Edward A. Purcell Jr. (New York Law School) has posted Democracy, the Constitution, and Legal Positivism in America: Lessons from a Winding and Troubled History (Florida Law Review, Vol. 66, No. 4, 2014) on SSRN. Here is the abstract:
This Article explores the political and philosophical background of the current debate between positivist “originalism” and evolutionary “living constitutionalism” and, more generally, the significance of positivist ideas for both democratic and constitutional theory. Noting the tensions between positivist and nonpositivist ideas that existed in early American constitutionalism, it focuses on the impact of John Austin’s theory of legal positivism in the United States after the Civil War and the way successive generations of Americans interpreted positivist ideas to develop their theories of democracy and constitutionalism. It argues that Austin inspired rival jurisprudential approaches that quickly, but misleadingly, became entangled with opposing theories of democracy and constitutionalism. Positivist ideas subsequently became the instrument first of Progressives who criticized the “Lochner Court,” then of New Deal justices who preached “judicial restraint,” then of many critics of the Warren Court, and finally of the conservative originalists in the present day who broadly condemn “liberal judicial activism.” The Article shows that, as American politics changed over the years, so too did the alleged significance and practical uses of positivism for arguments about both democracy and constitutionalism. The Article concludes that positivism contributed — and is able to contribute — little to coherent normative theories of either democracy or constitutionalism but that it nonetheless has substantial practical value for both. Positivism’s emphasis on the social and behavioral realities that underlie the law highlights the need to constantly examine the extent to which the legal system honors a society’s democratic values and constitutional principles not just in words and slogans but in the actual operations and social consequences of its legal system.
Via Larry Solum at Legal Theory Blog, who comments:
Highly recommended, but readers should be warned that Purcell's understanding of positivism is historical and practical and not conceptual or contemporary. His understanding of the association between originalism and positivism simply does not hold for contemporary versions of legal positivism–which understands all law as "positive" in the sense that it is necessarily the case that legal content is determined by social facts, not moral facts. Thus, even the most extreme forms of living constitutionalism (for example, a form that embraced the proposition that the Supreme Court may adopt amending constructions of the constitutional text) do not (and cannot) involve anything other than positive law, albeit law that is made by the Supreme Court.
Posted at 6:01 AM