By David A. J. Richards
Why have the problems of non secular liberty, unfastened speech and constitutional privateness come to determine so prominently in our society? What are the origins of the fundamental rules of our constitutional legislation? This paintings develops a common thought of constitutional interpretation in line with an unique synthesis of political idea, heritage, legislation, and a bigger method of the translation of tradition. proposing either ancient and theoretical arguments in aid of a thought that affirms the ethical sovereignty of the folks, Richards continues that toleration, or appreciate for judgment of right and wrong and person freedom, is the vital constitutional excellent. He discusses such present subject matters of constitutional controversy as church-state kin, the scope of loose speech, and the appliance of the constitutional correct to privateness, to abortion, and consensual grownup sexual relatives.
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16 INTERPRETATION & THE CONSTITUTION leads to the use of such classifications does give proper representational weight to the interests of blacks. 49 Ely objects to certain elaborations of constitutional privacy because the laws invalidated on this ground neither protect privacy interests in the home nor are they the product of representational unfairness, but rest on a substantive ground independent of such interests or procedural defects. 51 But judicial review has, Ely suggests, in such cases no proper role besides judging the fairness of the underlying process of representation leading to legislation—a task in which courts are uniquely competent.
30 INTERPRETATION & THE CONSTITUTION appears precisely in its utility in clarifying historical self-understanding. 41 But why, in fact, is critical moral and political theory often useful as an interpretive tool of political self-understanding? How are its claims connected to critical historiography? Legal interpretation, as a form of historical reconstruction, does not merely call for a critical historiography of the facts of legal history. It requires as well that those facts, or rather the facts that bear on the centrally relevant texts of the legal tradition, all authenticated and clarified by critical history, be interpreted in a normative way, so as to provide the best theory of the values of the tradition.
32 Indeed, it is these Reformation debates which vitalize the modern philosophy that we conveniently but misleadingly date from Descartes;33 they significantly shape as well the development of the methods of knowledge acquisition 25. See Needham, Science in Traditional China, pp. 122—31. 26. For a brilliant general treatment, see Eisenstein, The Printing Press as an Agent of Change. 27. " 28. " 29. See Eisenstein, The Printing Press as an Agent of Change, vol. 1, pp. 163-450. 30. See P. Miller, The New England Mind: The Seventeenth Century, pp.