American Constitutionalism in Historical Perspective (packet)

Weschler criticism: D/n answer Hand’s arg, not assessing ethical basis of Brown nor whether rts exist. Arguments of principle carry no weight if not in service of value we believe in. Consistency is obscene when it’s in pursuit of a value we deplore, e.g. Nazis (Richards).

Dworkin: Utilitarianism justifies majoritarian values but d/n give weight to human rts over the aggregate. Relies on Rawls and principled arguments: fundamental human rts need to be protected esp against democracies. Primary role of ct is to enforce human rts against others. Can be majority human rt versus powerful minority or minority human rts vs. superfaction majority. Ct is most objective way to do this

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   Equal liberty principle: people have basic human rts; liberties of conscience, religion & speech, w/out these c/n achieve any human dignity. This principle has the most weight & c/n be compromised by politics.
   
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   Difference principle: obligation to be concerned with other classes, make sure that inequality works out so that worse off classes are as well off as they can be.
   
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   Studies what good judges do in hard cases, Weschler’s positivist legal interpretation d/n capture their achievements; have to look to ethical, moral dimension.
   
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   Interpretative: try to account for history over time, text, dominant precedent
   
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      Precedential Fit: Accepts that precedent is law but has robust theory of mistake. (Plessy).
      
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      Background Rights: people have a right to be treated fairly and reasonably. Ethical considerations crucial to determination of hard cases must have rights based considerations.(Ex: abolishment of privity rt, new rt to privacy)
      

Persisting rts-skepticism: resists idea that any political philosophy should be central to law

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