Reintroducing Ronald Dworkin

A leftist alternative to originalism is needed now more than ever

Reintroducing Ronald Dworkin
No nation’s politics can be run like a philosophy seminar; a democracy must give the final verdict on who leads it to many millions of people who have no training in economics, philosophy, foreign policy, or environmental science and who do not have the time or perhaps the ability to achieve much competence in these disciplines. But our national politics fails the standards of even a decent junior high school debate. Our candidates make us squirm with embarrassment when they clear their throats to speak. They are ruled by consultants who tell them that style is everything and content nothing, that they must say as little as possible except in subliminal codes meant secretly to energize important groups, that a punchy sound bite on the evening news is political gold, and anything remotely resembling an actual argument is death.
—Ronald Dworkin, Is Democracy Possible Here?  

In Federalist 78 Alexander Hamilton famously opined that “incontestably...the judiciary is beyond comparison the weakest of the three departments of power.” You wouldn’t know it from the amount of attention now paid to the judicial system, and especially the Supreme Court. Many are increasingly critical of the Court, which for the first time in a great while enjoys the support of less than half of Americans. Much of this is undoubtedly due to the deepening sense that the highest echelons of the judiciary are at best partisan actors rather than sober and impartial arbiters.

These debates have raged since the founding of the country, but recently kicked back into high gear when Mitch McConnell refused to consider Merrick Garland’s appointment on the basis that the President shouldn’t put forward a nominee in an election year. This precedent infamously lasted less than a term, when McConnell backtracked on his own precedent by appointing Amy Comey Barrett weeks before Trump lost the 2020 election.  Trump himself campaigned on a promise to appoint “conservative” judges, which overjoyed the right but probably didn’t do much for the credibility of judicial impartiality. When the judiciary isn’t being accused of partisan bias it’s being accused of flat-out corruption.

Alongside these more fiery debates about judicial partisanship have been more rarefied theoretical discussions about the right way to interpret the law. While no doubt these can often be powdery and effete discussions, at their best they gesture to important principled disagreement about the nature of legality and what moral and political principles a just system would embody and instantiate. For many decades some version of originalism has been a, if not the, pervasive legal-theoretical tradition in the United States; so much so that even the liberal justice Elena Kagan (somewhat cheekily) claimed “we are all originalists” back in 2010. Originalism has come in many flavors: intentionalism, textualism, and even “living” originalism.

But however flavored, originalism has never escaped the accusation it crudely conceals being a Trojan horse for conservative jurisprudence by preaching faux pieties about judicial impartiality. This accusation has even been made from the political right, with post-liberal critic and Harvard Professor Adrian Vermeule declaring that originalism has served its purpose of defeating liberal approaches to jurisprudence. In Common Good Constitutionalism Vermeule echoes Carl Schmitt in chastising gullible originalists still hungry to swallow their own story about judicial neutrality, calling on the right to use its control of the judicial system to advance its own agenda. He has found a receptive audience amongst young conservative lawyers, and in the event that Trump is re-elected there is a reasonable chance that an even tighter conservative grip on the judiciary will lead to a more uninhibited embrace of right-wing jurisprudence.

Although the balance of power on the courts has more to do with the political contingency of appointments than with legal theory, liberals and progressives suffer from lacking a constructive and alternative theory to inspire their own young legal talent. That’s certainly not for want of trying of course. There are a bevy of “living” and “pragmatic” approaches to law and legal interpretation put forward by luminaries like Lawrence Tribe and Cass Sunstein. On the more radical end of things the critical legal studies movement has produced a Hydra-worthy number of news discourses since fracturing in the 1980s. Everything from feminist to queer jurisprudence, to worthwhile Marxist analyses of the law, are on the table. While insightful, none of these approaches has approached the power and influence of the right’s approach to law. Part of this is due to extra-legal matters.

As Steven Teles chronicles in his excellent The Rise of the Conservative Legal Movement, the right has benefitted from ample injections of money into more than just Thomas’ vacation fund. Wealthy benefactors have spent millions building an array of thinking tanks and schools of thought, from the Federalist Society to the law and economics movement. But it is also because the current liberal and critical theories of law suffer from either being circumstantial or purely negative.

Pragmatic approaches defend the importance of liberal reforms unsystematically and strategically, without providing a sufficient grounding for their importance as a matter of principle. Critical approaches are very good at diagnosing the operations of power in the American legal system and “trashing” them as Mark Kelman once put it. But they are less confident about what to put in its place.

This is where the thinking of Ronald Dworkin warrants rediscovery by liberals and progressives. That he requires rediscovery may seem a bit odd. Born in 1931, Dworkin was a prodigal student whose final exams at Oxford were reviewed by H.L.A Hart—then the most famous legal philosopher in the world. His books Law’s Empire and Life’s Dominion made major splashes in a variety of legal fields, before Dworkin smoothly moved onto to making significant contributions to political philosophy. Until his death in 2013 Dworkin occupied the most prestigious positions in the legal academy, debated Supreme Court Judges and legal philosophers, was a prolific contributor to public debates in the New York Review of Books, and published ever more gigantic books that were subjected to long back and forths.

But rather like his contemporary Rawls, the irony of Dworkin’s life is that his legal philosophy was never better implemented than shortly before the publication of his first major book Taking Rights Seriously in 1977. By that point the Warren Court he so lionized was already a thing of the past, and the SCOTUS was reverting to its longstanding historical role of crusading for a more unjust America.

The right had taken charge of the higher echelons of the judicial system and was willing to use that power—a point that Dworkin noted bitterly near the end of his life as he finally began to acknowledge how far the American Supreme Court had strayed from respect for justice. Since then, things have moved ever further in a direction that would have appalled and disappointed him. A believer in the objectivity of justice and the unity of value Dworkin wouldn’t have been shy in saying that the conservative court is not just unjust, but wrong. And no amount of money poured into the Federalist society can make it right.

Law and morality

Dworkin’s approach to law began with a very technical debate about the merits of legal positivism. Legal positivism was and in many ways still is the dominant legal philosophy in analytical departments. It has many variations, but the version Dworkin was most familiar with was H.L.A Hart’s. As defended in Hart’s classic book The Concept of Law and papers such as “Positivism and the Separation of Law and Morals” positivism was committed to the “separation thesis”—the view that legality and morality can be analytically separated from one another. This was in sharp contrast to the view of the “natural law” tradition, which held that human made positive law attempted to approximate an objective “natural law” which was universal across time and space.

To be clear, the positivists never claimed that the separation thesis entailed rejecting the view that law embodied a morality. Obviously all law enforced a set of moral norms through legal rules. The claim was that law didn’t necessarily embody some objective or “natural” morality. The legal systems of Nazi Germany or the American south were legal systems justified by appeal to a moral outlook after all; just not one that most reasonable people would accept.

For Dworkin this view was unpalatable, because it missed the role that morality and principles invariably played whenever a legal actor liked a Judge was called upon to interpret the law. According to Dworkin, many positivists were convinced that all Judges did (or should do, although here we get close to smuggling in moral ideas contrary to the positivist ethos) was apply legal rules by ascertaining their plain linguistic meaning and applying them to the appropriate context.

Beyond just a matter of technical philosophy, he was also deeply concerned with the impact positivism had on the legal profession. As internalized by Judges, lawyers, and activists a crude form of positivist culture had taken hold which held that legal officials should only ever apply the law and not make and defend moral judgements about it. This created fertile ground for what he took to be superficially appealing doctrines like originalism to gain traction.

Dworkin insisted that Judges never approached the law in such a rigidly rule-like way; even if they thought they did. This is because, certainly at the constitutional level, many of the debates about what they law “is” were debates about the best and most integral way to interpret moral principles. This was reflected in the language of the American constitution, which abounded in principled references to “the people” and “equality” and “rights” and “liberty.” When asked to decide on the “meaning” of these words, Judges couldn’t just approach the matter linguistically or look in a dictionary; especially when it came to the aforementioned abstract terms which were inherently open textured. Instead they had to construct what amounted to the “best”  philosophical theory about the meaning of “equality” or “liberty” and defend it and consequently justify the application of coercive law against citizens.

This included taking into account the “gravitational force” of precedents, which was very powerful given the law’s commitment to “fairness” in treating like cases alike. But Dworkin insisted that sometimes, where a decision was very clearly wrongly decided, the gravitational force could be annulled and a previously precedent setting decision would be reduced to flotsam and jetsam in the legal universe. This was the reality in seminal American cases from Brown through Lawrence. But in these cases Judges weren’t simply reworking the entirety of law, but fixing a mistake and repairing its damage.

To be clear the “best” theory didn’t necessarily mean the one which most maximally instanted those principles, without any regard to precedent or the history of jurisprudence. As Stephen Guest points out in his guide Ronald Dworkin “best” means an interpretation that makes the most sense of legal material as a whole. An interpretation of a principle which is entirely out of sync with the constitution as a whole, or the embedded traditions of the nation—even if well-meaning—couldn’t stand. A decision made based on such an interpretation would be like an author asked to complete A Christmas Carol who decided the novel was no longer going to be about Judeo-Christian morality or the harshness of Industrial capitalism but the geopolitics of 19th century Europe and so consequently moved the story to the British Raj. It would not “fit” in any integral way. This imposes constraints on what Judges can do, though they are invariably capable of being very creative within those constraints.

The question then became which theory was most committed to securing the integrity of the law by most harmonizing the principles within it. When the Supreme Court decided that the 14th Amendment was consistent with a “separate but equal” approach to racial segregation in Plessy vs Ferguson, Dworkin claims they were both legally and morally wrong since no such account of the Amendment can make sense of its principled commitment to racial equality. This is because any interpretation of “equal protection” which abets a doctrine of “separate but equal” is a bad interpretation that does not make sense of the constitution’s basic commitments to equality.  By contrast the Warren court rejected segregation in Brown by insisting that segregation inherently stamps racialized groups with “inferiority” in a way that no constitutional interpretation committed to integrity could abide. This would have been true even had the institutions and services offered to racialized communities actually been equal as their defenders claimed; which, of course, they never were.

For Dworkin, this insight had great significance when it came to evaluating the increasingly conservative Supreme Court’s decisions. In Is Democracy Possible Here Dworkin held that the American constitutional and political system was committed to two “very basic” principles. The first principle expressing an “abstract invocation of the ideal of equality” is that “each human life has a special kind of objective value. It has value as potentiality; once a human life has begun, it matters how it goes. It is good when that life succeeds and its potential is realized and bad when its fails and its potential is wasted.

This is a matter of objective, not merely subjective value: I mean that a human life’s success or failure is not only important to the person whose life it is or only important if an because that is what he wants.”  The second principle, reflecting a commitment to liberty, is the “principle of person responsibility” which holds that “each person has a special responsibility for realizing the success of his own life, a responsibility that includes exercising his judgement about what kind of life would be successful for him.” For Judges, and indeed all political actors, in the United States to demonstrate fidelity to these core American principles it was necessary to show “equal concern” to all citizens. This is a refinement of the classic commitment to treating each individual equally before the law, but given more muscle.  

More than just a moral imperative, upholding equal concern is necessary to legitimate the legal system as a whole by sanctioning the use of state coercion against citizens who break the law. If the law does not treat them with equal concern, it dilutes the legitimacy of using for to compel such obedience.  For Dworkin, conservative jurisprudence could never achieve a high degree of legitimacy since one of its foundational commitments was to showing unequal concern for an in group over others, and consequently prioritizing the liberty of some through the subordination of the rest. It could never be squared with the constitution’s most important—indeed secularly “sacred”—principles and so was simply incorrect at every meaningful level and always would be.

Reintroducing Ronald Dworkin

Lesley Jacobs and I have co-authored a new book Against Post-Liberal Courts and Justice: Rescuing Ronald Dworkin’s Legacy that dives into these topics in a lot more detail. Needless to say Dworkin’s progressive, liberal and inspiring approach to the law offers a constructive and systematic alternative to originalism and common good constitutionalism which is badly needed now.

That isn’t to say it’s perfect. Dworkin’s theory of law is severely hampered in several major respects. The most important is its failure to take seriously the critical legal argument about the depth of law’s relationship to power. In Law’s Empire Dworkin dismissed the philosophical arguments of critical legal theorists about the “incoherence of liberalism” calling them “spectacular and even embarrassing failures.” While there is some truth to this, his dismissal of the critical legal argument that law often “reflects the ideology and power” of systems of power is equally empty.

Much of it seemed motivated by a snotty distaste for critical theory’s reliance on “French linguistics and Hegelian metaphysics.” But in fact critical legal theorists would have had a lot to teach Dworkin about why his very idealistic theory about how Judges should read the constitution will run up against the far more real history of the judicial system’s role in upholding injustice. Dworkin’s theory of how Judges should interpret the constitution is plausible and I think largely correct. Moreover, progressives and liberals cannot content themselves with pragmatism at best and critical “trashing” as a minimum.

But stripped of any awareness of why it failed to catch on relative to far less sophisticated but better funded alternatives it often reads like a kind of Warren court nostalgia. Those of us who want a shift to a Dworkinean jurisprudence emphasizing equality and freedom for all will need to pair it with an equally important theory of how power works in the judicial system.

Second and relatedly, there is no doubt that Dworkin placed far too much emphasis on Courts and constitutional interpretation as a site for transformative political action. His hagiographies of Brown belie the fact that, as Gerald Rosenberg reminds us, the reaction of segregationists to the decision ranged from defiance to indifference. It was the Johnson administration and above all the Civil Rights movement that ended segregation, not the Warren Court’s banging of a gavel.

This demonstrates the enduring relevance of Hamilton’s insight that the Supreme Court, no matter how much attention is paid to it, is often the “weakest” branch of government. And never more so when its decisions truck against the interests of the powerful and bigoted. This isn’t to dismiss the importance of struggling for a better Supreme Court than we have now, and of course a better theory of constitutional interpretation. But it's important to keep in mind that it is one site of struggle, and likely not the most significant.

Despite these limitations Dworkin’s theory of law and justice remains a magisterial resource liberals and progressives should tap. Especially as the discourse around the Court reheats during an election year, it is so key to remember that there is a better way forward than the approach that has given us Heller and Citizens United and Dobbs. Justice is the first virtue of social institutions, and no one understood justice more thoroughly than Dworkin. We need him.

Featured image is Ronald Dworkin, by David Shankbone