Publication Date

2024

Abstract

We have our Constitution in common, even if we share very little else. This, at least, is a core tenet of our constitutional order: that we share in a single framework of duties and entitlements despite our underlying moral, political, and philosophical differences. But is it really possible to occupy a shared legal world if we live in very different moral, political and philosophical worlds? This is the question raised by deeply consequential constitutional controversies in an increasingly polarized society. It is a question about the basis of, and justification for, constitutional law. Is our constitutional law ultimately a matter of moral evaluation or perhaps even of political expediency? If it is, do we have constitutional law in common with those with whom we disagree morally, or with whom we are politically misaligned? ThWe have our Constitution in common, even if we share very little else. This, at least, is a core tenet of our constitutional order: that we share in a single framework of duties and entitlements despite our underlying moral, political, and philosophical differences. But is it really possible to occupy a shared legal world if we live in very different moral, political and philosophical worlds? This is the question raised by deeply consequential constitutional controversies in an increasingly polarized society. It is a question about the basis of, and justification for, constitutional law. Is our constitutional law ultimately a matter of moral evaluation or perhaps even of political expediency? If it is, do we have constitutional law in common with those with whom we disagree morally, or with whom we are politically misaligned?

These questions push us to confront deep and persistent jurisprudential debates about the possibility, and logic, of distinctively legal justification: justification that rests on its own bottom, which does not depend for its force on further moral truths. The most familiar jurisprudential account of such legal justification is H.L.A. Hart’s. For him, we could have shared social frameworks that determine our constitutional law independently of moral considerations. Within constitutional discourse, a wide range of authors that have relied on Hart to put forward practice-based accounts of our constitutional law. The most prominent recent example is Baude and Sachs’s so-called “positive” argument for originalism, but the tradition is a longer and broader one. Practice-based constitutional arguments attempt to find shared social resources to make sense of our law precisely when our moral resources leave us divided. These arguments have been widely criticized on two fronts. First, they are criticized as jurisprudentially confused. Second, they are criticized for illicit bootstrapping: drawing normative conclusions from descriptive premises. As a result, many have concluded that practice-based constitutional arguments are best abandoned.

This Article intervenes at this crucial point in constitutional discourse to clarify the structure and force of practice-based constitutional arguments and to caution against their abandonment. I provide a detailed analysis of the jurisprudential view they rely on, and of the nature and validity of “legal bootstrapping”. And I draw attention to an important pragmatic choice facing those who make practice-based constitutional arguments. Legal validity can be conceived of in narrower or wider terms. Insisting on a wide conception of legal validity–according to which law validates not only its own production but also its own interpretation and application–allows one to insist that judicial discretion is always legally constrained, that even in hard cases there is a “law of interpretation” governing judicial decision-making. But this implies that legal change happens as our justificatory and deliberative frameworks shift. To deny this is to insist that only facts about exercises of legal authority can change law. But that commits one to a narrower view of legal validity, according to which law cannot conclusively govern the interpretation of such facts “all the way down”. Either legal validity forms a seamless justificatory web, or it rests on empirical facts about official activity. In the former case we get a comprehensive “law of constitutional interpretation”, in the latter we can point to empirical facts to justify claims about (the absence of) constitutional change. We cannot have both. Practice-based arguments cannot, I argue, have their cake and eat it too.

Number

864

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