Constitutional rights as moral judgments

Robert Alexy’s argument for the ‘dual’ nature of law makes unnecessary concessions to legal positivism. In my view the correct position is that law and rights have a single nature, that of moral judgment. Accordingly, the constitution is not a mechanism for producing ‘valid’ legal rights, alongside merely moral rights. There is no such mechanism. The constitution is an institutional framework with which we can make sense of our own role in a political community as free and equal citizens. It provides ethical grounds regarding the most significant political matters of the day. The constitution is part of an ongoing process of applying practical reason to political affairs in light of arguments about justice and fairness among competing political interests. The constitution is part of our moral horizon, one more element in the tapestry of reasons available to the mind.