Moral Foundations of Constitutional Thought: Current Problems, Augustinian Prospects

202 Pages·1990·10.538 MB·English

by  Graham Walker

MORAL FOUNDATIONS OF
CONSTITUTIONAL THOUGHT

MORAL FOUNDATIONS OF
CONSTITUTIONAL THOUGHT
CURRENT PROBLEMS, AUGUSTINIAN
PROSPECTS
Graham Walker
PRINCETON UNIVERSITY PRESS PRINCETON, NEW JERSEY
Copyright © 1990 by Princeton University Press
Published by Princeton University Press, 41 William Street,
Princeton, NewJersey 08540
In the United Kingdom: Princeton University Press, Oxford
All Rights Reserved
Library of Congress Cataloging-in-Publication Data
Walker, Graham
Moral foundations of constitutional thought: current problems,
Augustinian prospects / Graham Walker.
p. cm.
Includes bibliographical references.
ISBN 0-691-07823-8
1. United States—Constitutional law—Interpretation and
construction. 2. United States—Constitutional law—Moral and
ethical aspects. 3. Augustine, Saint, Bishop of Hippo—Political
and social views. I. Title.
KF4552.W35 1990
342.73'02—dc20
[347.3022] 90-33189
This book has been composed in Linotron Sabon
Princeton University Press books are printed on acid-free paper,
and meet the guidelines for permanence and durability of the
Committee on Production Guidelines for Book Longevity of the
Council on Library Resources
Printed in the United States of America by Princeton University Press,
Princeton, New Jersey
1 0 9 8 7 6 5 4 3 2 1
To Linda Carol Vandenbergh
WHO KNOWS AND LOVES THE REAL

Contents
Acknowledgments ιχ
Introduction 3
One
Normative Impasses in Contemporary Constitutional Theory 9
Normative Presuppositions 9
Normative Evasions 13
NormatweFears 18
Normative Impasses 22
Two
The Moral Anatomy of Contemporary Constitutional Theory 23
Varieties of Moral Thinking 23
Teleological Conventionalism 31
Protagorean Conventionalism 34
Neo-Kantian Moral Thinking 40
Substantive Moral Realism 46
Normative Impasses, Revisited 61
Three
Augustine's Political Ethics: Skepticism, Ultimacy, and the
Good in Politics 65
Normative Perplexities and Augustine 65
Theology, Philosophy, and American Law 73
Augustine vs. Cicero 77
Augustine on Nature, Knowing, and Politics 79
Summary: Augustine and the Normative Impasses of
Antiquity 108
Four
Augustinian Insight and Current Problems in Constitutional
Thought 113
Augustinian Caution: A Preview 113
Moral Nihilists, Manichaean Error 116
Seeking Real Moral Insight 124
Viii CONTENTS
Augustinian Prudence and Moral Realism 137
Constitutional Meaning and Judicial Power 152
Five
Augustinian Tensions and the Constitution of Liberalism 163
Appendix 171
Works Cited 175
Index 183
Acknowledgments
THE WEAKNESSES of my argument as it stands are strictly my own. For
whatever strengths it may possess, however, I am much indebted to oth­
ers: those who kept my spirits up, those who welcomed what I had to say,
and, perhaps especially, those who resisted what I had to say. I am in­
debted to Houghton College and its community of scholars, the milieu
where I first learned to appreciate the life of the mind in the search for
truth; to a small group of friends in Indiana and in Michigan who en­
couraged me through the initial phase of writing; to an anonymous reader
for Princeton University Press whose observations aided my discussion of
the rule of law in the Introduction and elsewhere in the text; to construc­
tive comments from Walter F. Murphy and from my colleagues William
F. Harris II, Ellen Kennedy, and Donald Brand. Most of all I am indebted
to Sotirios A. Barber and Gerhart Niemeyer, who were unfailingly gen­
erous with their time, their advice, and their encouragement.