West Virginia Law Review

Article Title

In Celebration of Constitutional Kindness: Soft Symbolism in a Hard Shell


The bicentennial of any constitution is surely an invitation to much sententious rhetoric. But the bicentennial of THE Constitution, The American Constitution of 1787, is an occasion for oratorical pyrotechnics of the first magnitude. So I shall make my brief tribute to note the importance of the Constitution as symbol - symbol of our national resolve to be a good society. Constitutions, in general, have two distinct functions: (1) As the outward sign and symbol of a society's fundamental commitment to social values and (2) perhaps more mundanely, as the framework for a political order. Our Constitution of 1787 (or '88 when ratified)has served well in both capacities: it gives prominent notice and articulate voice to our fundamental commitment to our vision of the values of the good society and it has served quite admirably as the framework for our political order. As a framework for our political order it is, in Professor William W. Van Alstyne's phrase, "hard law."' The Constitution as sign and symbol is not "hard law" and, indeed, may appear not to be "law" at all. However, because of the general perception of our Constitution as "hard law," our Constitution's role as sign and symbol is dramatically enhanced. Enhanced, in fact, to the point of being law - albeit "soft law" - and, it is the thesis of this celebratory salute that the Constitution's soft law role is, ironically, more important than its role as hard law. I shall develop my thesis by first briefly describing (after Van Alstyne) the hard law aspect of our Constitution, then by describing the soft law aspect - what it means to say that the Constitution is sign and symbol, and of what; how this symbolism is made significant (and not merely an historical or sociological observation) by the hard law nature of our Constitution; and finally, in a grand effort at an original pyrotechnic, I will suggest that the value that our soft law Constitution most importantly symbolizes today is kindness - then you skeptics can look upward and see what a pretty glow it makes!