Although some originalists continue to resist the moral readings approach to constitutional substance, it is reasonable clear that that approach is substantively correct and widely accepted by courts and commentators. This Article extends the moral readings approach to procedural implementation of the constitution. I begin with the obvious: the constitution must be implemented by and through procedures. This truism should be contextualized: much of constitutional law takes place outside the courts. Nonetheless, an important part of constitutional law is reflected in the institution of judicial review and the more particular practices of constitutional litigation, including actions pursuant to Section 1984.
The moral readings approach, which is related to Ronald Dworkin's interpretivism, is well established in the context of interpretation of the substantive provisions of the Constitution. What is underappreciated is the role that moral readings can play in interpretation of the rules and doctrines that govern constitutional procedure. Of course, the moral readings approach dominates interpretations of what is called, "procedural due process": procedural fairness, a moral reading, is the dominate interpretive value in this area of constitutional law. But the moral reading of constitutional procedure can be extended to a variety of other topics, including standing doctrine and the application of the Federal Rules of Civil Procedure to constitutional cases.
For example, the moral reading of standing doctrine would emphasize basic liberties that are preconditions for deliberative democracy—to allow citizens to deliberate about the institutions and policies of their government—as well as deliberative autonomy—to enable citizens to deliberate about the conduct of their own lives. Because standing confers upon citizens the ability to participate in the forum of principle, standing doctrine must reflect deliberative autonomy.
The moral reading of procedural rules is equally important. The moral readings approach denies that procedure can be transsubstantive. Rather, the very nature of legal interpretation demands a context-sensitive morally infused reading of rules governing motions to dismiss for failure to state a claim, summary judgment, and directed verdict. The moral reading approach requires that these procedures be interpreted to favor deliberative autonomy. As a eneral rule, this means that motions pursuant to Rule 12(b)(6) and Rule 56 should not be granted when the result would be to shortcircuit the ability of citizens to exericse their deliberative autonomy.