ABSTRACT
I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal "is" from the legal "ought" is a logical prerequisite to meaningfullegal criticism, and therefore, in the constitutional context, is a logical prerequisite to meaningful criticism of the Constitution.1 As Schauer argues, despite the modern inclination to associate positivism with conservatism, the positivist "separation thesis," properly understood, facilitates legal criticism and legal reform, not reactionary acquiescence. If we want to improve law, we must resist the urge to see it through the proverbial rose-colored glasses; we must be clear that a norm's legality implies nothing about its morality. To reverse the classical naturallawyer's formulation of the issue,2 if we wish to make our laws just, we must first see that many of our laws are unjust, and if we are to und erstand that simple truth, we must understand that the legality of those norms implies nothing about their justice.
