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Virtues and Verdicts

Justice in Robes
By Ronald Dworkin
(Harvard University Press, 308 pp., $35)

During their recent confirmation hearings, John Roberts and Samuel Alito insisted on the importance of “following the law,” and of distinguishing between a judge’s personal moral commitments and his views about the Constitution. In drawing this distinction, both nominees recapitulated a discussion in the presidential debates of 2004, when the candidates were asked what kind of person they would appoint to the Supreme Court. President Bush replied, “I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.” Senator Kerry agreed. He said, “I don’t believe we need a good conservative judge, and I don’t believe we need a good liberal judge.… I want to make sure we have judges who interpret the Constitution of the United States according to the law.”

For over three decades, Ronald Dworkin has been the most influential and illuminating analyst of the view that judges can or should merely “follow the law.” In this collection of recent essays, Dworkin explores the relationship between law and morality, elaborating his previous arguments and replying to a number of prominent objections. Dworkin agrees that judges generally must be faithful to existing legal materials, but he insists that they are not merely “following” something. The law is often unclear. Dworkin contends that when resolving real disputes, judges must select the principle that puts previous decisions in their most attractive light. For this reason, the task of interpretation requires judges to think seriously about what morality requires, and they might well end up moving the law in dramatic and novel directions. On these grounds, Dworkin argues that some of the most controversial decisions of the Supreme Court, commonly challenged as forms of “liberal activism,” are perfectly defensible. Roe v. Wade, protecting the right to choose abortion, is just one example; and Dworkin leaves little doubt that he would welcome judicial decisions broadening the right of privacy.

To see how Dworkin’s approach works, suppose that the Supreme Court is asked to decide whether the Constitution guarantees terminally ill patients a right to physician-assisted suicide. The text of the Constitution bans states from depriving people of “life, liberty, or property, without due process of law.” Over a span of decades, the Court has issued many decisions interpreting the due process clause. In some of those decisions, the Court has said that the government may not intrude on certain intensely private choices (such as the right to live with members of one’s family). Faced with a legal ban on physician-assisted suicide, Dworkin thinks that the Court has to make a moral judgment. It has to ask, what principle makes best sense of the previous decisions? Dworkin’s approach imposes a requirement of what he calls “integrity.” Judges must not only fit previous rulings but also “justify” them, by identifying the principle that puts them in the best light.

Many people do not like Dworkin’s method. These critics seek to eliminate moral judgments from judicial rulings. Justices Antonin Scalia and Clarence Thomas believe that the Constitution should be read to mean what it meant at the time of ratification. At one point in his confirmation hearings, Alito too spoke in frankly originalist terms, saying, “I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.” Originalists believe that their view captures what it means to be faithful to the founding document. They accuse their opponents, those committed to a “Living Constitution,” of infidelity to the document as it stands.

In one of his most vigorous discussions, Dworkin explains why he rejects Scalia’s approach in favor of one that authorizes judges to make ambitious moral claims. He accepts “semantic originalism,” or the view that it is important to begin “by asking what--on the best evidence available--the authors of the text in question intended to say.” But he rejects “expectation originalism,” which understands the Constitution to conform to the founders’ original expectations about how their words would be interpreted.

To appreciate the difference between the two forms of originalism, consider the constitutional provision that prevents states from denying people “the equal protection of the laws.” It is clear that the authors of this provision did not mean to ban discrimination on the basis of sex or sexual orientation. For expectation originalists, such discrimination is acceptable. But for semantic originalists, this conclusion is far less clear. The answer turns on whether discrimination on the basis of sex or sexual orientation actually does deprive people of “equal protection of the laws.” That question, in Dworkin’s view, calls for a moral judgment, not a historical one.

Dworkin says that when we are asking about the meaning of constitutional terms such as “cruel and unusual punishment” or “equal protection of the laws,” we must choose between “an abstract, principled, moral reading” and “a concrete, dated reading.” The abstract, principled, moral reading would insist “that the authors meant to prohibit punishments that are in fact cruel as well as unusual.” The concrete, dated reading would ban punishments that were thought to be cruel and unusual at the time they wrote. Dworkin argues in favor of the abstract reading, on the ground that it best fits what the Constitution actually says. “The framers were careful statesmen who knew how to use the language they spoke,” and they “presumably … used abstract language because they intended to state abstract principles.” Scalia and Thomas are expectation originalists, and Dworkin accuses them of a kind of infidelity to the Constitution itself.

Dworkin does not think that the abstract reading allows judges to do whatever they want. Their obligation to “fit” the document, and previous judicial decisions, imposes real constraints. Dworkin himself believes, for example, that in principle the idea of equal citizenship requires “at least a decent minimum standard of housing, nutrition, and medical care.” But courts cannot insist on such a standard, because doing so would “graft into our constitutional system something that (in my view) doesn’t fit at all.” Yet if judges are allowed to produce a principle to make best sense of past decisions, they might well move the law in novel and surprising directions. Thus Dworkin thinks that the Court was wrong to refuse to recognize a right, on the part of dying patients, to physician-assisted suicide. He emphasizes that according to his approach, those who interpret the Constitution must “make fresh moral judgments about issues that deeply divide citizens, such as abortion, assisted suicide, and racial justice.” But they make those decisions in the interest of fidelity to the Constitution, not in opposition to it.

Dworkin is aware that many people object to the judicial role that he espouses on the ground that it is fatally undemocratic. Why should judges, rather than citizens, make the relevant moral judgments? He responds by distinguishing between two conceptions of democracy. In the first, political majorities are entitled to answer all questions of politics and morality. In the second, the democratic ideal “means self-government by all of the people acting as members of a cooperative joint venture with equal standing.” This conception of democracy, which he calls one of partnership, requires that citizens have “not only an equal franchise but an equal voice both in formal public deliberations and in informal moral exchanges.” Partnership democracy also requires that people have “an equal stake in the government” and “a private sphere within which they are free to make the most religious and ethical decisions for themselves.” Dworkin agrees that the judicial role that he supports is inconsistent with majoritarian democracy, but he rejects that conception of democracy as unattractive. By contrast, constitutional courts, seeking integrity, actually promote partnership democracy, because they help to secure its preconditions.

Dworkin also knows that some people do not want judges to “construct large-scale interpretations of grand moral principles.” (I am one of Dworkin’s principal targets here.) According to those who favor judicial “minimalism,” judges should allow the law to “grow slowly, incrementally, by analogy rather than grand principle, testing its steps one by one, attempting bit by bit to make the law work better.” The problem is that we cannot know whether any particular step “works” without reference to general principle. Minimalists want judges to avoid ambitious theoretical claims, but they cannot always do that, because their answers will sometimes presuppose an ambitious theoretical position. This is the problem with analogical reasoning: “analogies without principles are blind. Which analogy should the Supreme Court have adopted when asked whether women have a right to an early abortion? An abortion is in some ways like infanticide, in others like an appendectomy, and in others like the destruction of a work of art.” Analogical reasoning might well require a kind of theoretical ascent in which judges end up taking controversial stands even if they try to avoid them.

Dworkin’s rejection of minimalist judging is tied to his general rejection of pragmatism as an account of legal reasoning. Thus he devotes a good deal of space to the work of Richard Posner, who has long described himself as a pragmatist, and who is an especially sharp critic of the use of moral theory in law. Posner contends that judges do not and should not decide cases on the basis of controversial moral arguments; they should think instead about the consequences of one or another course of action. Dworkin mounts a blistering attack on Posner, arguing that he does not really avoid moral theory, and that he has no plausible argument for his claim that judges can and should do so. How can judges possibly rule on segregation, or privacy, or same-sex marriage, without resorting to moral claims of one or another sort? Posner’s version of pragmatism “is empty, because though he insists that judges should decide cases so as to produce the best consequences he does not specify how judges should decide what the best consequences are.”

For more than thirty years, Dworkin has been engaged in a complex and elaborate debate with the legal positivists, H.L.A. Hart and his various followers. Legal positivists typically insist on a sharp separation between law and morality; they believe that a statement about what the law is need not involve any moral judgment at all. Hart attempted to produce a purely descriptive, and morally neutral, account of the concept of law. One of his most influential claims was that the law qualifies as such by virtue of a “rule of recognition,” which is a social convention, not a matter of morality. It is a convention, for example, that establishes that the U.S. Constitution is law in the United States, as the Universal Declaration of Human Rights is not.

Dworkin objects that Hart’s theory “is not a neutral description of legal practice” and indeed that no such description is possible. To defend that objection, Dworkin re-asserts his claim that on complicated issues, judges asked “to decide what the law is … must interpret past law to see what principles best justify it, and then decide what those principles require in the fresh case.” Moral principles, not recognized by any convention, can be central to judicial rulings about whether a contract is valid, whether an injured person may receive compensation for an alleged wrong, whether a school may fire someone on the basis of sexual orientation. Responding to Dworkin, some positivists say that when the legal sources leave gaps, judges simply have discretion to make up the law. Other positivists contend that moral arguments are admissible if and only if the relevant rule of recognition makes them admissible. Hart himself acknowledged that “the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values,” as the Constitution appears to do.

Dworkin believes that these responses are quite inadequate. The reason is that a society may lack any “convention” to establish the rule of recognition. Hence people’s disagreements about the governing law cannot be resolved by reference to any such rule; it can be resolved only by answering the relevant moral questions. Judges who decide in favor of a privacy right, or same-sex marriage, are unable to rely on a convention. They must think about what morality requires. When the Supreme Court ultimately provides answers to the most controversial questions, its task is interpretive in Dworkin’s particular sense. The Court must attempt both to fit and to justify the pre-existing legal materials.

In a discussion that does not involve law but that turns out to be closely related to his critique of Hart, Dworkin challenges the claim, associated with Isaiah Berlin, that our deepest moral commitments are plural and conflicting. Many people believe that they are committed to both liberty and equality, but they know that the two ideals might conflict. A sharply progressive income tax, for example, might promote the goal of equality, but it might also compromise liberty. Berlin contends that conflicts between deeply held values can create a kind of tragedy, or at least some important damage, as we are forced to sacrifice one in favor of another. Dworkin is skeptical of this claim. Whether there is any conflict “depends on how we conceive these abstract values.” If we conceive of them properly, we may face no conflict. If we offer “an account that shows us what is good about liberty or equality or democracy, so that we can see why any compromise of these values is not merely inconvenient but bad,” the apparent conflict may well disappear. It may be that a sharply progressive income tax does not compromise liberty at all.

Dworkin contends that it is possible that “the most attractive conceptions of the leading liberal values do hang together in the right way.” Against Berlin, Dworkin makes the same claim that he makes against Hart--that “definitions or analyses of the concepts of equality, liberty, law, and the rest are as substantive, normative, and engaged as any of the contending opinions in the political battles that rage about those ideals.” The reason is that such definitions and analyses are interpretive rather than merely descriptive.

Though Dworkin’s arguments in this book range over numerous topics, his main focus is on constitutional law, and much of the book reads as a series of extended replies to the many people (including Scalia and Posner) who have rejected his claim that controversial moral judgments are important in determining the Constitution’s meaning. Dworkin’s timing is extraordinarily good, for we are living in a period in which that claim is under immense pressure. Moreover, Dworkin is convincing on two large points. First, he is right to emphasize the importance of both “fit” and “justification.” Any argument about the meaning of the Constitution is generally obliged to account for previous decisions, and to do so in a way that tries to make the best possible sense of them. This claim greatly helps to illuminate what legal argument is all about. And second, Dworkin is right to say that any theory of constitutional interpretation must be defended in moral, or at least political, terms. Those who select one theory of interpretation and reject others cannot claim that they are simply following the document or those who made it; they must be prepared to make moral or political arguments of their own.

The problem is that, from these two important points, Dworkin’s more particular claims do not follow. Judges need not treat the Constitution as embodying abstract ideals, or as licensing them to strike down democratic enactments that offend their own best judgments about how those ideals are properly understood. Suppose that those judgments are highly unreliable--and that judges are entirely aware of their own limitations in the domain of moral theory. For that very reason, judges might adopt an approach to interpretation that limits their ability to make moral judgments in particular cases, or to wield those judgments as weapons against the democratic process. Indeed, judges might adopt that approach on the ground that it best fits and justifies our own practices. This, I think, is the real blind spot in Dworkin’s account of constitutional law, and it requires a re-thinking of his approach to law in general.

To see the problem, let us begin with originalism. Dworkin favors “semantic originalism,” which requires judges to follow what the Constitution’s Framers meant to say. He does not favor “expectation originalism,” which means that judges must follow what the Framers hoped, or expected, that their words would be taken to mean. But Dworkin misunderstands his adversaries. Sophisticated originalists such as Scalia are not much interested in the Framers. They care about the ratifiers--We the People--who were authorized to make the Constitution law. Nor do the best originalists focus on the “intentions,” or hopes, or expectations, of the Framers. Instead they focus on the original public meaning of the document. Originalists believe that the Constitution must be construed to fit with its original public meaning to those who ratified it. Originalists insist that words have public meanings, and that the task of constitutional interpretation is to uncover those meanings at the time of ratification.

Dworkin could easily use this point to his advantage. He could contend that the original public meaning consists of abstract moral commitments, not concrete judgments. But if he is playing the originalists’ game here, as he seems to be doing, his contention stands or falls on the answer to a historical question: did the original public meaning consist of abstract commitments or concrete ones? Dworkin seems unaccountably confident that, as a matter of history, the Constitution was understood to contain abstract ideals. As it happens, there is a considerable historical literature on this, to which Dworkin does not refer; and it is not at all clear that Dworkin’s conclusion is right on historical grounds.

But perhaps Dworkin does not really believe that history should have the final word. He might believe that the question is how we should take the Constitution’s words, and perhaps that question is interpretive, not a simple matter of history. Dworkin might well think that if we would make best sense out of the Constitution by treating it as embodying abstract commitments, then that is exactly what we should do. But why, exactly, is that what we should do? Suppose that originalists can claim that their approach fits, well or wonderfully, with many important areas of law--that for the most part the Court’s most important decisions, in those areas, correspond fairly well to the original understanding. Suppose, too, that originalists can argue that their approach would lead to far better results than one that asks judges to ask, and answer, large-scale moral questions. Originalists might well emphasize that judges are not experts on moral and political questions, and their judgments about what is required by justice (not to mention “partnership democracy”) may be unreliable, confused, biased, or even perverse. If so, perhaps we make the best sense out of the Constitution if we read it to fit with the ratifiers’ understandings.

Dworkin does not give a clear argument against this position. He does not show that Scalia’s brand of originalism fails to fit and to justify existing constitutional law. Still, he is right to say that the Constitution should not be interpreted to fit with the concrete expectations of people long dead. In many areas, existing constitutional law goes well beyond the original understandings of the Framers and ratifiers, and thank goodness for that. The Constitution is now understood to forbid race and sex discrimination by the national government, even though none of its provisions was originally understood to forbid such discrimination. The Constitution is now taken to include broad protection of freedom of speech, going far beyond the original understandings. In many domains, originalism fails to fit our practices. And in most of those areas, originalism would make our constitutional system worse, not better.

But even if we reject originalism, it does not follow that judges should adopt and impose large-scale moral principles of their own (and call what they are doing “fidelity”!). Suppose that we insist that when judges strike down legislation because of their own moral judgments, they might well err. In American history, it is easy to find examples. As candidates, we might emphasize not Brown v. Board of Education, but instead, say, Lochner v. New York (invalidating maximum-hour legislation), Adkins v. Children’s Hospital (invalidating minimum-wage legislation), Buckley v. Valeo (invalidating campaign finance reform), First National Bank of Boston v. Bellotti (invalidating restrictions on corporate speech), Lucas v. South Carolina Coastal Council (invalidating the Beachfront Management Act), City of Boerne v. Flores (invalidating the Religious Freedom Restoration Act), United States v. Morrison (invalidating part of the Violence Against Women Act), Adarand Constructors v. Pena (invalidating an affirmative action program). I am confident that Dworkin would reject most of these decisions on moral grounds.

Puzzlingly, Dworkin does not come to terms with the risk of judicial error in the moral domain. To their great credit, Scalia and other originalists are greatly concerned with that risk; but there are more appealing ways of ensuring that the Court operates in a way that is attuned to its own fallibility. Posner wants to offer one. Against Posner, Dworkin is correct to say that moral disagreement can break out over the question of whether consequences are good. But Posner hopes that if we are able to have an accurate sense of consequences, diverse people might well be brought into agreement with one another, whatever they think on the largest moral issues. Suppose that a significant increase in the minimum wage would reduce employment, because it would become so much more expensive to hire people. If this is so, people of diverse views might reject significant increases in the minimum wage. Or suppose that certain voucher programs greatly improve education, and do so without causing religious strife or favoring any particular religious creed. If so, the Supreme Court might be led to uphold such programs (as in fact it did), notwithstanding fundamental disagreements about theology and the meaning of the Constitution’s religion guarantees. Dworkin rightly chastises legal pragmatists for neglecting the difficulty of evaluating consequences without taking a moral stand; but sometimes an understanding of consequences can lead diverse people, with quite different moral views, to the same conclusion.

It is for similar reasons that the Court might try, whenever it can, to base its decisions on the least contentious principles--those that can be accepted by citizens having competing views about morality and politics. In many contexts, social life and law are both made possible by what I have called incompletely theorized agreements--agreements on practices or judgments amid uncertainty or disagreement about the abstract moral or political theory that justifies them. People who disagree on the meaning of “equal protection of the laws” are now able to agree that the government cannot discriminate against women. People with different views about the foundations of the free speech principle are now able to agree that the government cannot censor political dissent without showing a clear and present danger. Judges’ efforts to avoid the most controversial questions, and their reluctance to invalidate laws on the basis of the most abstract principles, need not be based on a crudely majoritarian conception of democracy. Such efforts can be based instead on humility about judges’ own capacity for abstract moral reasoning. Dworkin is quite right to say that analogy is blind without principle, but some principles are more controversial than others. Often it is possible for the Court to rule in a way that avoids the largest controversies.

It is important, for this reason, to distinguish between two different claims. The first is that any approach to legal interpretation requires some kind of moral or political defense. On this point, Dworkin’s central arguments are right. Legal reasoning typically works by attempting both to “fit” past decisions and to “justify” them, by making them into sense rather than nonsense. Too much of the time, politicians and judges ignore the fact that judicial judgments, about principle and policy, play an inevitable role in determining what the law is. In controversial cases, the voting patterns of Republican appointees are systematically different from the voting patterns of Democratic appointees, and it is ludicrous to say that this is because one or another group “follows the law.” Contrary to a popular myth (sometimes repeated in the pages of this magazine), judges generally adhere to the views of the president who nominated them. Dworkin’s emphasis on the role of moral judgments in law helps to explain why.

Dworkin’s second claim is that the Supreme Court should adopt an approach that calls on the justices to make large-scale judgments about the meaning of our highest ideals. I think that the Court should, most of the time, refuse to assume such a role. It should refuse to do so because fallible judges ought to avoid engaging, in particular cases, with the most fundamental problems in morality and politics. No theory of interpretation can avoid moral and political controversy, but it is possible to adopt, on moral and political grounds.

Cass R. Sunstein is a contributing editor.

By Cass R. Sunstein