Article by Ronald Kahn
In recently published works, Michael Perry, Sanford Levinson, and Mark Tushnet seek to reinvigorate civic republican values, and to reintroduce them into constitutional theory and practice in this age of self-interested politics and moral skepticism.
These authors are responding to developments in hermeneutics, political theory, moral philosophy, literary criticism, and religion. They ask several related questions. Are we justified in maintaining our faith in the Constitution and constitutional adjudication in our age of moral skepticism? Does the acceptance of moral skepticism preclude the success of the project of liberal political philosophy: to establish neutral principles of law and government? Are there tensions between liberal and civic republican values in constitutional theory and, if there are, can they be resolved by modern constitutional theory, our present process of constitutional adjudication, and the wider political system?
In Morality, Politics, and Law, Michael Perry offers the most comprehensive and original consideration of these questions. He seeks (1) to explain the relationship of moral and religious beliefs to politics and law; (2) to present an alternative vision of the relationship between morality and politics to that which is offered by liberal political philosophy; (3) to enlighten persons who mistakenly believe that because there are no unquestionable moral foundations, there can be no moral knowledge, reasoning, or productive moral discourse; (4) to demonstrate that constitutional adjudication, at its best, can secure productive moral discourse and a deliberative, transformative politics (even though our society has deep moral differences and no transcendent conception of justice); and (5) to offer complementary strategies about constitutional adjudication to help deliberation when moral discourse in our society has become exceedingly difficult. Perry's objective is to promote deliberation and to institutionalize the ideal of self-critical rationality.
In Section II, I analyze Perry's constitutional theory and suggest that faith in the pluralist political system is an essential component of his inquiry. In Section III, I question whether Perry's trust in the pluralist political system is warranted and whether the Supreme Court's role and the constitutional adjudication process that he advocates—that of decentralizing constitutional decisionmaking to state legislatures—will foster deliberation, transformation, and human rights.
In Section IV, I argue that Perry's concepts of polity and rights undermine the critical potential of his theory, particularly that constitutional adjudication may serve as a forum for self-critical rationality in our society. In Section V, I argue that Perry's rejection of moral foundationalism leaves a process value—faith in pluralist politics—as the basis for a renewed faith in civic republicanism. This conclusion introduces a relativism into Perry's theory that is not unlike that which predominated legal and democratic theory in the 1950s, and which caused a rebirth of self-interested politics and law.
About the Author
Ronald Kahn. Professor, Oberlin College.
Citation
63 Tul. L. Rev. 1475 (1989)