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Earl Warren Is Dead

Freedom's Law: The Moral Reading of the American Constitution

by Ronald Dworkin

(Harvard University Press, 404 pp., $35)

Every first-year law student encounters Learned Hand, the famous judge with the strange name. Hand is well-known for his provocative statements about liberty and the Supreme Court of the United States. He wrote that "the spirit of liberty" is the spirit that "is not too sure that it is right." And with respect to the role of the Supreme Court, Hand wrote, "For myself, it would be most irksome to be ruled by a bevy of nine Platonic Guardians, even if I knew how to choose them, which I most assuredly do not."

Hand is also famous for believing that the Supreme Court should generally lack the authority to enforce the Bill of Rights. This is a radical position, but it is important to understand what led Hand to it. Hand thought that the Supreme Court's use of the Bill of Rights (including the Constitution's equal protection and due process clauses) threatens to produce judicial tyranny. The threat arises from a simple fact. It is that the Constitution contains very abstract phrases--equal protection, due process, unreasonable searches and seizures--and such phrases, in Hand's view, inevitably mean whatever judges wish them to mean. The judicial use of such phrases risks tyranny because judges are not democratically elected, and they may well be "too sure" of their own unreliable judgments about the meanings of those abstractions.

In insisting on this risk, and in describing the "spirit of liberty" in his distinctive way, was Hand saying anything of importance? His statement about liberty seems to verge on moral relativism or skepticism, which are hopeless foundations for constitutional law. Surely we should be sure of some things. We should be sure that racial apartheid is wrong, that suppression of political dissent is unacceptable, that government should not torture people. And Hand's statement seems, in any case, to contradict itself. Why aren't people committed to liberty unsure about their commitment to liberty, or, for that matter, unsure about their own lack of certainty about whether they are right?

Many citizens and lawyers, especially those still under the spell of the Warren Court, see Hand's statements as confused, irrelevant, even horrifying. Those statements were made, after all, in the midst of the great national debate over the great school segregation case, Brown v. Board of Education, and the Court's decision in Brown was vindicated long ago. Certainly Hand can be regarded as an extremist, and an anachronism, insofar as he claimed that courts should generally not enforce the Bill of Rights, the internationally emulated pride of America's experiment in democratic self-government. Consider, for example, the thrilling fact that South Africa itself is in the midst of adopting a bill of rights, to be safeguarded by a distinguished Constitutional Court.

But let us try to understand Hand's claim in its context, which involves the appropriate role of judges in a constitutional democracy. Hand's point is not that people should not be sure about their deepest convictions. It is that citizens generally, and judges in particular, should not be too sure of themselves. This is especially true of judges, who tend to be relatively well-off lawyers, who are not trained as moral theorists, and (Hand's constant reminder) whose own deepest commitments may turn out to be wrong. Judges should work in a spirit of humility and caution, not because they are moral skeptics but because they are realists about their own limitations.

Which brings us to Ronald Dworkin. He served as law clerk to Learned Hand in 1957, and greatly admired him. But Dworkin has spent most of his career urging judges to assume precisely the role that Hand would not have tolerated. We might even say that Dworkin has stood Hand on his head. What Hand most feared and deplored, Dworkin most embraces and praises. Thus it is that Dworkin urges courts to offer a "moral reading" of the Constitution. A moral reading, as Dworkin has it, is one that, first, takes the Constitution as setting out big, abstract moral principles (freedom of speech, equal protection of the law) and that, second, instructs judges to ask large questions about how each abstract principle is best understood. Dworkin thinks that our legal and political cultures are badly confused on this score, which is why judges explain their decisions in "embarrassingly unsatisfactory ways" that refer not to abstract moral principles, which are what really count, but instead to such things as constitutional history or structure.

The goal of Dworkin's new book is to defend the moral reading through which Supreme Court justices use abstract moral principles, taken at the most general possible level, as limits on government's power. (He does urge others, including elected officials, to attempt "the moral reading," but judges get the last and hence most important word.) The book consists of seventeen essays, mostly published in The New York Review of Books. Readers of Dworkin's previous work will find no groundbreaking material, but they will find many interesting applications. The book comes in three parts. The first is dominated by the issue of abortion; the second mostly involves freedom of speech; the third deals with judges, above all with Dworkin's Great White Whale, Robert Bork (who gets three entire chapters), but also with Clarence Thomas and Learned Hand.

In the discussion of abortion, Dworkin maintains that a proper interpretation of the Constitution yields up a right to decide whether or not to procreate. Dworkin also thinks that the state's legitimate interest--to promote a responsible attitude toward human life and its value--does not allow the state to interfere with the woman's choice at the early stages of pregnancy. In the second part of the book, Dworkin insists that freedom of speech must be understood as an abstract moral principle (no surprise) and that the free speech clause cannot be applied to concrete cases except by assigning some overall purpose to it. Dworkin believes that there are, broadly speaking, two possible understandings of that purpose. The first is instrumental: it sees the First Amendment as contributing to the search for truth, or democratic self-government, or some other end. The second understanding, which Dworkin endorses, does not emphasize consequences, but sees the First Amendment as a "constitutive" feature of a just society. Dworkin thinks that government insults its citizens when it concludes that people cannot be trusted to hear opinions that might persuade them. Government may never regulate speech on the ground that it will persuade people, or on the ground that people are not fit to hear and to consider it.

These propositions lead Dworkin to three large conclusions. First, government may not regulate sexually explicit speech, even if that material qualifies as obscene under the Court's current standard and even if it combines sex with violence. Second, hate speech in general is protected by the First Amendment. Third, and most surprising, the First Amendment bans most actions for libel. The Supreme Court has said that public officials and public figures must show that the defendant had "actual malice"--knowledge of the falsity of the statements or reckless indifference to the matter of truth or falsity. Dworkin offers the sweeping and surprising conclusion that all plaintiffs--not just public officials and public figures, but ordinary people whose reputations have been damaged by media falsehoods--should be required to show actual malice, partly as a way of protecting the moral independence of journalists and their audiences.

Much of the third part of the book is preoccupied with Bork, who is famous for saying that the meaning of the Constitution should be settled by asking how its terms were understood by those who ratified it. The "original understanding" strategy is designed to focus courts on a historical question, and in that way to bracket questions of morality and politics and to banish them from the courts. To this view, Dworkin makes two responses. He says that originalists need to decide on the level of generality at which the original understanding is to be read. Do we take the First Amendment as setting forth a narrow principle limited to the framers' specific understandings? Or do we take the amendment at an intermediate level of generality, focused on, for example, political speech, which most concerned them? Or do we see it as a very general principle? Dworkin believes that the ratifiers of a constitutional provision are not likely to have decided that question, and in any case the text invites the most general approach. Dworkin also says that originalism begs all the relevant questions. Bork charges that nonoriginalists are abandoning the Constitution; but why should we identify "the Constitution" with the original understanding of its provisions? That question--Dworkin rightly says--cannot be treated as a historical matter. It requires a moral or political argument, and Bork and his followers do not usually attempt to make such an argument.

Dworkin's own argument against originalism goes as follows. It is important to have a system of rights that is genuinely principled; we should avoid a system of arbitrary and isolated decrees. Suppose that the framers believed that race discrimination is unacceptable in general, but that school segregation is fine, and even more that there is no problem with discrimination on the basis of sex. We now have more information, and so we should not be stuck with their less principled and less informed conception of what the equal protection clause entails. If we understand the Constitution by reference to the framers' particular understandings of its reach, we end up with specific prohibitions rather than what the abstract text invites: a community of principle. Why shouldn't we adopt a method of interpretation that produces the latter? Dworkin thinks that this question leads us toward the moral reading.

Dworkin is a remarkable rhetorician, and he is urging something important when he insists that any approach to constitutional interpretation requires a moral or political argument. You cannot say, for example, that the framers' understandings are binding because they understood their understandings to be binding. That would be circular. You cannot urge judicial restraint of Hand's sort without making moral or political claims. But it is precisely here that the weakness of Dworkin's argument may be found. There is not just one moral reading. There is a plurality of moral readings. And Dworkin's adversaries--including Bork and Hand--are making moral claims, and offering moral readings, of their own.

It is for moral reasons, in fact, that Dworkin is quite wrong to urge the Supreme Court to see the Constitution as setting forth abstract moral principles for judicial use. Most judges are not comfortable with the largest questions of political morality, and they know that they may well go wrong if they try to decide on "the point" of constitutional guarantees. Decisions about "the point" are deeply contentious and exceptionally difficult. Moreover, facts are important to constitutional judgments, and the fact-finding capacity of judges is very limited. Judges know that they may not produce social reform even when their cause is worthy and they seek to do so. In these circumstances, it is usually--not always, but usually--best for judges to resolve concrete cases rather than to choose among abstract theories, and to make their decisions on the basis of modest, low-level, relatively particularistic principles on which diverse people can converge.

Judges do this partly for pragmatic reasons; such an approach saves time and energy. But they also do it for reasons of principle. They wish to demonstrate mutual respect and to make it possible for diverse people to live with one another despite their disagreements. People who decline to resolve the deepest and most fundamental issues of philosophy can help to promote stability and reciprocal good will in a heterogeneous society. And such people further a central goal of a liberal democracy: to make it possible to obtain agreement when agreement is necessary, and to make it unnecessary to obtain agreement when agreement is impossible. Consider an analogy. Anyone who has served on a committee knows that people who diverge on abstract issues can often agree on particular issues. They can converge on the specific outcome; they might also be able to agree on a reason for the outcome. And yet they put the largest issues to one side if they possibly can. This is an especially useful model for law.

In a democratic system, moreover, it is usually good for judges to be reluctant to use abstract principles--equal protection, freedom of speech, and others on whose specification reasonable people can disagree--to oppose democratic judgments. Hence judges attempt to develop a range of devices--most importantly, rules of interpretation and analogical thinking--to reduce their need to develop abstract theories about constitutional provisions, in recognition of their own ignorance and limitations. Dworkin finds these devices "embarrassingly unsatisfactory." I think that they are a crucial part of the material of law--indeed, a central aspect of the best and most truly moral reading of the Constitution.

In the end, Dworkin's argument for judicial guardianship is rooted in the simple, quasi-empirical claim that, all things considered, judges thinking in abstract terms are more likely than anyone else to make good judgments about the rights that Americans actually have. But Dworkin's evidence in support of this position is anecdotal and very thin, especially if we put the Warren Court to one side. In any case, the right to democratic government is part of the set of rights that people have, and judicial use of abstract moral principles may well intrude on those rights.

Dworkin's position is interesting, however, because it captures the enduring appeal of the Warren Court, and because something of its general sort underlies the contemporary enthusiasm for courts among conservatives seeking to use abstract moral principles for their own ends--to invalidate affirmative action programs, to stop campaign finance regulation, to protect commercial advertising, to restrict regulation of property rights, to diminish the role of the national government in favor of the states. Dworkin thinks that the underlying debates are really about substantive moral issues, about what moral arguments are best. I think that these debates are about institutional issues, too; they involve the appropriate constraints on judicial discretion and judicial power.

Turn, for example, to the question of originalism in constitutional law. Without endorsing originalism, we should notice that Dworkin's attack on that approach to constitutional interpretation says nothing about the comparative virtues and vices of judges and legislators. As against ancestor-worship, Dworkin says, "time has given us the information and understanding that [the framers] lacked." But Dworkin's key terms--"us" "information" "understanding"--beg the central questions. The impulse toward originalism in constitutional law is best understood not as moral skepticism, but as a way of limiting judicial discretion and increasing the potential effect of moral and political deliberation in democratic arenas. If we--Americans--really have more information, which is to say, more facts and different (and let us suppose better) moral judgments, then "we" can enforce our judgments through ordinary legislation. This is no pipe dream. In many areas of unjustified inequality, one of Dworkin's central concerns, the most numerous and most important recent initiatives have come from state legislatures and Congress, not from federal courts. Consider discrimination on the basis of disability and sexual orientation, where elected officials have initiated action though the Supreme Court has been silent or hostile; and in the areas of both race and sex discrimination, elected branches, making or responding to moral convictions, have gone well beyond the Court.

The impulse toward originalism in constitutional law is most generously understood in terms of skepticism about courts rather than skepticism about morality. (Readers will be frustrated to find that Dworkin rarely puts counter-arguments in their strongest form.) Maybe judges who see the Constitution as specific historical judgments, rather than as abstract principles, will produce a better understanding of rights than Dworkinian judges; and maybe their limited understandings will be sufficiently corrected by moral or political judgments from the citizenry. If the choice were between a community of principle and a community of arbitrary decrees, Dworkin's argument would be much more convincing. But this is not the choice. The choice is between judges who seek to create a community of principle, in light of their own understandings of principle, and judges who see themselves as closely tied to historical understandings. This choice is a much harder one. It depends on contingent and debatable facts about comparative competence.

I do not mean to say that Dworkin is wrong to reject Bork's version of originalism. He is quite right to do so: a form of originalism that would limit Supreme Court justices to the most specific understandings of the framers would produce an unacceptably truncated system of constitutional rights. And Dworkin is also right to say that consequences of this kind matter to the choice of interpretive method. On what else could that choice depend? The real limitations on judicial discretion come not from specific historical understandings from framers, but from close attention to precedent, analogical reasoning, various rules of interpretation, judge-made "doctrine," and a general judicial unwillingness to reject democratic judgments in the face of doubt. The problem is that Dworkin misdescribes and even fails to see the problem with which originalists are concerned, that is, the development of interpretive rules to limit judicial mistakes through judicial misunderstandings of abstract concepts.

So what about the First Amendment? Let us compare Dworkin's "constitutive" approach with the very different strategy of real judges. More than 200 years after the ratification of the Bill of Rights, the Supreme Court has not made a decision about "the point" of that amendment. It has referred, to be sure, to a range of values promoted by freedom of speech, and it has used those values to decide cases, but it has not decided between instrumental and constitutive conceptions, and the complex body of free speech law is not united by a single overarching theory.

Is this a mistake? Should the Court choose the constitutive view? This is not at all clear. Instead of thinking through first principles, ordinary judges look at precedents, and they like to think about particular cases and particular analogies. This is one way that judges discipline themselves: we might say that in deciding cases, they ascend to the lowest necessary level of abstraction. Real judges know that government is now allowed to regulate many forms of talk--criminal solicitation, criminal conspiracy, attempted bribery, false or misleading commercial advertising, and even some truthful commercial advertising (as in, for example, advertisements for cigarettes, alcohol or gambling). In all of these cases, government appears to be regulating speech because it fears that people will be persuaded by it. Does Dworkin mean to argue that regulation of this sort violates the First Amendment? And how does he square his views on libel law, or for that matter pornography, with analogous areas of free speech law? He does not answer these questions.

In defending the moral reading of the Constitution, Dworkin stresses that history and precedent do matter and do constrain; but his discussion of the First Amendment deals at best haphazardly with the past or precedent, and works almost entirely from philosophical abstractions. The same is true for his discussion of abortion. He locates the right to abort in the religion clauses of the First Amendment, a remarkably adventurous interpretation that, to say the least, fits uncomfortably with precedent. Compare real judges. To the extent that they can, they avoid the largest abstractions about the First Amendment's "point" and work instead from actual cases and existing legal doctrine--for example, government cannot suppress political dissent without a clear and present danger; commercial speech can be regulated if it is false or misleading. People who are unsure or disagree about the First Amendment's point can often agree on more modest, lower-level ideas of this kind.

In fact Dworkin's treatment of free speech issues lacks anything like the continuous grappling with concrete issues--with actual and hypothetical problems--that forms so large a part of the judge's daily work. Not only is his discussion of libel unengaged with analogies, it also deals hardly at all with the intensely factual issues on which a successful resolution of the libel question depends. What (we might want to know) would be the actual effect of different libel law regimes? On certain factual assumptions, current libel law might plausibly be said to promote the autonomy of readers, who, with current law, have far greater assurance that what they read might actually be true. In any case, it is hardly clear that the autonomy of readers is promoted by exposure to factual falsehoods. I do not mean to resolve the libel issue here; but without undertaking some patient work through analogies and through facts, a judge cannot test whether his own understanding actually fits the law, or even fits his own judgments about what the law should be in hard cases.

All this brings us back to Learned Hand. Dworkin's final essay is about his former boss, and this is, I think, the most intriguing chapter in the book, largely because of the tension between Dworkin's evident affection for Hand and Dworkin's equally evident antipathy toward Hand's views, which would lead to a role for courts far more modest than that favored by Bork and the fiercest critics of Roe v. Wade. Why did Hand develop these views? For one thing, he despised "absolutes." This was not because he held a considered philosophical position against "absolutes" (what would that position look like?), but because he thought that people and especially judges should be willing (in Benjamin Franklin's words) to "doubt a little of [their] own fallibility."

For another thing, Hand was, in Dworkin's reading, an old-style civic republican. That is, he believed that a political community requires a high degree of participation by its citizens in the community's most important decisions, and he believed in the value and the need for a high degree of deliberation and responsibility on the part of citizens. Hand did not see democracy as a mere statistical affair, rooted in an effort to aggregate private preferences, but as a deliberative device by which citizens, with their own moral commitments, engage in dialogue and discussion with one another. Hand's defense of this conception of democracy was unquestionably moral in character. And that defense had everything to do with Hand's disapproval of judicial review. If we seek deliberative judgments from the citizenry, we are not likely to prize a system in which the greatest moral issues are resolved by nine lawyers in black robes.

Dworkin has very little to say against his former boss's emphatically moral defense of judicial abdication. He does say, and rightly, that modern American politics is not republican. Quite the contrary. Political debate in America often has little to do with moral questions, and it is too frequently a matter of compromise among powerful interests. Dworkin adds that the perception that an issue is constitutional can improve political argument, by making it more infused with issues of morality. He offers the example of the discussion of abortion in America, which, in his view, has involved more people, and been more broadly inclusive, than it would have been without Roe v. Wade.

But this is not much of an answer to Hand. The natural response to a system that suffers from too little moral deliberation in democratic arenas is not to transfer authority to courts, it is to try to encourage more moral deliberation in democratic arenas. Nor is it at all clear that an aggressive Supreme Court produces more and more inclusive deliberation (except perhaps by way of loud but futile criticisms of the Court). Indeed, judicial review can inhibit moral deliberation, by making people think that the Court will have the last word and hence that morality is really the province of the courts. This has happened on many occasions in the last quarter-century; "don't ask, don't tell" is the most recent example. Here, too, we come upon empirical questions--what is the effect of Supreme Court decisions on moral deliberation?--that philosophical abstractions cannot resolve.

And here we come close to the heart of the matter. Throughout this book Dworkin tends to conflate three different things: moral deliberation; constitutional interpretation having moral dimensions; and aggressive judicial review through "the moral reading" of the Constitution. Of course Dworkin is right to insist on moral deliberation, and it is surely good if constitutional interpretation promotes moral deliberation, at least if constitutional interpretation occurs, as it more often should, outside as well as inside the judiciary. But the arguments for aggressive judicial review by means of "the moral reading" cannot be carried by arguments for more moral deliberation. Since aggressive judicial review may produce moral error and diminish the level and the importance of moral argument outside of the courts by making it irrelevant, Dworkin's own enthusiasm for moral deliberation plausibly cuts--on moral grounds--against his own "moral reading." Or, to put it another way, first principles cannot justify allowing courts to be entirely unembarrassed about having the last word on issues of morality.

When things are going well, American judges are well aware of the relevant risks. They decide cases without embracing abstract theories partly because of their knowledge of their limited place in a constitutional democracy. Dworkin's approach misconceives legal reasoning, since it fails to see that good judges generally avoid the largest moral questions and build up devices of self-restraint not in defiance of a moral reading but in accordance with one. They do this because they are well aware of their own limitations. When it comes to issues of political morality, they are not too sure that they are right; and on this count they are surely right.

This does not mean that basic principles cannot tell us anything about the role of the court or about the contents of a "moral reading" of the Constitution. Obviously a good moral reading supports interpretive strategies that reduce judicial discretion and judicial power. In addition, Hand's commitment to republican self-government does not support his prescription of judicial abdication. Here Hand was very sloppy. When courts protect political dissenters, they do not undermine democracy, rightly conceived; they strengthen democracy, by ensuring its preconditions. When courts attempt to ensure accountability, by requiring government to provide reasons for its actions, they promote a well-functioning republic by ensuring against the constitutional framers' dual fears, factional power and self-interested representation. When judges protect groups at a systematic risk in insufficiently democratic political processes, they do so not in spite of, but in the name of, democracy. We might conclude that the great defect in Learned Hand's purportedly democratic argument was that he did not take democracy seriously enough. Oddly, and in a very different way, this is also the great defect in Ronald Dworkin's approach to constitutional law.

Cass R. Sunstein is the author of Legal Reasoning and Political Conflict, just published by Oxford University Press.

By Cass R. Sunstein