Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

The Language of Law

Summer 1999

Steven D. Smith
Oxford University Press, 1998, xiii + 203 pgs.

Professor Smith has written a book that is an excellent example of a type of scholarship it is at pains to criticize. As our author sees matters, many modern constitutional law professors produce "elaborate, exotic" works (p. vii). Academic lawyers, seduced by the "pride of reason," have erected complex edifices that lack proper foundation. Mr. Smith's own book, though not without its insights, is itself a convoluted structure. It does not really come alive until Part II, an assault on a certain style of modern constitutional interpretation.

Our author begins with the Enlightenment. The framers of the Constitution were, he maintained, imbued with faith in reason. They inhabited what Carl Becker called "the heavenly city of the eighteenth-century philosophers." The framers viewed the world as the creation of a rational God. "The critical point is that if Nature is the product of 'mind', then it may be commensurate with or accessible to 'mind'" (p. 8). Further, our grasp of nature is not limited to descriptive matters of fact. Quite the contrary, nature also provides a guide to what ought-to-be.

"If the world was the product of a supremely wise and benevolent Providence," he writes, "then there could be no radical divergence between the is and ought" (p. 22). Human beings, then, have the power to analyze the way nature works. From this grasp of nature, laws of ethics may be deduced.

What has all this to do with the Constitution? Everything, according to our author. The framers of the Constitution viewed themselves as occupants of a unique position. They were designing a government from scratch: unlike previous governments, their product, if rightly designed, would not be the passive result of force and chance. Matters in Mr. Smith's tale now get more complicated. Although man is a being endowed with reason, most men, at least most of the time, are not governed by reason. Just the reverse: "in the framers' view, the power of reason was not the whole, or even the dominant characteristic, of human nature. There is also a darker side. More specifically, it is human nature to crave, and to exercise, power" (p. 37).

The framers believed that they themselves were, perhaps uniquely, at their moment of conviction acting rationally. But how could they ensure that their successors, dominated by power and passion, would carry out their wishes? Further, if human beings were governed by passion and power, on what basis did the framers exempt themselves?

The authors of the Constitution said little about the latter problem, but they had a strategy to cope with the former. They wrote the Constitution, not as a statement of general principles, but as a detailed specification of enumerated powers.

Regardless of whether Mr. Smith's account of reason at the convention is correct, the Constitution is indeed a legalistic document that largely sets forward enumerated powers. Further, as Mr. Smith is at pains to emphasize, the framers' plan to restrict power did not work. Disputes between the Hamiltonians and Jeffersonians soon arose over interpretation of the enumerated powers. For whatever reason, the Constitution we have today is not the document the framers intended us to have. What are we to do?

Mr. Smith proffers no solution of his own. (In two notes, he suggests that natural-law and common-law styles of interpretation merit exploration.) Rather, he is concerned with how contemporary constitutional lawyers deal with the crisis of meaning.

He sees current constitutional law as dominated by a fundamental fact: belief in nature as a source of norms has ceased for most intellectuals to be an option. Natural law, in McTaggart's phrase, is "one with the gorgons and the harpies." But this has had a surprising consequence.

One might have thought that the collapse of natural law would bring to an end attempts to subordinate the Constitution to alleged dictates of reason. On the contrary, Mr. Smith holds, it has intensified them. No longer bound by nature, constitutional "experts" are free to excogitate rules of reason as they please. And this they have done with a vengeance.

"It is revealing," Mr. Smith contends, "that in the writings of prominent constitutional scholars like Ronald Dworkin and Robin West, the original Constitution virtually disappears" (p. 53). Without a mooring in nature, the search for constitutional reason is arbitrary.

Our author has located a weak point in much current moral and legal philosophy. If a writer proceeds, like Ronald Dworkin, from certain beliefs that he considers reasonable, in what sense is he a believer in moral truth? Is he not building sand castles out of his own intuitions? Mr. Smith's criticism of many self-styled greats in constitutional law strikes home, and it is here the main value of the book lies. If only Mr. Smith had managed to raze some of his own sand castles, his book would have been substantially better.


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