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Thu Feb 28, 2013, 12:11 AM

Dworkin’s Death Deprives Scalia of His Moral Foil | Noah Feldman - Bloomerg.com

Ronald Dworkin, who has died at age 81, was the leading liberal constitutional theorist of his era. But that is not why his ideas are so important nor is it why history will remember him.

Instead, Dworkin’s essential contribution applies equally to American liberal and conservative legal thought: Constitutional decision-making rests on a bedrock of the judges’ political morality -- and so do the rights we enjoy.

If this thought seems obvious today, Dworkin had much to do with making it so. Until he started writing in the 1960s, the dominant trend in legal theory in the English-speaking world was to the contrary. Ever since Jeremy Bentham had declared that natural law was “nonsense on stilts,” the leading British and American legal philosophers had insisted on a strict distinction between law and morals.

The apotheosis of this view could be found in the writings of Justice Oliver Wendell Holmes, who believed that law had nothing to do with right and wrong; it was just a prediction of what courts would do. In fact, Holmes said, if you wanted to know the law, you should to take the perspective of a bad man who hoped to avoid punishment -- whatever he could get away with was the law. This view fit hand in glove with Holmes’ nihilistic judicial restraint. He thought that the courts shouldn’t invoke morals to stop legislatures from adopting laws, whether the laws embodied socialism or eugenics.

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Reply Dworkin’s Death Deprives Scalia of His Moral Foil | Noah Feldman - Bloomerg.com (Original post)
BootinUp Feb 2013 OP
pscot Feb 2013 #1
bemildred Feb 2013 #2
fasttense Feb 2013 #3

Response to BootinUp (Original post)

Thu Feb 28, 2013, 01:11 AM

1. Scalia is a moralist with an agenda

A right wing catholic agenda

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Response to BootinUp (Original post)

Thu Feb 28, 2013, 07:23 AM

2. I think Fat Tony is losing it.

He looks crazier every time I see him. He has always been prone to mis-speak, but he no longer seems to understand the effects of what he says. For example he conflates racial preferences (quotas) with voting rights (equal protection).

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Response to BootinUp (Original post)

Thu Feb 28, 2013, 09:02 AM

3. This quaint notion that we are ruled by laws

is amusing and sad.

It's amusing because it's fun to watch the black robed junta twist themselves into pretzels trying to justify their masters' political agendas. Really it violated W's equal protection to have all the votes counted? Really? What about Gore's equal protection? That was a knee slapper. And then of course that one that said an organization created by a few documents filed with the state was a person, with all the rights of a person, corporations are people my friend. Another very funny abuse of common sense and logic.

It's sad because it would make sense to ruled by a system of laws and NOT the whim of some rich old men. But of course we must have our fantasy. Let's all pretend that the law is applied fairly and impartially in the best interest of the nation and its citizens. Let's pretend that Thomas is NOT being bribed and that the justices don't take money for their votes.

What a very sad world.

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