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Rehnquist’s Arguments About Constitutional Interpretation

The Constitution, for its nature, was designed to establish a majoritarian representative democracy, not to allow the rule of (unelected) judges (but this preference for representative democracy is just unjustified).

Judicial lawmaking has disastrous precedents, like Dred Scott and Lochner (but the mistakes of some judges, guided necessarily by their personal philosophies in the difficult interpretation of the framers’ intent, cannot invalid the whole idea of living Constitution).

The Constitution should not be interested in “fairness” (therefore it is not important who counts as “person”) because fairness involves moral judgements, and they are only matters of personal conscience. There is no source of value rather than enactment by a popular majority.

But there are some difficulties regarding the last position.
There are various views about democracy, and Rehnquist objectivises his own view. De facto he transforms his vision of democracy in a “generalized moral goodness”.
He thinks that political morality is a mere matter of political enactment. But in doing this, he “fixes” his ideas about goods like democracy and constitutionalism that cannot be found in any law. In this way, he creates a moral entity, although he denies the existence of moral truths independent of enactment.
di Luca Porcella
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