By David A. J. Richards
Why have the problems of spiritual liberty, unfastened speech and constitutional privateness come to determine so prominently in our society? What are the origins of the elemental rules of our constitutional legislations? This paintings develops a common idea of constitutional interpretation in keeping with an unique synthesis of political thought, background, legislations, and a bigger method of the translation of tradition. offering either old and theoretical arguments in help of a thought that affirms the ethical sovereignty of the folks, Richards continues that toleration, or recognize for judgment of right and wrong and person freedom, is the important constitutional perfect. He discusses such present issues of constitutional controversy as church-state kin, the scope of unfastened speech, and the appliance of the constitutional correct to privateness, to abortion, and consensual grownup sexual relatives.
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In short, we need some appropriate methodology for identifying and elaborating those parts of our traditions that proper constitutional interpretation justly reflects. Bickel has pointed us in the right direction, but gives us no critical tools for making the required distinctions. RIGHTS-BASED THEORY These forms of constitutional theory set the stage for Ronald Dworkin's appeal for a new departure in constitutional theory, a theory that takes account of the "better philosophy . . now available"29 and takes rights seriously.
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. Dworkin's analogy is useful for explaining the role that moral and political theory can properly play in legal interpretation.
52 A process is unfair to the degree to which certain interests are not given weight or are actively prejudiced. If democratic politics fails to advance these interests or actively frustrates them, it fails to maximize the aggregate of satisfaction over frustration of interests, and judicial review assures that the interests are given their proper utilitarian weight. Once one sees that utilitarianism is the guiding premise of Ely's political theory, the theory cannot be represented as process-based at all: the judgment of representational fairness rests on a judgment of substance, namely, the utilitarian principle.