Dworkin, the Bard, and Boumediene

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7 Responses

  1. A.J. Sutter says:

    Nice post.

  2. David Bernstein says:

    I assume that Dworkin also agree that the Contract Clause embodies the principle of liberty of contract, that the Takings Clause embodies the principle that property rights should be sancrosanct, and Tenth Amendment embodies the principle that the Federal government is one of limited and enumerated powers, with the states being the primary sovereigns. Or are those “only words?”

  3. A.J. Sutter says:

    Apropos of the comment immediately above, it’s a sad commentary on our present era that one should be putting economic rights on a par with an individual’s right to be free from unjustified imprisonment. Ditto for the federalism issue. Even a quarter century ago, I don’t think many people would have made such comparisons so glibly.

  4. David Bernstein says:

    A.J., I thought we were talking about what the constitution says, and supposedly respecting the constitution, not just reading our own views into it. Or maybe it’s Dworkin who “demeans the Constitution” when he does not like its principles? Surely, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” embodies a principle, just as much as the habeas corpus provision does, even if you don’t happen to think as much of the relevant principle.

  5. Orin Kerr says:

    By coincidence, I was talking to the Constitution just the other day and I asked it this exact question. It told me — and this is a direct quote — “Nino is a funny guy, yeah, sure. But Ronnie, that dude demeans me more than anyone!” So I don’t think we need to speculate about this anymore, as we have a direct quote from the Constitution itself.

  6. Chris says:

    “Whether the Constitution can be demeaned, and what counts as having demeaned it, depends on what kind of thing we take it to be.”

    Amen!

    “Nothing I’ve said tells us how to determine when the Constitution is about principle and when it is not …. The point is only that when the Constitution announces a principle that is taken to be mere words, the Constitution suffers a dignitary harm.”

    To say that taking the Constitution to be merely textual “harms” it is to presuppose that it isn’t textual already. But why think that, when you agree you haven’t presented a method for figuring out the nature of particular provisions?

    Orin: “By coincidence, I was talking to the Constitution just the other day and I asked it this exact question.”

    As it happens, I spent a good bit of the summer talking to the Constitution–or rather, investigating its self-presentation in the phrase “this Constitution.” I argue that the phrase refers to the historically-situated text, not (inter alia) Dworkin-Gallie-style principles.

  7. see, that’s probably why the Constitution is in (self-imposed) exile – its feelings have been hurt one too many times by that demeaning SOB, Antonin Scalia.