John Lunstroth (Health Law & Policy Institute – University of Houston Law Center) has posted The Unity Thesis: How Positivism Distorts Constitutional Arguments on SSRN. Here is the abstract:
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Democracy and civil rights are distorted and polarizing ideas that pit the rich against the poor, and should be abandoned in favor of an emphasis on the common good. To reach that conclusion I argue the US Constitution is and has always been designed to protect the wealth of the ruling class. All political associations or states have this as a central idea.
My argument rests on a unique jurisprudential principle, the Unity Thesis. The main school of legal theory, positivism (the science of law) is based on the idea law is always separate from morals. I argue the opposite, that law cannot be understood apart from the moral. There are fundamental legal things, such as consent, iustum bellum and the state, that have persisted since classical times in our legal regimes. However, the Enlightenment acted to refract those legal things into a scientific part and a moral part. All positivist (or scientific) legal concepts, such as the Enlightenment idea of a constitution, have to be reunited with their moral part in order to be properly understood. The unified legal thing out of which constitutionalism emerged is the state, and is associated with the Hobbesian/Lockean individual, social contract theory, inalienable rights, implicit consent, popular sovereignty, slavery, the constitution, limited suffrage, the electoral college, and oligarchic control. The moral part of the US Constitution is democracy and civil rights; the legal part oligarchy. If we merge the various meanings back into the idea of the state (as a legal thing), then we see democracy/rights continue to enable civil discord by unbalanced focus on the Hobbesian individual, and that instead we should focus on the common good.