Lawrence Gene Sager

The place of the written Constitution in our constitutional practice is defined secondarily, from outside the text, not commanded by the text. Like moral readers of our constitutional practice, originalists of all stripes have to argue from outside the text. This makes the new originalist turn to the theory of language come too early; the place of such theory is necessarily subordinate to a convincing moral account of our practice as a whole. To lament the existence of constitutional provisions that do not provide legible descriptions of encompassing states of affairs —as the new originalists implicitly do— is to badly misunderstand a morally salient element of our constitutional practice. The non-encompassing provisions of the Constitution are not incomplete, and hence failed instructions; rather they are complete, successful delegations of authority to constitutionally responsible officials. A delegatory constitutional instruction hands off responsibility and authority; in order to do that, it must be non-encompassing. This is a virtue, not a liability of the written Constitution. The purpose of our constitutional practice is justice-seeking. It aims at better aligning our institutions, policies, laws and the political community as a whole, with the requirements of justice. It aims, that is, at our making moral progress as a political community. Delegations of constitutional authority and responsibility invite the partnership of contemporary constitutional actors, in the justice-seeking enterprise, including and especially courts. Our constitutional courts are common law courts; they are, that is, reason-giving and precedent- drawn, features that make them worthy partners in that enterprise.

In Justice for Hedgehogs, Dworkin defends a one-system understanding of law. According to this view, law is morality…more exactly, law is a branch of political morality. I have a special interest in the claim, because Dworkin argues that one of its principal consequences is that it undermines arguments I have made about the valid legal status of precepts that are not properly enforceable by courts. In this chapter, I look critically at both Dworkin’s defense of the one system view and his claim that one can embrace the idea of judicially underenforced legal norms only by rejecting any moralized view of law and embracing positivism.