A Basic Legal Debate Nearly Grasped
Tibor R. Machan
Professor Jeffrey Rosen?of the George Washington University School of Law
and one of the stars of contemporary legal journalism who writes from The
New Republic to The New York Times Book Review, and innumerable
publications in between?has just penned a pretty fair piece on the
Constitution in Exile jurisprudential movement (in The New York Times
Magazine, April 17, 2005). The main actors of the movement are libertarian
legal scholars Richard Epstein, Randy Barnett, Chip Mellor, Clint Bolick,
and others, all of whom have a healthy respect of the principles that
underlie and serve to anchor the legal system of the United States of
The hook for Professor Rosen?s piece is the somewhat noisy public debate
about whether the US Constitution is a ?living document? that?s ?growing?
all over the place, or one with stable and lasting ideas that really
should not be altered except when basic facts about human nature and
society make that necessary. Less noisy yet still influential is the
debate about how to interpret the Constitution, in line with original
intent, the moral views of current justices, or some other method that
will guide us toward justice in how the law is understood in America.
Professor Rosen, unfortunately, does not bring in the most basic issue
that?s at stake here, namely, whether the legal system of a just society
has something outside of itself?for example, natural or divine law?on
which it must rest, or is it simply the result of the will of those who
rule?be that the people (through a democratic or republican process) or a
king or some other powerful political body. This debate is best known by
the phrase ?natural versus positive law.?
The natural law idea is that some facts about the world, especially human
nature, underlie how a legal order of a human community ought to be
understood and framed. According to this view the US Constitution, for
example, had been framed with the conviction that its provisions did, to a
significant extent, accord with a sound understanding of the laws that may
be derived from an grasp of human nature and community life. Even where
the principles of the Constitution had to give way to certain political
considerations, so that it could become the law of the land, these could
always be checked against these pre-legal, pre-constitutional principles
of justice and criticized, approved of and revised accordingly.
The positivist position holds, in turn, that laws are inventions of those
who run a society?be they the people (through their elected officials) or
some ruler or ruling elite. There are no fundamental principles to which
laws ought to be adjusted. After all, morality itself is mere convention
or invention, so to look for foundations for human law is a futile effort.
Moreover, it may even be anti-democratic because the idea of such
fundamental moral or natural law can easily go against what the people (or
the majority of them or their representatives) want as law and public
One point that has always been in contention between the two sides is how
to make room for the common sense understanding, one very problematic to
deny, that some changes in the law are inescapable. The natural law side
would appear to oppose such changes, while the positivist law position
would relish them nearly without limit. Is there some way that can be
loyal to the idea that changes are inescapable, yet they must not be
arbitrary, a mere caprice of the ruler, the majority or (more often)
whoever happens to have managed to get to ?speak for us??
Professor Rosen makes it appear that the Constitution in Exile folks are
dogged absolutists about the US Constitution, whereas in fact they aren?t
or, more aptly put, need not be. They can insist that certain fundamental
principles are stable and lasting (enough) and need only small
modification and adjustment as human understanding grows (e.g., about
human nature, how children should be understood, the facts of
homosexuality or when human existence comes into being during pregnancy).
The dogmatism or absolutism charge is, thus, quite unfair. What is
objectionable from their viewpoint is to think of the Constitution as
entirely malleable, not so much living (which is always guided by
principles of the life in question) but cancerous (living out of control).
Unfortunately we live in a largely anti-philosophical age and without
philosophy the nature of law is impossible to grasp. Rosen and Co.,
especially the major critic of the Constitution in Exile movement he
cites, Professor Cass Sunstein of the University of Chicago School of Law,
unfortunately wish have a grasp without the grounding this requires.
Professor Sunstein in fact wants to take us back to the era when
governments mostly invented law?see his co-authored book The Cost of
Rights (1999)?and granted privileges or ?rights? without foundations, and
thus took us all to be mere subjects of our rulers, even if these would be
the majority and not some monarch.
Yet, of course, majorities can run amuck, no less so than kings or tsars.
So justice can suffer as much at their hands as it can from that of any
unrestrained ruler. It looks very much like the US Constitution has, which
is why the Constitution in Exile movement is pretty much on the right
course in this debate.