2, The World of the Polls (Baton Rouge: Louisiana State University Press, 1957); vol. 3, Plato and Aristotle (Baton Rouge: Louisiana State University Press, 1957); vol. 4, The Ecumenic Age (Baton Rouge: Louisiana State University Press, 1974); vol. 5, In Search of Order (Baton Rouge: Louisiana State University Press, 1987). See also his Anamnesis, chap. 4, "What Is Right by Nature," 55—70, and chap. 5, "What is Nature," 71—88. 101 On this point, see David Walsh, "Voegelin's Response to the Disorder of the Age," 275-77.

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Bickel at the end of his life.102 Burke, however, presents a problem. By some accounts he was a historicist who dispensed with any authorita­ tively real standards in favor of the merely conventional givens of tradi­ tion and historical process.103 Augustinian analysis must reject such a Burke. Yet it may be, as others have it, that Burke instead looked to his­ tory for its manifestation of the good by repetitive trials and adjust­ ments.104 If that is the case with Burke, then Augustinian premises justify the serious attention that Bickel gave him. Burke may be the famous champion of tradition as a source of norma­ tive legal and political order, but contemporary thought is replete with discussions of tradition. Contemporary constitutional commentators have readily availed themselves of "tradition" as a rhetorical banner, though their typical denial of real goodness transforms tradition into mere convention. For example, Robert Bork's nihilist skepticism makes his invocation of tradition deeply anomalous.105 And as I have argued above, Michael Perry's tradition is entirely historicist, and functions as a license for Manichaean speculation rather than as a source of clues to real truth.106 This illustrates why reliance on historical materials cannot be absolute (and thus reminds us why Moore's seeming aversion to "received wis­ dom" is not entirely without merit). History is a realm of freedom; free­ dom allows freely willed error, as both Augustine and experience remind us. Not only can people draw false conclusions from authentic experi­ ences (as the Manichees mistook the experience of indeterminacy), but they can entertain false or strictly self-induced experiences. False conclu­ sions and false experiences produce symbols that derail rather than assist the quest for transcendent goodness. Our assessment of symbols must be 102 Alexander

Bickel, The Morality of Consent, 11-30. for example, Leo Strauss's interpretation of Burke in Natural Right and History, esp. 318—23, where he argues that Burke's dismissal of transcendent standards in favor of historical process prepared the way for Hegel. 104 See Peter J. Stanlis, Edmund Burke and the Natural Law (Ann Arbor: University of Michigan Press, 1958). For the influence of such a nonhistoricist Burke on American con­ stitutionalism, see Russell Kirk, "Edmund Burke and the Constitution," The Intercollegiate Reviewll (1985-86): 3-12. 105 Bork, Tradition and Morality in Constitutional Law. i°6 Perry claims that by virtue of his talk of tradition he is "allied" with Jaroslav Pelikan, one of the foremost contemporary historians of the Christian tradition (Perry, Morality, Politics and Law, 144). A careful reading of Pelikan's recent works refutes this claim, and shows Pelikan's aims to be like those of Eric Voegelin, and antithetical to those of Perry. See Jaroslav Pelikan, The Vindication of Tradition (New Haven: Yale University Press, 1984), esp. 54—57, where he portrays tradition as a medium through which we can penetrate to ultimate reality; see also Jaroslav Pelikan, Jesus Through the Centuries (New Haven: Yale University Press, 1985), which in Voegelinian fashion mines the history of Christian think­ ing for clues to a reality that the mind can somehow glimpse. 103 See,

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nuanced. Symbols retrieved from the past may be merely inadequate (like the symbol of "natural law"), or they may be strictly malign (like the Manichaean vision of a hostile, chaotic cosmos). Voegelin's approach to history, at least, recognizes the need to detect and discard false sym­ bols.107 And Augustine's cautionary caveats dictate that even apparently sound moral findings be at least periodically reexamined in order to re­ affirm them. For historical materials cannot escape standing before the bar of reason. The reason before which history must stand is not, of course, the "reason" of rationalism, which affects to derive its own start­ ing points simply out of itself, as in a vacuum. It is rather the reason that plants itself firmly in a real experience of being that furnishes some real grasp of truth. Otherwise it is as rootless as the defendant it examines. This discussion of moral reality in history obviously bears directly on my present use of Augustine. As I remarked above, the justification for turning to Augustine consists precisely in the ability of his philosophic categories to make better sense of human moral experience, and thus to illumine the problems currently facing normative constitutional theorists. I offer Augustine's reflections in the Voegelinian attitude I have been dis­ cussing. In other words, I submit to the judgment of reason the question of whether Augustine provides authentic and useful symbols of a funda­ mental reality that our experience, too, somehow grasps. Augustine's re­ course to the Hebrew-Christian Scriptures is, in turn, the same sort of thing. A decidedly historical (though not historicist) kind of religion pro­ duced those Scriptures, and Augustine, as we know, regarded the Scrip­ tures as unique among historical symbolizations of the experience of the good.108 Yet, as I have said before, he embraced that uniqueness not as a leap of faith but as the culmination of a long journey of philosophic as­ sessment by which the incompleteness of alternatives underscored the po­ tency of the scriptural account of reality.109 107

See Walsh, "Voegelin's Response to the Disorder of the Age," 267—78. interplay between history and Christian truth is treated well by Sir Herbert Butterfield, Christianity and History (London: Fontana Books, 1957); and by John Warwick Montgomery, History and Christianity (Downers Grove, 111.: Inter-Varsity Press, 1971). 109 The preeminent account of Augustine's philosophic and spiritual journey remains his Confessions. See also Frederick van der Meer, Augustine the Bishop. For Augustine, one of the most compelling reasons for embracing the Scriptures was their offer of a solution to a central problem recognized by classical philosophy: the persistent but anomalous need for access to transcendence within the sphere of immanence. The decisive center of the Christian Bible is the account of that sole historical instance in which transcendent meaning became fully immanent—the incarnation. The intelligibility of Christ's human life did not endanger the good. For though he was (and is, because resurrected), as it were, an object of immediate experience, he himself resists all reduction. He announces himself as the Truth that can be grasped but not captured. Further, he himself insisted that his kingdom was not of this world. One must therefore, Augustine advises, await the unequivocal realization of tran­ scendent meaning with patient trust. 108 The

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MORALITY VS. POLITICS AND LAW

Whether relying, like John Courtney Murray, on inherited specifications of goodness, or, like Michael Moore, consulting moral reality fresh at every turn, contemporary moral realists seems to display a certain pro­ pensity to collapse politics and law into a moral reality. This penchant emerges most clearly in their doctrines of judicial practice. As I have ar­ gued above, law in the hands of Moore's paradigm judge cannot be dis­ tinguished from that judge's own best current theory of goodness and justice, and the Constitution can scarcely be distinguished from the par­ ticular "blueprint of a good and just society" that that judge has con­ structed.110 On these terms, one wonders what remains of law as law, or of jurisprudence as a viable activity distinct from moral inquiry. Of course, moral realists do claim to retain these distinctions. Yet their dis­ tinctions between constitutional law and morality tend to be proximate distinctions demarcated only by the prudence of the moment.111 Augustine's outlook bolsters the distinctions that contemporary moral realism corrodes. His way of thinking explains why a truly prudent moral realism will not collapse law and goodness, either in theory or in practice. Of course, no one needs Augustine's help to notice some basic distinction, to acknowledge that law is somehow smaller and narrower than morality whole. Much of the history of the philosophy of law has been taken up with trying to understand precisely this narrower quality of law. Legal positivists explain law's relative narrowness by implausibly making law not only narrow but strictly one-dimensional, an expression of coercively effective will formally unconnected to goodness.112 More subtle positiv­ ists resist that reduction by letting the tools of analytic philosophy anat­ omize the narrowness of law.113 Augustine penetrates to what he consid­ ers the deepest reasons why law cannot be coextensive with moral goodness. The rule of law—even the law of the Constitution with its un­ mistakable moral aspirations—remains an instrument of political order. 110 Moore, "Interpretation," 385—86, 394; see my argument in support of these assertions in chap. 2, in which I marshall evidence that I will not reiterate here. 1111 show the moral realists' conception of prudence in chap. 2; see Moore, "Interpreta­ tion," 387—97; Murray, We Hold These Truths, 156-74; Barber, "Epistemological Skepti­ cism," 385—96; Barber, "The New Right Assault," 295. 112 Among them Thomas Hobbes, Leviathan, pt. 2; John Austin, The Province of Juris­ prudence Defined (London, 1832). 113 Such as Hart, The Concept of Law. Of course Hart's position is not only analytical but also effectively prescriptive as a metatheory of law: We ought to recognize and abide by this narrowness, we ought to recognize a distinction between legal and moral normativity. Moreover, Hart insists, we need to retain the distinction precisely in order that we might hold law accountable to morality. The Augustinian vision of the rule of law that I am pro­ posing in the course of this work does not immediately oppose Hart's scheme, but it does unsettle it. See my discussion of Hart in the Appendix.

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No instrument of political order—not even a nobly constitutive one—can escape the moral limitations of this age with respect to political order. Thus if we are to understand the Constitution as law, we cannot take it to be a counsel of true virtue. Far from assuming the prospect of virtue, law addresses itself to the disordered inclinations of the mixed multitude it attempts to manage. With Ciceronian insouciance, moral realists can easily overlook such chronic disorder and imagine constitutional law to be a tool for the inculcation of real virtue in the citizenry. Augustinian prudence, by contrast, remains alert. Without falling into cynicism, it rec­ ognizes the body politic's chronic deficit of virtue. In consequence of this deficit, law can only affect what Augustine calls the "exterior man," and it can only hope to inculcate virtue in the most minimal and unsatisfying degree. Under such conditions, the Constitution simply cannot be taken as equivalent to the proposition "do the good" or "do justice," nor to a "vision" or "blueprint" of the truly good and just society.114 Not all contemporary moral realists are insensible to such considera­ tions. As I have noted before, Sotirios Barber comments that law makes sense as law "only where we assume some inclinations on the part of those subject to the laws to act in ways contrary to the laws."115 The law of the Constitution contains moral aspirations;116 however, the loss of all disinclination to align ourselves with those aspirations only occurs, he says, "in a place beyond the Constitution as law."117 Barber defends this point by reference to the logic of legal obligation.118 The bearing of dis­ inclination on law is also implicit in H.L.A. Hart's analysis of law as pre­ scribing something voluntary that can contravene both habit and incli­ nation.119 While Barber and Hart recognize that the reality of disinclination somehow defines the narrowness of law, their inquiry stops short. To the 114 Michael Moore speaks of the Constitution as vision and blueprint: Moore, "Interpre­ tation," 385—86, 394. 115 Barber, On What the Constitution Means, 17. As I have remarked in chap. 2, Barber insists that judges feel this disinclination as much as citizens; On What the Constitution Means, 219. 116 That is, in addition to its structural provisions and decision rules. 117 Barber, On What the Constitution Means, 120-21; on these points see also 42, 146, 160,218-19. 118 In On What the Constitution Means (17n.6,42n.8,146n.57), Barber refers to Richard E. Flathman, who situates the problem of disinclination within an analytic study of the logic of the notion of "rule" and of the notion of legal obligation; see Richard E. Flathman, Political Obligation (New York: Atheneum, 1972), 30, 143, 156—67. 119 Hart notes, for example, that law "forbids things ordinary citizens want to do": Hart, The Concept of Law, 60; see also 77-96. See also his article "Philosophy of Law, Problems of," in The Encyclopedia of Philosophy (New York: Macmillan, 1967), esp. 96—97; also, H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 96-98.

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Augustinian mind, their merely analytic account of disinclination misses its most basic root. Augustine would express the same insight differently by arguing that political rule—of which public law is one expression—is only necessary because of the fallen condition of human nature.120 Thus law bridles the "exterior man's" outward expression of unruly internal inclinations.121 Moreover, what Barber recognizes diffusely as "a world of difference between moving toward perfect congruence and arriving at the point at which congruence occurs"122 Augustine would recognize as the definitive ontic distinction between this world and the next. Augustine puts insights like Barber's in a congenial but more profound light. Of course that light may not be entirely welcome, since putting Bar­ ber's observations on a deeper footing could affect his conclusions. Bar­ ber doubts, for example, that the problem of disinclination attenuates the imperative of moral realist judicial activism.123 However that may be, the fact remains that Barber's insights about disinclination and law imply an embryonic form of Augustine's ontology. Barber may like to speak of the stubborn gap between human inclination and the moral aspirations of the Constitution as a "logical gap," and he may prefer to explain that gap in terms of the logical relation between law and subject.124 But to express his position, he repeatedly speaks of "inclinations to disobedience," and of vicious "tendencies to repress or overcome."125 Such expressions imply an account of human nature strongly resonant of Augustine's. As it stands, Barber's account of human nature begs for a more explicit for­ mulation. Until Barber provides such a formulation, it seems fair to say that Augustine's ontological explanation of vitiated human nature does better justice to Barber's insights than what Barber himself has provided. In any event, an Augustinian analysis reveals the superiority of Barber's moral realism to that of Michael Moore. For when Barber promotes cau­ tionary self-criticism and self-doubt, especially on the part of activist judges,126 he grounds these cautions in a form of Augustine's ontology 120 Augustine says this of political rule as we know it in human experience in this age. As I suggest above (at the end of chap. 3), it may be possible to locate some legitimate role for political rule (as noncoercive coordination) within Augustine's theory of the unfallen con­ dition. But politics as we know it pertains not to the unfallen but to the presently fallen condition of things. 121 Augustine, City of God 19:15; Letters 153:16 (see Cochrane, Christianity and Clas­ sical Culture, 509; see my discussion of Augustine's conceptions of politics and law in chap. 3). 112 Barber, On What the Constitution Means, 121. 123 Ibid., 220; Barber, "Epistemological Skepticism," 374—77, 394.1 take up this question below. 124 Barber, On What the Constitution Means, 59; also 17, 42, 146 n. 57. 125 Ibid., 114, 120. 126 Ibid., 115, 182,218.

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that, though it is undeveloped, is nevertheless potent. This grounding also enables him to detect a significant divide between the legal and the good. Moore's judicial cautions, like his hazy distinction between law and mo­ rality, are more sterile because he grounds them primarily in epistemology. Though Barber does not say so explicitly, he apparently under­ stands, like Augustine, that disinclination is not an epistemological problem.127 Augustine's thought enriches our efforts to conceive the problematic but real distinction between goodness and law. Like contemporary con­ stitutional moral realism, it allows no absolute demarcation between them at the level of principle. The Augustinian demarcation is a point of tension that is somehow within the competence of prudence—but not the prudence of the moment. Handling this tension requires a more pro­ foundly constrained kind of prudence informed by the ontological in­ sights that Augustine articulates. Such an approach is better than Barber's because it is deeper and more self-conscious. It surpasses Moore and Ron­ ald Dworkin because, without disparaging their moral aspirationalism, it reins in aspiration with a solid account of the status of law as an external authority—external both to its judicial custodians and to its citizen-subjects. MISTRUST OF HUMAN NATURE

Augustine's insights can obviously correct any tendencies of contempo­ rary moral realism to indulge an overly sanguine opinion of human moral nature. Yet if Augustine licenses mistrust of human nature, he does not countenance misanthropy; he is wary but not cynical. There are tensions here, but to Augustine such tensions are inescapable in the fallen condi­ tion. Every person is inestimably worthy of respect, because the image of God in man, while fractured, is not effaced. But that fracture gives solid reasons for a proximate kind of mistrust of all persons—including one­ self. No one can presume to be free from moral taint, from the vicious and self-interested distortion of outlook and intent. One can thus be as wary of one's own predilections as of others'. Holding onto such Augustinian tensions requires Augustinian pru­ dence. For a proximate skepticism about human nature is justified on de­ cidedly nonskeptical grounds; the reasons for being morally self-critical are profoundly real and moral reasons. If the Augustinian attitude bids a cautious, self-effacing doubt, it is not because it doubts the existence of 127 "Don't you know it's wrong to steal?" Garrison Keillor's father demands of his son after a boyhood petty larceny in Lake Wobegon. As Keillor comments in retrospect, "know­ ing right from wrong is the easy part. Knowing is not the problem." Garrison Keillor, Lake Wobegon Days (New York: Viking, 1985), 136-37.

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an ultimate reality of goodness. It is because it recognizes that nature— including human nature—is ontically, and thus morally, unstable. It rec­ ognizes that nature in its present condition cannot be relied upon to ex­ press that authoritatively ultimate goodness from which it has fallen away. The Augustinian attitude thus has doubts not about the existence of an ultimate, supralegal moral goodness but about the possibilities of its embodiment in human law. It has doubts not about the basic and pri­ mary content of the good but about the human ability to discover and respect its political and legal entailments. The imperative of Augustinian caution thus applies with special force to anyone wielding the instruments of political order. Indeed, it supplies a compelling justification for an American constitutional system that fragments both the power to define the good and the power to do it. I shall explore the implications of this fragmentation below. Augustinian caution thus also supports Robert Bork when he advo­ cates what he calls "the morality of the jurist," according to which a judge must abstain "from giving his own desires free play."128 Of course, this ethos is indefensible on the terms of Bork's own profession of nihilist skepticism.129 But on Augustine's terms there are good reasons both to defend and to advocate self-denial in the face of the profound temptations of judicial power. For under current conditions of human nature, it is crucial to preserve law as something distinct from the will of the judge. Of course, to the extent that law itself steers its interpreters to real moral considerations—which all law does to some degree, especially the Amer­ ican Constitution—judges cannot refuse to engage in such considerations. Because Bork's caution is avowedly nihilist rather than Augustinian, he can neither recognize that duty nor navigate its inherent tensions. Bork, of course, fears that a moral realist approach to the Constitution will lead judges to disdain the "morality of the jurist" and tempt them to assert themselves like "platonic guardians."130 While Bork's own position may be, as a whole, untenable, his fear is worth considering. As I have argued above, Michael Moore's moral realist theory of adjudication does seem overly sanguine about the likelihood of our not having "moral lep­ ers" on the bench, and so seems to underestimate the problem of judicial willfulness that preoccupies Bork.131 128 Bork, Tradition and Morality tn Constitutional Law, 11; see also Richard J. Neuhaus's comment on Bork, "The Bork Nomination," Religion and Society Report 4 (1987): 3. 129 See Sotinos Barber on this point in "The New Right Assault," 266. 130 Bork, "The Constitution, Original Intent, and Economic Rights," 832; see also Bork, "Neutral Principles," 30—33. 131 Moore, "Interpretation," 393. See my argument in chap. 2 that Moore's desire to keep moral—and so legal—judgment free from the taint of convention leads him to fashion a theory of judicial decision making that allows a moral realist judge to give his own moral

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Sotirios Barber dismisses Bork's fear of Platonic philosopher-kings by arguing that those who take moral realism seriously will, for that very reason, avoid willfulness. Philosophy as king, Barber maintains, pre­ cludes philosophers as kings. The quest for the real moral meanings in­ dicated in the Constitutional text is a kind of philosophic quest, but its results are tentative and "intractably provisional." This is apparently be­ cause judges' "consciousness of their status as subjects brings skepticism about their own abilities." It is also because Barber's incipiently Augustinian view of human nature makes him remind judges that they, too, have a certain "disinclination to follow the law's guidance, and they should try to overcome that disinclination."132 With those cautions stated, Barber is not reluctant to call for "judicial activism."133 Can such arguments quell anxieties about the potential willfulness of moral realist judges? Certainly as long as judges regard the search for moral meaning as an ongoing philosophic process that can never claim finality, they will find no occasion for dogmatism. So long as they are involved in that process, they will not willfully impose anything. Yet the decision-making responsibilities of judges cannot wait on the fruits of an ongoing philosophic dialectic. At some point, the judge must step away from the open-ended dialectic and make a ruling that will be enforced, coercively if necessary. Such a ruling is necessarily a definitive and singu­ lar act rather than a tentative and open-ended philosophic process. At that point, the logical requisites of an open-ended philosophic process cannot protect us. At that point, only the judge's virtue can protect us from the judge's erroneous moral conclusions or willfulness. Given an Augustinian view of human nature—and thus perhaps even Barber's own view—this reliance on judicial virtue might well make us anxious despite Barber's reassurances. Yet Barber can argue that such reliance on virtue is inescapable under any theory of adjudication. The solution that Bork offers to this prob­ lem—habitual judicial deference to decisions of the other branches of government—only makes judges abdicate to the willfulness (or virtue) of others out of desire to avoid their own willfulness.134 Moreover, Barber takes the sting out of his judicial activism by arguing for departmental­ ism; that is, by arguing that Supreme Court decisions need not be taken as the unchallengeable last word but as themselves part of a larger dialec­ tic of constitutional interpretation among the branches. I will return in theories the benefit of the doubt. I will not repeat here the evidence I adduced there for my argument. 132 Barber, On What the Constitution Means, 121, 218, 219. 133 Barber, "The New Right Assault," 295; Barber, "Epistemological Skepticism," 381— 95. 134 See Barber, On What the Constitution Means, 182.

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the next section both to departmentalism and to the question of judicial activism.

Constitutional Meaning and Judicial Power Though it mainly informs normative constitutional theory at a high level, Augustinian prudence plainly has at least some bearing also on the more particular issues that concern constitutional commentators. I will briefly explore some possible implications of Augustine's thought for these is­ sues. Insofar as it moves from theory toward practice, this exploration must necessarily be more tentative and suggestive than what it follows. Questions of constitutional interpretation and judicial power are the two dominant controversies currently fueling the enterprise of constitu­ tional scholarship—just as they are, in a way, the two kinds of questions that occupy the deliberations of the Supreme Court itself. These two kinds of questions are at least analytically distinct.135 For the two ques­ tions can be restated this way: First, what do constitutional provisions mean, particularly as they bear on current experience? Second, who prop­ erly decides that meaning on behalf of the polity as a whole, and what should their decision-making demeanor be? These are obviously not equivalent questions. Anyone might take a stab at the first one. Most peo­ ple today accept that the answer to the second one is settled in favor of the Supreme Court; they only debate what its decision-making demeanor ought to be, usually in terms of judicial activism versus judicial restraint. Now the Constitution itself contains two kinds of provisions: those that are explicitly moral in character and those that are not. These are not parallel to the two dominant questions I have just framed, since both kinds of provisions are subject to the first of those questions, that is, the question of what they mean. The explicitly moral provisions are those parts of the text that, in rela­ tively general language, express the Constitution's moral aspirations for American political life. By their very terms, they refer the reader to real moral considerations. These explicitly moral provisions are either general normative ends (expressed first in the Preamble) or else specific moral limits (expressed primarily in the Bill of Rights). The normative ends are often adduced in support of government powers; the limits generally pro­ tect individuals' rights from such powers. Some provisions, like the 135 My distinction here probably reflects in modified form the insights expressed by Wal­ ter F. Murphy m his "Who Shall Interpret? The Quest for the Ultimate Constitutional Inter­ preter," The Review of Politics 48 (1986), 401—423; also, Walter F. Murphy with James E. Fleming, and Walter F. Harris II, American Constitutional Interpretation (Mineola, N.Y.: Foundation Press, 1986), 9—12, 182-93.

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Preamble's aspiration to foster "Justice," the "general Welfare," and the "Blessings of Liberty," and like the Fourteenth Amendment's promise of "equal protection of the laws," embody both moral goals and moral lim­ its at the same time. Most of the constitutional text, however, is made up of provisions that are not moral in character, or only implicitly moral. These include the Constitution's structural arrangements—the overall federal structure of the union, and the separation of powers in the national government. These also include particular decision rules for the subdivisions of gov­ ernment and their interactions. People can generally comply with such provisions without consciously engaging in moral thought. But I call them implicitly moral because any attempt to justify these structures and decision rules must entail normative considerations; indeed their original framers justified them to themselves and others in precisely such terms. The normative considerations behind these "non-moral" provisions bear on the question of the demeanor of the Court as it authoritatively inter­ prets the other provisions—the explicitly moral ones.136 Because both the explicitly moral provisions and the implicitly moral ones have a certain normative content, Augustine's thought can inform our pursuit of constitutional meaning on both levels. I will consider first the interpretation of the Constitution's explicitly moral provisions, and then turn to the controversy over judicial power, on which the "nonmoral" structural provisions have a bearing.

The Constitution's Moral Meaning While they do not designate their authoritative interpreter, the Constitu­ tion's explicitly moral provisions do compel anyone who would interpret them to ask—or presuppose answers to—profound questions about the moral interpretation of law. As I have argued above, these are the kind of questions to which Augustinian prudence is especially well suited. I said above that people can comply with the nonmoral provisions of the Con­ stitution without having to engage consciously in moral reflection. This obviously does not apply to those who comply with those provisions by accepting a duty to interpret the explicitly moral provisions. For it is im­ possible to understand the meaning of those moral parts of the text with­ out presupposing what they themselves evidently presuppose—that is, 136 I am referring to the separation of judicial from legislative power, and the larger frag­ mentation of political power that characterizes the American constitutional system. These factors bear on the question of whether the Supreme Court authoritatively interprets the Constitution on behalf of the polity as a whole, and on the question of what the Court's adjudicative demeanor should be. I return to this point below.

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that there is such a thing as real moral goodness, and that real moral evaluation is therefore somehow possible. When it comes to understand­ ing these provisions and how they bear on contemporary experience, nei­ ther the "conservative" conventionalism of framers' intent positivism nor the "liberal" conventionalism of amorphous "evolving values" will do. Indeed, when the founding generation was framing and ratifying the Constitution, they did not seem to regard their undertaking as simply an assertion of their wills. If we take seriously their overtly moral argu­ ments—and there is no compelling reason not to—we find that they did not imagine themselves to be arbitrarily privileging the conventional prej­ udices, wants, and fears of their particular moment in history. Nor, con­ versely, did they seem to think they were providing a malleable rationale for the indeterminately evolving values of later generations. Rather, they defended their constitutional project as reaching to timeless principles of human nature and political order; for that reason they spoke of its uni­ versal significance.137 The same sort of attitude must also have character­ ized those who framed and ratified the first ten amendments and the postCivil War amendments. Without licensing the nascent presumption of such a project, Augustinian thought, because it is not morally nihilist or conventionalist, can make sense of its moral aspirations. Augustine's ontological grounds underscore the contemporary moral realists' argument that, when it comes to the Constitution's explicitly moral provisions, sound legal interpretation cannot exclude some kind of real moral evaluation. No one can understand the meaning of a "just compensation," for example, who dismisses the very notion of justice as nothing but an empty rationalization for self-assertion. No one can un­ derstand the meaning of a cruel punishment who claims that cruelty and its obverse, kindness, are fundamentally illusory categories. No one can distinguish between a legal process that is "due" and one that is not who claims that standards of legal propriety and fairness are at base arbitrary or assigned by custom however deformed that custom may be. No one can determine whether a law is protecting people equally who considers equality itself void of any ultimately normative meaning. No one can un­ derstand the Fifth and Fourteenth Amendments' protection of human life who claims that the moral status of life itself is merely something stipu­ lated by convention. More broadly, no one can understand the interpre­ tive significance of an aspiration to "the general Welfare" who claims that 137 This attitude has, of course, deep roots in the Puritan consciousness, in the vision of America as a "city set on a hill." During the founding period, Publius expresses it in The Federalist Papersi among other places in no. 1, where he notes that the failure of the Amer­ ican experiment would "deserve to be considered the general misfortune of mankind.'* See Publius's reflections on human nature in, among others, numbers 6 and 51.

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the notion of a common good can have no meaning beyond rhetorical window dressing for self-interest or societal willfulness. All the same, Augustine's thought reminds interpreters of even such explicitly moral provisions that law can never be an absolute affair.138 However noble the explicitly moral provisions, they remain provisions of a political constitution. And for the ontological reasons Augustine has adduced, politics is the sphere of the morally obscure and the morally relative. Political morality remains at its best a partial and relativized re­ flection of real goodness. Absolute standards of unalloyed goodness are real but are not capable of political realization in this age; consequently, they can apply only equivocally to political evaluation. Indeed, the at­ tempt to measure politics on an absolute scale can produce dangerous consequences, for on that scale every political constitution stands con­ demned.139 Augustine could condemn Roman political order on that scale, but he could also bring to bear a relative judgment capable of rec­ ognizing such good as was attainable. By revealing politics and law as the realm of the chronically obscure and the morally relative, Augustinian prudence inspires caution in those who would interpret the Constitution's moral meanings. It inspires wary self-doubt on their part, since they too partake of the fallen condition of human nature. And Augustinian pru­ dence also suggests that, if interpreters are sensitive to these problems, their moral realist interpretive efforts will not neglect convention—con­ vention taken as both a source of truth and a stay of order. As I have argued above, convention can sometimes be a matter, so to speak, of moral reality appearing in history. Nothing about convention itself requires us to use it the way conventionalists do. Rather than taking it as an opaque substitute for truth, we can take it as a source of clues to truth. The intent of the Constitution's historical framers is such a "con­ vention." Thus insofar as a commitment to moral realism may make some interpreters loath to consult the framers' intent, it makes them err. For it deprives them of a real source of insight into the real moral meanings of the text. Of course, we have to be realistic about framers' intent: the framers and ratifiers had no monolithic intent, and the historical recovery of their intentions presents well-known difficulties. Furthermore, as Au­ gustine can remind us, the framers themselves were not exempt from vice and taint; we must therefore be leery about accepting their more imme138 See, for example, Augustine, City of God 19:17, 15, 26; Letters 153:16; see my dis­ cussion of Augustine's conception of politics and law in chap. 3. Although it is probably obvious where a biblically grounded Augustinian outlook would lead on the question of abortion, for example, Augustinian thinking would seem to prevent even this from being absolutized legally or politically. 139 See Gerhart Niemeyer's comments on the danger of using the absolute scale in politics, in his Between Nothingness and Paradise, 3—138.

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diate fears and prejudices as their decisive intent. Like any of us, their immediate preferences were sometimes at odds with, and certainly did not exhaust, their aspirations.140 Still, we are not framers or ratifiers but rather subjects of the Constitution they formulated; therefore, we cannot afford simply to dispense with the conventions of framers' intent if we are going to understand the meaning of the text, especially in its explicitly moral provisions. There are naturally other forms of convention, beyond framers' intent, that a truly prudent moral realist interpreter will consult. Legal precedent is one such form of convention. "Accepted standards of decency"141 are another. Convention can also function as a stay of order. Concern with order, of course, begins to take us beyond interpretation strictly conceived. Still, from an Augustinian perspective, the meaning of a political constitution ought properly to remain within the general parameters of political order. While a political state cannot ignore justice, its prior obligation, by Au­ gustine's reckoning, is securing peace142—the "domestic Tranquility" of our Constitution's Preamble. Respect for precedent serves this goal. Of course, Augustinian prudence precludes slavish devotion to precedent as naive and potentially evil. But it endorses a proximate adherence to prec­ edent as conducive to the regularized, stable expectations that make po­ litical order viable and peaceful. It should be obvious by now that this discussion provides no immediate solutions to the problems faced by constitutional interpreters. Augustinian insight frames no clear rule of interpretation for the Constitution's explicitly moral provisions. It frames instead a distinctive set of ten­ sions—tensions that invite those who would interpret the Constitution to do so in the light of deeper questions.

Judicial Activism vs. Restraint If such considerations begin to address the question of constitutional meaning, they have not yet addressed the controversy over judicial power. This controversy revolves around the question of who authoritatively de­ cides constitutional meaning on behalf of the polity as a whole, and of what their decision-making demeanor should be. I state the question in its most general terms to show that the contro­ versy over judicial power implicates the issue of "departmentalism," a 140 See

Barber, On What the Constitution Means, 33,146. allude to Justice Frankfurter in Rochm v. California, 342 U.S. 165, 169 (1952), where he speaks of the "accepted standards of decency of English-speaking peoples." 142 Augustine, City of God 19:11,12,17,26; see my discussion of Augustine's conception of politics and peace in chap. 3. 1411

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budding controversy in its own right.143 For "departmentalists" deny that the Supreme Court is the sole authoritative constitutional interpreter. They argue that the other branches or "departments" are also entitled (or obliged) to interpret. They often doubt that the Court's interpretations have a finality beyond the immediate cases it decides. While departmen­ talism always disputes judicial supremacy in constitutional interpreta­ tion, it may take a number of forms and modifications.144 Augustine's insights may be able to contribute something to the debate over departmentalism. As even some departmentalists realize, their doc­ trine in its pure form threatens to leave contentious issues unsettled. It thus threatens a quasi-anarchic situation that would be viable only if the members of political society were relatively virtuous and self-controlled. But Augustine gives reasons why political society necessarily falls short of these qualities; indeed he argues that the very lack of them makes it nec­ essary to institute political rule in the first place. If such Augustinian con­ siderations undermine pure departmentalism, they by no means exclude some kind of proximate departmentalism, which may be desirable as a spur to better and marginally more responsible constitutional interpreta­ tion. However that may be, I will not pursue the departmentalist contro­ versy further here. I will not pursue it because this budding controversy remains overshad­ owed, at least for now. Whatever the merits of the departmentalist case, most commentators, and most people generally, accept the preeminent authority of the Supreme Court in matters of constitutional interpreta­ tion. As a result, the contemporary debate over judicial power is more about judicial demeanor than interpretive authority. Put more simply, the most prominent arguments pit friends of judicial power against its foes. Replete with accusations and defenses of "judicial lawmaking," their ar­ guments typically proceed in terms of judicial activism versus judicial selfrestraint. Even departmentalists who deny judicial supremacy participate in the argument at this level. Thus, while acknowledging that the debate over judicial activism does not exhaust the issue, I will address the current controversy over judicial power on its own narrower terms. 143 Partly because of Attorney General Edwin Meese IH's speech advocating departmen­ talism at Tulane University in October 1986, and reactions to it. For the reaction, see, for example, Sanford Levinson, "Could Meese Be Right This Time?" The Nation 243 (1986): 689—707; Paul Brest, "Meese, the Lawman, Calls for Anarchy," New York Times, 2 No­ vember 1986, sec. 4, p. E-25. 144 For variations on the departmentalist theme, see Murphy, "Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter," 405—17; Jacobsohn, The Supreme Court and the Decline of Constitutional Aspiration, 113—37; Barber, On What the Constitution Means, 214—18 etc.; John Agresto, The Supreme Court and Constitutional Democracy (Ith­ aca, N.Y.: Cornell University Press, 1984); and Louis Fisher, Constitutional Dialogues: In­ terpretation as Political Process (Princeton: Princeton University Press, 1988), esp. chap. 7.

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From an Augustinian perspective, the common error of participants in this controversy is to assume tight connections between moral theory and judicial demeanor. On the one hand, some liberal defenders of judicial power argue that a commitment to moral realism directly entails a com­ mitment to judicial activism. Ronald Dworkin, whose influential demo­ lition of legal positivism "presupposes a certain objectivity of moral prin­ ciple," began defending judicial activism on just such a basis.145 Other advocates of judicial activism, like Sotirios Barber,146 Michael Moore,147 and Stephen Macedo,148 have further honed the activist argument from moral realism. (Of course, as we have seen, not every promoter of judicial activism argues from moral realism; remember those moral skeptics who turned out to be Manichaean reconstructionists.) On the other hand, con­ servative advocates of judicial self-restraint like Robert Bork149 and Raoul Berger150 typically assert a nihilist moral conventionalism and then argue that it directly entails restraint. The problem with such arguments is that moral realism does not simply prescribe judicial activism any more than moral nihilism prescribes re­ straint. Moral nihilism, of course, cannot provide grounds for prescribing anything. (Perhaps I should say it provides Manichaean minds with nihil­ istic "grounds" for everything and nothing.)151 And moral realism by it­ self could logically provide grounds for prescribing any number of things, including activism or restraint or both—depending on factors that Augustinian prudence enables us to assess. Now, Stanley Brubaker offers a sophisticated version of the conserva­ tives' skeptical argument for judicial restraint. His argument seems ini­ tially to overcome both my objections here and the moral realists' argu­ ment for judicial activism. As we have seen before, his apparent accomplishment hinges on pitting "ontological confidence" against "epistemological skepticism."152 We are now in a position to see that this 145 Quote is from Dworkin, Taking Rights Seriously, 138, and see generally chap. 5; see also Dworkin, A Matter of Principle, chap. 2; also Ronald Dworkin, "Reagan's Justice," New York Review of Books 31 (1984): 27—31. As I have argued in chap. 2, Dworkin has recently seemed to disclaim what was, arguably, his early moral realist suggestion; see Dworkin, Law's Empire, 73—86. 146 Barber, "The New Right Assault," 253—56, 289—95; Barber, "Epistemological Skep­ ticism," 374—76, 394; Barber, On What the Constitution Means, 218—20. 147 Moore, "Interpretation," 381—98; see my discussion of Moore's judicial activism in chap. 2. 148 Macedo, The New Right v. The Constitution. 149 Bork, "Neutral Principles"; see my discussions of Bork above. 150 Raoul Berger, Government By Judiciary. Berger, of course, would not accept the label of "conservative." 151 Without noting its Mamchaean aspect, Sotinos Barber comments on this in "The New Right Assault," 289. 152 Brubaker, "Reconsidering Dworkin's Case," 511—16; Brubaker, "Taking Dworkin Se­ riously," 62.

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juxtaposition presents an embryonically Augustinian insight. Unfortu­ nately, it is stillborn. Lacking an adequate account of its own basis, it remains merely an anomalous juxtaposition rather than an Augustinian tension. Brubaker affirms that "epistemological skepticism is fully com­ patible with ontological confidence."153 By Augustine's account, these are by no means fully compatible. Rather, the former is ineluctably in tension with the larger reality of the latter. Such a tension is at the heart of human experience and is rooted in the present nature of things; it almost defines the tension of nature created and fallen. Augustinian insight thus threat­ ens certain adjustments. For instance, the very affirmation of ontological confidence, which Augustine anchors in the creation, necessarily implies some epistemological confidence.154 Yet Brubaker's doctrine of judicial restraint rests on a resolution of the apparent tension in favor of "episte­ mological skepticism."155 Though he thinks this gives grounds for his strict prescription of judicial deference to legislatures on points of contro­ versy, it actually eats away at the only ground on which his normative conclusion might stand. Thus, while Augustinian thinking supplies a sat­ isfying account of Brubaker's central theoretical insight, that account by its very nature threatens to attenuate his conclusions. What, then, can Augustinian prudence say about the question of judi­ cial power and judges' decision-making demeanor in interpreting the Constitution? Does Augustinian prudence bolster the argument for judi­ cial activism or the argument for judicial restraint? Because it must re­ spect the tensions I have just been describing, any answer is necessarily hazardous. Yet I believe something useful can be said. For one thing, the same Augustinian cautions that apply to all inter­ preters of constitutional meaning apply with at least equal force to judges. If political meaning, even at its best, is somehow always morally relative and morally obscure, and if all interpreters partake of a morally vitiated human nature themselves, then responsible judges will be modest, wary, and self-critical as they interpret the Constitution—especially since their interpretive decisions affect many other people. For another, the discre­ tion of American judges is hemmed in by the constitutional separation of powers that defines their role. If responsible judges take this role seri­ ously, it cannot help but inspire caution in their judicial demeanor. No one can take it seriously, however, without pondering or assuming its normative justification. Though I cannot offer or defend a full account of the constitutional separation of powers here, I need to mention a few of its salient features 153

Brubaker, "Reconsidering Dworkin's Case," 514. Without reaching to such a deeper basis, Sotinos Barber has made a similar point against Brubaker in "Epistemological Skepticism," 382. lss See Barber's analysis of Brubaker on this point: "Epistemological Skepticism," 381— 83. 154

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to explain my larger point. The separation between judicial, legislative, and executive power figures as part of a broader constitutional strategy to achieve both "responsibility" and "energy"156 in government by, among other things, fragmenting political power. The federal separation among states and between state and national authority also embodies this fragmentation.157 Madison noted that fragmentation would not be nec­ essary "if men were angels." But his "reflections on human nature" led him to argue that the constitutional fragmentation of power would foster justice by checking ambition with ambition.158 His argument thus sug­ gests the normative underpinnings of at least a portion of those structural provisions of the Constitution that I described above as implicitly rather than explicitly moral in character. Augustine exposes the fundamental ontological terms on which we can make sense of Madison's argument. He thus equips us to reaffirm it. He thus also furnishes the most solid kind of reason to take seriously the consitutional confines of the judicial role. We discover good reasons for fearing "an arbitrary discretion in the courts,"159 and good reasons why judges should vigilantly maintain the distinction between their own will and the rule of law.160 Augustine's insights about the human condition and moral obscurity in law amplify separation-of-powers and rule-of-law concerns. Taken together, these considerations suggest an answer to the question of judicial activism. They suggest Augustinian grounds for a cer­ tain judicial self-restraint. Such restraint is strictly speaking a counsel of Augustinian prudence rather than a dictate of principle. But its prudence penetrates beyond transient considerations to deeply founded and abid­ ing reasons for caution. As such, it summons judicial self-restraint as a matter of prudence almost verging on principle. It verges on principle, but it can never get there. For political rule—of which constitutional law is one expression—can never, on Augustine's reckoning, be dictated as a matter of principle.161 Politics is not the arena 156

The Federalist Papers, nos. 63 and 70. fragmentation is hardly absolute, of course, since absolute fragmentation would have rendered government impotent. Fragmentation is crucial, but it is not the whole story. As Sotinos Barber argues, Publius's arguments in The Federalist imply the desire to create the conditions for moral leadership from institutions like the President, the Senate, and the Court. (Barber, On What the Constitution Means, 177—85.) 158 1 am alluding to and quoting Publius's argument in The Federalist Papers, no. 51. 159 Ibid., no. 78. 160 By the same token, of course, we also find good reasons for a similar vigilance on the part of all participants in governance. 161 Reinhold Niebuhr, for one, found in Augustinian prudence a rationale for something akin to a social democratic political activism. His example, of course, does not bear directly on the judicial role. See Richard Wightman Fox, Retnhold Ntebuhr: A Biography (New 157 The

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of principled absolutes. The good that politics aims at is relative and equivocal, and even this good it sees only "through a glass darkly."162 Stanley Brubaker may be right to observe that such obscurity implies cau­ tionary restraint.163 But Augustine's obscurity, unlike Brubaker's, is not and cannot be total. The "glass" through which even judges "see darkly" hinders but does not eliminate vision; it is obscure but not opaque. Oth­ erwise we could not affirm even the fact of its obscurity. Thus, if Augustinian prudence advises judicial self-restraint, it cannot advise the kind of pervasive judicial immobilization that moots judicial review by deferring to legislative majorities at any point of serious controversy. Still, an Augustinian judicial restraint, though it is at base prudential rather than principled, is a serious affair. It is more serious than the judi­ cial cautions of the contemporary "moral realists," because its caution has a deep and articulate basis in Augustine's ontology. Of course, an Augustinian judicial prudence may not always know in every instance precisely how it is limited. But it knows the limits are there. It knows their depths. And this makes a difference. As it seeks to promote the good, it indulges no fantasy about judicial action causing the political community to converge on the truly good and just society. Resisting this beguiling fantasy is a discipline of judicial self-denial that, like all self-discipline, bears fruit: It preserves in those who practice it the ability to make what moral judgments are really possible. Those who practice the self-restraint of Augustinian prudence will thus be able to see another reason why their commitment to restraint must be proximate rather than principled. They will see, that is, the potential dan­ ger in making either "judicial activism" or "judicial restraint" a dictate of principle. They will recognize that a principled judicial activism runs the risk of judicial willfulness, and that its earnest moral reformism may blind it to its own errors. But they will also recognize that a principled judicial restraintism runs the risk of surrendering the good of individuals and the nation to the errors of occasionally vicious democratic majorities. The judicial mind probably needs a profound kind of prudence to discern the historical ebb and flow of such errors, and thus to stand against the tide accordingly. This attitude may not be so unlike the "moral realist" caution of Sotirios Barber after all. Barber admits something "intractably provisional" about the findings of any moral interpretation of the Constitution. And he remarks that judges, like all "conscious subjects" of the law, must be critical of their own penchant for willfulness and "should try to overYork: Pantheon Books, 1985); Niebuhr, The Children of Ltght and the Children of Dark­ ness·, Niebuhr, Christian Realism and Political Problems, 1—14, 95—146. 162ICor. 13:12. 163 Brubaker, "Reconsidering Dworkin's Case," 512—17.

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come" it. But "the Constitution's ways are active and forward-looking as well as disciplined and restrained."164 Consequently, a prudent recogni­ tion of these necessary cautions will "hardly exclude judicial activism in behalf of higher standards of political morality."165 When seen in an Augustinian light, of course, these cautions hardly sanction activism either. Even if it were more apt, Barber would be reluctant to call what he has in mind "self-restraint," for fear of a principled judicial immobilism.1661 am less reluctant to speak in terms of self-restraint. For the restraint of Augustinian prudence stands on deep foundations—foundations that, if taken seriously, absolutely prevent restraint from being absolute. Is what I have proposed here really judicial restraint? Compared to the judicial activism of Ronald Dworkin or Michael Moore, maybe so. Gauged by the standard terminology of the contemporary debate over judicial power, maybe not. If not, then what Barber proposes is not judi­ cial activism either. If Barber insists on that term, it is probably because he feels a need to stand against the tide of what he considers the charac­ teristic errors of current constitutional commentary. If I prefer the other term, it is probably because I feel the tide of danger running the other way. 164

Barber, On What the Constitution Means, 121, 218—19,182; see also 115. Barber, "The New Right Assault," 295; see also his clear endorsement of "judicial activism" in "Epistemological Skepticism," 381—95, and in On What the Constitution Means, 218—20. lee "When the term self-restraint appears in constitutional discussion today," he notes, it usually denotes "abdication of responsibility." Barber, On What the Constitution Means, 182. 165

Five Augustinian Tensions and the Constitution of Liberalism

THE AUGUSTINIAN exploration of contemporary constitutional contro­ versy yields no formulaic solutions to the problems of constitutional in­ terpretation and judicial power. If Augustine is right, there are strictly speaking no "solutions" to such normative perplexities of political exis­ tence, and we should not expect to succeed at constructing any neat for­ mulas to resolve them. This is not, Augustine would say, because there is any aspect of human existence that is, by its true nature, morally indeter­ minate. Human existence, like all being, is inescapably ordered to good­ ness and truth. But in this fallen age, existence is partially plastic, chron­ ically subject to tensions that are not susceptible of resolution by human agency. Such considerations prevented Augustine from constructing any edifice of moral and political theory aimed at setting the world in order. They will have the same effect on those who benefit from his insight. Because Augustine knows what he knows about the eternal, he knows what he does not know about the temporal. For the same reason, he therefore knows what he knows—such as it is—about the temporal. Thus, although this exploration has not constructed any Augustinian ed­ ifice of theory, it has learned something about the normative possibilities of constitutional theory. It has at least discovered what sorts of contem­ porary constitutional reasoning Augustine's thought excludes, and some­ thing of what it underscores. (Augustinians can, of course, disagree about many secondary matters.) An Augustinian way of thinking underscores both the essential prem­ ises of contemporary moral realism and the conclusions, though not the premises, of many arguments for judicial caution. It supports the moral realists' argument that key parts of the Constitution must somehow be interpreted in the light of a moral reality. It reinforces Sotirios Barber's normative gap between law and human will. It improves Michael Moore's insight about the incompleteness of our grasp of moral meaning. It fortifies Moore's and everyone else's reminders about the separationof-powers and rule-of-law constraints on judicial action. It bolsters, while reorienting, Stanley Brubaker's basic insight about "epistemological skepticism." It buttresses Robert Bork's call for judicial self-discipline. It justifies Walter Berns's concern for order and peace.

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An Augustinian way of thinking excludes the premises, though not al­ ways the conclusions, of every kind of nihilist or morally conventionalist reasoning, while resisting the activist conclusions of moral realism. It re­ bukes legal positivism and narrowly positivist doctrines of "original in­ tent"; it does so by giving us a way of understanding why law, especially when it contains explicitly moral terms, refers interpreters to moral good­ ness and not simply to human will. It censures Bork, Berns, and other "conservatives" for depicting nature as a moral void, and it undermines their doctrines of thoroughgoing judicial restraint and judicial deference. It casts doubt on the political idiom of "natural law"—whether of Mi­ chael Moore or of a Thomist like John Courtney Murray—as a mislead­ ing rubric for a legitimate undertaking. It chides those whose vision of a moral reality propels them into implausible projects of moral reformism through law. It censures those campaigns of transformative activism that stand on the premises of a nihilist skepticism; it finds such campaigns incoherent and potentially dangerous. An Augustinian way of thinking thus resists Michael Perry's historicist argument for making the Constitution into an instrument for the moral regeneration of the political community. It thus also rebukes the critical legal studies movement's logically contentless but ardently revolutionary agenda. It convicts them both of repeating the an­ cient irrationality of Manichaean reconstructionism, whose error, like that of its modern counterparts, was at base ontological or profoundly religious in character. Such criticism obviously begins to reach well beyond constitutional or legal theory. For, more broadly, Augustine's thought resists as presump­ tuous any ostensibly decisive political "solutions" to the problems of hu­ man existence.1 Its basic logic thus stands opposed to the contemporary libertarian agenda as much as to the Marxian socialist one. For similar reasons, Augustine's thought also effectively scuttles any Christian impulse to political theocracy. Almost alone in his day, we re­ member, Augustine withstood the enthusiasm for Constantine's legal es­ tablishment of Christianity and for the imminent arrival of "Christian times" that Augustine's less cautious coreligionists thought it heralded. By an Augustinian way of thinking, any avowedly Christian temporal triumphalism has probably mortgaged its Christianity for its triumph. Despite underlying theological affinities, an Augustinian kind of political realism thus opposes the old Christian Left as much as the new Christian 1 See Augustine, Ctty of God 19:17-26; see my discussion of Augustine's outlook on politics and history in chap. 3; and see Markus's interpretation of Augustine's political out­ look in Saeculum, 1—23, 133—86.

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Right—the former for its naive and manipulable optimism, the latter for its self-proclaimed reconstructionist zeal.2 Yet Augustine's thought also nullifies the notion of a purely secular polity. Political order, such as it is, is not independent of order more gen­ erally, and God is the ground of all order. Furthermore, political society is human society, and human beings are incapable of neutrality toward the good. And the good is intimately connected to the divine. By Augus­ tine's account, indeed, human existence is not viable on any level if ab­ solutely sundered from this cohering center. The polity that fancies it has a "naked public square" deceives itself.3 If it expels an articulate commit­ ment to God and goodness from its public square, inarticulate functional equivalents will stream in. Such surrogates will hardly be the better for being unexamined. At the same time, of course, Augustine denies that politics and law—even the noble American Constitution—can restore hu­ man existence to harmony with its cohering center. If this kind of thinking suspends questions of political morality—and therewith constitutional theory—in stubborn tensions, we should not be surprised. Tensions like this are ubiquitous in Augustine's thought (be­ cause he believes they are rooted in the condition of fallen humanity). We have seen, for example, that Augustine discerns in man the image of God that is fractured but not effaced. He finds man's freedom of will to be foreshortened but not foreclosed. He points us to the truth about being and goodness that our minds can truly glimpse but not fully capture. He hopes for a moral politics, while refusing a moralizing politics. He makes it hard to countenance a morally or religiously neutral state, and impos­ sible to accept a theocracy. He regards law as embedded in goodness but distinct from it. He enables us to insist on real moral interpretation in law, and to insist also that it be circumspect and relative. He enables us to recognize the need for a proximate judicial restraint that absolutely cannot be absolute. These tensions all express what Augustine considers the basic ontological reality of nature created and fallen, of human being created and con­ tracted. They are thus neither sterile paradoxes nor mere antipodal jux­ tapositions. They are structured tensions. Their tension is asymmetrical, ordering the mutability of being to its larger reality, ordering chronic 2 For an Augustinian critique of the "social gospel" of the old Christian Left (which ap­ plies as much to the new Christian Left), see Niebuhr, Christian Realism and Political Prob­ lems, 95-118, and other works. For a parallel critique of the new Christian Right, see Richard John Neuhaus, The Naked Public Square (Grand Rapids, Mich.: W. B. Eerdmans, 1984), 5—19; see also my The Ethics of F. A. Hayek (Lanham, Md.: University Press of America, 1986), 117-18. 3 Neuhaus, The Naked Public Square, generally, esp. 20—37, and chap. 5, "The Vulnera­ bility of the Naked Square," 78-93.

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moral shortfall to ultimate goodness. This asymmetry makes Augustine's tensions fertile for thought. It enabled Augustine to avoid both antique Manichaeism and Ciceronian moralism. It enables contemporary Augustinian thinking to steer clear of both moral nihilism and moral realism, without relinquishing the insights of either. Augustine's explanation of these tensions, of course, frames their asymmetry in biblical terms. Yet his tensions represent no private portrait of the world. Augustine draws on biblical insight, but he articulates what he thinks experience corrobo­ rates. As Augustine sees it, such tensions are an inescapable feature of nature in its present condition. The tensions are regrettable in an ultimate sense: The vitiation of the good is undeniably tragic. In a more immediate sense, the tensions are healthy. By preserving them intact, we can preserve the limited but authentic possibilities of goodness in a fallen world. Augustine's tensions resonate unmistakably with original tensions of American constitutionalism. For, like ordinary people at any period, Americans of the founding generation almost uniformly believed in the reality of the good. When they were framing and ratifying the Constitu­ tion, they did not, as I noted before, think they were simply asserting their wills. They claimed that their constitutionalism embodied enduring truths about human nature and political governance.4 Yet, apparently precisely in view of those truths, they did not aim directly at the good they believed in. Their political forms were cautious. The founders fashioned a system that, with Augustinian foresight, fragments—without shattering—both the power to define the good and the power to do it. This fragmentation of political power was hardly inspired by any nihilist skepticism of the contemporary variety. In The Federalist Papers, for instance, Publius frames his arguments for ratification in terms of presumptively real moral considerations; indeed, a modern interpretation controlled by nihilist skepticism would reduce his arguments to incoherence.5 If the founding generation was "morally skeptical" in its constitutionalism, it was a sort of proximate skepticism—and that more about men than about morality. Contemporary constitutional theorists are generally at a loss before the mind-set of such a constitutionalism. Lacking the resources of theory needed to make sense of it fully, they seem compelled either to absolutize its proximate skepticism, or to unfetter its self-restrained moral realism. As I have argued above, the latter response endangers the Constitution as 4 Such an attitude, for example, is pervasive in Publius's discourse in Madison, The Fed­ eralist Papers; see, among others, nos. 1, 6, 10, 51. 5 Examples from Publius can be multiplied. In The Federalist no. 15, Publius argues that government is required because "the passions of men will not conform to the dictates of reason and justice without constraint." Or to take the most familiar instance from no. 10, he emphasizes the need to control "the violence of faction," which he calls a "dangerous vice" that is contrary to "the common good."

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law while the former makes nonsense of its explicitly moral provisions. But the tensions of Augustine's political ethics corroborate and clarify original thinking. Whether the founding generation thought in Augustinian categories is a complex but separate question in itself.6 Whether they did or did not, we may. Augustine helps us make sense of the founders' combination of a belief in a moral reality with a recognition of chronic human foible. When viewed in the light of Augustine's fundamental ontological insights, their choice of politically fragmented, "skeptical" means to foster real moral ends appears as coherent as it is wise. Drawing on Augustine's store of insight also permits us to change our attitude toward contemporary constitutional theory's normative perplex­ ities, without fully rising above the perplexities themselves. In the light of prevailing theoretical options in the constitutional field, normative per­ plexities remain normative impasses—baffling and logically stultifying. In the light of an Augustinian kind of theory, the perplexities are potentially healthy tensions. As healthy tensions, they present opportunities for deeper thinking and better constitutional prudence. That the tensions continue to reverberate in constitutional commentary is indeed, from an Augustinian perspective, a sign of American constitutionalism's contin­ ued health. That the tensions have failed to come to rest is a testimony either to the wisdom or good fortune of a founding design that, instead of shrinking from the fundamental tensions of being, almost embodies them. For the same reasons that he helps us better to understand the deep structure of the normative tensions of American constitutionalism, Au­ gustine may help us make sense of modern political liberalism more gen­ erally. For Augustine's political caveats make it possible to justify certain postures of the liberal state—although on a decidedly nonliberal basis. But if Augustine's thought potentially deciphers some incongruities of lib­ eral political theory, it is by way of generating pregnant questions for further research. As Gerhart Niemeyer has said, "Augustine is the intellectual father of the concept of the limited state."7 By referring its tasks and its very genesis to the fallen condition, Augustine effectively stripped the political state of the ultimate pretensions that had formerly accrued to it. The state was not going to rescue being from its manifest precariousness; it was not going to resolve the tensions of human experience. The tensions were too 6

I will return briefly to this question below. Even though, as he notes, "Pope Gelasius did provide the effective slogan"; Niemeyer, "Augustine's Political Philosophy?" 72—73. If Augustine fathered this concept, it was, of course, by elaborating what Christ had already provided by observing that "My kingdom is not of this world," and by teaching that in this life, God's requirements do not necessarily nullify Caesar's since they are of a different order. 7

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deeply rooted for that. The aspiration to resolve them politically was the aspiration to divinity. Indeed, such untenably suprahuman aspirations could propel political action toward inhumanity.8 The theory of modern liberalism is almost defined by its renunciation of this aspiration. The lib­ eral state promises not merely to remain limited but to operate strictly without reference to any conception of the good or of the good life for man. It poses as a referee, a neutral arbiter among competing "value sys­ tems," remaining uncommitted to any of them as a matter of principle. This uncommitted pose is what makes the liberal state at once so service­ able and so difficult to justify. From an Augustinian perspective, the problem with such a liberalism is its modern tendency to absolutize what ought to remain proximate. Augustinian thought can applaud the self-imposed limits of the liberal state because such limits respect the inescapable ontological tensions un­ der whose shadow the state must operate. But lacking Augustine's under­ standing of those tensions, modern secular liberalism cannot respect them. Instead, it progressively dismantles the tensions. More than that, it attempts to make the parts it arbitrarily prefers into independent wholes—even though it is impossible to do so coherently.9 But by dis­ mantling the tensions, liberalism dismantles itself. It unknowingly trans­ forms its neutrality toward the good into antagonism, and ironically transforms its pluralistic skepticism into a dogmatic intolerance for other than nihilistically skeptical views. If such an analysis should prove to be accurate, it would bode ill for the modern theory of political liberalism, but not necessarily ill for liberal­ ism's limited state. For as I have argued, Augustine can still remind us of good reasons for a kind of proximate skepticism, for a certain semblance of neutrality on the part of political rule, and thus for the proximately neutral artifices of legality in a liberal political order. Such reasons pro­ vide an awkwardly nonliberal kind of justification for liberalism.10 But that may be the best liberals can hope for. For Augustine's thought sug­ gests both that justifying the liberal state "as is" is an impossible task, and that justifying a proximate sort of liberalism may be not only possible but the height of practical wisdom in this age. Such reflections open questions for research in intellectual history as well as for further theoretical reflection. Since the tensions of Augustine's political ethics resonate so strongly with premises of original American constitutionalism, it is worth putting to students of intellectual history the 8

See Niemeyer, Between Nothingness and Paradtse9 3—102 and generally. M. D. Henry, "Tradition and Rebellion," Southern Review 12 (1976): 50—53. 10 And it will be itself a tension-filled kind of justification. For the very explanation that grounds liberal values also points toward the fundamental nexus of being, goodness, and God. 9 See

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question I broached above: Did the founding generation think in Augustinian or derivatively Augustinian categories?11 Milner Ball suggests that Thomas Jefferson's thinking is a type of what Ball calls the Augustinian "love-covenant."12 James Madison is another case in point. For though Madison could state flatly that "Justice is the end of government,"13 he so deftly deflected government from moralizing tasks that he is sometimes considered the father of interest group liberalism. Could it be meaningful somehow to speak of Jefferson and Madison as political Augustinians? Answering such American questions undoubtedly requires asking prior European ones. Does liberal constitutionalism owe anything to the Augustinian roots of the predominantly Protestant cultures in which it arose and thrived? No one denies that Augustine had a powerfully formative influence on all European thought and culture, and especially on the Prot­ estant culture that claimed to be his theological heir. But tracing historical influences is a hazardous business because actual connections are diffuse; this can be especially true of the most important ones. For we know that the most powerful conceptual influences on our thinking are often those that operate unacknowledged. But the question about Augustinian think­ ing cannot be dismissed, especially if we want to understand the persis­ tence and viability of liberalism in America and Europe long after intel­ lectual elites were becoming disenchanted with it. Could it be that a derivatively Augustinian culture remained in touch with authentically Augustinian tensions—and their theological basis—even when its official political theory did not? If so, what can we expect from the political cul­ ture of liberalism as such cultural underpinnings ebb away? This kind of inquiry must also consider the peculiar susceptibility of Protestant thought to modern moral skepticism of the nihilist variety. Ca­ nadian political scientist George Parkin Grant has explored this problem effectively. Grant has noted that the "believing Protestants were likely to back their constitutional regimes," yet they backed them "without believ­ ing that avoidance of violent death was the highest good, or that justice was to be chosen simply as the most convenient contract." By buying into the Hobbesian political scheme, such Protestants tended gradually to lose their faith, while at the same time helping to hide the "fundamental polit­ ical vacuum" at the heart of liberal regimes.14 11 This is not, of course, to ask whether any of the Constitution's framers were devoutly or self-consciously Augustinian Christians. I take that to be a secondary question since some of the most powerful conceptual influences on thought can be those that operate unac­ knowledged. 12 Ball, The Promtse of American Law, 15. 13 Madison, The Federalist Papers, no. 51. 14 George Parkin Grant, English-speaking Justice (Notre Dame, Ind.: University of Notre Dame Press, 1985), 62. See, in general, pt. 3, 48—68.

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I must leave questions of historical influence to the intellectual histori­ ans. But I cannot leave to them the formulation of questions. For if there is some Augustinian solution to the puzzles of liberalism, it could explain enduring features of the American political disposition—features that fig­ ure prominently in constitutional theory. For example, a mind-set whose roots are Augustinian seems readily capable, when shorn from its meta­ physical moorings, of degenerating into a kind of pessimistic and cynical skepticism. If a distorted Augustinianism is, like Hobbes's thought, "a bifurcated half of a previous view,"15 it will undoubtedly be prone to smuggle in values recalled from the denied half of its original whole. If something like this is at work in American political thought, then the compulsions of some of today's constitutional theorists who profess a nihilist skepticism should come as no surprise. And the diagnosis would itself suggest the cure. Can Augustine's thought help decipher the incongruities of liberalism? I suspect it is capable of performing this larger task. Whether it is or not, I hope I have shown here how it illuminates the moral foundations of constitutional thought in contemporary liberal America. 15

Henry, "Tradition and Rebellion," 49.

Appendix H.L.A. Hart and Legal or Moral Normativity

H.L.A. HART'S The Concept of Law1 offered a fresh rendition of legal positivism that offered, among other things, a case for a specifically legal kind of normativity capable of grounding laws and legal reasoning—a normativity that does not require any resort to general inquiry at the level of an authoritatively real morality. Hart did this without taking the older positivist tack of equating valid laws with the commands of a coercively effective lawgiver. Hart instead showed law to be separate from morality by engaging in a meticulous analysis of the conceptual implications of the idea of "law." On the basis of that analysis, he argues that a functioning legal system—as a legal system and not merely the rule of idiosyncratic commands—necessarily involves the union of "primary" and "second­ ary" rules. A particular law (a primary rule) is valid, and therefore oblig­ atory as law, if it can be justified in terms of the secondary rules accepted in that system. Such secondary rules do not consist of particular rules of behavior but instead regulate how particular rules are changed, adjudi­ cated, and recognized. There is much more to Hart's view, of course, but its import can be stated briefly: If his analysis is right, then no recourse to an ultimately authoritative morality is necessary to set about the task of determining the legal validity of particular rules. The question of the legal validity of such rules is separate from any question of their moral status. Now caution is needed here, since Hart's analysis is explicitly elabo­ rated in the context of legal theory, not constitutional theory. But it seems, at least on its face, to challenge some of my chief arguments. At least it challenges them if Hart's positivism is not merely analytical but also has a prescriptive punch—if it is the basis for advocating that we ought to keep legal and moral considerations separate, that we ought to discipline ourselves to respect the distinction between legal and moral normativity. For I argued the necessity of recourse to real moral authority as an ultimate basis for any truly normative theory of the nature and prac­ tices of constitutionalism. And it seems thus also to challenge my Augustinian proposal about the proper moral scope of politics and the rule of law. If it is a challenge, it is initially paradoxical. I argue in the end, after all, that law must be largely—even disturbingly—separable from morality. In a sense I propose emphatically nonpositivist theoretical grounds for an 1 Hart,

The Concept of Law.

172

APPENDIX

almost positivist version of law and judicial practice. I am obviously far from denying the possibility of a case for treating legal normativity as its own distinct kind of normativity, separable from moral normativity more generally. Indeed, I think such a case is desirable. As I have argued above, unless such a case can be made, the rule of law is either impossible or superfluous. I have traced the outlines for one such case, an "Augustinian" one, that invokes substantive ontological and thus moral considera­ tions that severely limit the moral possibilities of law and political rule. And there are other such cases, including those of Hart and Joseph Raz.2 But the "separability" conclusion is not simply self-evident; if it were, there would be no controversy. Thus the most crucial and consequential aspect of all such cases, including my own, is their own threshold argu­ ment—that is, their argument as to why legal normativity ought to be sequestered from moral normativity more generally, notwithstanding other options. Whatever it may pave the way for, this threshold argument is not itself an argument within the strictly legal domain that it attempts to delimit. It cannot escape being what it is: some kind of general nor­ mative argument, about law but not within law. As such, it must succeed, if it does, as a normative argument, with all that that may entail. And it certainly entails this: that a successful normative argument—even an ar­ gument for the peculiar character of legal normativity—cannot use as a premise the conclusion it aims to establish. Thus it comes down to eval­ uating who has the most compelling arguments in support of the "sepa­ rability" conclusion. Does a merely analytical kind of inquiry (of the con­ ceptual requisites of the idea of law) really provide the prescriptive punch desired by those who want to keep law and morality distinct? It is revealing to notice that even Hart does not want morality and law to be so separable that moral and legal deliberation are sequestered in hermetically separate parts of the human mind. In The Concept of Law, Hart explains that morality and law need to be kept distinct precisely in order that law may be held accountable to morality. For Hart insists that "the certification of something as legally valid is not conclusive of the question of obedience" since the demands of a legal system "must in the end be submitted to a moral scrutiny." Hart recommends keeping law distinct from morality because doing so better equips us to identify "mor­ ally iniquitous laws" and makes it possible to generate "a stiffening of resistance to evil."3 A recent study by Daniel Heimbach argues compellingly that Hart's theory does not possess the resources necessary to achieve this moral pur2 Hart, The Concept of Law; Joseph Raz, The Concept of a Legal System (Oxford: Clar­ endon Press, 1970); Joseph Raz, The Authority of Law: Essays on Law and Morality (Ox­ ford: Clarendon Press, 1979). 3 Hart, The Concept of Law, 205-6.

APPENDIX

173

pose that motivates its construction.4 Although Hart intends to fashion a theory that enables and fosters the moral accountability of law, argues Heimbach, Hart ignores and undermines certain essential components without which a moral scrutiny of law cannot arise. Hart too easily ac­ cepts multiple and independently competing notions of moral goodness; this undermines his hope for an authoritative morality able to sustain a critical perspective on particular societies and their systems of law (like the Nazi system, moral criticism of which Hart especially desired). Heim­ bach also points out that although the potency of Hart's theory of mor­ ally accountable law depends on some positive understanding of an au­ thoritative morality transcending particular social contexts, Hart never discusses the identity of such a morality. Heimbach also criticizes Hart's treatment of obligation. When it comes to law, he notes, Hart regards obligation as following from validity; only a rule properly valid as law generates legal obligation. But although Hart wishes to maintain the in­ dependent (and superior) potency of moral obligation as distinguished from legal obligation, he ignores the question of validity in relation to the generation of moral obligation (such as the obligation to identify and re­ sist "morally iniquitous laws"). The lack of any notion of validity to es­ tablish moral obligation, argues Heimbach, leaves Hart's confidence in the practical superiority of moral obligation dangling without justifica­ tion. Heimbach also observes that Hart has explained all obligations, in­ cluding critical moral obligations, as arising from social pressure. Thus Hart's general notion of obligation actually precludes the possibility of having moral obligations beyond—or deeply at odds with—society. To supply the deficits of Hart's theory of the moral accountability of law, Heimbach draws upon the legal reflections and political ethics of Reinhold Niebuhr. He turns to Niebuhr precisely because Niebuhr's po­ sition is compatible with Hart's; Niebuhr can supplement without fun­ damentally altering Hart's edifice of subtle legal positivism. This is be­ cause Niebuhr himself was concerned to avoid collapsing law into morality, and because of Niebuhr's solicitude to preserve a critical per­ spective capable of identifying the hegemonic and self-interested abuse of all kinds of power, including that of law. What produced such attitudes in Niebuhr, however, was not a commitment to legal positivism. It was instead his encounter with the theology and political ethics of Augustine at a pivotal point in his intellectual evolution.5 4 Heimbach, "The Moral Accountability of Law." Much of what follows in this para­ graph is paraphrased from Heimbach's abstract. 5 See Niebuhr, The Nature and Destiny of Man·, Niebuhr, The Children of Light and the Chtldren of Darkness·, and Niebuhr, Christian Realism and Political Problems, 1—14, 95— 146 (esp. his essay, "Augustine's Political Realism"); and Niebuhr, "Beyond Law and Rel­ ativity," in Fatth and History, 171—95. As I noted in chap. 3, Edward Purcell has signaled the significance of Niebuhr's Augustinian reflections for the problems of modern legal the­ ory: Edward A. Purcell, Jr., The Crisis of Democratic Theory, 154—56, 243—47.

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Index _

Abel, murder of, 102 Academicians: on knowledge, 91, 110; on nature, 109 Adam, fall of, 84, 86 Aesthetic constitutionalism, 38—40 Aestheticism, of Lief Carter, 122 Aesthetic judgments, 94 Antifoundationalism, 52—53, 54 Aquinas, Thomas: Aristotle and, 56; moral theory of, 28—29; on premises of civil law, 55 Aristotle: Aquinas and, 56; on fallenness, 112; moral theory of, 2 8 - 2 9 , 34, 47, 98 Arkes, Hadley, neo-Kantian moral realism of, 62—63n Augustine, 3—4; on being, goodness, and God, 8 1 - 8 2 ; caution of, 113-15, 150; versus Cicero, 77—79; and constitutional meaning and judicial power, 152-62; and Constitution of liberalism, 163—70; and departmentalism controversy, 157— 59; on evil and the fall, 8 6 - 8 8 ; on experience of indeterminacy, 140—41; on the fall and human nature, 8 4 - 8 6 ; as father of Protestantism, 75; foundationalism of, 125-26; and freedom and virtue in fallen man, 8 8 - 1 0 8 ; on the good, 22, 142—43; insight of in problems m constitutional thought, 113-62; on intellectual vision, 9 2 - 9 3 ; limited state and, 167; love-covenant of, 169; mistrust of human nature and, 149-52; and Moore's moral realism, 134—37; on morality versus politics and law, 147—49; and moral nihilists and Manichaean error, 116—23; on moral reality in history, 144—45; on nature, knowing, and politics, 7 9 - 8 8 ; and normative impasses of antiquity, 108—12; normative perplexities and, 65— 73; ontological realism of, 7 2 , 1 1 3 - 1 4 ; on order of created being, 8 2 - 8 4 ; political ethics of, 5 - 7 , 6 5 - 1 1 2 ; prudence of, 149—50; prudence of, and judicial

power, 159; prudence of, and moral realism, 137-52; and search for real moral insight, 124-37; theology and philosophy of and American law, 73—77; on transcendence in sphere of immanence, 145n Augustinian integrative synthesis, 73—74 Augustinian tensions, 8 4 - 8 8 , 100-105, 165—70; asymmetry of, 165—66 Ball, Milner: on Augustinian love-covenant, 169; on Constitution's moral meanings, 73 Barber, Sotinos: constitutionalism of, 74; counsel of to judges, 5 5 - 5 6 ; on judicial activism, 151—52, 158; on knowledge of goodness, 133-34; on law, 147; moral realism of, 4 6 - 4 8 , 63, 139, 148-49; on normative gap between law and human inclination, 59n, 163; objectivity of, 127; on Platonic philosopher-kings, 151; on provisionality of constitutional interpretation, 161—62 Being, contraction of, 108, 110-11 Bentham, Jeremy, moral theory of, 29—30 Berger, Raoul: advocacy of judicial restraint by, 158; on disinclination, 147— 48; legal positivism of, 118 Berns, Walter: concern of for order and peace, 163; natural rights ethics of, 3 1 33, 61—62; on normative presuppositions of constitutional theory, 10; quietism of, 118-19 Bible: on fallen man, 9 8 - 9 9 ; wisdom of, 110-11. See also Scriptures Bickel, Alexander, 143—44 Bork, Robert: advocacy of judicial restraint by, 158, 163; constitutional philosophy of, 14; fear of rule of moral philosophy, 19; legal positivism of, 3 2 , 1 1 8 , 1 2 4 ; majority will and, 36; on morality as empty front for gratification, 123; morality of jurist of, 150; moral realism

184 Bork, Robert (cont.) and, 14—15, 20; nihilist skepticism of, 115, 144 Bourke, Vernon, 93 Brennan, Justice William, 19 Brest, Paul, on fundamental rights controversy, 64 Brubaker, Stanley: epistemological nihilism of, 64, 115, 163; on judicial restraint, 1 5 8 - 5 9 ; nihilist skepticism of, 64, 115, 163; on obscurity of political good, 161 Burger, Chief Justice Warren, fear of rule of moral philosophy, 19 Burke, Edmund, on morality in history, 143-44 Cain and Abel story, 102 Carter, Lief: aestheticism of, 38—40; constitutionalism of, 38—39; Manichaeism of, 122-23 Caution: of Augustine, 113—15; imperative of, 150 Chiliasm, 104 Christ, second coming of, 104 Christian Left, 164 Christian Right, 164—65 Christian wisdom, 99—100 Cicero: versus Augustine, 77—79; classical idealism of, 107, 137; moralism of, 166; on tasks of polls, 56 Civitas det, 102, 105 Civttas terrena, virtues of, 102 Coherence checking, 99, 130; raw material of, 69; results of, 135—36 Coherence-checking procedure, 67—68, 70; heuristic value of, 131; Moore on, 68— 69, 1 2 8 - 2 9 Coherence epistemology, 50, 128; faith in, 70; inadequacy of, 52 Coherence justification, 137 Coherentism, 67; of Moore, 68—69, 128— 29 Concept of Law, The (Hart), 171, 172 Constitution: as blueprint of good, 147; equating of with Good, 4 ; judicial power and, 152—62; as law, 147; moral aspirations of, 152—53, 154—55; moral meaning of, 153—56; nonmoral provisions of, 153; universal significance of, 154 Constitutional interpretation: provisional-

INDEX lty of, 161—62; religious self-understandmg and, 73 Constitutional thought: Augustinian insight and problems in, 113—62; moral anatomy of, 2 3 - 6 4 ; moral theories and, 17n; normative impasses in, 9 - 2 2 ; prescriptive nature of, 1 0 - 1 1 Contractananism, 138 Convention: coherence checking of, 129— 30; versus conventionalists, 27—28; as moral reality in history, 155—56; as stay of order, 156 Conventionalism: versus conventions, 2 7 28; founded on nihilism, 2 8 ; Protagorean, 34—46; versus realism, 24—26; teleological, 31, 3 2 - 3 4 , 6 1 - 6 2 Conventional moralities, 129—30 Corporeal vision, 92 Correspondence epistemology, 48—49 Creation: biblical ideas of, 1 1 3 - 1 4 ; ex nthilo, 82; order of, 8 2 - 8 4 ; preceding history, 100 Credo quta absurdum, 99 Credo ut intellegas, 99 Critical doctrine, 39—40 Critical legal scholars (crits), 121—22; Manichaean reconstructionism of, 123 Cultural relativism, 132 Deconstructionism, 39 Democracy: Ely's theory of, 33—34; moral justification for, 33; utilitariam justification of, 15—16 Democratic proceduralism, 36 Deontology, 24; neo-Kantian, 138 Departmentalism, 156—57; controversy over, 1 5 7 - 5 9 ; proximate, 157 De Republtca (Cicero), 77 Duty, 24 Dworkin, Ronald, 50; conventionalism of, 4 2 - 4 6 ; epistemology of, 129; external skepticism of, 42—45; influential jurisprudence of, 63; legal positivism of, 158; Manichaean tendencies of, 120; on moral interpretation, 131; on moral transformation of, 63n; neo-Kantianism of, 138—39; on normative presuppositions, 9 Eighth Amendment: language of moral rec-

INDEX

titude in, 11; normative interpretation of, 12 Ely, John Hart: democratic proceduralism of, 36; process norms of, 15; process su­ perstructure of, 15-16; utilitarianism of, 33-34, 61-62 Empty shells theory, 121 Epistemological relativism, 37 Epistemological skepticism, 64, 163; ontological confidence and, 158—59 Ethics: applied, 23; teleological versus deontological theories of, 24 Evil: the fall and, 86—88; resistance to, 172 Experience, coherence-checking and, 6768 Exterior man, 109 External skepticism, 42-43, 45, 129; meta­ physical realities and, 43—44 Fall, 84; biblical ideas of, 113—14; evil and, 86—88; goodness after, 97; human na­ ture and, 84—86 Fallen man, 112; condition of, 114; free­ dom and virtue m, 88—90; knowledge in, 90-100; ontological reality of, 165-66; structural limitations of, 108 Federalist Papers, 166 Fifth Amendment, just compensation re­ quirement of, 11 Foundationalism, 26, 124—27; Moore on, 137 Fourteenth Amendment: language of moral rectitude in, 11; promise of equal protec­ tion of laws in, 153 Frankfurter, Justice Felix, 18 Freedom, in fallen man, 88—90 Genesis, 81 Gnosticism, 80, 104, 117; on nature, 110 God: Augustine on, 81-82; city of, 102—5; as ground of being, 108; law of, 83; liv­ ing according to, 102; love of, 101—5; transcendent, 134—35 Good, 24; as accessible to reason, 26; as artifact of man, 29; conventional, 25, 35—36; human disinclination for, 127, 147—48; love of, 83—84; neutrality to­ ward, 114—15; transcendence of, 142. See also Goodness; Virtue Goodness: ability to glimpse transcendent,

185 134-35; Augustine on, 82; denial of, 43; faith in, 70; in fallen world, 97, 165-66; God as, 94—95; knowledge of, 133—34; knowledge of, imperfect, 55—56; knowl­ edge of, obstacle to, 98; as natural law, 126; nature of, 26, 50; reality of, 47, 122—23; skepticism about, 66; Trinity of, 94—95. See also Good; Virtue Good will, 29 Governing end, 30 Hand, Judge Learned, nihilist skepticism of, 18 Hart, H.L.A.: analysis of law by, 147; and legal or moral normativity, 171-73; le­ gal positivism of, 17n Heavenly city, 102-5 Heimbach, Daniel, on Hart's legal positiv­ ism theory, 172—73 Heraclitus, 81 Historicism, 36-37 History: moral reality in, 141—45; and two cities, 100—105 Hobbes, Thomas: Manichaean thought of, 118-19; on moral nature, 20; moral the­ ory of, 29-30, 31; natural rights and law of, 31-33 Holmes, Justice Oliver Wendell, nihilist skepticism of, 18 Human condition, instability of, 109-11 Human nature: and creation, 83—84; and failure to love, 126; in fallen condition, 84—86, 114; human will and, 101; mis­ trust of, 60-61,149-52; vitiated, 13637 Ideology, 98 Imageless intellection, 93 Indeterminacy, experience of, 56-58, 66, 71, 135, 140--41; epistemological expla­ nation of, 66—67 Integrity, law as, 43—45, 138 Intellectual vision, 92-93 Jefferson, Thomas, 169 Jesus Christ: as God incarnate, 82, 84n, 95, 98; as Logos, 95, 98 Judicial activism, 151—52; censuring of, 164; versus restraint, 156—62, 163 Judicial power: Augustinian prudence and,

186 Judicial power (cont.) 159; constitutional meaning and, 15262 Judicial restraint: versus activism, 156—62; Augustinian grounds for, 160-61 Jurist, morality of, 150 Justice, definition of, 38 Kant, Immanuel, moral thought of, 29 Keillor, Garrison, on knowing right from wrong, 149n Knowledge: Academicians on, 91; direct, 92; in fallen man, 90-100; goodness and, 125—26; obstacle to, 98; true, 96— 97; as virtue, 95—96 Law: Augustinian theology and philosophy in, 73—77; as integrity, 138; moral ac­ countability of, 173; morally iniquitous, 172—73; rule of, 52—53; rule of, versus rule of moral reality, 19—20; rule of, ver­ sus rule of virtue, 6—7; validity of, 171, 173 Law's Empire (Dworkin), 44—45 Legal normativity, 171—73; character of, 172 Legal positivism, 17n, 118, 158; argument for, 124; of Hart, 171—72; rejection of, 164 Legal realism, 18 Legal system, functioning of, 171 Legitimacy, as will of democratic majori­ ties, 14 Lewis, C. S., Augustinian view of, 114 Liberalism, 124; Augustinian outlook and, 7—8; Augustiman tensions and, 163—70; incongruities of, 167, 170; justification of, 168; Lockean, 45; political vacuum at heart of, 169 Libido dommandt, 106 Lincoln, Abraham, on America's political religion, 73 Locke, John: liberalism of, 45; on moral rectitude, 20 Logos, 95 Love: defective, 126—27; of the good, 8384; knowledge and, 125—26; of self ver­ sus God, 101—5; virtue as function of, 89-90 Love-covenant, 169

INDEX

Loving truth, 127 Luther, Martin, as Augustinian monk, 75 Macedo, Stephen, advocacy of judicial ac­ tivism by, 158 Madison, James: as Augustinian, 169; on separation of powers, 160 Majority will, 36 Mamchaean error, 116—23 Manichaean reduction, 81 Manichaeism, 80, 104, 166; on nature, 109—10; reality in, 136; slide to, 117 Marshall, Chief Justice John, 20 Metaethics, 4 Metaphysical skepticism, 129 Metaphysics, denial of, 43—44 Mill, John Stuart, moral theory of, 31 Moore, Michael: adjudication theory of, 150; advocacy of judicial activism by, 158; antifoundationalist caution of, 52— 54; blueprint of good of, 59; coherence epistemology of, 128—29; coherentism of, 68—69, 129—31; constitutionalism of, 74; epistemological explanation of expe­ rience of indeterminacy by, 66—67; foun­ dations of theories of, 128—37, and mis­ trust of human nature, 60—61; moral meaning of, 163; moral realism of, 46— 61, 64, 71-72, 130-32, 139, 141-43, 146; moral realism of, optimism in, 68— 70; natural law theory of, 56, 63, 164; on nihilist skeptics, 13; and received wis­ dom, 141—42; theory of moral knowl­ edge of, 133-36 Moral ambiguity, 20 Moral conventionalism: definition of, 25; versus moral realism, 24—26 Mora] foundations, lack of, 4 Moral indeterminacy, 66, 71. See also In­ determinacy, experience of Moral insight, seeking of, 124—37 Moral interpretation, Dworkin on, 42-43 Morality: conventional nature of, 17—18; groundlessness of, 15-16; Hobbesian, 30; versus law, 19—20, 59—60,146—49, 171—72; normative, 10-12; Perry on, 16—17; political, 165; versus politics, 59—60, 146—49. See also Goodness; Vir­ tue

INDEX

187

Morality-law nexus: of Moore, 52—54; of Murray, 5 4 - 5 6 Moral leprosy problem, 68 Moral nature, 2 0 Moral nihilism, 12—13, 14; and judicial activism, 158; Manichaean error and, 1 1 6 - 2 3 . See also Nihilist skepticism Moral normativity, 1 3 7 - 5 2 Moral realism, 13; Augustinian prudence and, 1 3 7 - 5 2 ; avoidance of, 14, 20; contemporary versions of, 56; versus conventionalism, 24—26; definition of, 2 4 ; denial of, 15—17; dimensions of, 25—26; experience of indeterminacy and, 140— 4 1 ; in history, 141—45; and mistrust of human nature, 149—52; of Moore, 68— 72; neo-Kantian, 62—63, 1 3 8 - 3 9 ; versus nihilist skepticism, 21; ontological, 48— 4 9 , 1 3 0 - 3 2 ; politics and law in, 1 4 6 - 4 8 ; prudence and, 113; substantive, 46—61, 139-52 Moral realists, 4—5

Niebuhr, Reinhold: on Augustine's political realism, 74, 79; legal positivism of, 173; on natural law, 126 Niemeyer, Gerhart: on Augustine's political theory, 105; on Augustinian limited state concept, 167; on natural law, 126n Nihilism: and conventionalism, 25; epistemological, 115; of Manichaean reconstructionism, 120—22; ontological, 115, 132n. See also Moral nihilism, Nihilist skepticism Nihilist skepticism, 4 - 5 , 1 2 - 1 3 , 1 8 , 21, 42—43; Augustine against, 76—77; related to morality, 61—62. See also Moral nihilism Normative evasions, 12—17 Normative fears, 18—22 Normative impasses, 3—4, 22, 6 1 - 6 4 ; Augustine and, 108—12; in contemporary constitutional theory, 9 - 2 2 Normative presuppositions, 4, 9—13 Normative questions: Augustine and, 65—

Moral reality: in history, 5 8 - 5 9 ; mutability of, 22 Moral skepticism, Protestant thought and, 169 Moral theories: applied to contemporary constitutional theory, 3 1 - 3 2 ; four basic traditions of, 28—31; optimism about, 6 8 - 6 9 ; varieties of, 2 3 - 3 2 Murray, John Courtney morality-law nexus of, 54—56; moral realism of, 46— 61, 125, 139; natural law theory of, 63, 164

7 3 , presupposing good answer to, 11—12 Normativity, as governing end, 3 0

Natural law, 6, 5 6 , 63, 125, 164; goodness as, 126; Moore on, 128 Natural rights ethic, 61—62; as basis of constitutional standards, 32—33 Nature: accounts of, 80—81; affirmation of, 109; Augustine on, 79—81; creation of, 134; and fallen condition, 1 1 3 - 1 4 ; fixity of, 1 0 0 - 1 0 1 ; goodness of, 1 3 4 - 3 5 ; indeterminacy of, 116, 122; intact, 109; ontological reality of, 165—66; undone, 1 0 9 - 1 0 ; vitiated, 1 3 6 - 3 7 Nazism, and conventional morality, 129— 30

Parker, Richard, on normative presuppositions of constitutional theory, 10 Parmemdes, 81 Patriarchs, 102 Peace, of heaven and earth, 105—6; of just and unjust, 106; and polts, 112; two cities and, 1 0 5 - 6 Pelikan, Jaroslav, 74 Perry, Michael: constitutionalism of, 3 7 38; deep conventionalism of, 50; histoncism of, 36—37, 164; Manichaean reconstructionism of, 1 1 9 - 2 0 , 123; moral epistemology of, 120; on moral reality in history, 144; moral thinking of, 1 6 - 1 7 ; on normative presuppositions of consti-

Neo-Kantian moral realism, 46, 6 2 - 6 3 , 1 3 8 - 3 9 ; of Rawls and Dworkin, 45

Objectivity, 1 2 4 - 2 7 Ontological confidence, epistemological skepticism and, 158—59 Ontological nihilism, 115, 132n Ontological realism, 80; of Augustine, 72 Ontological skepticism, 64 Ordered goodness, faith in, 70 Oughtness, order of, 4 7 Ought statements, 13n

188 Perry, Michael (cont.) tutional theory, 10; religious constitu­ tional interpretation and, 73; tradition of, 124-25 Personality, Augustmian theory of, 72 Philosopher-kings, 151 Pilgrimage, 104—5 Plantinga, Alvin, theological argument of, 132n Plato: on goodness, 98, 142; moral theory of, 28—29; on Protagoras's doctrine, 35; reality of, 34; on tasks of polls, 56 Platonic guardians, 19, 150; role of, 21 Pleasure, as governing end, 30 Polanyi, Michael, personal knowledge of, 96 Polls: justice and, 111—12; tasks of, 56 Political ethics, Augustine on, 5-7, 65-112 Political power, fragmentation of, 160 Political rule, in history, 111-12 Political theory, Augustinian, 105—8 Politics: functions of, 106—7; goodness and, 165; versus morality, 59-60, 14649 Prescriptions, advancement of, 4 Process norms, 15—16 Protagoras, moral theory of, 31 Protagorean conventionalism, 34-46 Protagorean man, 35 Protestant Reformation, 75 Protestant thought, nihilist skepticism and, 169 Proximate skepticism, 27, 166,168 Prudence, Augustinian, 149—50; moral re­ alism and, 137—52; ontological, 113; po­ litical, 107-8, 112 Publius, 166 Punishments, cruel and unusual, 12 Purcell, Edward A., Jr., 74 Quietism, 118, 119 Quine, W. V., coherentism of, 67 Quinlan, Karen, case of, 58 Rationalism, 145 Rational liberty, 45—46 Rawls, John, coherentism of, 67 Raz, Joseph, 172 Realism: versus conventionalism, 24—26;

INDEX

legal, 18; ontological, 80. See also Moral realism Realist theory of being, 47—48 Reality: bifurcation of, 48; bifurcation of, resistance to, 113; intrinsic character of, 131—32; as malign void, 136. See also Moral reality Reason: cold light of, 96; fallen man and, 90-100 Received wisdom, 141-42; Moore's aver­ sion to, 144 Reconstructionism, 118; Manichaean, 119—20, 123; nihilism of, 120-22 Reflective equilibrium, 67 Rehnquist, Chief Justice William constitu­ tional philosophy of, 14; epistemological nihilism of, 115; legal positivism of, 118, 124; majority will and, 36; moral real­ ism and, 14—15 Relationship, experience of, 122—23 Richards, David: on Augustinian integra­ tive syntheses, 73—74; moral realism and, 58; moral realist compulsion of, 141; neo-Kantianism of, 138-39; on normative presuppositions of constitu­ tional theory, 10 Right and Wrong, Doctrine of, 32—33 Romulus and Remus myth, 102 Rorty, Richard: conceptual schizophrenia of, 48; deep conventionalism of, 50; epistemological relativism of, 37 Scriptures: experience of good in, 145; as reality check, 98—99, 100; and sense of history, 100-105; wisdom of, 110—11. See also Bible Self-knowledge, 92 Separation of powers, 159-60 Sin, proneness to, 86—87 Skepticism: and Augustinian caution, 114— 15; cautionary postures of, 113-15; defi­ nition of, 27; epistemological, 158—59, 163; epistemological, ontological versus, 64; external, 42—45, 129; about human nature, 149—52; ontological, 64; proxi­ mate, 27, 166,168. See also Nihilist skepticism Slavery, and conventional morality, 12930 Smith, Rogers: on moral realism, 59—60;

189

INDEX

neo-Kantian thinking of, 45—46; on nor­ mative presuppositions of constitutional theory, 10 Social contract, teleological grounding of, 138 Socialism, commitment of cnts to, 121 Socrates: on experience of goodness, 142; on nature, 80 Sophists, 80 Spiritual vision, 92 Stoics, 80; on nature, 109 Strauss, Leo, on Hobbesian theory, 30 Substance, flight from, 15—16 Supreme Court: function of, 38; preemi­ nent authority of, 157; questions occu­ pying deliberations of, 152 Survival, moral authority of, 30 Symbols, assessment of, 144—45 Teleological conventionalism, 30—34, 61—

62 Teleology, 24; realism and, 28-29 Tertullian: anti-intellectuahsm of, 76; on faith as acceptance of absurdity, 99 Theocracy, 164—65 Theodosius, reign of, 104 Theology, in American law, 73—77

Tradition, Perry on, 16—17 Tribe, Laurence: on controversiality and truth, 126; on Ely's procedurahsm, 15— 16; liberalism of, 124; Manichaean reconstructionism of, 119; on normative presuppositions of constitutional theory, 9-10; Protagorean conventionalism and, 36 Truth, reason and, 96 Tushnet, Mark, Manichaeism of, 121 Underdetermination, 51 Unger, Roberto, Manichaeism of, 121 Utilitarianism, 30-31; of Ely, 33—34, 61— 62

Value systems, 27—28; competing, 168; evolving, 154 Vice, primeval, 87—88 Virtue: in fallen man, 88—90; fostering of, 56, 77; knowledge as, 95—96; political rule and, 106—7; pursuit of, 89; rule of, 6-7; versus vice, 79. See also Good; Goodness; Morality Voegehn, Eric, on moral reality in history, 143-45 Will of majority, 14