ABSTRACT
In this reading Ronald Dworkin attempts to defend the moral reading of the U.S. Constitution. And defense it needs! When judges decide cases as the moral reading suggests they should, their decision is condemned as “judicial activism” and an unjustified usurpation of power by the courts. The judges are accused of inventing rights, or of rewriting the Constitution to fit their own personal moral views. Dworkin looks behind this rhetoric. The most common source of objection to the moral reading of the Constitution stems from the commitment to democracy. When unelected judges strike down laws enacted by the people’s democratically elected representatives, the idea goes, they impose their moral views on the people in a way that is undemocratic. Dworkin argues that this criticism is misguided on a number of levels. First, it depends on a background assumption about democracy, which Dworkin calls the majoritarian thesis. The majoritarian thesis is the claim that political processes should be designed to produce outcomes that a majority of citizens favors (or would favor under certain ideal conditions). This is thought to be essential to democracy, and judicial review under the moral reading violates it, because it allows judges to make decisions that are contrary to what the majority of people (perhaps as determined through the actions of their elected representatives) approve of.
