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Constitutional ConscienceThe Moral Dimension of Judicial Decision$
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H. Jefferson Powell

Print publication date: 2008

Print ISBN-13: 9780226677255

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226677309.001.0001

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A Question of Degree

A Question of Degree

(p.56) 3 A Question of Degree
Constitutional Conscience
University of Chicago Press

This chapter examines how a constitutional decision maker might go about making interpretive choices in addressing a constitutional question that is open to more than one plausible answer. It focuses on a legal opinion that a nineteenth-century attorney general, Amos Akerman, gave the president. It shows that Akerman modeled an approach to addressing disputable questions of constitutional law that employs legal craftsmanship not to conceal difficulties or hidden springs of decision but to render them transparent and thus to enable the reader to evaluate critically the conclusions reached by the writer. Such an approach brings the language of constitutional interpretation into accord with the reality of constitutional decision, and in doing so satisfies the duties of the constitutional conscience. The chapter also addresses the parallel between constitutional interpreters in the political branches (Akerman, for example) and judges making constitutional decisions. It concludes that while there are differences, they are more a matter of degree than of kind, and extreme skepticism about political-branch interpretation is unnecessary and inappropriate, and likely to be self-fulfilling.

Keywords:   Amos Akerman, legal opinion, attorney general, constitutional law, craftsmanship, constitutional decision, conscience, constitutional interpretation

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