Modern Jurisprudence and the Transvaluation of Liberal Constitutionalism

Abstract

This article focuses on some of the recent work in constitutional jurisprudence, especially the writings of Ronald Dworkin. It argues that the liberal constitutionalism of the present represents a significant, although not always acknowledged, departure from the liberal constitutionalism of the founding period. The Constitution in effect becomes an object of transvaluation, involving an important reordering of underlying philosophical assumptions and commitments. Thus, the considerable infusion of Rawlsian moral theory into constitutional theory has influenced both the substance of constitutional scholarship and the perception of the role of the judiciary in American politics. The implications of this for the enforcement of individual rights are explored through a contrast of Dworkin's ideas with Madison's Federalist contributions. The countermajoritarian impulses common to both theories turn out to have quite different lessons for students of judicial authority.