A WORKING DEFINITION OF FUNDAMENTAL RIGHTS

Judge Skelly Wright's critique of legal process revealed two basic theoretical commitments of the fundamental rights approach: (1) that legal principles cannot fully or adequately identify moral values; and (2) that judges must choose (at some level and only sometimes) upon which moral values to rely when adjudicating a legal claim. We should be clear about what we are attributing to Wright. When Wright suggested that a judge must make a moral choice when interpreting a legal principle that expressly refers to a moral concept, he was saying that the judge must do something different from interpreting the moral concept to which the law refers. When a law refers to a nonlegal concept (such as “subsequent” or “adjacent”), we accept the inevitable difficulties of interpretation, but we do not readily assume that the interpretation of a temporal concept (for example) requires the judge to supplement the temporal concept with another concept instantiating another value of equal weight (such as morality or aesthetics). Nowhere did Wright (or any other fundamental rights theorist) suggest that the problem of interpreting moral concepts in law is a subset of the more general problem of interpreting concepts in law. Nor did it seem that it is a problem that could be solved by better draftsmanship: