Can We Be Legal Positivists Without Being Constitutional Positivists?
21 Pages Posted: 21 Jan 2005
Date Written: January 2005
Larry Sager's book "Justice in Plainclothes" explains that our constitutional practice has a "durable moral shortfall." Judges do not fully enforce the Constitution, and the Constitution does not fully replicate political justice. This review essay critiques the latter gap, and argues that our constitutional practice need not be read as falling short of what political justice demands. Although most of us are legal positivists at least to the extent that we believe law does not fully overlap with morality, we need not similarly be constitutional positivists, that is, we need not similarly believe that our constitutional practice does not fully overlap with political justice. The review essay contrasts a skeptical view of law's reach with a more aspirational view of constitutionalism; evaluates Sager's arguments for the first gap, i.e., "judicial underenforcement"; and then critiques the case for the gap between the Constitution and political justice. In part the case for the gaps turns on a theory of democracy that requires a robust role for the citizenry in fleshing out the contours of what political justice demands; the review essay argues that such a role can be maintained even if we view our Constitution as coextensive with political justice.
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