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Dan Callahan follows a distinguished tradition when he uses the phrase "moral discourse" to describe the law's work. The frequency with which that image is deployed suggests its resonance and even rightness: When we think about the way society considers moral issues and develops moral positions, it can be useful to imagine the law as one of many social institutions that contribute to a social discussion. Nevertheless, this image is misleading. At least for our (graying and balding) genera- tions, the law is regarded as a worthy participant in American moral discourse preeminently because of its part in the civil rights movement, and particularly because of the Supreme Court's role in propelling school integration to the fore of public consid- eration and controversy. But what was the nature of the law's contribution to moral discourse in this paradigmatic context? First, it was crucially-though hardly exclusively-judicial. While legislation certainly can be, and often should be, seen as profoundly moral, in popular and even scholarly eyes legislation seems to be most easily regarded as the product of power politics, a coarse and cynical proc- ess of coalition and compromise. In contrast, courts have been more readily described as disinterested and principled.


Reprinted with the permission of the Hastings Center Report and Wiley-Blackwell.