Dworkin's Wishful-Thinkers Constitution

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. 119). Any right can become constitutionally protected if five Supreme Court justices declare it so. As with Peter Pan, so with rights protected by the Constitution, believing makes it so.

In this paper I explain and reject Dworkin's arguments for his view of constitutional interpretation. But with Dworkin, I reject the "originalism" of Justice Scalia and Robert Bork. I champion, instead, the moderate view that Justice Hugo Black presents in his dissent in Griswold v. Connecticut. (2)

DWORKIN'S ARGUMENTS

Dworkin notes that the Constitution's language, especially in several clauses of the Bill of Rights, is very abstract.

The First Amendment says that Congress shall not infringe freedom of speech, shall not restrict freedom of religion, and shall not establish any religion. But it says nothing to help judges decide whether specific laws against pornography or flag burning offend freedom of speech [or] whether laws that ... forbid Native Americans to ingest peyote ... invade freedom of re...

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...381 U.S. 479 (1965).

(3) Lochner v. New York 198 U.S. 45 (1905).

(4) Pierce v. Society of Sisters 268 U.S. 510 (1925).

(5) Griswold v. Connecticut 381 U.S. 479, Harlan's concurring opinion at 500.

(6) Casey v. Planned Parenthood 60 LW 4795 (June 30, 1992).

(7) Griswold, at 522. (notes omitted)

(8) Griswold, at 513.

(9) Griswold, footnote 6 at 514.

(10) Griswold, at 519.

(11) Adamson v. California, 332 U.S. 46, 90-92 (1947)(Black dissenting). The inserted quote is from Federal Power Commission v Pipeline Co., 315 U. S. 575, 599, 601, n. 4. The entire passage is quoted in Griswold, at 525.

(12) Peter S. Wenz, Abortion Rights as Religious Freedom (Philadelphia: Temple University Press, 1992).

(13) See Wenz, pp. 163-167.

(14) Calder v. Bull, 3 Dal. 386, 399; quoted in Griswold, at 525.

(15) Griswold, at 519.

(16) Griswold, at 501.