Professor Richards' Unwritten Constitution of Human Rights: Some Preliminary Observations

The relationship of moral philosophy to the understanding and development of constitutional law has, until recently, been a relatively neglected issue. Although less evident in contemporary cases in the United States Supreme Court, scholarly attention to the congruence of moral inquiry with the articulation of constitutional values has become more frequent and intense in recent years. Clearly, the moral analysis of constitutional values is often demanding for the lawyer and judge. But even though the use of moral reasoning and adaptation of the values it describes and reveals to constitutional cases is not uncontroversial, it is an inevitable aspect of the process of interpreting a document which, in the words of Chief Justice Marshall, was “intended to endure for ages to come ...” The essential relationship of moral philosophy to constitutional law is most recently described and advanced by Professor David A.J. Richards in this volume.

It is the purpose of this essay to offer some brief comments concerning the significance of Professor Richards' thesis and to suggest several questions which that thesis raises for further attempts on the part of rights theorists to complete the bridge between moral philosophy and constitutional theory.