Scourge of the literal tendency

Freedom's Law
February 28, 1997

Fans of Ronald Dworkin's work, and addicts of the New York Review of Books, will have read almost all of the essays reprinted in Freedom's Law. Unless they have astonishingly good memories, they will be as glad as everyone else to have collected so conveniently, not only an extended statement of what the moral reading of the United States Constitution is, but a further 18 essays in which that reading is illustrated and defended. The essays cover the (mostly American) major legal excitements of the past ten years - from the successive attempts of conservatives to overturn the constitutional right to abortion enshrined in Roe vs Wade through free speech issues of one sort and another, onto the Supreme Court nominations of Robert Bork and Clarence Thomas, and ending with a coda on "Does Britain need a bill of rights?" They are invariably lucid and elegant; most improve with a second or third reading; and even where they fail to carry complete conviction as contributions to jurisprudence (or the analysis of current affairs), they inspire one not only with admiration but also with affection for their author.

Together, they also represent a somewhat distressing reminder of the superiority of the American debate over the fundamental freedoms of a democratic society to anything this country produces. No doubt, this is in large part the result of the US having had 200 years of continuous conflict over the ways in which the constitution did or did not constrain the operations of presidents, Congress and the several states. It helps to have been arguing about the Fugitive Slave Act in high school. But much must be set down to the culture of American law schools, many of whose professors will have spent their early years clerking for justices of important courts, even of the Supreme Court itself. To spend your late twenties and early thirties drafting decisions that will change the face of the criminal justice system, expand or contract the religious liberties of 250 million people, or change the educational and employment chances of 30 million black Americans gives you an education in the politics of the constitution as well as a confidence in your own judgement that little in the British legal system can match. Dworkin, for instance, spent what was evidently the most instructive year of his life working for Justice Learned Hand. Thereby hangs an interesting tale to which we will return.

Dworkin is notoriously the scourge of legal theorists who wish to interpret the American constitution narrowly. These theorists, whose champion on the current Supreme Court is the aggressively reactionary Justice Antonin Scalia, are accustomed to refer to themselves as "strict constructionists" and as adhering to the original intent of the framers of the constitution. The rhetorical nature of these self-descriptions hardly needs commentary: are their opponents likely to refer to themselves as "loose constructionists" or to agree that they are light-heartedly departing from the original intention of the constitution in order to make up a new set of rules that they like better? When Dworkin was arguing with H. L. A. Hart about the proper analysis of what judges did in hard cases, he insisted that judges were bound to declare what the law is, not to construct new laws or pass off their ideas about what the law ought to be as an account of what the law actually was. His critics often complained that he was too confident that he knew what "the right answer" was in the cases where they thought the law was genuinely indeterminate. Still, a theorist who thinks it is the judge's task to seek "the right answer" is not likely to accept his opponents' description of themselves as "strict constructionists".

Nor does he. Dworkin maintains that whatever judges and politicians say, there is in fact no alternative to the moral reading. "The moral reading is so thoroughly embedded in constitutional practice, and is so much more attractive, on both legal and political grounds, than the only coherent alternatives that it cannot readily be abandoned, particularly when important constitutional issues are in play." Yet he acknowledges that this is unwelcome news to politicians and to many judges themselves. American political debate is loud with the noise of politicians promising to secure the appointment of judges who will stick to the text, will not look for unenumerated rights where they are not to be found, and will leave to the decision of the electorate all large moral issues. Most of them end up sorely disappointed. President Eisenhower thought the two biggest mistakes of his career in the White House had been the nominations of Chief Justice Earl Warren and Justice William Brennan. On Dworkin's view, they should end up sorely disappointed because the supposed alternatives to the moral reading are not alternatives but incoherent nonsense.

There are several versions of the supposed alternatives, but perhaps only - or only one avowable - motive for holding any of them. This is a commitment to the right of the majority in a democratic political system to lay down the law that the judges are to interpret. Thus, for instance, someone who accepts that the point of a written constitution is to set limits on what temporary majorities may enact into law, may still think that this gives to unelected judges a kind of authority that must be kept tightly within bounds precisely out of respect for the principle of democratic authority. They may concede that majorities ought not to get their way on everything, and certainly not at once, and they may agree that a democratic system in which majorities are checked by a written constitution is likely to be more stable, as well as more humane and more rational in its deliberations, than one with no such constraints; still, they may wish to say that judges should construe the constitution narrowly, should "stick to the text", and should not stretch the intentions of the framers. In effect, they oppose the requirements of constitutionalism to the demands of democracy, and think that constitutional checks on democracy should operate lightly. A variant on the theme is one that Dworkin also addresses.

This is the thought that the "moral reading" is antidemocratic not so much in obstructing majority will as expressed through the ballot box and in Congress, but in giving an unrepresentative elite a moral standing that nobody else possesses. Who, one might ask, looking dispassionately at Chief Justice Rehnquist or Justices Thomas and Scalia, could think that these are persons whose moral judgements can be so relied on by the rest of us that they should be taken for law? The chief justice's wish to sweep away every federal protection that stands between prisoners on death row and their imminent execution is well known. Why anyone else should be bound by Rehnquist's peculiar enthusiasms is less obvious. When we have a Supreme Court that divides five to four as frequently as the current Supreme Court does, it becomes harder still to believe that their deliberations have any intrinsic moral authority.

What Dworkin argues is that these doubts misunderstand the nature of democracy. Anyone who has followed his career for the past two decades will have an enjoyable time puzzling over the consistency or otherwise of the line he takes now with the views put forward in Taking Rights Seriously and that classic little essay on "Liberalism". At all events, what he now says is rather like what Rousseau, perhaps, said about political authority in The Social Contract. All political authority raises the question of how we can obey the law and yet be free agents when we do so. Democracy is not a matter of majorities outvoting minorities, but a way of practising self-government as free agents. There are different routes by which we can achieve this, and not all of them require written constitutions or judicial review; all Dworkin seeks to show is that a written constitution, interpreted by judges who employ "the moral reading" of that constitution is not a constraint on self-government but one way of achieving it.

Put another way, the thought is that all legitimate government is government upon terms. The principles, mostly to be found in the Bill of Rights and the 14th Amendment, on which American democracy rests, are those terms. On Dworkin's reading, they "commit the United States to the following political and legal ideals: government must treat all those subject to its dominion as having equal moral and political status; it must attempt, in good faith, to treat them all with equal concern; and it must respect whatever individual freedoms are indispensable to those ends, including, but not limited to, the freedoms more specifically designated in the document, such as the freedom of speech and religion."

To see what Dworkin thinks of the proffered alternatives to the moral reading, one can turn to three essays, on the Senate hearings at which Judge Robert Bork failed to secure the confirmation of his appointment to the Supreme Court, and on Bork's account of those events in "Tempting America". The hearings added a new verb to the American language; Bork's supporters were so outraged by the Senate's treatment of their hero that they vowed to "Bork" any and every liberal they got in their sights. The disgusting way in which Senators Arlen Specter, Orrin Hatch, and Alan Simpson treated Anita Hill during the confirmation hearings for Clarence Thomas late in 1991 was the revenge exacted by the political right for the borking of their candidate in 1987.

Standing back from the battle, or stepping lightly across the mud, one can begin to analyse the crucial principle that Bork professed to be defending. This is the principle of "original intention". When we are not sure what the constitution requires, we must consult the original intention that lies behind the disputed clause. A good place to apply that test is Brown - the 1954 case that decided that segregated education was unconstitutional. It raises two questions: the first is whether Brown was rightly decided, given that it overturned 60 years of jurisprudence that had accepted that segregated facilities were constitutional so long as they passed the test of "separate but equal". The other is whether a believer in "original intention" can give a coherent account of how Brown was rightly decided, given that the Congress that passed the 14th Amendment went to some lengths to insist that "the equal protection of the law" that the Amendment guaranteed did not mean that all children should attend the same school.

Dworkin says that the decision in Brown "has by now become so firmly accepted, and so widely hailed as a paradigm of constitutional statesmanship, that it acts as an informal test of constitutional theories". I suppose this is true sociologically - that is as a proposition about American jurisprudential opinion - but it is not clear what probative force that fact has. Dworkin has elsewhere argued that the Supreme Court gets things wrong, as it strikingly did before the civil war in the Dred Scott case. Why should the Supreme Court not sometimes get it wrong in ways that decent people may be grateful for? Is it impossible to think that the court overturned "separate but equal", in defiance of the law as then understood, and to be glad that it did so? Dworkin has ways of finessing the question, and they are not to be despised. Someone who thought in 1954 that Brown was not decided rightly may think that it has become good law with the passage of time. As Dworkin says, constitutions are in part a matter of tradition, and once it became clear that the decision in Brown had, as you might say, "taken", Brown became good law.

In any case, Bork agreed that Brown was good law, so his conception of original intention is under some pressure. We know that the legislators who passed the 14th Amendment never intended to legitimate Brown, since Congress itself ran a segregated school system in Washington DC. Bork fell back on the thought that the original intention of legislators is not to be looked for in the way they would have decided cases, but in the principles they thought to be at stake. But, now the door is wide open. How are we to know just what principle was at stake when the 14th Amendment was passed? Bork's candidate for the principle underlying the 14th Amendment is that it is something like "governments must not discriminate on the basis of race". If that is the right principle, it leaves various minorities out in the cold. Governments could, for instance, deny the vote to women and not fall foul of the 14th Amendment; they could cheerfully argue, as they went on doing for some 50 years after the 14th Amendment was ratified, that because women did not bear arms, they should not have the right to vote. Or, to take a more current example, and one that is in fact dear to Bork, they could refuse to protect homosexuals against employers and landlords who discriminated against them. So, the question arises rather acutely: how are we to decide what principle underlies the 14th Amendment?

Dworkin thinks that the answer is to be found by asking what principle makes the best sense of the democratic enterprise on which the US has been embarked over the past two centuries. The theme of Law's Empire some ten years ago, was that judges are in something like the position of writers asked to contribute to a serial novel. They must be guided by the chapters that have already been written, but they can only be guided intelligently if they use their own understanding about the internal logic of the story. American judges employing the moral reading - which, as Dworkin has demonstrated, even Robert Bork finds himself unable to escape - must do their best to uncover the principles which make the most sense of the democratic story.

Most of the particular chapters of Freedom's Law are devoted to arguing for Dworkin's own understanding of what, for instance, the First Amendment implies for the freedom of pornographers to peddle their wares, why one route to defend Roe vs Wade runs through the First Amendment protection of religious liberty, and why the British need a bill of rights. The tone of this last essay is oddly defensive, as though Dworkin had not quite noticed that by 1990, when he wrote the piece, British public opinion had decisively swung behind his view. Or rather, he certainly had noticed, because he quotes an opinion poll taken in 1986 that showed that 71 per cent of the public "thought a constitutional bill of rights would improve democracy". And he is in no doubt that they were right. Still, he takes more seriously than most people nowadays do, the traditional anxiety about the supremacy of parliament, and the fear of the old left that reactionary judges would use a written constitution to obstruct necessary social reform.

Of course, his positive arguments for incorporating the European Convention on Human Rights are no less persuasive now that they have been so generally accepted. But the last word might decently be left with Judge Learned Hand, Dworkin's old mentor. Learned Hand was careful not to put too much trust in parchment barriers. As Dworkin observes, it was he who "said that when the spirit of liberty dies in a people, no constitution or Supreme Court can bring it back to life". The British view was once in that mould: so long as the spirit of liberty was sufficiently alive in a people, neither judges nor politicians would dare to behave tyrannically. They would remember that lamp posts can serve other purposes than supporting street lights. Learned Hand, as Dworkin rather wincingly acknowledges, believed in judicial restraint, believed that Brown had been decided wrongly - though he was second to none in his loathing of racism - and believed that because the Bill of Rights set out the moral terms on which American democracy was to be practised, judges should defer to the considered view of the legislature on what those terms entailed.

He thought that only thus could the public get an education in their responsibility to keep democracy in good heart; Dworkin argues in reply that "individual citizens can in fact exercise the moral responsibilities of citizenship better when final decisions involving constitutional issues are removed from ordinary politics and assigned to courts".

As I remarked at the beginning of this review, American debates about constitutional issues are vastly more sophisticated than anything seen in Britain; ordinary political discussion would disgrace a primary school playground. Perhaps Learned Hand was right.

Alan Ryan is warden, New College, Oxford.

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

Author - Ronald Dworkin
ISBN - 0 19 826470 4
Publisher - Oxford University Press
Price - £30.00
Pages - 4

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