ELIMINATING CONSTITUTIONAL LAW.

• Author: Bernick, Evan D.

1. INTRODUCTION

   Do judges need to grasp the nature of law to figure out how they ought to make constitutional decisions? Yes, according to a growing number of U.S. constitutional scholars. The most prominent and influential contribution to what has been called a "jurisprudential turn" (1) in constitutional theory is a positivist argument for originalism--the view that judges should apply the meaning that a constitutional provision carried when it was ratified. (2) In this Essay, I contend that such arguments should be abandoned.

   It is uncontroversial that a public official's choice to put a constitutional theory into practice needs to be morally justified. The jurisprudential turn rests upon the premise that it is morally significant whether a theory positions a decision-maker to discover what the law is. Equipped with such a law-tracking theory, a decision-maker is at least somewhat better-positioned to discharge their moral obligations and may not need to reflect any further on what they ought to do.

   This premise is false. Morality is hard, and it is tempting to cut moral inquiry short at the surface rather than plumbing its depths. But "legal interpretation takes place on a field of pain and death." (3) Constitutional decisions distribute and impose, authorize, and normalize coercion. (4) They define and limit the permissible nature and scope of our efforts to achieve collective goals. Given the stakes, constitutional theories stand in need of justification more robust than any theory of what law is can provide. Accordingly, I endorse legal eliminativism--the view that we can and should do without inquiry into the nature of law--in important domains of constitutional theory and practice.

   Part II summarizes the leading contributions to the jurisprudential turn. I canvass Professor William Baude and Professor Stephen E. Sachs's positivist arguments for originalism; Professor Jeffrey A. Pojanowski and Professor Kevin C. Walsh's natural-law arguments for originalism; Professor Adrian Vermeulc's natural-law argument for a nonoriginalist approach to constitutional interpretation; and discuss criticisms of these arguments.

   Part III begins with an overview of normative constitutional theory--that is, the theory that is concerned with how decision-makers ought to engage in constitutional interpretation. I argue that any normative constitutional theory that goes beyond identifying the obligations that judges themselves recognize and tells them what obligations they should recognize stands in need of moral justification. I then ask whether the truth of any theory that purports to describe what law is, as distinct from criticizing existing law from a moral standpoint--any theory of analytical jurisprudence--can justify the adoption of a particular constitutional methodology. I answer, "no."

   Part IV asks whether scholars or public officials ought to adopt or endorse constitutional decision-making strategies without even considering the nature of law or ascertaining something called "constitutional law." I argue that such a move would be premature. I also stop short of denying the utility of the concept of law to constitutional practice. A decision-maker might conclude that the morally salient reasons for theory-choice support consulting a limited set of legal materials called "law" rather than taking all morally relevant considerations into account in every case.

   It is also plausible, however, that rule-based decision-making on the basis of wrong beliefs about constitutional law would be worse than all-thingsmorally-considered-decision-making. And the answer to whether a rule-based strategy is morally superior to an all-things-morally-considercd strategy may differ across institutions and individuals. I leave these questions open. I do, however, propose that if our constitutional doctrine is not, in fact, governed by law, we should not pretend that it is.

2. THE JURISPRUDENTIAL TURN

   The jurisprudential turn began as a positivist turn. In a series of articles published in the mid-2010s, Will Baude and Steve Sachs contended that the debate over constitutional interpretation should be resolved on legal grounds in favor of originalism. (5) Their case for originalism has two prongs: (1) Positivism correctly holds that the content of the law is determined by psycho-social facts; and (2) it is a psycho-social fact that the current practices of U.S. courts include a form of originalism. (6)

   There followed criticism as well as subsequent efforts by originalists and nonoriginalists to articulate their own theories of law and defend their preferred methodologies of constitutional interpretation on the basis of the latter theories. In this Part, I summarize the jurisprudential turn and assess where it has led normative constitutional theory.

   1. POSITIVISTS FOR ORIGINALISM

      The Baude-Sachs positivist case for originalism is a case for a particular kind of originalism, termed "original-law originalism." It holds that "the original meaning of the Constitution is the ultimate criterion for constitutional law, including of the validity of other methods of interpretation or decision." (7) The nuances of their case that original-law originalism is part of our positive law are beyond the scope of this Essay. I am focused on the form of the argument--specifically, its dependence upon a positivist theory of law that Baude and Sachs apply to U.S. constitutional decision-making.

      Again, positivists characteristically hold that psycho-social facts determine the content of the law of a given jurisdiction--although the nature of those psycho-social facts is disputed. (8) Over the course of their writings, Baude and Sachs have become increasingly more explicit that they are Hartian positivists, committed to the most distinctive claims of the twentieth century's most influential positivist, Professor H.L.A. Hart. That means that they hold that the psycho-social facts that determine the law in the U.S. are established by a "rule of recognition" that U.S. officials consider themselves obligated to follow. (9) More specifically, they claim that U.S. officials view themselves as having an obligation to follow original-law originalism because--drawing from Hart--the "complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by reference to certain criteria . . . ." (10) make original-law originalism part of that rule of recognition. (11)

      Precisely what is the nature of the obligation that follows from originalism's inclusion in our rule of recognition, and how strong is it? Baude has drawn upon Professor Richard M. Re's argument (12) that the Article VI promise that all U.S. officials are required to make to follow the Constitution (13) "gives the Constitution normative force . . . because it is the solemn assertion of a promise, with all the moral force that a promise carries." (14) Baude has also invoked democratic theory, claiming that "judges usurp power when they transgress the terms of the grant [of power] . . . ." that they receive from the public in exchange for their promises to the public to follow the law. (15)

      Baude takes no position on whether "law has its own moral force." (16) But he writes as if his promissory and democratic arguments carry considerable normative heft. Explaining that the judicial obligation to original-law originalism is defeasible, Baude imagines a scenario in which "all judges openly decide cases on the basis of astrology" and posits that "[a]strology might be so irrational that its conventional legal status is irrelevant." (17) He offers this scenario as evidence of "how much the positive turn has transformed the normative question" by requiring originalism's opponents, in effect, to show that "it is as bad as astrology" rather than placing the burden on originalists to show that their methodology will "best. . . constrain judges" or "maximize human welfare in the long term." (18) It seems that part of the appeal of the positive turn to Baude is its capacity to shift the terms of the normative debate between constitutional methodologies in a way that "most originalists would be happy" to accept. (19)

      Sachs has not adopted these arguments. But, in a short but illuminating reply article by Professor Andrew Coan calling for a constitutional amendment expressly making nonoriginalism the law of the land, (20) Sachs at points suggests that legal status carries some normative heft. For instance, he writes that "the intuition behind original-law originalism is that the law may have taken a position on which interpretive rules apply--and, if it did, those rules ought to control." (21) In that very reply, however, Sachs distinguishes between normative arguments for originalism and those that he means to advance. What's going on?

      Sachs appears to hold the view that legal scholars should focus their attention on describing the law and that political philosophers should specialize in law-adjacent moral questions. He laments the "tendency to move quickly from legal duties to moral duties, to consider constitutional questions as fundamentally normative questions." (22) He opines that "[f]he problem of political obligation is one best suited for more general philosophical inquiry, using more general philosophical tools ....," thus endorsing a kind of division of labor between legal scholars and political philosophers that sees both groups capitalizing on their respective analytical advantages. (23)

      Sachs does suggest that existing law can carry moral weight in certain circumstances. He proposes that one might think that "moral obligations sometimes take account of our legal and social ones . . . ," (24) He offers the example of tax collection: "[0]ne might think that current tax rates are too high, but also think that the recent tax cuts were poorly structured, and that in the meantime the IRS should collect precisely as much in taxes as current law prescribes." (25)...