Constitutional Theory

Stanley Fish, "Does Constitutional Theory Matter?"

Rehnquist’s objection to the “living Constitution” thesis is that it licenses judges to view cases through the lens of their own value judgments and to substitute those judgments for the values that can be “derived from the language and intent of the framers.”

The job of judges, he is saying, is not to bring a moral perspective to the task of interpretation, but to first ascertain and then uphold the moral perspective they find in the text. It is not the “intrinsic worth” of the Constitution’s propositions as measured by some standard external to them that should compel us. Rather, it is “the fact of their enactment that gives them whatever claim they may have upon us.”

Statements like these enroll Rehnquist in a venerable tradition in which law and morality are regarded as distinct systems. In this tradition, called positivism, the answer to the question “what is Law” is not some grand moral/philosophic pronouncement, but the (apparently) more modest declaration that law is what has been enacted according to established and accepted procedures, Law is what’s on the books. The classic statement of this position was delivered in 1832 by John Austin: “The matter of jurisprudence is positive law: law simply and strictly so called…law set by political superiors to political inferiors.”

The question of whether or not this politically instituted law is morally good may of course be asked, but it is not a legal question. As H.L.A. Hart put it (summarizing Austin), “The existence of law is one thing; its merit or demerit another” (“Positivism and the Separation of Law and Morality,” 1958). In a famous debate with legal theorist Lon Fuller, Hart followed this line of reasoning to its logical conclusion when he argued that no matter how immoral (informed by bad purposes) we may judge Nazi law to have been, it was nevertheless law.