(no subject)

[Mark Graber]

I am not 100% sure I understand Larry's distinctions, but I think we
agree.  If Larry is claiming that moral, political, and constitutional
arguments are different, so that it might be the case that both "persons
have a moral right to abortion" and "the constitution does not protect
abortion" are true, we agree.  One of my favorite books is Bobbitt,
Constitutional Fate, which lays out a set of constitutional logics that
are distinctive from other forms of justification.  Having said that, I
should add that I suspect I may disagree on some details, both with
Bobbitt and Solum, concerning the extent to which the proposition
"people have a moral right to X" is relevant to whether "people have a
constitutional right to X" is true.  Still, we agree entirely that,
while some overlap exists, the mode of moral, political, and
constitutional justification differs.

MAG

>>> lsolum at gmail.com 10/12/05 9:12 AM >>>
I am not quite sure, but I believe that there is a crucial ambiguity
in Mark's claim that "the constitutional visions advanced by
conservatives . . . rest on contested historical and value judgments
and so are only as good as those judgments."

This claim can be interpreted in at least two ways.  First, Mark might
be claiming that constitutional visions--by which I assume Mark means
to refer to normative theories of constitutional interpretation and
adjudication--are given their normative justifications on the basis of
both empirical and normative arguments which are contestable or
actually contested.  For example, there are various strategies for
arguing for constitutional originalism--popular sovereignty, rule of
law, etc.  If the arguments fail, then the theories fail.  I assume
that most constitutional theorists would agree with this modest claim.

Second, Mark might be claim that constitutional visions are contested
or contestable on the same grounds that positions in contemporary
political discouse are contested.  In other words, Mark might be
claiming that the justificaiton for originalism (for example) will
succeed or fail if and only if some subset of the normative and
empirical beliefs of conservatives who advocate originalism are true
or accepted as true.  If this is Mark's claim, then I think that the
claim is controversial (at a minimum) and demonstrably false (more
ambitiously).  One simple way of making this point is simply to
observe that their are coherent forms of left formalism and left
originalism.  If this is true, then the second version of Mark's claim
is false.