The Good Society, Commerce, and the Rehnquist Court

29 Pages Posted: 12 Feb 2013

Date Written: January 1, 2001

Abstract

What is the relation between constitutional interpretation and the good society? Different approaches to constitutional interpretation give very different answers.

For textualists and originalists, there is no necessary connection. For them, the goal of constitutional interpretation is to discover what the words of the Constitution mean or meant and enforce that meaning. The constitutional textualist or originalist may believe, like many lay Americans have believed for much of our history, that the "Miracle at Philadelphia," as supplemented by the amendment process, has produced such a wondrous document that applying its meaning will typically lead to the best of all possible worlds. The textualist or originalist, however, accepts that when the Constitution and his vision of the good society make competing demands, he owes his allegiance to the former.

Interpreters committed to a "moral reading" of the Constitution believe that at least some provisions of the Constitution-most notably the First Amendment, the Due Process Clauses, and the Equal Protection Clause-enact moral principles For two reasons, those moral principles are not co-extensive with the ordering principles of the good society. First, the Constitution only provides a framework of government; it does not set forth a comprehensive moral view. Thus, a complete vision of the good society must supplement the Constitution's moral principles with additional ones. Second, at least as espoused by its leading proponent, the moral reading recognizes the constraint of precedent broadly construed. A moral reading must not only be morally attractive; it must also fit our constitutional tradition, and that tradition may depart in important respects from the ideal. Within these limits, however, a moral reading of the Constitution is likely to advance the reader's vision of the good society.

Keywords: constitutional interpretation, textualists, originalist, moral, good society

Suggested Citation

Dorf, Michael C., The Good Society, Commerce, and the Rehnquist Court (January 1, 2001). Fordham Law Review, Vol. 69, p. 2161, 2001, Cornell Legal Studies Research Paper No. 13-42, Available at SSRN: https://ssrn.com/abstract=2215098

Michael C. Dorf (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333

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