Dworkin was perhaps, with John Hart Ely, the last of the great liberal constitutional grand theorists. While (with the obvious exception of Roe v. Wade) Dworkin and Ely generally ended up in the same place, and both developed theories in large measure to defend the legacy of the Warren Court (and, especially in Dworkin’s case, to attack the Rehnquist counterrevolution) they traveled very different roads to get there. Ely’s representation-reinforcement theory derived from the insight that the Constitution consisted mostly of procedures rather than substantive rights, while Dworkin had a more traditional focus on the Bill of Rights (which he took to include the Reconstruction Amendments.) The Bill of Rights, Dworkin argued, “orders nothing less than that the government treat everyone in its dominion with equal concern and respect, and that it not infringe citizens’ most basic freedoms.” Legal ambiguities should be resolved by casting the relevant constitutional abstractions in the best moral light.
Dowrkin’s jurisprudential grand theory can’t succeed on its own terms, simply because constitutional grand theory is inherently incapable of fulfilling its goals. Dworkin’s rebuttals of legal realism — most notably in Law’s Empire — were never convincing. There is no way of resolving legal indeterminacies with principles derived solely from the text; grand theories could not constrain judges even if they were forced to rely on them consistently (which of course they can’t be.) As Susan Burgess puts it, if conservative originalism is a romance novel (in which the judge “must battle several formidable adversaries who would prevent him from attaining the ultimate goal, the restoration of the edenic natural state”), Dworkin’s aspirationalism was a soap opera, in which implausible plot devices are necessary to make everything come out in the end. Dworkin’s theory is normatively much more attractive than conservative originalism, but faces the obvious problem that the liberal egatitarianism he wants the Constitution to require was largely absent from the Constituion of 1789 and only half-there in the revised Constitution of 1868. There is a related problem, which is that aspirationalism (like all constitutional theories) is exactly as good as the judges whose aspirations decide the cases. (Roger Taney presumably thought he was reading the Constitution in the best moral light too.) Dworkin was too often unwilling to accept the injustices of the Constitution, ironies Jack Balkin’s brilliant recent book Constitutional Redemption deals with much more successfully.
But Dowrkin was brilliant, and while he did not succeed at the impossible task of building a constitutional grand theory almost all of his work can be read with profit. Among many other virtues, he was a marvelous critic of originalism. His analyses of Robert Bork — particularly strong in his review of The Tempting of America, but also seen in this publicly available take on the Bork nomination — are definitive statements on the fundamental vacuity and disingenuous of conservative originalism. (In particular, he was superb in explaining “originalism’s ladder” — the problem that, even leaving aside the other problems with originalism, it cannot constrain judges because constitutional principles can always be defined at different levels of abstraction.) Dworkin’s NYRB pieces are consistently excellent, and many aren’t behind the paywall. After the Bork essay, I might start with his review/exchange with Richard Posner over the latter’s book on the Clinton impeachment. Posner certainly scores some hits — most notably in pointing out the fundamental indeterminacy of moral philosophy. But Dworkin is also correct that law-and-economics cost-benefit analysis is hardly devoid of moral assumptions; it simply conceals them beneath empirical language. (Many of the “costs” and “benefits” judges have to assess not only do not have objective values but have values that are inherently moral and/or political.)
Dworkin’s work was hardly without flaws, but it will live, and this is a rare accomplishment. R.I.P.
…more from Charles Fried.