Positivism and Natural Right: The Itchy and Scratchy of our written constitution

Sometimes you start to wonder: why in the world did the Founders give us these textual provisions if they just wanted us to recognize the background principles? Why not just spell out the background principles, and their goals, kind of a declaration of purpose, and then say "go forth and govern"? Or if you don't believe that we should be governed by unarticulated background principles, our constitution is so ambiguous in many areas that room is left to interpret most any outcome. When we grapple with the text and then wind up ignoring it to honor some background princple, or twisting the words to get a desired outcome, our constitution starts to seem like it isn't worth the paper it's printed on.

I'm not sure if the founders really intended it, but I think perhaps the greatness of our system is that it really forces a lot of good discussion and debate on any changes in our government. If we were all just positivists, then we could just use clever wordsmithing and go about pursuing our passing motives. If we were just a common law system, we would just use clever philosophizing in the name of "natural law."

But instead of being purists in either sense, we have this very delicate and baffling dichotomy between both types of interpretation. Almost like a checks-and-balances system of one model of constitutional construction against another. We have this system of not only dual-sovereignty, but of dual constitutions: a constitution by text, and a constitution by natural right. And somehow we have to do honor to both. And it is ok that we don't get it perfectly right. Indeed, there is no way to get government perfect: it is not the sort of system that can be made perfect. It is a system to govern humans: humans in particular, with our particular history and values, and humans in general, passionate, complex, dissonant, and imperfect. Perhaps the beauty of our constitution is that it tracks the qualities of its governed so closely that it truly was and continues to be a government of, by, and for its particular people.