Summary: Dworkin debates the subject of unenumerated rights and uses some examples like abortion, and euthanasia.Reading of the bill of rights and judges role: The bill of rights as well as the rest of the constitution can't decide all matters, so judges are left to make decisions. Judges should have the last word about proper interpretation of the constitution. Judges are obligated to rule with integrity and give equal respect and concern to all citizens, and decide what equal respect and concern means. Some fear that judges have no authority to decide where there is no textual basis, and that judges that do so abandon all hope of limiting judicial power.
Enumerated and unenumerated rights: They claim that judges do have the power to enforce unenumerated rights and claim that the court has often done so in the past. But lawyers who argue in this way have conceded a very great deal to their opponents who deny that judges should have this kind of power. Unenumerated rights are a collective name for a particular set of recognized or controversial constitutional rights including the right to travel, association, and privacy if such a right exists. Enumerated rights are simply those written into the constitution such as free speech and protection against unlawful search and seizures etc.
Laws integrity: Constitutional adjudicators cannot be neutral about great questions, and senators who have the power to deny the appointment of judges to the supreme court must decline nominees whose convictions are too idiosyncratic. Possibly this is why Robert Bork was denied after nomination by George W. Bush.
Abortion: There are two arguments to prohibit murder. There is the derivative claim which is derived from individual rights and interests to preserve life and there is the detached claim which is a claim that life itself has some sort of intrinsic value and should be protected not for the good of the person themselves but for the value of life in itself.
A person may want to die and if their life is their own property they should be in control of their own property and have the right to take their own life if they choose. The government should not intervene to prevent murdering oneself because it does not deprive anyone unwillingly of their property of life. This is the derivative claim.
A person who wants to die for whatever reason should be prevented from killing themselves because life has an intrinsic value and is something worth preserving. This is the detached claim.
Is a fetus a person: The constitution says that a person is one who is born, so is a fetus a person? The derivative claim says no. But what about the detached claim? The detached claim says yes at a certain point (26 weeks in), but is this constitutional?
Do fetus' have interests: Something that is not alive does not have interests. Also, just because something can develop into a person does not mean it has interests either. If Bob's father went on a business trip the night that he was conceived, then it wouldn't have been bad for anyone. Bob wouldn't be here today, and therefore has no interests. Once a fetus can live on its own it may have interests. This is after the third trimester.
Governments legitimate concerns: Using the derivative claim if a fetus is a person than it is certainly right to prevent abortion because killing it infringes the persons rights. However, if a fetus is a person from a detached claim, then to say that it has some intrinsic value of life is based on a religious essence. For this reason, using the detached claim to accept that a fetus is a person whos life is worth preserving is an establishment of religion and therefore unconstitutional.
He claims that constitutional law should not be limited to the text of the document. "The Bill of Rights is not a list of discrete remedies drawn up by a parsimonious draftsman, but a commitment to an ideal of just government..."