By David A. J. Richards
Why have the problems of non secular liberty, unfastened speech and constitutional privateness come to determine so prominently in our society? What are the origins of the elemental ideas of our constitutional legislations? This paintings develops a basic thought of constitutional interpretation in accordance with an unique synthesis of political thought, background, legislations, and a bigger method of the translation of tradition. proposing either historic and theoretical arguments in aid of a concept that affirms the ethical sovereignty of the folks, Richards continues that toleration, or admire for moral sense and person freedom, is the critical constitutional perfect. He discusses such present issues of constitutional controversy as church-state kinfolk, the scope of loose speech, and the applying of the constitutional correct to privateness, to abortion, and consensual grownup sexual kin.
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Extra info for Toleration and the Constitution
Sample text
55. " 18 INTERPRETATION & THE CONSTITUTION Yet Ely would use this political theory to limit the scope of many doctrines of constitutional law. How is it, to echo Dworkin's similar question,56 that lawyers of considerable intellectual capacity can deliver constitutional theories with such defective premises? There are, I believe, two plausible explanations, each of which suggests critical defects in the traditional understanding of the aims of constitutional theory. In the first place, part of the problem appears to be the "lawyer's disease," deeply entrenched in American legal education, with its bias against cross-disciplinary inquiry.
This he must deploy both to resolve the conflicts and ambiguities in the previous text and to continue the novel as the best work it can, in the circumstances, be. The best theory of law, Dworkin argues, is a theory of the basic political values embodied in law. The legal interpreter, by analogy to the chain novelist, must bring abstract political theory, to the extent useful in the way suggested, to bear on his work. Political theory is to historical reconstruction in legal interpretation what a theory of literary aesthetics is to the chain novelist.
57 Whenever a theorist denies the relevance of philosophy in doing law, one can be reasonably sure that the theory itself rests on a philosophy (hidden under such labels as popular sovereignty, value skepticism, neutral principles, representational fairness) which the author is unprepared to examine philosophically. Further, the focus on judicial review has, I believe, misdirected constitutional theory away from its central topic, constitutional interpretation, to a narrower preoccupation. This reverses the proper order of discussion, to the detriment of an understanding of both constitutional interpretation and judicial review.