Dworkin's Wishful-Thinkers Constitution Essay

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Dworkin's Wishful-Thinkers Constitution

ABSTRACT: Developing ideas first put forth in my Abortion Rights as Religious Freedom, I argue against Ronald Dworkin's liberal view of constitutional interpretation while rejecting the originalism of Justices Scalia and Bork. I champion the view that Justice Black presents in his dissent in Griswold v. Connecticut. INTRODUCTION

In Life's Dominion Ronald Dworkin uses a liberal interpretation of the Constitution to defend constitutional rights to abortion and euthanasia. (1) According to Dworkin, the Constitution "lays down general, comprehensive moral standards that government must respect but ... leaves it to ... judges to decide what these standards mean in concrete circumstances" (p.
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The need for judges to use moral argument is greatest, Dworkin argues, where the Due Process and Equal Protection Clauses are concerned. The Fifth and Fourteenth Amendments forbid government to deprive people of life, liberty, or property without due process of law, and the Fourteenth Amendment requires that states accord people equal protection of the laws. The abstract concept of equal protection "does not itself make clear whether states can segregate schools by race, or whether they must spend the same amount per pupil on public education in different school districts across the state." (127) Moral argument is necessary.

Moral argument is central to the application of the Due Process Clause because "The Supreme Court early decided that this clause was not to be understood as simply procedural [as its name clearly suggests], but that it imposed substantive limits on what government could do no matter what procedures it followed." (127) According to this view, called substantive due process, the Due Process Clause protects people in the enjoyment of all fundamental rights, whether or not these rights are enumerated in the Constitution. It is up to judges to decide, on grounds of morality and political morality, what rights are fundamental. Early in this century the right to make commercial contracts was considered so fundamental that state laws impairing the freedom of contract were declared unconstitutional. This was the
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