The Download of the Week is Eliminating Constitutional Law by Evan D. Bernick. Here is the abstract:
A growing number of constitutional scholars are resting normative arguments in favor of interpretive methodologies on claims about what sort of thing law is and the content of existing U.S. constitutional law. The most prominent and influential of these arguments is a positivist argument for originalism; other arguments draw upon the natural-law tradition. Proponents of this jurisprudential turn have clarified their positions but have not abandoned them. This Essay contends that they should. Methodological prescriptions to constitutional decisionmakers require moral justifications, and theories of what law-as-such or “constitutional law” are do not fit the bill. Legality cannot supply a premise in a moral argument for a particular methodology, regardless of whether positivism or nonpositivism is true. Accordingly, analytical economy and clarity counsel in favor of eliminativism—the view that we can and should do without the concept of law—in important domains of normative constitutional theory and constitutional practice.
What’s the alternative? All things morally relevant—including moral goods associated with law—should be weighed together in making methodological choices. “It’s the law” does not justify embracing originalism or common-law constitutionalism or Dworkinism or anything else. Theories of law/existing law may, however, be epistemically useful in picking out the moral goods that should factor into any decision between methodologies, as well as in guiding “retail” constitutional decisionmaking in individual cases.
An important paper. Highly recommended. Download it while it's hot!
