Freedom's Law: The Moral Reading of the American Constitution

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Overview

Ronald Dworkin argues that Americans have been systematically misled about what their Constitution is, and how judges decide what it means. The Constitution, he observes, grants individual rights in extremely abstract terms. The First Amendment prohibits the passing of laws that "abridge the freedom of speech"; the Fifth Amendment insists on "due process of law"; and the Fourteenth Amendment demands "equal protection of the laws" for all persons. What does that abstract language mean when it is applied to the political controversies that divide Americans—about affirmative action and racial justice, abortion, euthanasia, capital punishment, censorship, pornography, and homosexuality, for example? Judges, and ultimately the justices of the Supreme Court, must decide for everyone, and that gives them great power. How should they decide?

Dworkin defends a particular answer to that question, which he calls the moral reading of the Constitution. He argues that the Bill of Rights must be understood as setting out general moral principles about liberty and equality and dignity, and that private citizens, lawyers, and finally judges must interpret and apply those general principles by posing and trying to answer more concrete moral questions. Is freedom to choose abortion really a basic moral right and would curtailing that right be a deep injustice, for example? Why? In the detailed discussions of individual constitutional issues that form the bulk of the book, Dworkin shows that our judges do decide hard constitutional cases by posing and answering such concrete moral questions. Indeed he shows that that is the only way they can decide those cases.

But most judges—and most politicians and most law professors—pretend otherwise. They say that judges must never treat constitutional issues as moral issues because that would be undemocratic—it would mean that judges were substituting their own moral convictions for those of Congressmen and state legislators who had been elected by the people. So they insist that judges can, and should, decide in some more mechanical way which involves no fresh moral judgment on their part.

The result, Dworkin shows, has been great constitutional confusion. Is the premise at the core of this confusion really sound? Is the moral reading—the only reading of the American Constitution that makes sense—really undemocratic? In spirited and illuminating discussions both of the great constitutional cases of recent years, and of general constitutional principles, Dworkin argues, to the contrary, that the distinctly American version of government under principle, based on the moral reading of the Constitution, is in fact the best account of what democracy really is.

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Editorial Reviews

The Times
An elegant series of essays...on difficult topics of constitutional principle. [Dworkin] analyses, with force and clarity, the rights of citizens in relation to abortion, euthanasia, affirmative action, libel and pornography. He complains, with justification, that judges--and politicians--continue to pretend, at least in public, that, even in hard cases, the judicial function is mechanical rather than creative. He argues that only when we openly recognize that judges necessarily make contemporary judgments of political morality, albeit constrained by integrity to respect existing legal principles, can adjudication in hard cases be reconciled with democratic accountability. If the public understands what is being done on its behalf, then it has the opportunity to influence the development of the law by comment and criticism...Professor Dworkin's analysis of adjudication in hard cases has as much force on this side of the Atlantic Ocean...[and] is recommended to everyone interested in jurisprudence.
— David Pannick
Allenstown Historian
At all times, Dworkin's writing is superb, clear, engaging, and erudite...The innately interesting material that he discusses will draw in many who might otherwise believe that this book is about complicated issues that they cannot understand. It is complicated, but Dworkin serves these issues up in bite-size pieces that most people can comprehend and these are issues that should matter to citizens who care about the Constitution and the judges who interpret the laws.
— Sally E. Hadden
Boston Globe
A rich, learned and profound [book]...It is [the] 'originalist' approach--that we must go strictly by the words in the Constitution and avoid creative interpretations--that Dworkin disputes in this collection of essays...[Dworkin's] ideas are stimulating and his writing is able, forcible and clear.
— David Mehegan
Ethics
A familiar criticism of the American way of law is that judges, especially justices of the U. S. Supreme Court, presume to govern as philosopher-kings. Ronald Dworkin is perhaps the country's most unabashed intellectual advocate for the idea that this is precisely what the judges ought to be doing. In this collection of essays Dworkin supports a right to abortion, euthanasia, affirmative action, and a view of free speech that not only embraces academic freedom but would also do away with most of the laws against libel and slander...Dworkin's is a powerful mind, and there is much here that is provocative, even some that is persuasive.
— Maimon Schwarzschild
New York Times Book Review
Eloquently written and forcefully argued.
— Richard A. Epstein
Washington Post
Should be read as the most lucid and convincing partisan brief for the 'liberal' position in contemporary constitutional disputes...Dworkin is almost always right about legal principles and always elegant.
— Mortimer Sellers
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Product Details

  • ISBN-13: 9780674319271
  • Publisher: Harvard University Press
  • Publication date: 5/28/1996
  • Pages: 416
  • Product dimensions: 6.49 (w) x 9.59 (h) x 1.34 (d)

Meet the Author

Ronald Dworkin is Sommer Professor of Law and Philosophy at New York University. He is the 2007 recipient of the Holberg International Memorial Prize.

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Table of Contents

Introduction: The Moral Reading and the Majoritarian Premise

PART 1: LIFE, DEATH, AND RACE

1. Roe in Danger

2. Verdict Postponed

3. What the Constitution Says

4. Roe Was Saved

5. Do We Have a Right to Die?

6. Gag Rule and Affirmative Action

PART 2: SPEECH, CONSCIENCE, AND SEX

7. The Press on Trial

8. Why Must Speech Be Free?

9. Pornography and Hate

10. MacKinnon's Words

11. Why Academic Freedom?

PART 3: JUDGES

12. Bork: The Senate's Responsibility

13. What Bork's Defeat Meant

14. Bork's Own Postmortem

15. The Thomas Nomination

16. Anita Hill and Clarence Thomas

17. Learned Hand

Notes

Sources

Index

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