And how does this answer my question?

Oh, right. It doesn't.

The question is inapposite. The right of nations is a matter of state sovereignty and subject to international law by signatory powers to treaty. The rights of any peoples are as provided by the law of their nation, and not some nebulous notion about natural rights.

Again, if this is true, why do citizens of repressed regimes fight for certain rights to be recognized by their government? Why would people fight for their rights to free speech (etc) if they did not believe they already had those rights? If people don't have a right to self determination, why bother fighting for a democratic government? Your notion that governments grant these rights falls apart in the face of these questions. Additionally, the rights of nations does fall upon state sovereignty...Which is inherently a right that states have; not something granted to states. This is why we cry foul when a state's sovereignty is violated...Because it infringes on the right of a state. States can claim sovereignty, regardless of whether or not international treaties accept it or not (Taiwan)...But does that make their claim any less valid?

Additionally, your assertion that the Constitution does not take into account natural rights is absolutely wrong. The whole point of the 9th Amendment is to ensure that people's rights are not sacrificed for the already enumerated rights in the Bill of Rights. I am sure you must know that there was a long drawn out battle to as to whether or not to even include the Bill of Rights in the Constitution. The reasoning behind this is that many of the Federalists did not want to misconstrue the notion of rights as something the government grants; many of them did not want an undue focus on the rights enumerated in the Constitution; they considered such a focus a detriment to freedom.

The problem with the question is that it is illogical. If you have to fight for rights, then it follows, a fortiori, that you don’t have them in the first place. Your argument only begs the question, i.e., it assumes the conclusion (that natural rights exist) in its premise. Likewise, the premise that the Ninth Amendment recognizes natural rights is fallacious. For example, there is no express right under the Constitution for a person to be married; not that the framers thought marriage unimportant to the pursuit of happiness, but rather it is a right retained by the people under the Ninth Amendment, and power reserved to the several states or to the people under the Tenth Amendment. Even so, that does not presume that such right exists absent the law. Each state has the sovereign power to enact laws governing marriage; and you do not have the right to marry another person except as provided under state law. Certainly, marriage is a fundamental right, but it is nevertheless one defined by law.

This is patently untrue. Although homosexuals are not "granted" the right to marry, many homosexuals still choose to get married. Why? Because although the state may decide not to legally recognize the right, that does not mean the right does not exist. Homosexuals can still clearly be married (indeed, many are), and state recognition is not needed for homosexuals to marry (or for anyone). However, in order to gain the legal benefits of marriage, the state must recognize the right. Does this mean the right does not exist? No. It means the state simply chooses not to recognize an inherent right. Governments (and obviously, the people who run them) are infallible, and sometimes do not recognize rights for their own reasoning, but this does not mean the right does not exist. If only governments granted rights, then we would have no problem with letting repressive regimes continue to abuse its citizens...However, most people are appalled at violent, authoritarian dictatorships precisely because they deny people their inherent rights as human beings.

“Patently untrue”? Please explain what benefit there is in a right that is not recognized by law. Is there anything that is not sanctioned by law? Are we free to do as we wish without restraint? Even the right to life itself is not unlimited. No, real rights don’t exist without the law; and if you are honest with yourself, you will see that this is true.

I am being honest with myself, and if you think accusing me of being delusional is a good argument, then perhaps there is no reason to even continue.

Honestly, how does law really prevent people from doing things they want to do? If the law actually restrained homicide, I would agree with you. You can make laws all you want, but that doesnt mean they will be followed. And oftentimes, people break laws they think to be unjust. According to you, people have no right to break unjust laws, because the government doesn't allow it. And yet...people break unjust laws all the time, on the grounds that they have the right to do so, and that the government is not fully recognizing their rights. Now, how can people claim that they have a right to break an unjust law, if the government grants them no rights? You still really haven't addressed that question.

I would say one fundamental right that people have is the right to self-determination. I don't care what regime you live under, and where you happen to be born, you have the right to decide to live your life. This right to self-determination is tempered by rational capacity: meaning that people have the ability to make the right decisions for themselves, and they have the right to make those decisions.

You apparently don't agree with that assessment, which I find difficult to reconcile, because how would you justify any government revolution? If the British government decided to do as it pleased, and deny the colonies rights, then the colonies had no choice but to obey and be denied their rights. However, many of the Founding Fathers felt that their rights were being violated by the British government (rights the government didn't grant the colonies at all, meaning they never really had the rights to begin with), and because of this, a revolution was started.

Why fight for rights if we don't inherently possess them? And why fight for democracy, if only government decides what is a right? If people don't have the right to decide their form of government, then why bother having a democracy at all?

Contrary to popular belief, the Declaration of Independence was not a foundational document; it was a declaration of independence from colonial rule under the English monarchy, and an act of war. It was also, idealistically, a pretty peace of propaganda. Rather, it is our Constitution that is the framework of our government and the font of our rights. The framers of the Constitution did not incorporate Jefferson’s ideas about individual rights. The words “inherent” and “unalienable” do not appear anywhere in the Constitution or any of its amendments with respect to our rights. Under the Constitution, our rights are provided by law.

Throughout history, there have been those that believed that man might be regulated by enlightened self-interest, where people would be righteous and just, and there would be no need for the law for everyone would act for the best interest of the common good. They were impossible dreamers; their perfect world does not exist. One cannot have rights without limitations, and it is the law that defines them.

If the written word is the basis for your belief, would you consider using James Madison't notes on the Constitution? What if Madison's explanation of a point directly contradicted some contemporary strict constructionist interpretation? (Madison versus Scalia - who wins that one?)

The problem with the term "strict constructionalist" is that even declaring that the Constitution should be interpreted that way is an interpretation in itself. Scalia calls himself a strict constructionalist, but basically he just uses it as an avenue to impose his own conservative beliefs, and it's not difficult to find glaring examples that expose this (see Gonzalez v. Oregon, the assisted suicide case). Calling yourself a strict constructionalist is like calling yourself a virgin - you have to have a perfect record.

The main reason to believe that the Founders intended the Constitution to be a living document is because it wouldn't have made much sense to intentionally produce an instrument with such a short shelf life. They knew, even back then, that times change.

Hence, they included an amendment process. "Reinterpretation" is just evasion, plain and simple.

It's not "reinterpretation" - it's just "interpretation." Right from the start, before the ink was dry, legal questions that arose didn't fall into the neat categories that strict constructionists like. You have to do some interpretation. You just can't defer to the states on every question. How many Amendments do you want? Thousands?

I always use the example of the Second Amendment - the "right to bear arms." If interpreted in a strict constructionist way, the problems are obvious, even in the 18th century. It would allow no restrictions. Your kid could carry a loaded bazooka into his kindergarten classroom, for example. Every single restriction on the right to bear arms, like them or not, is due to the Courts "interpreting" the Constitution, finding other rights (not always explicitly mentioned) that pare the right to bear arms back to a sane degree.

See, Page 4, Posts #62, #64, #67, #72, #76 and #79, supra, on the Second Amendment.

By the bye, orders on the petition for certiorari and (cross-petition) in Parker are expected tomorrow.

It was understood all around at the time the Bill of Rights was passed that it only pertained to the federal government.

It will be interesting to see whether or not the Supreme Court will grant cert. in the Parker case. I personally think that the court should not take jurisdiction for the reasons stated in the dissenting opinion of Circuit Judge Karen Henderson in Parker (vis., that the Second Amendment does not apply to the District of Columbia, and even if it did, the court was bound to follow the precedent case of the Supreme Court in United States v. Miller); but then the Supreme Court may surprise the judicial pundits. I was very surprised when the Supreme Court agreed to hear Bush v. Gore; and if ever there was a case that mandated abstention from jurisdiction, that was it.

Again, why are people fighting for rights? Why would people want certain rights recognized if they never had them in the first place? Why is democracy widely considered the best form of government? Is it because it allows people to freely engage in their rights and responsibilities as humans? If social control is the purpose of government, then clearly an authoritarian government would be the best possible option. People generally prefer democracies because it allows them to exercise their rights; rights they have regardless of the regime under which they live.

Additionally, you're ignoring history. There was a long standing debate as to whether or not to even include the Bill of Rights. Many of the Federalists did not want to include them, for fear that they would be misconstrued as the only rights possible. Had the Constitution not included the Bill of Rights, are you saying then that we would have no rights at all?

Even the Anti-Federalists agreed that the enumeration of rights in the Constitution was not meant to mean that government grants rights:



The Federalists argued extensively against the Bill of Rights:



Arkes, Hadley (1990). Beyond the Constitution. Princeton Paperbacks: Princeton, NJ.

What rights did women have when the Constitution was ratified? Women were generally denied basic rights; they could not vote, own property, keep their own earnings, or even custody of their children. Did the founding fathers forget women when they drafted the Constitution? When did women get their rights in the United States? What was the source of those rights? Is there not even now a proposal for an amendment to the Constitution to guarantee equal rights under the law regardless of sex?

Let’s look at rights objectively. Consider the following scenario:

Jason and Jennifer live in the state of Utopia. Unhappily, their life together turns out to be less than blissful, and one day Jason takes their son Jimmy, all their money, and the family car, and goes to the state of Euphoria, where he intends to live separate and apart from Jennifer. Before leaving, Jason told Jennifer: “I have an inherent and natural right to have custody of my son, and all the money because I earned it, and the car that was bought with my money; and if you try to stop me, I’ll kill you.”

1. Absent the law, what rights does Jennifer have?

2. What is the source of those rights?

3. Absent the law, how would she enforce those rights?

I am not addressing any of these points unless you are willing to even begin to address mine.

If rights are not inherent, why would people fight repressive governments in order to gain rights?

Why would anyone try to establish a democratic regime, if not to recognize the inherent rights people have as human beings?

I have already addressed your question which is inapposite, illogical and fallacious. The reason why people fight to gain rights is because they don’t have them in the first place. The reason why you won't respond to my questions is that you cannot do so without admitting that the true source of your rights is the law and not some illusory concept of natural rights. There’s the end of the discussion.

Good day to you.

This is completely confusing. How does a person "know" they have rights in order to fight for them? Perhaps, you can define "rights" and "law". I suspect you are using terms in an unconventional manner.

You can say they're illogical, but at least one other person thinks your explanations are not making sense.

I can address your questions, but as I said, I've asked my questions several times, and until I can get a serious response, there is no point in addressing yours.

Perhaps an easier one, why would people fight for a democratic government if they did not have right to self-determination? Or is that also illogical? What is the reasoning for establishing any democratic norms in any regime?

‘The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §§1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1,35 (1892), that the State legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 ("[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated") (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).’ Bush v. Gore, 531 U.S. 98 (2000).
________________________

The question about the right to self-determination - as with your previous questions - only begs the question of such right, for it illogically assumes in its premise that such right exists independently. Rights are not based upon a priori assumptions, which are, in essence, subjective and structurally false. Real rights are objective: they are not ding an sich (a “thing-in-itself), but exist only within the framework of law. In our own history, our forefathers fought a war for independence from colonial rule; but it was not until they made and ratified our Constitution that our rights came into being. Ask yourself the question: What is the source of my right to vote for President? Look at it objectively. If you cannot see it, then, unhappily, I cannot make you see it.

Im sorry, there's no circular logic in my question. If people don't have a right to self-determination, I want to know what the alternative reason is to having a democracy. I am willing to accept that people may not have such a right, but if they do not, what other reason is there for establishing a democracy?

Several political theorists discuss the nature of rights as being inherent in human beings, by virtue of being human. This is one of the fundamental premises for establishing a democracy, as many of the Founders have pointed out. The idea behind these inherent rights is that humans are capable of determining what is right and what is wrong (this does not mean they will always choose what is right, only that they are capable), and thus exercising their rights and responsibilities in a way that is desirable.

According to the Wiki on Natural Rights:



If the law only gave rights, then why would we be upset when one person's rights are violated? So what? The law decides who has rights and who does not; hence, it does not matter if the government chooses the violate the rights of some people, but not the other.

Law exists in order to allow humans to maximize their rights and responsibilities to each other. Additionally, there are laws that are not rights (the President must be 35 years old to be elected...). In my opinion, there's a distinct line between laws and rights, and laws are something that can be taken away and changed, while rights cannot be. Rights can be violated, and not recognized, that does not mean that each person does not deserve those rights.

If someone's rights are violated or not recognized, then the law must change to accommodate that right, not the other way around.

You would do well to read Hobbes before offering quotes. Hobbes maintained that natural rights exist only outside the law, where every man is a law unto himself. See Thomas Hobbes, Leviathan, Ch. XIV (1651). Thus in the scenario provided in Post #116, supra, Jason is free to take Jimmy, the money and the car, and even kill Jennifer if she interferes with him because that is his natural right. In a world of natural rights, kraft macht recht “might makes right” - which, happily, is not the world we live in. Jennifer has rights provided by law, which are enforceable by the power of the state over the persons and property within its jurisdiction, and in many instances beyond its territory. See e.g., Uniform Reciprocal Enforcement of Support Act. Such are real rights - rights provided by law. Without such legal rights, Jennifer would have no rights at all. If you cannot see this, then it is only because you refuse to see.

I told you before that you will come to learn for yourself the true nature of your rights when you have need to enforce them. It is a simple lesson, but very often only hard learned and at great personal expense. Good luck.

You have a gross misunderstanding of natural rights. "Might makes right" is actually the problem with law; because the state has coercive power, its laws are enforced. If a state did not have a means of coercion, then no one would follow its laws. Hence, it is only through "might" that a state's law are "right" (as in morally correct, which is not the same thing as a right).

Enforcement has nothing to do with rights. People have rights, period. No one needs to "enforce" rights, because rights are not something to be enforced. Laws are enforced, and laws are not the same thing as rights.

Additionally, Hobbes is somewhat correct in his belief that rights only exist outside the state. An issue within civil society is finding a balance between expression of fundamental rights and social order. Thus, when one enters into society, he is bound to have some of his rights infringed upon. However, this does not mean that the rights do not exist. Also, youre cherry-picking. I quoted a few other well known political philosophers who wrote extensively about natural, fundamental rights, but you don't really care to get to the heart of the issue do you?

Killing someone is not a natural right. If you've read any natural law theory, you would know that. Im beginning to wonder if you even know what a right is. Simply claiming something is a "natural right" does not make it so.

In Nazi Germany, Jews were reduced to subhumans and not allowed to freely practice their religion. Does that mean they had no right to practice their religion? Of course not. Jews continued to have the right to freely worship; however, the law violated that right. Did a Jew cease being human, stop having his right to life, simply because the German government said so? Of course not. Jewish people had those rights (still have them), regardless of whether or not any government recognized those rights.

The whole philosophy of classical liberalism is founded on the idea of natural law. Democracies generally exist according to the philosophy of classical liberalism, with the idea that democratic governments are preferable because they allow people to freely exercise their rights. Laws are enacted based upon the idea of what our natural rights are. The concept of natural rights is generally evolving, but that doesn't mean they do not exist simply because the law does not recognize them.

I think the idea of "universal rights" or "natural rights" can better be described as "widely held desires." And I would further limit that to people who have been exposed to the concepts you call universal rights. The only universal truth I have come across that holds up is the idea of "might makes right."

Imagine an island of people, cut off from all outside contact. No one there has ever heard of democracy, never considered women to be anything more than property - and there are no island philosophers thinking of such things in their leisure time. The king probably came to power by brute force, or maybe by telling his people he was in tight with the local gods. Ask the people of the island about their "natural rights" and you would get a quizzical look. Maybe if they were shown alternatives they would want them, but there is no innate sense of democracy inside every human.

That is because the concept of natural rights only came about after 200,000 years of humanity, tens of thousands of years (?) of society, and a few thousand years of civilization, and a few thousand years of philosophers considering such questions. Until very recently, life was just a struggle to stay alive.

There are also cases in which people simply do not agree with our vision of "rights." There are Muslim women out there who choose to wear a burka and live as their religion dictates. We have a hard time believing that they would not choose to live as Western women - dressing differently, being free to walk alone, drive a car, etc., all those things we think of as "liberty." And if our definitions of "liberty" differ so greatly, how can they be said to be universal?

Does our government have any business telling other governments how to act? Yes, but not because of any universal rights. It's because our government, like any other, is acting in their own self-interest. Maybe our government wants stability, maybe they want oil, or increased trade, or maybe they are just trying to pander to their voters when they ask other countries to change. The other countries don't have to go along with it, as long as they have the strength to resist. Might makes right, especially in the international community.

So, yes, "rights" are granted by government. It goes down easier when the people empower their own government to do so, but some balance between individual rights and law & order is struck no matter how your society is ordered. Where can you really go to "demand" what you think are your natural rights? All you can do is bargain with your government to grant you more liberties, but you won't get them unless you have something to bargain with (votes or guns) The only "right" you really have is the right to risk your own life to change things by force.

Under Article III, Section 2 of the Constitution, the power of the judicial branch is limited; and Congress has the power to further limit the jurisdiction of the federal courts not expressly conferred, albeit that it would not be in its interest - or the interest of the nation - to do so, for without the power of the judiciary, the acts of the legislative branch would not be enforceable except by unchecked executive power. The power of the judiciary is at the very core of the constitutional system of checks and balances. As Chief Justice Marshall wrote: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws. . .” Marbury v. Madison, 5 U.S. 137 (1803). The sword of justice cuts both ways, and in its sway guards over our individual rights and liberty. It is the same today. Hamdan v. Rumsfeld, 542 U.S. 507 (2004).

NB: Following the Supreme Court’s decision in Hamdan v. Rumsfeld, the Congress removed the court’s habeas corpus jurisdiction over military tribunals by enacting the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006).

Well, this is certainly a popular belief that many hold; I just happen to think youre wrong. The problem with debating something like this is that its incredibly difficult to prove one way or another. However, I am trying to lay the ground for work for why I think that the Constitution should not be interpreted under "strict constructionist" methodology.



This is not entirely true. Different societies have come up with differing forms of government, and while not all of them encompassed democracy as we envision it today, many ancient government did try to secure rights for its citizens, such as Ancient Greece or some Native American Societies. Were these imperfect versions of democracy, or rights-based governments? Clearly. But even today's democracies are sorely lacking in some respects. Universal rights are discovered through reflection and introspection; hence, while previous regimes may have been wrong in their recognition of rights, that does not mean they do not exist.

We all think that more primitive societies just were incapable of the same amount of rational thought that modern humans are today; however, there are clear exceptions (as I've noted at least two above)...I would argue that the exceptions simply prove that "might makes right" is not inherent in human beings. Is it common? Obviously, but the existence of other types of society points to the idea that humans are rational beings that are able to choose their own way of life. (This does not mean that all human beings choose to use their rational capacity, only that they are capable.)

Additionally, if you want to look at primates (and believe some evolutionary theory), not all primates live in violent, "might makes right" societies. Bonobos live in relatively peaceful societies where things are generally worked out through negotiation. This would imply that a state of nature is not always about the strongest lording over the weaker.



So what if a woman wants to wear a burka, or follow her religion? That would be her right as a human being, to make those choices concerning her life. It's true that there are differing perceptions of rights amongst different cultures; however, I would say the confusion stems in human interpretation of what a "right" is. Simply because our government says it is a right, does not make it so; and vice versa, simply because a government does not give us a right, does not mean we don't have it (right to privacy, for example)

Something that I've read in a lot of literature concerning the subject is that many people do not believe in universal rights because they are incredibly difficult to define. The Federalists tried to define rights as "life, liberty and pursuit of happiness" (or property), other philosophers have added different things. I would say that the one right that is universal is the right to self determination: people can make choices over their own lives. (Oh, and a right to life. Everyone has a right to life.) This does not mean people are able to do whatever they want; rational capacity and moral responsibility are supposed to restrain unbridled passion. Society is supposed to cultivate these virtues in humans, in order to create a more just society. Have we sometimes failed? Sure, but that doesn't mean it shouldn't happen, and that doesn't mean rights don't exist.

I stated this is in a previous post: simply because the government decides that a minority is no longer human, does that really mean they are no longer human? No, it simply means that the government is violating their rights to life.



Might does not make right. This is why the US has such low standing in the world community: we have the might, but we're not using it in any way that is right. It is not right that a stronger country can impose its will on another. Does that mean it never happens? Obviously not, defining justice by strength is a poor definition of justice...And why have the rule of law if that is the case?

I guess I am one of those people who don't believe in universal rights, at least as anything more than a philosophical construct. Within a society, a universal right would be trumped by any right granted by the government, and outside of society, it is a thing with no value, a claim with no recourse if the right is denied. What good is self-determination if circumstances beyond your control force you to take a different path? What difference does a man's universal right to life have when he is confronted by a hungry tiger, or a lack of food? Who does he cry out to when his right to life is being interfered with? God? Has that ever worked? ....(This is as far as my brain takes me on this question. If you would like to try to explain to me what a universal right really is, I am eager to learn, but there might be a lot of typing involved on your part.)

When the Constitution was written, they refer to those "inalienable rights" as being God-given, but then immediately transform them into more standard, Government-granted rights:

"That to secure these (God-given, inalienable) rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,.."

(That last part has "might makes right" painted all over it. Don't like your government? Rally together enough like-minded people and overthrow it.)

I think this universal rights argument is going to be a tough route to take. But I'll be interested to see where you take it.

Well, there's clearly a hard to define balance. I do think people have the right to overthrow their government (look at France), but I am not sure if it always might makes right. A prominent theorist named Michael Walzer wrote several essays on citizens obligations to the state (and vice versa), and the idea of overthrowing governments has to go with the social contract and whether or not the government is properly following the social contract. Clearly, there is a potential for abuse (people can overthrow perfectly democratic governments...), but does that mean it should never happen? (That might a different conversation entirely)

I don't think rights are "God-given", but I do think they are inherent to human beings. I feel like the purpose of government is not social control (isn't that what religion is supposed to do? Just kidding!), but to make sure that every person can exercise their rights to the fullest. As Alexander Hamilton pointed out (and I quoted in another post), rights that are "granted" by the government aren't rights, they then become merely privileges. Hence, authoritarian governments are bad because they deny basic, fundamental rights to its citizens. Democratic governments are better because they try and incorporate a protection of rights into their laws.

I think I stated this in my first post concerning the subject, but the Constitution is based on the idea of fundamental rights. By adhering to strict constructionism, we're doing a disservice to ourselves by not taking into account the fundamental moral principles that underlie the Constitution. I've discussed at length the problem with the Bill Of Rights: we being to think of the Amendments as our only rights, which was not the Founders' intent (Federalist or Anti Federalist).

Ronald Dworkin makes a very compelling argument in his book Freedom's Law about jurisprudence and interpretation. Although many judges and lawyers claim they are not reading the law "morally", they actually are. For instance, he discusses the 14th Amendment:



Dworkin, Ronald (1990). Freedom's Law. Harvard University Press: Cambridge, MA. p. 13.

Morals - whose morals? Your morals? Thomas Jefferson’s morals? How about Justice Antonin Scalia’s morals? What does morals have to do with it? There is no mention of "morals" in the Constitution.

But there is mention of morals in almost every serious political theory document since ancient Greece. If you happen to think those writings had no influence on the Framers' writings, then I would say you have a gross misunderstanding of history and political theory. Things don't happen in a vacuum, and morality plays a huge role when discussing political theory. It's difficult to separate the two. And I think the Dworkin quote I provided does a nice job of illustrating the problem of trying to ignore morality when interpreting the Constitution. If you don't think so, fine. But your asinine comments really add nothing to the debate.

You are a good example of the danger of having a little knowledge. The question raised by your quote of Ronald Dworkin is: Who is to determine the fit moral precept to apply? Professor Dworkin’s “Interpretivism” only begs the question on whose morals the law should be based. The idea that the law must have a moral component is at once refuted by its own impracticability in application. One need only look to our own failed effort to incorporate morality into the Constitution under Prohibition to see that such an idea is unworkable. The point is, simply, that you cannot legislate morality.

Our law and legal system (as inherited from the English common law) is not based on moral or religious precepts, but upon principles of utilitarian philosophy enunciated by Jeremy Bentham, and his disciples, John Austin and John Stuart Mill. See Jeremy Bentham, Introduction to the Principles of Morals and Legislation (1789); cf., William Blackstone, Commentaries on the Laws of England (1765-69). Bentham was one of the great moralists of his time; but he realized that the law could not be based on morals or religious principles of right and wrong. (His concept of morals was more of a secular ethics that was pragmatic in its application; i.e., the only moral standard is one of the desirability, or undesirability, of the consequences of the law.) Both English and American jurisprudence have sided with Bentham’s “Positivism” and rejected the moral based doctrine of Blackstone, albeit we adopted it sooner than our English forebears. Bentham was very progressive for his time covering virtually every aspect of the law and the administration of justice; and his ideas have further influenced the constitutions and laws of many European countries and the Americas even to this day. On the other hand, Professor Dworkin’s idea that the law should somehow be based on morals is regressive - it represents a giant step backward. Indeed, he would do better to walk down the hall of University College London to consult Jeremy Bentham’s Auto-Icon than publishing such rubbish.

Dworkin is not saying that morals need to be legislated; he is saying that there are some basic moral assumptions underlying the Constitution. This does not mean that people can interpret Constitutional law to mean whatever they feel like; interpretation must go with the "spirit" of the Constitution. This is why, in the quoted example, segregation was overturned in Brown;clearly the 14th Amendment was interpreted morally: everyone should have equal access under the law. That is the underlying moral premise of the 14th Amendment. Obviously, the amendment could be interpreted in a different sense (which Dworkin refers to as "originalism"): in the Framers' time, black people were not considered human and thus, they would not have been able to be seen as "equal" under the law. This interpretation could continue to this day, if not for a certain moral interpretation of the law.

The difficulty in applying a moral standard to the law was illustrated in the recent decision of the Supreme Court in the case of Roper v. Simmons. In that case, the court ruled that the Eighth Amendment prohibition against cruel and unusual punishment forbids the imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. In reaching that decision, the court interpreted the provisions of the Eighth Amendment in reference to “evolving standards of decency” in the implementation of the death penalty that canvassed the several states as well as the law of international tribunals. In a separate dissent, Justice Antonin Scalia, who is not shy when it comes to reconciling his personal morals and religious beliefs with his legal opinions, became surprisingly secular in his views, accusing the majority of proclaiming itself the “sole arbiter of our Nation’s moral standards . . .” in a process that he likened to “counting Amishmen.” See Roper v. Simmons, 543 U.S. 551 (2005).

The interesting aspect of the decision, however, was that moral standards had nothing to do with the case. Our juvenile justice system is based on the concept that minors are not culpable; not that minors are incapable of committing acts that would otherwise be punishable as crimes - even heinous crimes - but that, as a matter of public policy, it is not in the interest of society to treat juvenile offenders as criminals, however morally reprehensible. It is Utilitarianism, plain and simple. Yet for the court to base its ruling on some nebulous, moralistic consensus, however composed, was rather uncertain, not to say dubious; and in this, the court may have reached the right decision for all the wrong reasons. The decision of the court was clear; however the means applied to making its decision (viz., “evolving standards of decency”) were anything but clear. When you start applying moral standards to the interpretation of the law, the question inevitably becomes "whose morals"; and there's the rub.