Chapter

The Principal Questions of Constitutional Interpretation

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation

Published in print June 2007 | ISBN: 9780195328578
Published online January 2009 | e-ISBN: 9780199855339 | DOI: https://dx.doi.org/10.1093/acprof:oso/9780195328578.003.0002
 The Principal Questions of Constitutional Interpretation

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This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's classic criticism of the notion of a “living constitution” and defense of a narrow originalism. It argues that fidelity to the Constitution as written — understood as a scheme of abstract moral principles or concepts like fairness rather than as a code of concrete historical conceptions of those concepts — requires what Ronald Dworkin has called a “fusion” of constitutional law and moral philosophy. Such a philosophic approach would require “judicial activism”, not “judicial deference”. It also would, as Dworkin argues, presuppose a moral objectivity of principle, not, as Rehnquist assumes, moral skepticism.

Keywords: living constitution; Ronald Dworkin; fidelity to the Constitution as written; fusion of constitutional law and moral philosophy; judicial activism; judicial deference; moral objectivity; moral skepticism; William Rehnquist; Warren Court

Chapter.  8676 words. 

Subjects: Constitutional and Administrative Law

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