Abstract
The novelty of the American Constitution (and Bill of Rights), apart from its evident nobility, lies in the scruple of its written or declared form. Nevertheless, except (perhaps) for the most extreme positivist conception of law, even the reading of the written law requires a grasp of the ongoing life of the society for which it was made; and that concession is entirely neutral as between the so-called “strict constructionist” and the “liberal” constructionist (if the ambiguity of the latter term is not permitted to mislead us). Still, there is a difference--or, a plausible difference may be suggested--between, say, the American and British constitutional traditions: because the fixed document of the American, even with its amending power and the actual Amendments of the Bill of Rights, signifies an essential difference between the potential pace of political history and the recognizable verities that yield a set of basic rights for the citizens of a free society. The American claims an essential difference between appealing to the one and to the other.
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Notes
John Rawls, A Theory of Justice, (Cambridge: Harvard University Press), 1971.
See Robert Paul Wolff, Understanding Rawls, (Princeton: Princeton University Press), 1977:Introduction
Michael Sandel, Liberalism and the Limits of Justice, (Cambridge: Cambridge University Press), 1982.
Alexander M. Bickel, “Constitutionalism and the Political Process,” The Morality of Consent, (New Haven: Yale University Press), 1975.
See Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press), 1978:138.
H.L.A. Hart, The Concept of Law (Oxford: Clarendon), 1961, especially Ch. 9.
E. Philip Soper, “Legel Theory and the Obligation of a Judge: The Hart/Dworkin Dispute,” reprinted in Marshall Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence (Totowa, NJ.: Rowman and Allanheld), 1983, especially p. 22.
Hans-Georg Gadamer, Truth and Method, trans. from 2nd ed. Garrett Barden and John Cumming (New York: Seabury Press), 1975:255–256.
Roberto Mangabeira Unger, “The Critical Legal Studies Movement,” Harvard Law Review, XCVI, 1982:665.
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© 1987 Plenum Press, New York
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Margolis, J. (1987). Constitutionalism: Principle and Policy. In: Kevelson, R. (eds) Law and Semiotics. Springer, Boston, MA. https://doi.org/10.1007/978-1-4613-0959-8_13
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