1. See Dworkin, Ronald, Law's Empire 189 (1986)Google Scholar; What Is Equality? Part 4: Political Equality. 22Google ScholarU.S.F.L. Rev. 27 (1987)Google Scholar; Equality, Democracy, and Constitution: We the People in Court, 28Google ScholarAlberta L. Rev. 324–46 (1990)Google Scholar; Freedom, 's Law: The Moral Reading of the American Constitution 20 (1996).Google Scholar

2. See supra note 1, Dworkin, . Law's Empire and What Is Equality?; Liberal Community, 77 Cauf. L. Rev. 479–504 (1989)CrossRefGoogle Scholar; Equality, Democracy and Constitution, supra note 1.

3. Dworkin, , Law's Empire, supra note 1, at 211.Google Scholar

4. Dworkin, , Equality, Democracy, and Constitution, supra note 1, at 335.Google Scholar

5. Dworkin, , Law's Empire, supra note 1.Google Scholar

6. Id. at 217.

7. Dworkin, Ronald, A Matter of Principle 329 (1985).Google Scholar

8. Dworkin, , Freedom's Law, supra note 1, at 10.Google Scholar

9. Dworkin does say that a genuine liberal democracy need not require judicial review, though he believes it to be highly desirable (Freedom, 's Law, supra note 1, at 33–34).Google Scholar Whetheror not there is judicial review, there must be fundamental rights with some institutionalized way to ensure a careful “moral reading” as to their meaning, nota simple counting of preferences.

10. At the same time Dworkin stresses that judges should not have the right of judicial review of policy decisions involving “choice-sensitive” matters, such as whether to build a sports stadium or a theater or even what type of economic policy to pursue (as long as there is no discrimination). See, e.g., supra note 7, ch. 2, and What Is Equality?, supra note 1.Google Scholar

11. See, e.g., Political Judges and the Rule of Law, 64 Proc. Brit. Acad. 259–87 (1978).Google Scholar In A Bill of Rights for Britain (1990) Dworkin argues that an entrenched bill of rights would greatly enhance the stale of liberty in Britain, which at present is in a somewhat sorry shape due to ihe actions of recent governments.

12. Dworkin, , supra note 7, at 70.Google Scholar

13. Dworkin, , Freedom's Law, supra note 1, at 344.Google Scholar

14. Dworkin, , What is Equality?, supra note 1, at 29.Google Scholar

15. Dworkin does say that his theory of “law as integrity” is in itself neither liberal nor conservative (The Center Holds, N.Y. Rev. Books, 08 13. 1992, at 32Google Scholar; Laws Empire, supra note 1, at 407–10).Google Scholar There can he, and are, conservative “principled” judges (like the American Supreme Court Justice Kennedy) (From Bork to Kennedy, 34 N.Y. Rev. Books, 09 28, 1987, 36–12, 42).Google Scholar But Dworkin seems to believe that given the American context, e.g., the liberal precedents and the underlying liberal nature of the policy, principled judicial rulings will tend to lead in a liberal political direction.

16. On the right-to-privacy decisions, see Dworkin, , Reagan's Justice, 31 N.Y. Rev. Books, 11 8, 1984, 27–31Google Scholar; Law's Ambition for Itself, 71 Va. L. Rev. 173–87Google Scholar; From Bork to Kennedy, supra note 15Google Scholar; and Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom, ch. 2 (1993).Google Scholar

17. Dworkin, , Law's Empire, supra note 1. at 381–92.Google Scholar

18. Of course, this court-constructed purpose of the statute has to fit the words of the statute, statements contained in a committee report, and uncontradicted statements of the bill's manager (unless with the passage of time circumstances have dramatically changed). See id., ch. 9; Dworkin, , Taking Rights Seriously 108 (1978)Google Scholar; supra note 7, at 9–23.

19. Dworkin, , Equality, Democracy, and Constitution, supraGoogle Scholar note 1; Freedom, 's Law; supra note 1, at 17.Google Scholar

20. Dworkin, , Law's Empire, supra note 1, at 189.Google Scholar

21. Id.

22. Rousseau, Jean-Jacques, On The Social Contract 52–54, 62 (Masters, Roger ed., Masters, Judith trans., St. Martin's Press 1978)Google Scholar [hereinafter Social Contract], and Discourse on Political Economy 211–12Google Scholar (Masters, Roger ed., Masters, Judith trans., St. Martin's Press 1978)Google Scholar [hereinafter Political Economy].

23. Id., Social Contract, at 52.

24. For a useful discussion of Rousseau's conception of the social contract, see Levine, Andrew, The Politics of Autonomy: A Kantian Reading of Rousseau's Social Contract, chs. 2&3 (1976).Google Scholar

25. Social Contract, supra note 22, at 53Google Scholar (emphasis in original). See also Rousseau, , Geneva Manuscript 163 (Masters, Roger ed., Masters, Judith trans., St. Martin's Press 1978)Google Scholar [hereinafter Geneva Manuscript].

20. Social Contract, supra note 22, at 104, 107–8.Google Scholar

27. Id. at 61.

28. Id. at 63; also at 66.

29. Id. at 63. There is ambiguity in Rousseau regarding how democratic in fact he was. David Rosenfeld argues that Rousseau's “people” only encompassed a portion of the resident adult males, and that even this “people” plays a rather passive “legislative” role. Rosenfeld, , Rousseau's Unanimmu Contract and the Doctrine of Popular Sovereignty, History of Political Thought 83–110 (1987).Google Scholar Regardless, Rousseau's general theory of political right does imply a radical theory of popular sovereignty. For criticism of Rosenfeld and defense of Rousseau as a democratic theorist, ser Cohen, Joshua, Reflections on Rousseau: Autonomy and Democracy, Phil & Pub. Aff. 275–97 (1986).Google Scholar

30. Dworkin, , Equality, Democracy, and Constitution, supra note 1, at 329Google Scholar; Freedom, 's Law, supra note 1, at 20.Google Scholar

31. Dworkin, , Liberal Community, supra note 2, at 49Google Scholar; Equality, Democracy, and Constitution, supra note 1, at 329Google Scholar; Law's Empire, supra note 1. at 167–75.Google Scholar

32. Law's Empire, supra note 1, at 187.Google Scholar

33. Id. at 186; Dworkin, , The Curse of American Politics, 4 N.Y. Rev. Books (10 17, 1996), at 21–24.Google Scholar

34. Liberal Community, supra note 2, and Law's Empire, supra note 1.

35. Id.Liberal Community, at 497.

36. Dworkin, , Bill of Rights for Britain, supra note 11, at 35.Google Scholar

37. Equality, Democracy, and Constitution, supra note 1, at 330.Google Scholar

38. Id. For an almost identical reference to Rousseau's general will, see Dworkin, , Freedom's Law, supra note 1, at 20.Google Scholar And in a footnote in another article, Dworkin asserts that it is wrong to use Rousseau's conception of the general will in support of the “statistical conception of democracy.” “[T]he idea of a general will is antagonistic to any concern for either the impact or the influence of individual citizens one by one” (What Is Equality?, supra note 1, at 27, n.11).Google Scholar The implication of this brief remark is that Rousseau's conception of the general will is appropriate in understanding the “communal conception of democracy.”

39. Or so at least the American community, and more recently the Canadian, has concluded that judicial review is needed to give protection to fundamental individual rights. As noted, Dworkin does say that a genuine democracy need not have judicial review, though he believes it to be highly desirable (Freedom, 's Law, supra note 1, at 7, 33–34).Google Scholar Whether or not there is judicial review, genuine democracy does require fundamental rights and a carefully considered “moral reading” of their meaning, not a simple counting of preferences (as happens in “statistical democracy”).

40. Law's Empire, supra note 1, at 243.Google Scholar

41. Dworkin, , Law's Ambition for Itself, supra note 16.Google Scholar In Bowers, the Supreme Court ruled that anti-sodomy laws do not violate the Constitution. Bowers, v. Hardwick, , 478 U.S. 18G (Supreme Court, 1980).Google Scholar Dworkin argues that these laws do violate the constitutional right to privacy, a right that was gradually developed in the course of a number of key court decisions. “[I]t is difficult to form an acceptable general principle that justifies freedom of choice in some aspects of sex, like contraception and abortion, but not in others equally important to the people affected” (Reagan's Justice, supra note 16, at 27Google Scholar; and see Law's Ambition, note 16, at 41).Google Scholar In earlier decisions the Supreme Court had used the right to privacy to sanction the right to use contraception (including for unmarried couples) and the right to have an abortion. If the state, as policeman, “relies on one set of political principles to justify its use of coercive power in one area, it must allow those principles their natural extension” (Law's Ambition, at 185).Google Scholar

42. Equality, Democracy, and Constitution, supra note 1, at 339.Google Scholar

43. Social Contract, supra note 22, at 55.Google Scholar

44. Dworkin, , Law's Empire, supra note 1, at 377.Google ScholarSee also, Taking Rights Seriously, supra note 18, at 129Google Scholar; Natural Law Revisited, 34 U. Fia. L. Rev. 183 (1982)Google Scholar; The Future of Abortion, 30 N.Y. Rev. Books (09 28, 1989), 47–51.Google Scholar

45. For a discussion on the principle of independence, see Equality, Democracy, and Constitution, supra note 1, at 340–42.Google Scholar

46. For example, see supra note 7, at ch. 8; Life's Dominion, supra note 16.Google Scholar

47. See especially Dworkin, , Taking Rights Seriously, supra note 18, at 248–55.Google Scholar

48. Concerning the proper stance of legislators on matters of morality, see id. at 254–55. But on matters like whether state funds should be spent on a new swimming pool or on tennis courts, it is proper for legislators to base their decisions in the concrete beliefs of their constituents (id.; What Is Equality?, supra note 1, at 23–28).Google Scholar In these cases, following closely the citizens' personal preferences, with equal weight given to the preferences, would promote the general welfare.

49. The law “is this celestial voice that tells each citizen the precepts of public reason, and teaches him to behave according to the maxims of his own judgment and not to be constantly in contradiction with himself” (Geneva Manuscript, supra note 25, at 178).Google Scholar

50. Dworkin says, e.g., that as a result of the discussions going on in the community on homosexual rights, more and more Americans are coming to recognize that restrictions against homosexuals conflict with their belief in equality, that the restrictions are rooted in unjustified prejudice (The Bork Nomination, 34 N.Y. Rev. Books (09 28, 1987), at 8).Google Scholar These discussions obviously have an effect on judges. And in a recent article on the “curse” of money in American politics, Dworkin says that increased concern and criticism of the role of money in electoral politics by the American public and by members of Congress will in time influence the Supreme Court to reverse its disastrous Buckley decision, the ruling that significantly curtails the power of Congress toset limits on the use of money in election campaigns. Buckley v. Valeo (424 U.S.1).

51. For the sake of analytical clarity, it should be noted that Dworkin runs together what are really two distinct, though related, arguments regarding the democratic nature of judicial review. First, judicial review is democratic because it helps ensure thnt all people are treated as equal members of the community (the concept of community entails such equal membership). Second, the judicial rulings protecting minority rights are democratic because they are based on principles intrinsic to the community's conception of itself and repeatedly endorsed throughout its history.

52. See, e.g., Balkin, J. M., Taking Ideology Seriously: Ronald Dworkin and the CLS Critique, UMKC L. Rev. 392–133 (1986).Google Scholar

53. For the opposing argument that judicial interpretation is “indeterminate” owing to the inherent flexibility of principles, see Hutchinson, Allan, Waiting for Coraf: A Critique of Law and Rights (1995).Google Scholar

54. Equality, Democracy, and Constitution, supra note 1.

55. Dworkin, , Freedom's Law, supra note 1, at 29–31.Google Scholar

56. Id. at 334–35; and What Is Equality?, supra note 1, at 12–17.Google Scholar

57. Cass Sunstcin provides an interesting alternative to Dworkin's position. Sunstein is also a “liberal civic republican” and thus also places great importance on reasoned discussion (“deliberation” is the term he uses). Bui he wants a much less exalted role for judges. On the whole, judges should be more deferential to legislative majorities, particularly in the face of doubt. His view that legislatures should play an important role in constitutional interpretation reflects in part his criticism of Dworkin for putting too much faith in the principled reasoning capability of judges. This reasoning, he says, is more open-ended than what Dworkin believes and is dependent to some extent on the “particular” and “narrow” social perspective of most judges. A greater role of legislatures in constitutional interpretation would bring into the decision-making process a broader range of social perspectives and thus yield decisions more reflective of the community's general interest. More basically, Sunstein denies that judges are particularly good at abstract moral thinking. Sunstein does though want the judiciary to retain its predominant role in guarding the rights of minorities and basic democratic rights. Of his many works, see in particular The Partial Constitution (1993)Google Scholar; Democracy and the Problem of Free Speech (1993)Google Scholar; Legal Reasoning and Political Conflict (1996)Google Scholar, and his critique of Dworkin's latest book Freedom, 's Law, Earl Warren Is Dead, 214 The New Republic (05 13, 1996), at 35–39.Google Scholar

58. Social Contract, supra note 22, at 53.Google Scholar

59. Id. at 56–58. This is not to deny that Rousseau believed there to be objective natural or moral laws, in other words, laws that have their basis and ultimate authority outside of the particular community. “There is without doubt a universal justice emanating from reason alone …” (id. at 65). Even so, the question of interpretation remains, as well as the need to resolve disputes. Accordingly, there must be community decision making and the community sanction that comes out of it. Furthermore, Rousseau stresses that the social contract and the general will must be in, and seen to be in, the fundamental self-interests of the citizens (otherwise, neither would come about) (id. at 59; Geneva Manuscript, supra note 25, at 174–75).Google Scholar Democratic decision making, on the basis of fundamental equality, ensures this.

60. Social Contract, supra note 22, at 63.Google Scholar

61. id. at 53. See also Rousseau, Jean-Jacques, Discourse on the Origin of Inequality 149Google Scholar (Cress, Donald ed. & trans., 1983)Google Scholar [hereinafter Discourse].

62. Social Contract, supra note 22, at 58, 107, 130.Google Scholar

63. Id. at 66. See also Masters, Roger, The Political Philosophy of Rousseau 321–22 (1968).Google Scholar

64. Dworkin's efforts to flesh out in recent years bis theory of liberal community come, I sense, out of a concern that communitarian thinking—which had become quite popular in the intellectual community—could lead to a weakening of commitment to individual rights.

65. This community dimension of individual rights is often missing in liberal theory, as evidenced in Richards, David, Sex, Drugs, Death, and the Law (1982)Google Scholar; Samar, Vincent, The Right to Privacy: Gays, Lesbians, and the Constitution (1991)Google Scholar, ch. 5; and Hirsch, H. N., A Theory of Liberty: The Constitution and Minorities (1992).Google Scholar

66. Dworkin, , Law's Empire, supra note 1, at 208Google Scholar. Like Rousseau, Dworkin does though apparently believe in natural law. He says that most Americans including himself believe that certain fundamental moral principles are “objective” and thus not “created by custom or convention or legislation, but exist as an independent body of moral principle” (Justice for Clarence Thomas, 38 N.Y. Rev. Books (11 7, 1991), at 44Google Scholar; and see Natural Law Revisited, supra note 44, at 165)Google Scholar. As in the case of Rousseau, distinction has to be made between the ultimate basis of the principles and the process of their interpretation. Interpretation for Dworkin has to have a grounding in the community, in the concrete discussions going on. Apart from such critical reflection and discussion there is nothing else we can do “in deciding whether our judgments [about the meaning of the ‘objective’ moral-political principles] are ‘really’ true” (supra note 7, at 172; see also Taking Rights Seriously, supra note 18, at 159–68)Google Scholar. Whether or not there really is an objective moral reality “out there” is irrelevant to our interpretive activity. What is important is that we find the arguments convincing (Dworkin, Ronald, Pragmatism, Right Answers, and True BanalityGoogle Scholar, in Pragmatism in Law & Society (Brint, Michael & Weaver, William eds., 1991)Google Scholar; and Law's Empire, supra note 1. at 76–85).Google Scholar

67. According to Dworkin, a striking example of this was Planned Parenthood of South-eastern Pennsylvania et al. v. Casey (1992)Google Scholar, the decision that upheld Roe and thus a woman's right to an abortion (The Center Holds, supra note 15). Many had predicted that the Court, which had become much more conservative, would overturn Roe. But conservative judges, Justices O'Connor and Kennedy, along with the newmodcrate judge, Justice Souter, joined the majority to uphold Roe, because they felt they had no other choice, given the principles involved and the past history of how they had been interpreted; in other words, their actions were governed by “law as integrity.”

68. Social Contract, supra note 22, at 52Google Scholar; and Discourse, supra note 61.

69. “[I]n relations between men, the worst that can happen to someone is for him to see himself at the discretion of someone else …” (id. Discourse, at 152).

70. Id. pt. 11.

71. Social Contract, supra note 22, at 46.Google Scholar

72. Id. at 46–47.

73. Dworkin, , Law's Empire, supra note 1, at 191.Google Scholar

74. Social Contract, supra note 22, at 107, 109–11.Google Scholar

75. Id. at 111.

76. Id. at 55.

77. Id. at 109.

78. See especially, What is Equality?, supra note 1.

79. Dworkin, , Law's Empire, supra note 1, at 190–95Google Scholar; Foundations of Liberal Equality, in The Tanner Lectures on Human Values XI. 22–34, 86–93 (Grethe Peterson ed., 1990)Google Scholar; Taking Rights Seriously, supra note 18, ch. 6. The reference is not to Rousseau's type of “social contract,” which is not really a social contract as conventionally viewed, but his way of conceptualizing a community of equals (see above discussion).

80. See especially Dworkin, , Law's Empire, supra note 1, ch. 6Google Scholar, and Foundations of Liberal Equality, id. at 6, 22–35, 85–88, but also Taking Rights Seriously, supra note 18, ch. 6. Dworkin's discussion is dense and not always clear. Viewing lus discussion in Rousseauist terms—it is in this ch. 6 or Laws Empire that he makes that reference to Rousseau quoted above—helps to clarify his ideas. It should be noted that Dworkin believes that “fair-play” theories of political legitimacy/political obligation—theories that ground consent in benefits received—are best understood in terms of bis own theory; the “benefits received” is that of being treated as an equal, according to the community's interpretation of what that means (Law, 's Empire, supra note 1, at 193–95).Google Scholar

81. For Dworkin, 's own case for “equality of resources,” see What Is Equality? Pt. 1: Equality of Welfare, 10 Phil. & Pub. Aff. 185–246 (1981)Google Scholar, and What Is Equality? Pt 2: Equality of Resources, 10 Phil. & Pub. Aff. 283–345 (1981).Google Scholar

82. Dworkin, , supra note 7, chs. 14–16.Google Scholar

83. Divorkin, , Law's Empire, supra note 1, at 211.Google Scholar

84. Dworkin's interpretation of political obligation sheds ligic on his earlier writings on civil disobedience (reprinted in supra note 7, ch. 4; and Taking Rights Seriously, supra note 18, chs. 7, 8)Google Scholar. Genuine civil disobedience, he says, comes out of sincere convictions on fundamental matters of principle, and thus is different from law-breaking for reasons of self-interest or disobedience as a way of exerting political power to get one's way on matters of public policy. Those who engage in civil disobedience accept the legitimacy of the overall system; they show this by their resort to nonviolence and acceptance of the legal consequences of their acts. These principled dissenters often proride a useful civic function by bringing to the fore of public debate political-moral issues concerning the interpretation of the community's principles. Through acts of civil disobedience they have at times—a notable example being the civil rights sit-ins in the United States during the 1960s—highlighted fundamental injustices, how certain practices are in conflict with the community's principles. Even in cases where it is not fairly clear that the protestors have justice on their side, the dissenters proride, Dworkin suggests, useful service to the community by stimulating principled debate on fundamental moral issues, and thus help make politics more like what it should be. Accordingly, when enforcing the law against such dissenters, the authorities should act with prudence and understanding, taking into consideration the degree of uncertainty in the law and the degree of popular support the dissenters have.

85. Dworkin, , Freedom's Law, supra note 1, at 220.Google Scholar

86. Social Contract, supra note 22, at 53 & 63.Google Scholar

87. See discussion, supra, at 339–10.Google Scholar

88. Dworkin, , Equality, Democracy, and Constitution, supra note 1, at 330.Google Scholar

89. Social Contract, supra note 22, at 54, 101.Google Scholar

90. Id. at 59–61, 102–3. As noted, the nature of the general will, how it has to be expressed, contains within it some protection from the abuse of political power (see Masters, , supra note 63, at 321–22)Google Scholar. Law must be expressed in general/universal terms, and thus cannot make reference to particular individuals or cases. The government has to act in accordance to the laws set out by the sovereign, the citizen-legislators (Social Contract, supra note 22, at 78–81, 104–7Google Scholar). Rousseau also recommends a “tribunate,” a special body that has the authority to declare illegal a proceeding of the assembly (at 120–21). This tribunate does not itself exercise sovereign power, and thus is subordinate to the sovereign assembly, as long as the assembly acts in accordance with how it is supposed to (Rousseau provides few details). Dworkin would not be reassured.

91. Political Economy, supra note 22, at 223Google Scholar. Rousseau, Jean-Jacques, The Government of Poland 87–88, 106Google Scholar (Kendall, Wilmoore trans., 1985)Google Scholar [hereinafter Poland].

92. See Shklar, Judith, Man and Citizens: A Study of Rousseau's Social Theory 12–32 (1969).Google Scholar

93. Letter to M. d'Alembert on the Theatre, in Rousseau, Politics and the Arts (Bloom, A. ed., 1960)Google Scholar. For a useful discussion, see Parry, Geraint, Thinking One's Own Thoughts Autonomy and the Citizen, inGoogle ScholarRousseau and Liberty 115–17Google Scholar (Wokler, Robert ed., 1995).Google Scholar

94. See Shklar's (supra note 92) account of the right social and political environment that had to be present, especially ch. 5.

95. Social Contract, supra note 22, at 73–75Google Scholar; and Political Economy, supra note 22, at 221–22.Google Scholar

96. E.g., Social Contract, id. at 67, 84, 101–2, 108–9; Poland, , supra note 91Google Scholarpassim.

97. Social Contract, supra note 22, at 67, 108–9.Google Scholar

98. Id. at 61.

99. The purpose of the civic religion is to strengthen/enforce civic virtues like the duty to obey the law Atheism and religious beliefs that are incompatible with the civic ideals would be outlawed (Social, Contract, supra note 22, at 130–32)Google Scholar. On the limits to state regulation of beliefs, Rousseau writes: “The subjects … do not have to account for their opinions to the sovereign, except insofar as these opinions matter to the community” (at 130). It is the sovereign of course, the assembled citizens, who decides this. On the importance of patriotism, see Poland, , supra note 91, at 8, 13, 15–16, 96, 99Google Scholar; and Political Economy, supra note 22, at 217–20Google Scholar. For a good description of these various ways to create and maintain the needed civic morals/civic virtue, see chs. 5 & 6 of Gilden, Hilail, Rousseau's Social Contract: The Design of the Argument (1983).Google Scholar

100. Political Economy, supra note 22, at 223Google Scholar. See Barnard, F. M., Self-direction and Political Legitimacy: Rousseau and Herder 106–10 (1988).Google Scholar

101. Social Contract, supra note 22, at 68.Google Scholar

102. That there is a striking difference between Rousseau's abstract theory of the people as sovereign legislators and his paternalistic model of the concrete republic is a common theme in the secondary literature. See Masters, supra note 63, especially chs. 7 & 8; Barnard, , supra note 100Google Scholar; and Levine, , supra note 24Google Scholar. For a good discussion on how Rousseau's citizen lacks autonomy, see Parry, , supra note 93Google Scholar. For the contrary view, srr Cohen, , supra note 29.Google Scholar

103. Dworkin, , Equality, Democracy, and Constitution, supra note 1, at 336–42Google Scholar; Liberal Community, supra note 2, 491–504.Google Scholar

104. Id., Liberal Community, at 340–42Google Scholar; Foundations of Liberal Community, supra note 79, at 80–81.Google Scholar

105. Dworkin has written extensively against censorship, including against anti-hate laws, campus speech codes, and anti-pornography ordinances (supra note 7, ch. 17; Liberty and Pornography), 38 N.Y. Rev. Books (08 15, 1991), at 12–15Google Scholar; and The Coming Battles over Free Speech, 39 N.Y. Rev. Books (06 11, 1992).Google Scholar

106. Dworkin, , Foundations of Liberal Equality, supra note 79, at 12, 13, 104–6.Google Scholar

107. Id.

108. For Dworkin's refutation of the communitarian charge that liberalism presupposes the socially “naked” or “socially unsituated” individual, see Liberal Community, supra note 2, at 488–90Google Scholar. Yet Dworkin says next to nothing about the socialization process in his liberal community, nothing, e.g., about civic education. Perhaps he fears that any government-directed program in good citizenship would be open to abuse.

109. The difference here between Rousseau and Dworkin is in part over different understandings of the individual and individual capability. In contrast to Dworkin's ideal of the independendy minded and questioning citizen, the simple, contented individual in Rousseau's virtuous republic has no need to question, no need to try to find a better way. In fact, if he were in such a questioning mode it would be an indication that the republic was in a state of decay. Moreover, Rousseau did not believe that most people had the capability of finding answers to these big questions. They were much too ignorant and would be inclined to be led astray by false prophets. It is in part because of this ignorance that they have to be molded in the right way by the founder-legislator. (See Shklar, , supra note 92, at 163–84Google Scholar; and Masters, , supra note 63, at 363–64.)Google Scholar More fundamentally, Rousseau did not believe that advancements in reason and knowledge had made people more free or more happy. People in the advanced, civilized societies were less free, less happy than those in the simple societies of the past. See especially Rousseau, 's Discourse on the Sciences and Arts, inGoogle Scholar The First and Second Discourses (Gourevitch, Victor ed. & trans., 1986)Google Scholar. Whereas Rousseau was a critic of the Enlightenment philosophers, Dworkin follows in their footsteps.

110. Dworkin, , Foundations of Liberal Equality, supra note 79, at 38.Google Scholar

111. Dworkin, , Equality, Democracy, and Constitution, supra note 1, at 335.Google Scholar

112. Dworkin has called himself “a civic republican of the liberal mode” (Liberal Community, supra note 2, at 502)Google Scholar. For other positive references to this form of civic republicanism, see Freedom's Law, supra note 1, at 31, 343–46Google Scholar; supra note 33, at 23–24.

113. Life's Dominion, supra note 16, at 61.Google Scholar

114. Many liberals have come to the conclusion that, given the diversity, there can be no genuine community at the political-state level. See, e.g., Rawls, John, Political Liberalism (1993).Google Scholar

115. “The more harmony there is in the assemblies, that is, the closer the opinions come to obtaining unanimous support, the more dominant as well is the general will. But long debates, dissensions, and tumult indicate the ascendance, of private interests and the decline of the State” (Social Contract, supra note 22, at 109).Google Scholar

116. But what about the acrimonious controversies regarding abortion and euthanasia? Surely there is no common ground here. Dworkin's Life's Dominion (supra note 16) is Dworkin's attempt to show that there is common ground and thus the basis for reasoned discourse. He does this by reconceptualizing what really is at stake in the two debates. The real issue, he says, is different interpretations of a common principle all parties accept, the intrinsic value of human life. Once we all see this we can better understand the position of the other side and will recognize what we all have in common. This will serve to draw us together and promote dialogue.

117. Dworkin is not particularly clear regarding this grounding of the first principles, but ue especially In Defense of Equality, 1 Soc. Phil. & Pol'y 24–40 (1983)Google Scholar, and Foundations of Liberal Equality, supra note 79.

118. Id., Foundations of Liberal Equality.

119. Dworkin, , Liberal Community, supra note 2, at 501Google Scholar; id. at 88.

120. Dworkin, , What Is Equality? Pt. 3: The Place of Liberty, 73 Iowa L. Rev. 15, 16, 20Google Scholar; Free Speech, supra note 105.

121. Dworkin, , Equality, Democracy, and Constitution, supra note 1, at 333–34Google Scholar; What Is Equality?, supra note 1, at 13–15Google Scholar; and supra note 33.

122. Dworkin, , supra note 33.Google Scholar

123. Dworkin also believes that if liberal community were to adopt his program of “equality of resources” the potential for abuse, especially that rooted in economic greed and power, would be reduced (see Dworkin, , What Is Equality? Pt. 1, supra note 81. at 185–246Google Scholar; and What Is Equality? II. 2, supra note 81, at 283–345Google Scholar; What Is Equality? Pt. 4, supra note 1, and What Is Equality? Pt. 3, supra note 120). like Rousseau, Dworkin believes that limitations on economic inequality would make politics more like the civic republican ideal (in his case, ‘liberal civic republican’).

124. Dworkin, , Freedom's Law, supra note 1, at 29, 31, 344–45.Google Scholar

125. The 1970 U.S. Supreme Court decision in Buckley, v. Valeo, (424 U.S.1)Google Scholar, which places severe limits on the ability of Congress to place restrictions on campaign contributions, is a prominent example of a bad decision. See supra note 33.

126. See discussion supra at 139–40.

127. See supra note 120, What Is Equality?, Dworkin, , Free Speech, supra note 105.Google Scholar

128. See supra note 33.

129. Accordingly, it is probably not accidental that the theme of the community context of the judges' interpretive practices is much more prominent in Dworkin's theoretical discussions, e.g., in much of Law's Empire, than in the discussions of particular cases, e.g., that concerning homosexual rights.

130. For more discussion on this point, see Nordahl, Richard, The Place of Community in Dworkin's Jurisprudence, 12 The Windsor Yearbook of Access to Justice 263–92 (1992).Google Scholar