The Philosophic Approach Revisited
The philosophic approach proposes a fusion of constitutional law and moral philosophy: it means thinking for yourself about what constitutional provisions seem to refer to, with an attitude of self-criticism and in good faith, in search of the best understanding of the Constitution. In this sense, philosophy is the perfected form of thinking for yourself.
For example, Brown v. Board of Education overruled Plessy v. Ferguson. Both were based on the premise that no state shall harm blacks in special ways, but de facto the latter falsified the reality, giving constitutional legitimacy to racial beliefs of the time. It assumed that segregation was not harmful for black people, even if many people were aware of the contrary (as dissenting Justice Marshall Harlem). On the contrary, Brown tried to describe the reality, asserting that the "separated but equal" doctrine was not enough to avoid discrimination.
Many other cases (especially regarding the Equal Protection Clause of the XIV Amendment) now offer protection to women, religious groups, homosexuals and other classes of person that were not previously protected by the interpretation of the Constitution.
Continua a leggere:
- Successivo: Would the Philosophic Approach Require Replacing Judges with Philosophers?
- Precedente: Consensualism and Philosophic Approach
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