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Implications for Ordinary Citizens

The good citizen of the Constitution will support “philosophic judges” and the institutions that produce them. In fact, the public permits judges to think for themselves without depriving them of their right to be judges (e.g. Justice Black in Griswold was not deprived of its authority even if he de facto tried to make meaningless the Ninth Amendment). The public has accepted judges who think for themselves to the detriment of established conventions (e.g. Brown, which overruled the previous doctrine), so they can do it openly.

In Griswold, Black did it covertly: he pretended to present his conceptions as law, when they just were wrong versions of the law.
In Brown, the Court presented scientific evidence and common sense experience to show that the truth about segregation depended on the state of the world the speaker supported purported to describe. It criticized the factual premise of Plessy, but it did not pretend to be always right: the method used in Brown could one day reverse the factual proposition of that case, if the world changes significantly.

The Court’s doctrines are but theories of the law, not the law itself.
Dworkin’s call for a fusion of comparative law and moral philosophy is essential to being faithful to the Constitution itself since the philosophic approach incorporates a proper concern for plain words, intentions and structures. Concepts as “justice”, “equal protection”, etc., need to be translated into practice, therefore a philosophic approach is necessary to find the best meaning possible.
 Earl Warren was appointed by President Eisenhower in 1953 and retired in 1969.
 Dworkin proposes the thought experiment of the “good father” interested in his children education. He tells them that they have to behave fairly. If he is a “good father”, he is interested in the concept of fairness, so he wants his children to apply this concept to many situations, especially those he could not have in mind. if he is a “bad father”, he is interested in his authority, and he just wants his children to behave fairly in the specific conceptions of fairness he has in mind, without going beyond.
di Luca Porcella
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