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07-10-17, Midterm Review

07-10-17, Midterm Review - Essay(1 1 What are the strengths...

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Essay (1): 1. What are the strengths and weaknesses of originalism as a method of constitutional interpretation? What are the strengths and weaknesses of Dworkin’s approach to reading the constitution? Which is better and why? a. To be sure, originalism has considerable theoretical strengths: It is straightforward; it reduces judicial discretion by focusing on constitutional text and history (which leaves more room for decision making by the democratically elected branches of government); and its insistence that the ratifiers' understanding should govern judicial decision making helps to put judicial decision making on a more democratic footing since ratification was more or less a democratic act. There are problems, however, with many of originalism's claims to the theoretical high ground. It is not clear, for example, that ratification can be fairly characterized as a democratic act since the ratifiers hardly included a representative sampling of women and minorities. It is also unclear whether the ratifiers themselves intended future courts to follow their understanding of the Constitution. And in any case, it is problematic to suggest that a 21st-century judge can meaningfully think her way into the 200-year-old mindset of a ratifier in order to figure out how he would have approached a modern constitutional problem. (How would a Colonial-era ratifier answer questions about the constitutionality of wiretapping under the Fourth Amendment? Is that even a meaningful question?) b. Dworkin argues that the abstract language of the Constitution was intended by the framers, and as such, requires a moral reading. Constitutional interpretation is a species of moral reasoning, the aim of which is not to determine and enforce the Constitution's intrinsic meaning (whatever that may be in any particular instance), but to do 'justice.' See generally Law's Empire (1986). Consequently, Dworkin, like all liberals, rejects the notion that the Constitution establishes certain fixed parameters within which the nation's political process operates, but otherwise leaves the outcome of that process to the democratic will of the people. Not surprisingly, he endorses a constitutional right to abortion and affirmative action, among other liberal causes celebre. The fact that such 'rights' are nowhere to be found in the actual text of the Constitution, or in the Framers' understanding of the Constitution's meaning, is of no moment for Dworkin, who has argued that the Framers 'misunderstood' the meaning of the constitutional language they themselves enacted into law. See 'The Moral Reading of the Constitution,' New York Review of Books (Mar. 21, 1996) at 49. Ultimately for Dworkin, and other liberal theorists, the Constitution's meaning is limited only by the imagination of five Supreme Court Justices. This is the 'elaborate theory of judging' that Mr. Mulhern argues 'has more intellectual mass' than anything put forward by Robert Bork, Justice Scalia, Justice Thomas, and many other conservative thinkers whose work Mr. Mulhern so casually dismisses. Yet
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