Moral Foundations of Constitutional Thought

Moral Foundations of Constitutional Thought: Current Problems, Augustinian Prospects

Graham Walker
Copyright Date: 1990
Pages: 200
https://www.jstor.org/stable/j.ctt7zvw5c
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  • Book Info
    Moral Foundations of Constitutional Thought
    Book Description:

    Graham Walker boldly recasts the debate over issues like constitutional interpretation and judicial review, and challenges contemporary thinking not only about specifically constitutional questions but also about liberalism, law, justice, and rights. Walker targets the "skeptical" moral nihilism of leading American judges and writers, on both the political left and right, charging that their premises undermine the authority of the Constitution, empty its moral words of any determinate meaning, and make nonsense of ostensibly normative theories. But he is even more worried about those who desire to conduct constitutional government by direct recourse to an authoritative moral truth. Augustine's political ethics, Walker argues, offers a solution--a way to embrace substantive goodness while relativizing its embodiment in politics and law.

    Walker sees in Augustinian theory an understanding of the rule of law that prevents us from mistaking law for moral truth. Pointing out how the tensions in that theory resonate with the normative ambivalence of America's liberal constitutionalism, he shows that Augustine can provide successful but decidedly nonliberal grounds for the artifices and compromises characteristic of law in a liberal state.

    Originally published in 1990.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-6144-6
    Subjects: Philosophy, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. Introduction
    (pp. 3-8)

    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 constitutional commentators, judges, and scholars stick to narrowly legal matters, 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...

  5. One Normative Impasses in Contemporary Constitutional Theory
    (pp. 9-22)

    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 enterprise. Instead they profess to believe that morality is arbitrary and relative 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...

  6. Two The Moral Anatomy of Contemporary Constitutional Theory
    (pp. 23-64)

    To show how the normative impasses of contemporary constitutional theory invite an Augustinian scrutiny, I must retrace my steps. This requires 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 leading 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...

  7. Three Augustine’s Political Ethics: Skepticism, Ultimacy, and the Good in Politics
    (pp. 65-112)

    Augustine has the kind of theory that normative constitutional scholarship 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 general 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. Moreover, Augustine is a recognized precursor of the moral and theological culture that informed...

  8. Four Augustinian Insight and Current Problems in Constitutional Thought
    (pp. 113-162)

    Augustine’s way of understanding nature, knowledge, and the moral possibilities of politics begins to penetrate constitutional theory’s normative 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 current debate over constitutional meaning and judicial power, while providing a basis for discounting at...

  9. Five Augustinian Tensions and the Constitution of Liberalism
    (pp. 163-170)

    The Augustinian exploration of contemporary constitutional controversy yields no formulaic solutions to the problems of constitutional interpretation and judicial power. If Augustine is right, there are strictly speaking no “solutions” to such normative perplexities of political existence, and we should not expect to succeed at constructing any neat formulas to resolve them. This is not, Augustine would say, because there is any aspect of human existence that is, by its true nature, morally indeterminate. Human existence, like all being, is inescapably ordered to goodness and truth. But in this fallen age, existence is partially plastic, chronically subject to tensions that...

  10. Appendix H.L.A. Hart and Legal or Moral Normativity
    (pp. 171-174)
  11. Works Cited
    (pp. 175-182)
  12. Index
    (pp. 183-189)