Skip to main content Accessibility help
×
Hostname: page-component-78c5997874-m6dg7 Total loading time: 0 Render date: 2024-11-06T09:03:26.718Z Has data issue: false hasContentIssue false

13 - Alexander’s ConstitutionalismA Qualified Defense

from Part II - Problems in Constitutional Law

Published online by Cambridge University Press:  02 November 2018

Heidi M. Hurd
Affiliation:
University of Illinois
Get access

Summary

Larry Alexander argues that the primary function of the law is to "provide the benefits of authoritative settlement." This function explains also the supremacy of the Constitution and judicial supremacy. This chapter differentiates between legal (nonconstitutional) authoritative settlement and constitutional authoritative settlement. I argue that while legal authoritative settlement advances instrumental goals identified by Alexander such as coordination, cooperation, stability, and predictability, constitutional authoritative settlement has in addition intrinsic value; it is the settlement itself rather than its contingent consequences that is valuable. I argue that constitutional authoritative settlement facilitates public recognition that the protection of certain rights is a duty of the polity, rather than a mere discretionary gesture which hinges upon the good-will of the polity. By invalidating a statute on the grounds that it conflicts with a constitutional right, the court announces that the state has a duty to honor the right, namely, that honoring it is not a matter governed by the state's will, judgment, or its inclinations. Hence, in contrast to Alexander, I argue that constitutional settlement differs fundamentally from legal settlement. It does not merely rest on the contingent beneficial results of settlement. This implies also that the proper scope of using constitutional rather than legal settlement is in cases of incorporated moral rights. Created rights are typically the province of legal (nonconstitutional) settlement. It also explains the privileged role of the courts in settling such disputes.
Type
Chapter
Information
Moral Puzzles and Legal Perplexities
Essays on the Influence of Larry Alexander
, pp. 221 - 238
Publisher: Cambridge University Press
Print publication year: 2018

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×