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

Author:Feldman, Noah R.
 
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Our foremost framer of mellifluous titles follows Law's Empire[1] and Life's Dominion[2] with yet another impressive possessive, Freedom's Law: The Moral Reading of the American Constitution. If "empire" and "dominion" conjure images of coherence, organization, and firm rule in the service of a unifying theme, "freedom" sounds a more democratic, less centralized note. Freedom's Law comprises an introduction and seventeen short essays (fourteen of which appeared first in the New York Review of Books) on a wide-ranging array of constitutional topics, arranged loosely into three sections dealing with rights to life and death, free speech issues, and judicial philosophies. Instead of articulating a new approach, the work provides concrete examples of Dworkin's now familiar ideas in action. For those who would know the theory of Law's Empire by its fruits, Freedom's Law makes valuable reading.

In his introduction, "The Moral Reading and the Majoritarian Premise," Dworkin argues that the Constitution contains passages that its Framers intended as abstract expressions of moral principles (p. 2). Judges, the de facto final interpreters of the Constitution in contemporary America, ought to take these provisions (and only these) as invitations to engage in reasoning from principles of political morality (p. 2). Their conclusions will depend on the content of the political morality they bring to the hard constitutional cases that arise under those morality demanding clauses. Interpretation properly proceeds subject to the constraints of history and integrity: Judges may only bring political morality to bear where the Framers "meant" to express a general principle, rather than a specific legal directive, and where the judges' principles cohere with precedent and the Constitution's structure (p. 10).

Students of Dworkin will find little new in this. constitutional contextualization of the main arguments of Law's Empire.[3] The "moral reading" of the Constitution means the application of Dworkinian interpretive jurisprudence to the American constitutional text and tradition. However, in his introduction, drawing on arguments raised in Law's Empire[4] and developed elsewhere[5] Dworkin proposes an interesting and original reformulation of our traditional definition of democracy.

Typically, we construe a democratic society to be one in which the majority rules, subject to the protection of individual rights initially determined by some majoritarian process. Dworkin calls this vision of democracy "the majoritarian conception," and he rejects it to define a democratic society as one where "collective decisions [are] made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect" (p. 17). He names his vision the "constitutional conception," thereby presupposing that constitutionalism is best justified without reference to majoritarianism.

Dworkin's definitional shift aims to eliminate what Alexander Bickel famously dubbed "the counter-majoritarian difficulty,"[6] namely the perception that unelected judges trump...

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