Eliminating Constitutional Law

32 Pages Posted: 26 May 2021 Last revised: 3 Jun 2021

See all articles by Evan D. Bernick

Evan D. Bernick

Georgetown University Law Center

Date Written: May 21, 2021

Abstract

A growing number of constitutional scholars are resting arguments for interpretive methodologies on claims about the nature of law. The most prominent and influential of these arguments is a positivist argument for originalism; other arguments draw upon the natural-law tradition. These scholars have clarified their positions but haven't abandoned them.

This Essay contends that they should. Methodological prescriptions to constitutional decisionmakers stand in need of moral justification, and theories of what law-as-such or “constitutional law” are don't fit the bill. Legality doesn't carry moral weight, 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 choice. “It’s the law” can't underwrite originalism or common-law constitutionalism or Dworkinism or anything else. Theories of law may, however, be useful in identifying the moral goods that should factor into interpretive choice, as well as in guiding “retail” constitutional decisionmaking in individual cases.

Keywords: constitutional law, constitutional interpretation, jurisprudence, philosophy of law, originalism, common-good constitutionalism, eliminativism, Joseph Raz, Ronald Dworkin, John Finnis, positivism, natural law, constitutional theory

Suggested Citation

Bernick, Evan D., Eliminating Constitutional Law (May 21, 2021). South Dakota Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3850969 or http://dx.doi.org/10.2139/ssrn.3850969

Evan D. Bernick (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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