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Ronald Dworkin (1931-2013)

[ 30 ] February 18, 2013 |

As Paul has already mentioned, Ronald Dworkin, a giant in the fields of jurisprudence and moral philosophy, has passed away.

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.

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  1. Matt says:

    There is no way of resolving legal indeterminacies with principles derived solely from the text;

    That is, at least, a highly incomplete and misleading account of what he suggests. It makes him sound like a textualist, or as if he thinks the resources are _internal_ to the legal texts, but neither is right. He thinks that there is a “right answer” as to what the best interpretation of legal texts is (at least in most cases) but thinks we need to appeal to our best moral and political theories to decide what those are. (The best theory will be the one that does the best job of “fit and justification”, for the text, but it doesn’t come from the text.) Because our moral and political theories will come from outside the legal texts, it seems to me to be pretty clearly wrong to put his view as you have here. There are significant worries about all parts of Dworkin’s view, but I don’t think this is one of them.

    • Scott Lemieux says:

      It depends on what you consider an extrinsic source, I suppose. Even textualists do not claim to deal solely with the text of the Constitution per se (they appeal to dictionaries, notes from the constitutional convention, etc.) But, for example, when he says discusses conservatives who accuse liberals “stubbornly read the Constitution to mean what it says” of being “the actual inventors and usurpers,” the suggestion is that the specific moral principles he cites are simply found in the Constitution itself, and while the application of these principles requires the appeal to extrinsic sources (like any attempt to discern textual meaning,) the liberal egalitarian principles themselves are simply found in the text.

      • mpowell says:

        I think you are confusing Dworkin’s general arguments about the law and his specific arguments about the text of the constitution. In specific cases I imagine he would argue that the specific interpretation that conservatives prefer is extremely weakly supported by the text (which is a strong argument against them under Dworkin’s theory) and that they are also basing their argument on preverse notions of justice. Dworkin was both a philosopher of the law and also actively engaged in specific legal debates so you have to be pretty careful if you are going to pick out different arguments like this because he would employ different arguments depending on context (which is not to say that his worldview was contradictory necessarily).

      • Matt says:

        the suggestion is that the specific moral principles he cites are simply found in the Constitution itself,

        No, I think that’s not right. We have a text, and we interpret it, and we bring the interpretive tools (moral and political principles) to it. To “get things right”, our interpretation must fit and justify the text, but that doesn’t mean the principles are “in” the text. Also, it’s not right, I think, that he thinks _our_ principles must have been held by the drafters in any strong sense. The model he has is “chain interpretation”, and while we can’t _completely_ depart from the point of the text without verging into illegitimacy, we work from _all_ of those who come before us- the first people are not deeply or particularly privileged. What makes a particular interpretation right, on this account, is that it makes the text “as good as it can be” _from our lights_. This doesn’t mean that the “right answer” is _in_ the text in any serious way. So, I think the comparison with textualists and originalists is superficial and misleading, rather than deep and important, as is suggested here. He’s doing something very different and much more radical.

        • Scott Lemieux says:

          Well, if the argument is that Dworkin’s theory is more complex, sophisticated, and nuanced than Robert Bork’s originalism, I certainly don’t disagree. But it shares some defects in common. Also, Jeff Goldsworthy’s Constitutional Commentary article is good on this, but I think he places much more weight on the original semantic meaning of the 14th Amendment than you’re allowing here.

    • mpowell says:

      I have to agree with this complaint based on my understanding of Dworkin. Any form of legal originalism is basically the exact opposite of Dworkin’s fundamental argument of what the law is. Now, does his theory provide us with a ready-to-apply grand theory of consitutional law? Hardly. His theory provides a lot of opennes in the interpretation of constitutional law based on our theory of morality and justice. And partially as a result, there is nothing in his theory that, even if adopted, would prevent bad judges from reaching bad decisions. His response would probably be that this is true anyways. But I think you could make the argument that one of the downsides of his theory is that it leads to some poor decisions that are more easily defendible under the terms Dworkin prefers. But this is a much different observation.

      • Scott Lemieux says:

        To be clear, I’m not (of course) claiming that Dworkin is an originalist per se, or that he believed in mechanical jurisprudence. However, I am saying that 1)while not an originalist he did attempt to trace various liberal egalitarian principles to the framers although the Constitution is at best partially committed to them, and 2)he claims that the moral aspirations judges should use in interpreting the Constitution are derived from the text itself, which to be charitable is a half-truth.

  2. Matt says:

    I should add that, on Dworkin’s view, moral and political principles that provide the best account of the texts are themselves part of the law in some important sense. This has potentially counter-intuitive results, if pushed very hard. But these are not part of the “text” except in an extended way.

  3. Crackity Jones says:

    The first fundamental theorem of Republicans: it’s always projection. See, e.g., accusations of voter fraud. So when Scalia decries “judicial activism,” that’s when you reach for your wallet. (Re one of the linked pieces in case that seemed like a non sequitur).

    • Scott Lemieux says:

      I don’t think it’s a non-sequitur. Dworkin still offers the most persuasive rebuttal to the kind of shuffling practiced by Scalia when he interprets the 14th Amendment at different levels of abstraction to reach politically convenient results.

      • Johnny Sack says:

        You know, I had never actually read the Lawrence dissent until about a year ago (my girlfriend is involved with an activist organization so that came up) and I could not fecking believe what I was reading. To save curious parties the trouble, some money quotes. It’s colored everything I’ve read by or about Scalia ever since, and not in a positive way. That should be his legacy. I hope his dissent goes down in history, along with Buck v. Bell, as one of the most vile writing in the United States Reports.

        “So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that *603 culture are not obviously “mainstream”; and “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda . . .”

        But, really, “Let me be clear that I have nothing against homosexuals.” Of course not.

        • Uncle Kvetch says:

          You should never leave out the part where he mentions that if sodomy can’t be outlawed, neither can masturbation…and apparently that’s a very bad thing.

          • Johnny Sack says:

            “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” ” Followed by some bitching about Casey.

            • Scott Lemieux says:

              Ah yes, the worst slippery slope argument in history. I think we can all agree that if the widely respected and fairly enforced state laws against masturbation are struck down, the country is dead.

        • Scott Lemieux says:

          But, really, “Let me be clear that I have nothing against homosexuals.” Of course not.

          Even this is too charitable. He didn’t say he had nothing against homosexuals; he just said that he had nothing against homosexuals lobbying legislatures.

          Of course, Ann Althouse has argued multiple times that Scalia’s dissent in Lawrence proves that he’s neutral on gay and lesbian rights. I swear.

  4. Joe says:

    Charlie Fried honors “Ronnie” Dworkin. Thanks. I appreciated the footnote about his planned book (based on a 2011 lecture) “on the sacred without God.” I read a draft and for those who wish, I don’t really, you can find video and audio of the actual lecture series.

    I read some of his works and have at times felt that he assumes certain premises and aspires too much but he was a legal philosopher. The latter is a feature, not a bug, and he takes the time to make his case and challenge opponents (who often agree with the sentiment he was also a charming person, which from what I know of the man, fits Prof. Ely too) in ways that make the journey worthwhile, even if you don’t agree all of what he says.

    The NYT obit was nice & includes an earlier article that also is a worthwhile profile, including photos.

  5. rea says:

    Prof. Dworkin: They told me that you had gone totally insane, and that your constitutional theories were unsound.

    Judge Bork: Are my constitutional theories unsound?

    Prof. Dworkin: I don’t see any constitutional theory at all, sir.

  6. [...] apologize for the delay between Lemieux’s post and my uploading of the podcast, but being that we’re responsible folk, we actually went out [...]

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