Justice in Robes

摘要

A method of interpretation which is open to the idea that capital punishment is unconstitutional (in spite of capital crimes being mentioned in the constitutional text), while upholding a constitutional right to abortion (a "right" unmentioned in the constitutional text) is very difficult to distinguish from a position which straightforwardly replaces textual concerns with the moral values of judges. In this debate, many social conservatives are likely to be broadly sympathetic with Dworkin's defense of moral realism against relativism (if not his particular moral judgments) - yet they are likely to have more sympathy for the apparent "positivism" of Scalia's jurisprudence, which tends to reject moral reasoning by judges in favor of strict adherence to text and precedent.