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05/25/2021

Evan Bernick: Eliminating Constitutional Law
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Eliminating Constitutional Law (33 pages) on SSRN.  Here is the 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.

Via Larry Solum at Legal Theory Blog, who says: "An important paper.  Highly recommended.  Download it while it's hot!"