Ronald Dworkin on recent Supreme Court decisions Reply

Ronald Dworkin has a two-part blog post at The New York Review of Books concerning the recent Supreme Court decisions Arizona Christian School Tuition Organization v. Winn et al and Arizona Free Enterprise Club PAC v. Bennett. (Links point to the blog posts, not the decisions.) 

In the second paragraph of the first post, he gives a wonderful and concise statement of law-as-integrity:

The popular assumption that justices can decide constitutional cases by just consulting the text of that document and the intentions of its eighteenth- and nineteenth-century authors, without relying on their own sense of justice, is simplistic and wrong. Many of the most important constitutional clauses—the First Amendment’s promise of “the freedom of speech,” for instance, its guarantee of “free exercise” of religion, and its prohibition of any religious “establishment”—are drafted in abstract language; justices must interpret those clauses by trying to find principles of political morality that explain and justify the text and the past history of its application. They will inevitably disagree about which principles best satisfy that test, and they will inevitably be influenced, in making that judgment, by their own sense of what a good constitution would provide.

But he criticizes the “conservative bloc” of the Roberts Court on these grounds:

But that does not mean that the justices are free to interpret the abstract clauses of the Constitution to match their own political convictions, whatever these are. In the last few years they have overruled a long series of recent and important precedent decisions and they have reversed several long-standing constitutional traditions. They have flatly prohibited even obviously sensible race-conscious social and educational policies, bolstered government’s support for religion, and progressively narrowed the scope of abortion rights. They have changed the American electoral system to make the election of Republican candidates more likely, for example by guaranteeing corporations a constitutional right to spend as much as they wish denouncing candidates they dislike. As I have argued, these various decisions cannot be justified by any set of principles that offer even a respectable account of our past constitutional history.

That’s what I love about Dworkin, and part of what makes him so much fun to teach: you can agree wholeheartedly with hsi formal jurisprudence but I disagree just as strongly with the way he fleshes it out substantively. (More on this, I hope, in future posts.)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s