Constitutional Conscience

While many recent observers have accused American judgesespecially Supreme Court justicesof being too driven by politics and ideology, others have argued that judges are justified in using their positions to advance personal views. Advocating a different approachone that eschews ideology but still values personal perspectiveH. Jefferson Powell makes a compelling case for the centrality of individual conscience in constitutional decision making. Powell argues that almost every controversial decision has more than one constitutionally defensible resolution. In such cases, he goes on to contend, the language and ideals of the Constitution require judges to decide in good faith, exercising what Powell calls the constitutional virtues: candor, intellectual honesty, humility about the limits of constitutional adjudication, and willingness to admit that they do not have all the answers.Constitutional Conscienceconcludes that the need for these qualities in judgesas well as lawyers and citizensis implicit in our constitutional practices, and that without them judicial review would forfeit both its own integrity and the credibility of the courts themselves.

H. Jefferson Powell is a professor at Duke Law School. His books include A Community Built on Words: The Constitution in History and Politics, also published by the University of Chicago Press.