Dworkin & Brettschneider

Upon reading Dworkin's response to Scalia, there were many instances in which I was reminded of the value theory of democracy as outlined by Brettschneider. I think that the parallel is particularly clear on the last page of Dworkin's response when he says, "But even if we were persuaded that the Court has gone too far in neglecting property rights... these assumed mistakes would hardly outweigh the advantages to individual freedom that have flowed from judges' treatment of the great clauses as abstract" (127). This statement seems to illustrate the inherent value of the individual freedoms that Dworkin is referring to throughout his response, such as rights that have been guaranteed through the equal protection clause. Ultimately, these individual freedoms have this inherent value because they are substantive rights.

It seems that Dworkin would find these substantive rights to have primacy in importance for the same reason that Brettschneider argues and that Jacksón pointed out in his blog post. These substantive rights are necessary preconditions for a democracy, for a democracy fundamentally cannot function without them. An abstract interpretation of free speech is necessary, because the guarantee of the substantive right to free speech legitimates our autonomy, equality of interests and reciprocity and thus our status as rulers. Without this status, democracy is not self-sustaining. The same cannot be said for the other rights or freedoms that may bear the brunt of granting judges this authority that Dworkin proposes. For example, he mentions property rights in the quotation above. In our modern society, certain property rights are arguably not as fundamentally necessary in guaranteeing a legitimate democracy as other rights like the right to free speech. This may be because property is no longer a prerequisite for the right to vote.

Thus, the reason that an abstract interpretation of the Constitution is necessary is in order to guarantee substantive rights. Thus what changes our interpretation of the Constitution over time is not a difference in meaning contained in the text, but a difference in our understanding of what is a substantive right. And this guarantee is necessary for the Constitution to guarantee a legitimate democracy and avoid being self-defeating by asserting our status as rulers.