In The Practice of American Constitutional Law, Powell upholds a shared discipline

Professor H. Jefferson Powell first conceived his latest book as a repository of what he calls “guild learning,” a methodological guide to “what lawyers are doing when they argue over the right answers to constitutional law questions” that would be both instructive to students and familiar to practitioners.

But as the idea percolated over 10 years it took on a new, more urgent dimension, he says. Political disagreements in American society were increasingly taking expression in extreme reactions to legal decisions on issues like same-sex marriage and religious liberty. Powell sensed that constitutional law as a shared practice was in danger of slipping away.

“If constitutional law functions, and only can function, as another vehicle for replicating our political and ideological divisions, then it can’t serve as a means of resolving political and other legal disputes in a way that everyone can accept even when we don’t agree with the outcome,” he says.

“If enough lawyers, judges, and other Americans who aren’t lawyers become convinced that there’s nothing to it but politics, constitutional law will lose its capacity to serve the positive function that I think it has come to play in American history and society. And if we lose it or distort it to this time of radical polarization, I think that will be a serious loss.”

A prolific scholar whose work focuses on the role of the Constitution in the activities of the legislative and executive branches of federal government, Powell has served in a number of positions in federal and state government, most recently as deputy assistant attorney general in the Office of Legal Counsel, which provides legal advice to the president and executive branch agencies.

In The Practice of American Constitutional Law (Cambridge University Press, 2022), Powell defends against critics and would-be reformers the normative practice he regards as fundamentally well-functioning, even while acknowledging the injustices it sometimes allows. Drawing liberally from historical American case law, Powell grounds the practice in time-tested tools and methods of solving constitutional problems, covering the logic of constitutional inquiry, its foundations in the constitutional text, and the presuppositions that shape the analysis of constitutional problems.

Constitutional law’s modes of reasoning and argument, Powell writes, transcend “the contestable and contested theories that divide us.” It’s a position he maintains notwithstanding such controversial Supreme Court rulings as Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade, that some progressive contemporaries decry as evidence of partisan jurisprudence by the current majority.

“People are right to be passionate about things that matter,” Powell says. “But constitutional law’s contribution to society is to give us a way to come out with answers that doesn’t simply end up with you and me just shouting at each other because we, rightly, passionately believe that which we believe.”

Indeed, the traditional view of constitutional law fully allows for the influence of individuals’ political, social, and moral perspectives on their conclusions, he says.

“As Chief Justice [John] Marshall told us, your honest judgments on legal issues — tough legal issues — are going to be influenced by your priors, what he called a person’s ‘wishes, affections and general theories.’ The existence of disagreement, and of constitutional disagreement that tracks politics, shouldn’t surprise us, and it doesn’t mean anyone is arguing improperly. Part of your commitment to the system is a commitment to living with disagreement, and with the fact that there are things that we simply cannot achieve agreement on. But we have a method of articulating a practical answer, nonetheless.

“This book assumes the legitimacy of the system. The system has produced outcomes that I don’t like and it’s allowed serious injustices, but I don’t think those flaws are fatal to the system’s value to society.”

A system open to outside views but not controlled by them

A substantial portion of the book is devoted to describing a “toolkit” of constitutional reasoning addressing the construction and evaluation of arguments focused on the written text of the Constitution as well as arguments derived from the practice of constitutional law, including Supreme Court precedent. Powell also reviews how institutional perspective influences the questions and answers of constitutional law from within the federal courts, the executive branch, and Congress.

In a chapter devoted to how a plausible constitutional argument can become a persuasive one, Powell addresses factors such as personal judgment, fidelity to and adaptation of precedent, the influence of the historical moment in which an argument is made, and the call of justice.

Each played a role in the evolution of high court decisions that culminated in the overturning of racial segregation in classrooms. Powell recounts how Charles Hamilton Houston, the first general counsel of the NAACP, and his successor, Thurgood Marshall (later Justice Marshall), systematically dismantled the rationale behind Plessy v. Ferguson’s upholding of a “equal but separate” accommodations rule by successfully challenging segregation in law and graduate schools before directly attacking elementary school segregation. Houston’s legal strategy played out over 20 years, culminating in the 1954 ruling in Brown v. Board of Education that racial segregation in public education was unconstitutional.

“Constitutional law method is guild learning but it’s open to arguments that come from outside,” Powell says. “The lawyers who brought Plessy to an end were driven by a deep moral conviction that racial discrimination and injustice are evil, but they knew they had to end it the right way, specifically to make good legal arguments and beat out the other side as a matter of legal reasoning.

“The guild learning doesn’t require us to pretend that one’s ethical and political perspectives don’t shape what you think, an idea that I think is painfully not true, and should not be. They shape it in the sense that your judgment about the right legal answer to a tough question, if you are doing your job right, will correlate much of the time with your political views — not because you’re ‘cheating’ but because your legal judgment cannot be insulated from those views.” In his short conclusion, Powell addresses why he believes the traditional practice of constitutional law rooted in the 18th century is still suited to addressing modern-day problems, and why it’s worth preserving.

“Traditions, of course, can be perverse, and the fact that an evil practice is long-standing is no reason to preserve it,” he writes. “The practice of constitutional law has sometimes led in the past to monstrous decisions, and perhaps far more often has failed to rectify obvious injustices. … But constitutional law has also been, often enough, one of the means by which the American political community has sought to eliminate social evils and achieve a greater degree of justice.”

Powell calls his book hopeful, though not optimistic, amid disagreements on both outcomes and the methods of achieving them that he calls “corrosive” to the practice. Too few people, both in the legal academy and on the bench, are stepping up to defend it, he says.

“I feel very much in the minority at the moment, but I think the court of history is with me. The originalists and the anti-originalists both are reformers. And I’m not in favor of their reforms.

“Part of what impels me to write is the fear that something of great value to us all is at risk, and those of us who notice have a duty to say so. And I claim to present constitutional law as it traditionally has been practiced.

“Human achievements are fragile. Social achievements are fragile. And if no one defends them and people just assume that they will continue — or worse, don’t want them to — then we lose them.”

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Spring 2023
Volume 42 No. 1