Resumo

WALUCHOW, Wil. Constitutional rights and the possibility of detached constructive interpretation. Probl. anu. filos. teor. derecho [online]. 2015, n.9, pp.23-52. ISSN 2448-7937.

In this paper I defend constitutional review against the charge that it necessarily runs afoul of democratic principle. In so doing, I draw both on Dworkin's theory of constructive interpretation as well as Raz's theory of detached normative statements and reasoning from a point of view. After arguing that constructive interpretation can be undertaken from a point of view other than that of the interpreter, I go on to argue for the following claims: (1) Constitutional interpretation and review can be undertaken from the point of view of the democratic community and its constitutional morality; (2) This process can be undertaken by a judge without the deliberate intrusion of her own personal moral convictions; (3) When undertaken from this point of view, constitutional interpretation and review can be rendered consistent with democracy; and (4) This is so even when these activities require a good deal of substantive moral reasoning and argument on the part of judges.

Palavras-chave : Constitutional Interpretation; Judicial Review; Community's Constitutional Morality; Moral Reasoning; Political Morality; Democratic Legitimacy.

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