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The Good Society 12.3 (2003) 27-31

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"Natural Law Reasoning and American Constitutional Discourse"

This essay will suggest a link between the relative decline of natural law as a characteristic feature of American public debate, and concern over the possible decline of constitutional discourse. The first part of the essay will describe a particular understanding of constitutional discourse, sharing vital elements with natural law reasoning. Essential to this understanding is the notion that constitutional requirements can and should be conceived in the language of basic purposes and principles. On this approach, constitutional rights are fundamentally distinct from ordinary political considerations; they are not reducible to a weighing of interests. The latter portion of the essay will suggest that this approach to interpreting the Constitution may be threatened by jurisprudential developments with deep roots in the legal realism of the early twentieth century. More specifically, the tendency of courts to adjudicate basic rights by means of balancing tests threatens to reduce constitutional analysis to a tally of fungible interests.

I. An Understanding of Constitutional Discourse

A starting premise is that it is not only constitutional outcomes or decisions which matter, but also the language and framework within which constitutional debate takes place. The nature of constitutional discourse both reflects and shapes the way we think about fundamental political questions, such as the basic purposes of the Constitution, and what it means to have a constitutional right. Some scholars have found it useful to distinguish between "constitution" as a purely descriptive reference to the establishment of procedures and arrangements for the exercise of state power, and "constitutionalism" or "constitutional government," where these terms encompass particular kinds of purposes animating a constitution.1 From this perspective, a constitution is aimed not only at establishing power, but also at limiting it in certain ways, informed by the political community's normative beliefs.2 In a somewhat similar vein, the term "constitutional discourse," as used here, is not meant to apply to any discussion whatever of the Constitution or its meaning. Rather, it refers to a form of discourse about constitutional meanings which is faithful to the basic character of American constitutionalism.

While the meaning of American constitutionalism itself may be debated, it seems reasonable to adopt as a starting point that American constitutionalism was designed to embody a form of law distinct and set apart from "ordinary" law. The Framers were intent on creating a constitution that was to be "maintained separate from and paramount to government."3 In order to govern the governors, the foundational law had to be grounded in something distinct from, and greater than, the ordinary stuff of political decision-making. This drive to distinguish the higher, fundamental law from ordinary governmental policy was reflected in the decision to ratify the Constitution in specially convened state conventions rather than legislatures.4 The Framers recognized that politicians were not always motivated by the public interest, and that ordinary politics sometimes took the form of raw bargaining. The Constitution, however, would not sanction any outcome that happened to emerge from democratic processes. Conceived in the language of principles and purposes, it would set bounds on what the government could lawfully do. The distinctive feature of American constitutionalism was that it not only recognized a higher law constraining those in power, but gave practical force to this higher law by enacting it as legally enforceable, positive law.5 Much of this law necessarily took the form of general principles which could be fully understood only by reference to the fundamental aims behind formation of the American union.

This understanding of the Constitution points to a crucial element of meaningful constitutional discourse—while ordinary politics may, and often does, reflect simply the clash of particular interests, the fundamental law is supposed to represent a manner of analysis and debate that cannot be reduced to immediate and particularized interests. Referring to the Constitution for guidance may be seen as a gateway to stepping outside the regular conduct of politics, accessing norms which are derived from a higher law and procedurally endowed with...


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