The Political Dynamics of Justice Reform in The U.S.

constitution is not what its authors expected the language they used in the document to
do solely during their lifetime, but what they meant it to say. In other words, the framers
did not mean to freeze America in a single historical moment by dictating that only the
legal or political outcomes they expected should be seen as legitimate for all time to
come. Instead they employed highly abstract phrases throughout the document to
sketch out a “moral” vision of how the American government should operate—and this
is what the text of the constitution, if read properly, actually says. So the original
meaning of the first amendment, for example, is not the common law rights of free
speech or the press in 1791—in fact there was no agreed set of such rights at the
time—but an abstract statement of the right to freedom of expression to be interpreted
and reinterpreted as circumstances and society's attitudes change.
Mr Dworkin's words carry the ring of truth. The drafters of the constitution were steeped
in the liberal writings of Enlightenment philosophers and legal scholars. It is a matter of
historical record that they sought to construct a machinery of government which would
endure for generations.
He is an exhilarating writer, and his view seems so much more exciting, and inspiring,
than the sometimes crabbed reasoning of Justice Scalia. But the thought of Mr Dworkin
sitting on the Supreme Court is more disturbing than exhilarating. An unabashed
liberal—in both the philosophical and American political senses of the word—his
behaviour on the bench would be that of an extreme activist who would seek to turn the
Supreme Court into little more than a third legislative chamber.
In practice, most judges are pragmatists who try to pursue an interpretative philosophy
somewhere between the two extremes of Justice Scalia and Mr Dworkin. But however
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