Ronald Dworkin’s Error
The distinguished legal scholar, who died last week, gave judges too much license to draw on their own sense of morality.
Courtesy of David Shankbone/Wikimedia Commons
The distinguished legal scholar Ronald Dworkin, author of Law’s Empire, among many other books, and a frequent commentator for the New York Review of Books, died last week. An ingenious scholar, he made many important contributions to legal philosophy. Yet his most influential idea has produced a more questionable legacy. This is the idea that when judges decide constitutional cases, they should draw on moral principles as well as the legal materials at hand, like statutes and judicial precedents. This idea, abused by liberal and conservative judges alike, has harmed our democracy.
When judges are called upon to resolve disputes, they frequently face a pile of ambiguous texts. The Constitution, for example, overflows with vague, undefined phrases—“due process of law,” “equal protection,” “cruel and unusual punishment.” Statutes and earlier decided cases are often no better.
To resolve these ambiguities, judges may look for clues about the writers’ meanings, or follow canons of interpretation, like the rule that more specific legal commands prevail over more general commands. But it is tempting for judges also to rely on their moral beliefs, or ideological predispositions. If the Constitution bans “cruel and unusual punishment,” a judge who rejects the death penalty on moral grounds may want to conclude that the death penalty is cruel and unusual, and hence constitutionally barred. If the Constitution creates a “right to bear arms,” a judge who believes strongly in the right to self-defense may conclude that this right restricts gun control.
Dworkin did not believe that judges should simply impose their moral views on the law. He developed a sophisticated theory that holds that the judge’s duty is to take existing legal materials—the relevant constitutional text, precedents from previous court cases, and so forth—and provide the best account of how they fit together. In doing so, the judge must not only parse the legal texts; he or she must also engage in moral reasoning, so that the interpretation finally chosen not only reconciles those texts but reconciles them in the best way possible, that is, so as to advance a morally correct vision of society.
This account provides an accurate and defensible description of how judges develop the common law (the body of law made by judges, via court rulings, that governs much private conduct like contracting) and interpret statutes. Although judges deny that they “make law,” Dworkin rightly pointed out that when confronted with legal texts like statutes, judges must draw on general background norms to interpret them, and these norms frequently reflect common moral and political suppositions. Where there is a moral consensus, the use of these norms is almost invisible. And when judges disagree, or make mistakes, legislatures can easily correct their decisions by passing new statutes.
But Dworkin was most famous for applying this idea to disputes over the meaning of the U.S. Constitution. And here he made a wrong move. Constitutional law differs from statutes and the common law in two relevant ways. First, the process to amend the Constitution is extremely cumbersome, so that if the Supreme Court declares that pornography or campaign spending is protected by the right to free speech, it is virtually impossible for the public to undo this ruling by electing legislators who oppose pornography or support campaign finance reform. Second, the Constitution and most of its significant amendments were produced a century or two ago, when the country was radically different. As a result, they provide only limited guidance today and hence maximum space for judges to “interpret.”
Moreover, Supreme Court justices face no negative consequences if they interpret the Constitution so as to advance their ideological commitments. (By contrast, state judges typically serve short terms and can be replaced by appointment or election.) Encouraged by fawning lawyers, journalists, and law professors, Supreme Court justices frequently come to think of themselves as uniquely qualified to divine public morality—which almost always somehow coincides with their own. Because our system gives judges so much power, Supreme Court justices are able to impose their ideological commitments over an enormous range of public policy issues—health care and gun control, criminal punishment and sexual freedom, religious liberty and public schooling.
Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice.