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?

Ronald Dworkin, answered from the texts and cited to the page.

The position in brief

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.1 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.234

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.5

Sources

  1. 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.
    Life's Dominion - An Argument About Abortion, Euthanasia, and Individual Freedom, pp. 161–162
  2. 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.
    Justice in Robes, pp. 28–29
  3. 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.
    Life's Dominion - An Argument About Abortion, Euthanasia, and Individual Freedom, pp. 165–166
  4. 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.
    The Strange Case of Judge Alito, pp. 14–15
  5. 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.
    Justice in Robes, pp. 123–124

Where the argument is made

  • 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)

How the argument was received

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.