Dworkin's Wishful-Thinkers Constitution
Peter S. Wenz
In Life's Dominion Ronald Dworkin uses a liberal interpretation of the Constitution to defend constitutional rights to abortion and euthanasia. (1) According to Dworkin, the Constitution "lays down general, comprehensive moral standards that government must respect but ... leaves it to ... judges to decide what these standards mean in concrete circumstances" (p. 119). Any right can become constitutionally protected if five Supreme Court justices declare it so. As with Peter Pan, so with rights protected by the Constitution, believing makes it so.
In this paper I explain and reject Dworkin's arguments for his view of constitutional interpretation. But with Dworkin, I reject the "originalism" of Justice Scalia and Robert Bork. I champion, instead, the moderate view that Justice Hugo Black presents in his dissent in Griswold v. Connecticut. (2)
Dworkin notes that the Constitution's language, especially in several clauses of the Bill of Rights, is very abstract.
Dworkin concludes reasonably from such examples as these that judges must use moral argument to interpret the Constitution.
The need for judges to use moral argument is greatest, Dworkin argues, where the Due Process and Equal Protection Clauses are concerned. The Fifth and Fourteenth Amendments forbid government to deprive people of life, liberty, or property without due process of law, and the Fourteenth Amendment requires that states accord people equal protection of the laws. The abstract concept of equal protection "does not itself make clear whether states can segregate schools by race, or whether they must spend the same amount per pupil on public education in different school districts across the state." (127) Moral argument is necessary.
Moral argument is central to the application of the Due Process Clause because "The Supreme Court early decided that this clause was not to be understood as simply procedural [as its name clearly suggests], but that it imposed substantive limits on what government could do no matter what procedures it followed." (127) According to this view, called substantive due process, the Due Process Clause protects people in the enjoyment of all fundamental rights, whether or not these rights are enumerated in the Constitution. It is up to judges to decide, on grounds of morality and political morality, what rights are fundamental. Early in this century the right to make commercial contracts was considered so fundamental that state laws impairing the freedom of contract were declared unconstitutional. This was the Lochner Era, named after a case in 1905 in which the Court rejected on free contract grounds a state law that restricted the working hours of bakers to sixty hours a week. (3) Since that time substantive due process has been invoked, for example, to uphold parents' rights to send their children to private schools, (4) married couples' rights to use contraceptives, (5) and women's rights to abortion. (6)
Because substantive due process disallows all unreasonable restrictions of liberty, the rights that it protects cannot be enumerated in advance of controversies generated by restrictive legislation, and judges will sometimes extend constitutional protection to rights, such as the right to use contraception, that are not specified in the Constitution.
Dworkins gives two additional reasons for the view that the Constitution lays out broad principles of political morality that invite judicial innovation to meet changed circumstances and evolving moral standards. He notes that "the parties to the original Constitutional Convention in Philadelphia directed that all their work papers be burned so that their detailed opinions would never be known." (136) Dworkin opines that they did this so that future generations would interpret according to their own morality the abstract principles embodied in the Constitution.
Dworkin maintains also, incorrectly according to the argument I offer below, that the only alternative to a constitution of principle, is a constitution of detail, which reduces the "Bill of Rights to a set of highly detailed rules, each recording the specific understandings that were widespread at given historical moments in the past." (121) Dworkin does a good job of pointing out flaws in the details view of the Constitution, which he associates with the "originalism" or "original understanding" approaches of Justice Scalia and Robert Bork.
Dworkin's dismissal of originalism is his main answer to objections that his view of constitutional interpretation (especially his acceptance of substantive due process) gives too much power to judges who may abuse it. His reasoning resembles the all-or-nothing arguments of those favoring nuclear technologies when they suggest that the only alternative is the stone age. Here Dworkin says it is unlimited judicial discretion or originalism. In both cases there is middle ground. Justice Black articulated the middle ground available to those interpreting the Constitution.
JUSTICE BLACK AGAINST SUBSTANTIVE DUE PROCESS
Justice Hugo Black recognized that the Constitution is written in abstract language that must be reinterpreted by each generation to meet the needs of their time. He was no originalist. On the other hand, having experienced the Lochner era, he was wary of substantive due process giving unelected judges the power to invalidate any and all legislation that they find particularly repugnant. Dissenting in Griswold, Black wrote:
Besides the danger involved, such power in the judiciary violates the separation of powers.
Apparently enough records of the convention remain for Black to quote two proposals to give judges the power to reject legislation they consider unwise. Nathanial Gorham of Massachusetts countered, "As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures." (9)
So long as judges feel free to "discover" unenumerated rights in the Constitution and enforce them against "offending" legislation, the only limits to the judiciary acting as a super legislature will be self imposed. What is more, the only basis of judgment will be the judges' own "personal and private notions" of fairness. (10) Legislation of the federal government and of the fifty states would be held hostage to the strongly held moral convictions of five justices of the Supreme Court.
JUSTICE BLACK'S COMPROMISE ALTERNATIVE
A bit of constitutional history is helpful to understand Black's compromise alternative. When the Bill of Rights was added to the Constitution in 1791, its provisions applied only to the federal government. States were not forbidden by the Bill of Rights to establish religions, require self-incriminating testimony of criminal defendents, curtail freedom of speech, and so forth. The post-Civil War amendments, the Thirteenth, Fourteenth and Fifteenth, were innovative in their imposition of federal standards on the states. The Fourteenth Amendment requires states to accord their residents the same due process of law that the Fifth Amendment requires of the federal government, and also requires that all residents be given equal protection of the laws.
In the first half of this century the Supreme Court began to apply to states an increasing number of the first eight amendments in the Bill of Rights. The rationale was that since states are disallowed by the Fourteenth Amendment from denying due process of law, and since the Bill of Rights can be construed as specifying what counts as due process, the Bill of Rights can be incorporated into the Fourteenth Amendment and applied to the states. Justice Black was considered a judicial liberal in his time largely because he long championed this incorporation of the Bill of Rights.
Incorporation, which is now largely taken for granted by all sides in debates on how the Constitution should be interpreted, greatly expands the power of the federal judiciary to protect individual rights. Now the federal judiciary can invalidate as unconstitutional state legislation that establishes religion, subjects criminal defendents to double jeopardy, and so forth.
As we have already seen, Black was sensitive to the possibility that this power be abused by well-meaning moral zealots. So he advocated limiting the power by restricting the federal judiciary to the protection of enumerated rights. He recognized that many of these are expressed in abstract concepts requiring interpretation, that interpretations vary with time, and that many intepretations are guided by moral principles. However, he considered the imposition of judicial views much less troublesome when judges were interpreting enumerated rights, because restriction to such rights imposes limits on judicial activism. In 1947 he wrote:
The distinction can be illustrated through two cases mentioned by Dworkin.
In the first case, Black would say, the Court is doing its job, because the Constitution really does mention a right to freedom of speech, so the Court must interpret that phrase. As symbolic communication, flag burning can reasonably, although not without controversy, be considered speech. In the second case, however, the due process clause is used to allow judges to invent any right whatsoever that they consider basic to "ordered liberty."
In the case at hand they declared a woman's right to have an abortion essential to such liberty. (I suspect that most people in the Republic of Ireland, regardless of how they stand on the issue of abortion, would be surprised to find that they do not live in a regime of ordered liberty.) In another case the justices could declare the right of consenting adults (acting without force or fraud) to have more than one spouse to be essential to ordered liberty. They could decide that closed union shops interfere with individuals' rights to make voluntary labor contracts.
The point is not that these are all bad ideas. It is reasonable that each be debated in appropriate legislative assemblies. The unelected Court deciding such issues as matters of constitutional principle, however, is unreasonable. But this is what Dworkin endorses and Black opposes.
IMPLICATIONS OF BLACK'S COMPROMISE
An objection to Black's view is that many decisions of great importance would have been impossible without the use of substantive due process. These include, using examples mentioned by Dworkin, Griswold v. Connecticut, which secured the right to use contraceptives, Roe v. Wade, which secured the right to an abortion, and Loving v. Virginia, which secured the right to interracial marriage.
I argue in Abortion Rights as Religious Freedom, that all three of these cases could have been securely grounded in enumerated constitutional rights. (12) The first two decisions can be based on the Establishment Clause. The government may make no law regarding the establishment of religion. This has been interpreted to mean that if promoting a religious belief is the only goal a statute can reasonably be considered to have, or if its other goals can be accomplished without the promotion of a religious belief, then a statute that promotes religious belief unconstitutionally establishes religion. The Connecticut statute invalidated in Griswold had no other plausible purpose than to lend state support to a religious view that disfavors contraception. (The contraceptive devices in question were legally available in Connecticut when used to prevent the communication of disease). (13)
Dworkin agrees with the thesis of my book that laws restricting abortion similarly run afoul of the Establishment Clause. (See especially pp. 161-167.) So Black's more restrained approach to constitutional interpretation would not endanger the right to abortion declared in Roe v. Wade.
Laws that restrict interracial marriage clearly run afoul of the Equal Protection Clause. The point of the clause was to protect newly freed blacks from official state discrimination. It is not a great stretch to include in this category official state discrimination against interracial couples. So Loving v. Virginia could be upheld without recourse to unenumerated rights.
Of course, there will inevitably be some individual rights that the Court could declare constitutionally protected if it is allowed to "find" unenumerated rights, that it could not protect following Black's approach. This may be a boon. And if it is a loss, legislatures may make it up. That is their job.
THE SPIRIT OF COMPROMISE
A red herring in this debate is the consideration that interpreting the Constitution requires judgment. Justice Black quotes approvingly Justice Iredell's 1798 objection to the Supreme Court invalidating legislation found contrary to "natural justice." "The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject...." (14) Again, objecting to Justice Goldberg's suggestion that the Court protect unenumerated rights that are rooted in the collective conscience of our people, Black writes, "The scientific miracles of this age have not yet produced a gadget which the Court can use to determine what traditions are rooted in the '[collective] conscience of our people.'" (15)
Objections such as these to reliance on substantive due process, unenumerated rights, and natural justice (which all come to the same thing in this context), may suggest that Black's proposed principles of constitutional interpretation will provide mechanical tests of constitutionality that avoid uncertainty. Justice Harlan, concurring with the majority in Griswold, points out that Black's proposal does no such thing. "'Specific' provisions of the Constitution, no less than 'due Process,' lend themselves as readily to 'personal' interpretations by judges whose constitutional outlook is simply to keep the Constitution in supposed 'tune with the times." (16) Dworkin warns, similarly, that "no mechanical formula exists for distinguishing good decisions from bad ones..., because lawyers and judges are bound to disagree in a complex or hard case...." (146)
Critics of Black's proposal are correct to this extent. Interpreting the Constitution requires judgment in any case. Black should not have left the impression that avoiding recourse to judgment was a virtue of his approach. However, there are significant differences of degree. The scope for judgment, the power of judges, and the importance of judges' personal, moral values, all increase significantly when judges are allow to "find" unenumerated rights in the Constitution. Dworkin himself points out that accounts of constitutional interpretation that feature more and more abstract principles "progressively assign judges more and more responsibility for judgment." (141) This consideration of degree is important in a system of checks and balances. The choice between Black's and Dworkin's views rests, ultimately, on how much democracy we favor, that is, on how much faith we place in the wisdom of elected legislatures versus unelected judges?
(1) Ronald Dworkin, Life's Dominion (New York: Vintage Books, 1993). Page references to this work are given in paretheses in the text.
(2) Griswold v. Connecticut 381 U.S. 479 (1965).
(3) Lochner v. New York 198 U.S. 45 (1905).
(4) Pierce v. Society of Sisters 268 U.S. 510 (1925).
(5) Griswold v. Connecticut 381 U.S. 479, Harlan's concurring opinion at 500.
(6) Casey v. Planned Parenthood 60 LW 4795 (June 30, 1992).
(7) Griswold, at 522. (notes omitted)
(8) Griswold, at 513.
(9) Griswold, footnote 6 at 514.
(10) Griswold, at 519.
(11) Adamson v. California, 332 U.S. 46, 90-92 (1947)(Black dissenting). The inserted quote is from Federal Power Commission v Pipeline Co., 315 U. S. 575, 599, 601, n. 4. The entire passage is quoted in Griswold, at 525.
(12) Peter S. Wenz, Abortion Rights as Religious Freedom (Philadelphia: Temple University Press, 1992).
(13) See Wenz, pp. 163-167.
(14) Calder v. Bull, 3 Dal. 386, 399; quoted in Griswold, at 525.
(15) Griswold, at 519.
(16) Griswold, at 501.