CONSTITUTIONAL THEORIES AND CONSTITUTIONAL RIGHTS: FEDERALIST CONSIDERATIONS
In: Publius: the journal of federalism, Band 22, Heft 2, S. 93-108
ISSN: 0048-5950
THIS ARTICLE EXAMINES THE CONTEMPORARY CONTROVERSY OVER CONSTITUTIONAL INTERPRETATION AND THE DIFFERING UNDERSTANDINGS OF CONSTITUTIONAL RIGHTS THAT UNDERLIE IT. THE AUTHOR FIRST CONSIDERS THE CHARACTER AND BASIS FOR INTERPRETIVISM, THAT IS, A JURISPRUDENCE THAT DELINEATES RIGHTS BY REFERENCE TO THE INTENT OF THE FOUNDER AND TO THE CONSTITUTIONAL TEXT. NEXT, THE AUTHOR REVIEWS THE NON-INTERPRETIVIST ALTERNATIVE, FOCUSING ON RICHARD DWORKIN'S INFLUENTIAL ACCOUNT OF CONSTITUTIONAL RIGHTS. THE AUTHOR CONCLUDES THAT DESPITE ITS STRENGTHS, DWORKIN'S POSITION DOES JUSTICE NEITHER TO THE CONSTITUTIONAL TEXT NOR TO THE CONNECTION BETWEEN STRUCTURE AND RIGHTS IN THE UNITED STATES CONSTITUTION. CONSIDERING CONSTITUTIONAL THEORY FROM THE BROADER PERSPECTIVE OF STATE CONSTITUTIONALISM, THE AUTHOR CONCLUDES THAT ITS INSIGHTS ARE LIMITED TO THE U.S. CONSTITUTION AND OFFERS SOME SUGGESTIONS FOR A MORE ADEQUATE CONSTITUTIONAL THEORY.