Alexander’s Constitutionalism: A Qualified Defense

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.