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56 N.Y.U. L. Rev. 469 (1981)
The Forum of Principle

handle is hein.journals/nylr56 and id is 487 raw text is: THE FORUM OF PRINCIPLE
Professor Dworkin confronts the question whether it is possible for judges to decide
constitutional cases without themselves making substantice political dccisions. He
addresses the two possible ways it has been suggested that judges can do so. Theflrst
suggestion is that judges decide constitutional issues by following the original intent
of the Framers of the Constitution. The second is that judges should reciew not the
fairness of substantive decisions by the legislature, but the fairncss of the process by
which those decisions are made. Professor Dworkin argues that both of these posi-
tions fail; judges can decide neither the intention of the Framers nor whether process
is fair without making substantice political decisions.
The Constitution is the fundamental law of the United States,
and judges must enforce the law. On that simple and strong argument
John Marshall built the institution of judicial review of legislation,1 an
institution that is at once the pride and the enigma of American
jurisprudence. The puzzle lies in this. Everyone agrees that the Con-
stitution forbids certain forms of legislation to Congress and the state
legislatures. But neither Supreme Court justices nor constitutional law
experts nor ordinary citizens can agree about just what it does forbid,
and the disagreement is most severe when the legislation in question is
politically most controversial and divisive.2   It therefore appears that
these justices exercise a veto over the politics of the nation, forbidding
the people to reach decisions which they, a tiny number of appointees
for life, think wrong. How can this be reconciled with democracy?
But what is the alternative, except abdicating the power Marshall
declared? That power is now so fixed in our constitutional system that
abdication would be more destructive of consensus, more a defeat for
cultivated expectation, than simply going on as before. We seem
caught in a dilemma defined by the contradiction between democracy
and ancient, fundamental, and uncertain law, each of which is cen-
tral to our sense of our traditions. What is to be done?
There may be a way out. We escape the dilemma if we can
construct an apolitical program for deciding constitutional cases. A
* Professor of Jurisprudence and Fellow of University College, Oxford; Professor of Law,
New York University. I would like to thank Mark Martin of the Board of Editors for his
assistance in preparing the footnotes to this Article.
I Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-79 (1803).
2 See, e.g., J. Choper, Judicial Review and the National Political Process 4-12 (19S0)
(rehearsing the controversy).

Imaged with the Permission of N.Y.U. Law Review

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