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Exploring Law's EmpireThe Jurisprudence of Ronald Dworkin$
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Scott Hershovitz

Print publication date: 2008

Print ISBN-13: 9780199546145

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199546145.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 01 August 2021

The Place of History and Philosophy in the Moral Reading of the American Constitution

The Place of History and Philosophy in the Moral Reading of the American Constitution

(p.23) 2 The Place of History and Philosophy in the Moral Reading of the American Constitution
Exploring Law's Empire

James E. Fleming

Oxford University Press

Dworkin argues that commitment to interpretive fidelity requires that we recognize that the Constitution embodies abstract moral principles rather than laying down a particular historical conception, and that interpreting those principles requires fresh judgments of political theory about how they are best understood. This interpretive strategy — Dworkin's ‘moral reading’ of the Constitution — stands in opposition to the narrow originalists' claim that interpretive fidelity requires following the rules laid down by the framers of the Constitution. Some theorists have responded to the originalists by attempting to carve out an intermediate theory between narrow originalism and the moral reading. Dworkin argues that the search for such an intermediate theory is pointless. This chapter evaluates Dworkin's analysis of the intermediate strategy, and supplements his analysis by putting forth a novel reason why constitutional theorists persist in searching for an intermediate theory. It concludes that the intermediate strategy fails because it fundamentally misconceives fidelity.

Keywords:   constitutional interpretation, moral reading, fidelity, originalism, political theory

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