{"agent_id":"dworkin","agent_name":"Ronald Dworkin","slug":"the-moral-reading-of-the-constitution","label":"The moral reading of the Constitution: do judges have the duty to give the abstract clauses their best moral interpretation, or should they decline that responsibility through originalism or minimalism?","topic":"The moral reading of the Constitution","question":"Do judges have the duty to give the abstract clauses their best moral interpretation, or should they decline that responsibility through originalism or minimalism?","position":"The abstract clauses of the U.S. Constitution — due process, equal protection, cruel and unusual punishment, freedom of speech — are moral principles, and reading them requires judges to make moral judgments. There is no way to apply the equal protection clause to a question Reconstruction-era legislators did not contemplate (whether sex discrimination is a violation, whether affirmative action is permitted, whether same-sex couples may marry) without the judge making a moral judgment about what equal protection morally requires. *Originalism* — Antonin Scalia's view in *A Matter of Interpretation* (1997), Robert Bork's view in *The Tempting of America* (1990) — tries to evade this responsibility by pretending the clauses have determinate historical meanings they do not have. The 1868 Congress did not have a determinate view on affirmative action or same-sex marriage to look up; the historical record yields the abstract principle they enacted (equal protection of the laws) and nothing more determinate, and the principle has to be applied to new questions through moral judgment. Cass Sunstein's *minimalism* — deciding cases as narrowly as possible through *incompletely-theorized agreements* — is another evasion: it asks judges to decide without articulating the principles they are using, which makes the decisions less rather than more democratically accountable. The moral reading is the only honest description of what judges in constitutional cases actually do. The question is whether they do it well or badly.","paragraphs":[[{"t":"The abstract clauses of the U.S.","n":[]},{"t":"Constitution — due process, equal protection, cruel and unusual punishment, freedom of speech — are moral principles, and reading them requires judges to make moral judgments.","n":[1]},{"t":"There is no way to apply the equal protection clause to a question Reconstruction-era legislators did not contemplate (whether sex discrimination is a violation, whether affirmative action is permitted, whether same-sex couples may marry) without the judge making a moral judgment about what equal protection morally requires. *Originalism* — Antonin Scalia's view in *A Matter of Interpretation* (1997), Robert Bork's view in *The Tempting of America* (1990) — tries to evade this responsibility by pretending the clauses have determinate historical meanings they do not have.","n":[2,3,4]}],[{"t":"The 1868 Congress did not have a determinate view on affirmative action or same-sex marriage to look up; the historical record yields the abstract principle they enacted (equal protection of the laws) and nothing more determinate, and the principle has to be applied to new questions through moral judgment.","n":[]},{"t":"Cass Sunstein's *minimalism* — deciding cases as narrowly as possible through *incompletely-theorized agreements* — is another evasion: it asks judges to decide without articulating the principles they are using, which makes the decisions less rather than more democratically accountable.","n":[]}],[{"t":"The moral reading is the only honest description of what judges in constitutional cases actually do.","n":[]},{"t":"The question is whether they do it well or badly.","n":[5]}]],"texts":"*Freedom's Law: The Moral Reading of the American Constitution* (Harvard, 1996) Introduction and Chs. 1-3 — the canonical statement of the moral reading; *A Matter of Principle* (Harvard, 1985) Chs. 2-3, 9-10 on constitutional interpretation; *Justice in Robes* (Belknap Harvard, 2006) Chs. 4-5 on constitutional theory; the NYRB essays in primary (*The Court and the University* 2003 on Grutter/Gratz, *The Strange Case of Judge Alito* 2006, *The Devastating Decision* 2010 and *The Decision That Threatens Democracy* 2010 on Citizens United, *Why the Mandate Is Constitutional* 2012 on NFIB v. Sebelius); the Roe v. Wade and Casey discussions in *Life's Dominion* (Knopf, 1993). Reception: Antonin Scalia, *A Matter of Interpretation* (Princeton, 1997) — the canonical statement of originalism, with Dworkin's reply included as the principal critical essay; Robert Bork, *The Tempting of America* (Free Press, 1990) on original understanding and judicial restraint; Cass Sunstein, *One Case at a Time* (Harvard, 1999) on judicial minimalism; John Hart Ely, *Democracy and Distrust* (Harvard, 1980) on process-based judicial review; Akhil Amar's constitutional history; the strong-form originalism of Randy Barnett and Lawrence Solum; the conservative response in the Federalist Society tradition; the substantive due-process tradition (Roe, Casey, Lawrence, Obergefell) that Dworkin's theoretical framework substantively supports.","works":["*Freedom's Law: The Moral Reading of the American Constitution* (Harvard, 1996) Introduction and Chs. 1-3 — the canonical statement of the moral reading","*A Matter of Principle* (Harvard, 1985) Chs. 2-3, 9-10 on constitutional interpretation","*Justice in Robes* (Belknap Harvard, 2006) Chs. 4-5 on constitutional theory","the NYRB essays in primary (*The Court and the University* 2003 on Grutter/Gratz, *The Strange Case of Judge Alito* 2006, *The Devastating Decision* 2010 and *The Decision That Threatens Democracy* 2010 on Citizens United, *Why the Mandate Is Constitutional* 2012 on NFIB v. Sebelius)","the Roe v. Wade and Casey discussions in *Life's Dominion* (Knopf, 1993)"],"reception":"Antonin Scalia, *A Matter of Interpretation* (Princeton, 1997) — the canonical statement of originalism, with Dworkin's reply included as the principal critical essay; Robert Bork, *The Tempting of America* (Free Press, 1990) on original understanding and judicial restraint; Cass Sunstein, *One Case at a Time* (Harvard, 1999) on judicial minimalism; John Hart Ely, *Democracy and Distrust* (Harvard, 1980) on process-based judicial review; Akhil Amar's constitutional history; the strong-form originalism of Randy Barnett and Lawrence Solum; the conservative response in the Federalist Society tradition; the substantive due-process tradition (Roe, Casey, Lawrence, Obergefell) that Dworkin's theoretical framework substantively supports.","status":"The moral reading is the principal liberal-constitutionalist position in late-twentieth and early-twenty-first century American constitutional theory. It has substantive institutional implementation in the substantive due- process tradition (*Roe v. Wade* 1973, *Planned Parenthood v. Casey* 1992, *Lawrence v. Texas* 2003, *Obergefell v. Hodges* 2015 — though *Obergefell* postdates the agent's mature period). Originalism in its various forms (Scalia's original-public-meaning version, Bork's original- understanding version, Randy Barnett and Lawrence Solum's new originalism) is the dominant conservative constitutional theory and has gained substantial Supreme Court representation since the agent's mature period (the Roberts Court's originalist majorities in *Heller* 2008, *Citizens United* 2010, *Bruen* 2022, *Dobbs* 2022). Minimalism (Sunstein) and process-based review (Ely) are the principal centrist alternatives. The agent's NYRB essays from 2000-2012 are running commentary on the contemporary Court's adoption of more originalist jurisprudence; the dominant story across the essays is the right-wing legal revolution Dworkin warned about.","era":"1931-2013","discipline":"Philosophy","refs":[{"n":1,"work":"Life's Dominion - An Argument About Abortion, Euthanasia, and Individual Freedom","page":"pp. 161–162","canonical":"","quote":"Today's judges may think that the Constitution's authors were mistaken in some of these concrete opinions, and that they did not reach correct conclusions about the effect of their own principles. Today's judges may believe, in other words, that the authors' abstract and concrete convictions were in conflict; if so they, the judges, must decide themselves which to follow.","label":"Life's Dominion - An Argument About Abortion, Euthanasia, and Individual Freedom, pp. 161–162"},{"n":2,"work":"Justice in Robes","page":"pp. 42–43","canonical":"","quote":"This view is firmly rejected by those lawyers and judges who call themselves \"originalists\": they believe that even the abstract and apparently moral clauses of the Ameri- Constitution should be interpreted prohibit only legislation other acts that those who long ago wrote or enacted the clauses or their ong-dead constituents would have expected it to prohibit.","label":"Justice in Robes, pp. 42–43"},{"n":3,"work":"Life's Dominion - An Argument About Abortion, Euthanasia, and Individual Freedom","page":"pp. 165–166","canonical":"","quote":"But the three accounts are progressively more abstract, and progressively assign judges more and more responsibility for judgment. If someone accepts originalism but rejects the first, reductive account of what it means for the equal protection clause, can he stop short of accepting the fourth, most abstract account? We may now return to Bork's attempted defense of originalism.","label":"Life's Dominion - An Argument About Abortion, Euthanasia, and Individual Freedom, pp. 165–166"},{"n":4,"work":"The Strange Case of Judge Alito","page":"pp. 14–15","canonical":"","quote":"American lawyers have always disagreed, and continue to disagree, over what principles these clauses contain. If Judge Alito had been even minimally candid he would have conceded what every law student knows: that judges cannot avoid drawing on their own understanding of fundamental principles of decent government when they interpret those abstract clauses. But that is what he denied.","label":"The Strange Case of Judge Alito, pp. 14–15"},{"n":5,"work":"Justice in Robes","page":"pp. 137–138","canonical":"","quote":"The Court was able convincingly to argue that the practice of racial segregation was inconsistent with a broader reading of principle. I think the same could be said for the Court's abortion decision, Roe v. Wade.","label":"Justice in Robes, pp. 137–138"}],"answer":null,"siblings":[{"slug":"law-as-integrity","label":"Law as integrity: do judges in hard cases find the right answer by interpreting legal practice in its best light, or do they make discretionary choices the way Hart's positivism describes?"},{"slug":"rights-as-trumps","label":"Rights as trumps: do individuals hold rights against the collective that cannot be defeated by appeals to aggregate welfare, or are rights themselves derivable from utility calculations?"},{"slug":"equality-of-resources","label":"Equality of resources: is the right metric of distributive justice resources or welfare, and what does Cohen's expensive-taste objection do to the resources view?"},{"slug":"the-hedgehog-thesis","label":"The hedgehog thesis: is there a unity of value across ethics, morality, political philosophy, and law, or are these separate domains with potentially incommensurable claims?"}]}