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Dworkin’s Call for a Fusion of Constitutional Law and Moral Philosophy

Dworkin accepts that Warren Court has acted in good faith. One can be faithful to an unchanging text while supporting changes in interpretations of that text.
This idea is based on the distinction between constitutional concepts and competing conceptions of those concepts:
- concept: abstract and general;
- conceptions: particular.

The grand normative provisions of the Constitution (like “equal protection” and “due process”) are written as general concepts, not particular conceptions. Judges that want to be faithful to the text as written need to decide for themselves what the provisions mean for the specific cases, and this necessarily leads to judicial activism (instead of just referring to previous decisions or leaving the questions to the legislature). In this sense, the future interpreters of the Constitution decide the meaning of the provisions for themselves, in a spirit of continuous self-criticism and willingness to change for the better, looking for the best interpretation possible.

Advances in the understanding of Constitution requires a fusion of constitutional law and moral (or political) philosophy (meant as the most refined form of “thinking for yourself”, as any judge has to do to interpret a provision in his own time).
But this not means total subjectivity: according to Dworkin, there is a “moral objectivity”, despite many critiques. In this sense, the commitment to fidelity to the Constitution entails that we should interpret it so as to make it the best it can be. Like the “good father”, the founding generation was interested not in its authority over its posterity, but in the latter’s well-being.

The Constitution acknowledges for its fallibility (in fact allows for amendments), and judicial activism is a way to permit the self-change and continuous self-criticism of the Constitution itself.
di Luca Porcella
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