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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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Men and Women of Goodwill

Men and Women of Goodwill

(p.80) 4 Men and Women of Goodwill
Constitutional Conscience
University of Chicago Press

On the last page of his 1982 book After Virtue, the philosopher Alasdair MacIntyre summed up his argument that Western society has become morally incoherent by drawing a parallel between the present day and “the epoch in which the Roman empire declined into the Dark Ages.” MacIntyre did not leave any doubt about where he would locate U.S. constitutional law in this account: for him, the Supreme Court's constitutional role is necessarily limited to the prevention of out-and-out civil war by ad hoc and amoral compromise. What are the characteristics of good conscience in constitutional decision making? This chapter argues that the answer lies in the constitutional virtues. It shows that the relationship between these virtues and good faith in constitutional argument is not fortuitous. The Constitution, and the practices of interpretation that we have evolved to render it truly authoritative, presuppose the constitutional virtues, which are therefore an intrinsic part of the overall system, as necessary and inescapable as judicial review itself.

Keywords:   Alasdair MacIntyre, constitutional law, Supreme Court, conscience, constitutional decision making, constitutional virtues, good faith, Constitution, judicial review

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