Interpretation and Philosophy: Dworkin's Constitution
Foley, Edward B., Constitutional Commentary
"Holmes wrote like a dream," Ronald Dworkin observes in Freedom's Law, his new collection of essays on constitutional interpretation. (p. 360, n.16) The same thing, of course, can be said of Dworkin himself. He is a master wordsmith, and these essays are a great pleasure to read even when they become a bit repetitive. Most of the essays were originally published in the New York Review of Books for a general audience without specialized legal training. Accordingly, Dworkin takes care in each essay to explain the basic issues that confront constitutional theorists. Since he has left these essays largely unchanged from their original form, we read the same explanation of the basic issues numerous times before completing the book. No matter. Dworkin is such a good writer that his work can withstand repetition. Indeed, it is worth reading some of Dworkin's passages out loud. His prose often sounds like poetry, having the natural rhythm of iambic verse.
Dworkin, however, is no mere stylist. His words convey ideas of great importance and intelligence. Many of his insights are truly brilliant and original, and, having the benefit of them, one's own thinking about constitutional law is forever changed for the better. For example, Dworkin's defense of Roe as a right rooted in the religion clauses, although problematic for reasons we shall discuss, entirely transforms the debate about Roe.(1) No longer is the question simply whether Roe, as an instance of "substantive due process," represents all the errors of that contradictory concept. Instead, the issue now is whether Roe really is any different than any other major First Amendment case, like the ones involving saluting or burning the flag.
Most important of all, Dworkin's central thesis about constitutional interpretation, or something like it, must be right. Dworkin's basic claim, which he restates in various ways throughout these essays, is that constitutional interpretation is not possible without the aid of political philosophy -- without, in other words, thoughtful consideration about what constitutional rights citizens of a democratic republic ought to have. Dworkin contrasts his claim with the belief that a court can interpret the Constitution without having to engage at all in normative inquiry about what rights people should have, as if the Constitution's authors had already done all the thinking on this subject and the only job of judges is to enforce this received wisdom in the lawsuits that come before them.
This belief that normative inquiry is entirely exogenous to the judicial exercise of constitutional interpretation, although perhaps prevalent among members of the general public, is obviously naive and dismissed as such by almost all members of the legal profession. As Dworkin himself points out, (p. 76) even those, like Bork, who have attempted to articulate a theory of constitutional interpretation that immunizes judges from considerations of political philosophy have ended by acknowledging that judges inevitably must make value judgments when they interpret the Constitution. Thus, Dworkin stands essentially unchallenged with respect to his central claim.
Even so, Dworkin's defense of this claim is not entirely persuasive. For reasons I shall discuss, Dworkin himself relies too much on the text of the Constitution to justify his method for interpreting the text. As an alternative to Dworkin's approach, I shall suggest an account of constitutional interpretation in which the actual language of the Constitution serves as little more than a potential obstacle to judicial decisions reached independently by considerations of pure political philosophy. (By "pure political philosophy," I mean the judge's own normative beliefs about what the Constitution ideally ought to say.) I show why this alternative account better explains and justifies not only Roe, to which Dworkin devotes much of his attention, but also such important decisions as Reynolds v. …