Fordham University School of Law
On this panel, we are to consider questions such as "What form should constitutional interpretation by courts take in light of our aspirations to a good society?" For example, should courts engage in "moral readings" of the Constitution by elaborating abstract moral principles of liberty and equality or by making moral arguments about fostering human goods or virtues? In his paper, Justifying the Natural Law Theory of Constitutional Interpretation, Professor Michael Moore defends a sophisticated and powerful version of a moral realist or natural law answer to these questions.2 He confesses that, despite numerous criticisms, his views on the desirability of such a theory have not changed at all over the past twenty years; here he seeks "to provide a new reason for judges to adopt such a theory of interpretation with regard to the United States Constitution."' Likewise, I might confess that my basic criticisms of moral realist theories of constitutional interpretation have not changed during the same period;4 here I shall provide criticisms of Moore's new argument. That said, in the grand scheme of things, my disagreement with Moore's theory may appear to be a family quarrel.
James E. Fleming,
The Natural Rights-Based Justification for Judicial Review
Fordham Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2762