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Dworkin's Approach to Constitutional Rights: Interpreting Abstract Language

Explore the controversial issues surrounding the application of abstract language in constitutional rights and how judges should decide hard cases. Discuss interpretivism and originalism in Dworkin's approach.

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Dworkin's Approach to Constitutional Rights: Interpreting Abstract Language

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  1. Seminar 2 Dworkin’s approach of rights

  2. Abstract language • The Constitution 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.

  3. Controversial issues • What does that abstract language mean when it is applied to the political controversies that divide Americans? • examples: affirmative action and racial justice, abortion, euthanasia, capital punishment, censorship, pornography, and homosexuality • Judges, and ultimately the justices of the Supreme Court, must decide for everyone, and that gives them great power.

  4. How should justices decide? • the Bill of Rights must be understood as setting out general moral principles about liberty and equality and dignity • private citizens, lawyers, and finally judges must interpret and apply those general principles by posing and trying to answer more concrete moral questions.

  5. Is it undemocratic? • Are judges substituting their own moral convictions for those of Congressmen and state legislators who had been elected by the people? • Judicial activism

  6. Hard cases • Cases where the outcome is not obvious • Dworkin believes that our judges do decide hard constitutional cases by posing and answering such concrete moral questions. • Is this only way they can decide those cases.

  7. Interpretivism • Interpretivism as developed by Dworkin includes the claim that interpretation is sensitive to values and that it is fundamental to the nature of law. • Many theorists accept that, given the law, interpretation that is sensitive to values is necessarily employed in its application

  8. Originalism • Originalist theorist-strict construction-original intent: the constitution should be interpreted according to the original intent of the framers

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