Constitutional Conscience: The Moral Dimension of Judicial Decision

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University of Chicago Press, Sep 15, 2008 - Law - 144 pages
While many recent observers have accused American judges—especially Supreme Court justices—of 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 approach—one that eschews ideology but still values personal perspective—H. 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 Conscience concludes that the need for these qualities in judges—as well as lawyers and citizens—is implicit in our constitutional practices, and that without them judicial review would forfeit both its own integrity and the credibility of the courts themselves.
 

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Contents

INTRODUCTION
1
CHAPTER ONE The Rule of Five
16
CHAPTER TWO Playing the Game
38
CHAPTER THREE A Question of Degree
56
CHAPTER FOUR Men and Women of Goodwill
80
CHAPTER FIVE Making It Up as We Go Along
103
CONCLUSION To Govern Ourselves in a Certain Manner
117
NOTES
123
INDEX
145
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About the author (2008)

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.

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