Dworkin's "originalism": The role of intentions in constitutional interpretation

Review of Politics

Volumn 62, Issue 2, 2000, Pages 197-229

  Whittington, Keith E ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34248098202     PISSN: 00346705     EISSN: 17486858     Source Type: Journal    
DOI: 10.1017/S0034670500029442     Document Type: Article

References (153)

1. Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996), pp. 132-246.
2. E.g., Thomas Grey, "Do We Have an Unwritten Constitution?" Stanford Law Review 27 (1975): pp. 710-14;
3. John Hart Ely, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980), p. 1;
4. Michael Perry, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982), p. 16.
5. Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), pp. 34-38.
6. Ronald Dworkin,Freedom's Law (Cambridge, MA: Harvard University Press, 1996), pp. 291-305;
7. Dworkin, "Comment," in A Matter of Interpretation, Antonin Scalia et al. (Princeton: Princeton University Press, 1997), pp. 116-27;
8. Dworkin, "The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve," Fordham Law Review 65 (1997): 1252-62.
9. Daniel A. Farber, "The Originalism Debate: A Guide for the Perplexed" Ohio State Law Journal 49 (1989): 1085;
10. Gregory Bassham, Original Intent and the Constitution (Lanham, MD: Rowman & Littlefield, 1992), pp. 17-37;
11. Scott Douglas Gerber, To Secure These Rights (New York: New York University Press, 1995), pp. 1-15.
12. As Kalman notes, the "normative argument for originalism" survived the many criticisms of its practicality, and ultimately "most law professors considered originalism too valuable to surrender it to Bork.. .they wanted to hang onto moderate originalism" (Legal Liberalism, pp. 137,138).
13. Dworkin, Freedom's Law, pp. 287-290
14. "Comment," p. 115. It should be emphasized that my concern here is with Dworkin's internal critique of originalism, not with his jurisprudential and constitutional theories more generally. I believe that even traditional originalists have much to gain from Dworkin's insights into interpretive theory, and there may of course be external reasons for preferring Dworkin's approach to constitutional interpretation over an originalist approach.
15. Quoted in Kalman, Legal Liberalism, p. 139.
16. Dworkin has emphasized that constitutional interpretations must meet a standard of "fit" that would incorporate continuing practices and precedents into a coherent constitutional framework that maintains integrity. He has recently reasserted that his own "originalist" musings should not be construed as altering his "long-standing opposition to any form of originalism," "Arduous Virtue," p. 1258nl8.
17. See more generally, Dworkin,Law's Empire, pp. 313-99;
18. Dworkin,Freedom's Law, pp. 10-11;
19. Dworkin, "Arduous Virtue," pp. 1249-51.
20. Dworkin, Freedom's Law, pp. 290-293,299;
21. Dworkin, "Comment," 115-127;
22. Dworkin, "Arduous Virtue," pp. 1249-1262.
23. Dworkin, Freedom's Law, pp. 9-14;
24. Dworkin, "Arduous Virtue," pp. 1252-56.
25. Similarly, Dworkin has argued mat "it is as illegitimate to substitute a concrete, detailed provision for the abstract language of equal protection clause as it would be to substitute some abstract principle of privacy for the concrete terms of the Third Amendment" (Freedom's Law, p. 14).
26. Michael McConnell has called these the "two Dworkins" (McConnell, "The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's 'Moral Reading' of the Constitution," Fordham Law Review 65 [1997]: 1270).
27. And Dworkin has recently been taken to task for "how little actually separates Dworkin from Bork" in the former's most recent work (Edward B. Foley, "Interpretation and Philosophy: Dworkin's Constitution," Constitutional Commentary 14 [1997]: p. 173).
28. E.g., Perry, Constitution, The Courts, and Human Rights, pp. 70-72;
29. Original Intent, Bassham, pp. 72-75.
30. Dworkin has occasionally backed his assertions with some historical evidence, for example by citing H. Jefferson Powell's work in support of his contention that "there is persuasive historical evidence that the framers intended that their own interpretations of the abstract language that they wrote should not be regarded as decisive in court" (Freedom's Law, p. 380nl). I do not address here the significance of these debates over the historical record.
31. Although there are many disagreements even among "traditional" originalists, I take originalism to refer to a theory of constitutional interpretation that requires judges to justify their decisions in terms of and should act to enforce the intentions of those who drafted and ratified the relevant constitutional text. Judges should rely on historical evidence in construing constitutional meaning, and complexities of interpreting the intent should be resolved internally to the historical evidence, with judicial restraint being the appropriate response to lingering textual ambiguities. I assume that originalists differ as to the exact scope of relevant historical evidence, how evidentiary conflicts are to be resolved, and even as to the status of precedent. Dworkin's suggestion that following original intent in fact requires judges to engage in moral reasoning would mark a radical change in originalist practice, but is potentially consistent with central originalist commitments, which is why Dworkin has recently emphasized it. E.g., Robert Bork, The Tempting of America (New York: Free Press, 1990), pp. 143-160;
32. Raoul Berger, Government by Judiciary (Cambridge, MA: Harvard University Press, 1977), pp. 283-311, 351-72;
33. Antonin Scalia, "Originalism: The Lesser Evil," University of Cincinnati Law Review 57 (1989): 849;
34. Henry P. Monaghan, "Our Perfect Constitution," New York University Law Review 56 (1981): 353.
35. In fact, Dworkin has sometimes offered precisely such a defense. Dworkin, Freedom's Law, pp. 7-15. Even here, however, Dworkin hedges his bets, contending that "the moral reading insists that the Constitution means what the framers intended to say" (Henry P. Monaghan, "Our Perfect Constitution," New York University Law Review 56 (1981): Ibid., p. 13).
36. Dworkin, "The Jurisprudence of Richard Nixon," New York Review of Books (4 May 1972), p. 27.
37. E.g., Dworkin, Matter of Principle, pp. 48-50.
38. But see, Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986), pp. 70-72.
39. Dworkin, Life's Dominion (New York: Alfred Knopf, 1993), p. 145.
40. Dworkin, Matter of Principle, p. 49.
41. E.g., Dworkin, Freedom's Law, pp. 7-12.
42. Dworkin, "Arduous Virtue," p. 1253.
43. See also, Dworkin, Freedom's Law, pp. 13-14, 290-93;
44. Dworkin, "Comment," pp. 116-24;
45. Dworkin, Law's Empire, pp. 52-55, 70-72;
46. Dworkin, Matter of Principle, pp. 48-50.
47. Dworkin, Taking Rights Seriously, pp. 135-36;
48. Dworkin, Matter of Principle, pp. 48-49,53;
49. Dworkin, Freedom's Law, pp. 291-92.
50. For a different argument characterizing Dworkin as a "textualist, " see Foley, "Interpretation and Philosophy," p. 153.
51. Dworkin, Taking Rights Seriously, pp. 135,136.
52. See also, Dworkin,Freedom's law , pp. 7-10,13-14.
53. Dworkin, "Comment," p. 116.
54. Dworkin, "Comment," Ibid., p. 119.
55. Dworkin, Freedom's Law, p. 293.
56. Dworkin, Matter of Principle, p. 49.
57. Dworkin, Law's Empire, pp. 47-55.
58. The second dimension is particularly important in the case of constitutions. Dworkin notes that "in constitutional theory philosophy is closer to the surface of the argument and, if the theory is good, explicit in it" (Dworkin, Law's Empire, Ibid., p. 380).
59. Dworkin, Freedom's Law, p. 7.
60. E.g., Dworkin, Matter of Principle, pp. 48-55;
61. Dworkin, "Comment";
62. Dworkin, Freedom's Law, p. 7.
63. Cf., Dworkin, Matter of Principle, p. 172.
64. See also, David O. Brink, "Legal Theory, Legal Interpretation, and Judicial Review," Philosophy and Public Affairs 17 (1988): 105;
65. Michael S. Moore, "The Semantics of Judging," Southern California Law Review 54 (1981): 151.
66. Dworkin is not clear on the nature of these moral entities, and he explicitly abstains from the debate between moral realism and conventionalism. Regardless of the metaphysical source of the moral concepts to which the constitutional text refers, however, Dworkin is concerned that they have meaning independent of legislative or judicial will. If the Constitution requires "equality," Dworkin believes that the term would refer to our best understanding of what equality morally requires. Dworkin, Matter of Principle, pp. 171-74;
67. Dworkin, Freedom's Law, pp. 13,294.
68. Dworkin, Taking Rights Seriously, pp. 134-136.
69. Dworkin, Taking Rights Seriously, pp. 134-136., Ibid.
70. Dworkin, Matter of Principle, p. 49;
71. Dworkin, Freedom's Law, pp. 291-93;
72. Dworkin, "Comment," pp. 119-21;
73. Dworkin, "Arduous Virtue," pp. 1253-57.
74. Dworkin, Freedom's Law, pp. 13-14,293-99;
75. Dworkin, "Comment," p. 122;
76. Dworkin, "Arduous Virtue," p. 1257.
77. Dworkin, "Arduous Virtue," p. 1262.
78. Dworkin, "Comment," pp. 116-22;
79. Dworkin, Freedom's Law, pp. 9-17, 76, 291, 350nl0, 350nll;
80. Dworkin, "Arduous Virtue," pp. 1255-60.
81. Dworkin, "Arduous Virtue" pp. 1251,1252,1255.
82. Dworkin, "Arduous Virtue," p. 1255;
83. Dworkin, "Comment," p. 119;
84. Dworkin, Freedom's Law, p. 291.
85. Dworkin, "Reflections on Fidelity," Fordham Law Review 65 (1997): 1808;
86. Dworkin, "Arduous Virtue," p. 1255;
87. Dworkin, Freedom's Law, pp. 9-11.
88. Dworkin, "Arduous Virtue," pp. 1260,1253;
89. Dworkin,Freedom's Law, p. 9;
90. Dworkin, "Comment," p. 116.
91. See also, Dworkin, Freedom's Law, pp. 72-76.
92. Frederick Schauer, in "Fidelity as Integrity: Colloquy," Fordham Law Review 65 (1997): 1361.
93. Dworkin, "Reflections," p. 1807.
94. Dworkin, "Colloquy," p. 1360.
95. Dworkin, "Arduous Virtue," pp. 1251-1252
96. Dworkin, "Colloquy," pp. 1360-1361
97. Dworkin, "Arduous Virtue," p. 1252.
98. E.g., Dworkin, Freedom's Law, p. 36.
99. Dworkin, Freedom's Law, p. 76.
100. See also, Quentin Skinner, "Motives, Intentions and the Interpretation of Texts," in Meaning and Context, ed. James Tully (Princeton: Princeton University Press, 1988), p. 73;
101. Michael Hancher, "Three Kinds of Intention," Modern Language Notes 87 (1972): 829.
102. On the distinction between meaning and significance, see also E.D. Hirsch, Jr., The Aims of Interpretation (Chicago: University of Chicago Press, 1976), pp. 1-13.
103. In fact, "a knowledge of the writer's intentions in writing.. .is not merely relevant to, but is actually equivalent to, a knowledge of what he writes" (Skinner, "Motives, Intentions, and the Interpretation of Texts, p. 76).
104. See especially, Donald Davidson, "A Nice Derangement of Epitaphs," in Truth and Interpretation, ed. Ernest LePore (New York: Basil Blackwell, 1986), pp. 433-446 Not all acts can violate conventions and retain their meaning, however. The game of baseball, for example, is constituted by the rules. Communication is not.
105. And even then, the speaker may make an error in his effort to invoke a convention. This error would frustrate the speaker's expectation, but it would not necessarily prevent his meaning from being understandable or understood. E.g., Davidson, "A Nice Derangement of Epitaphs.
106. Donald Davidson, Inquiries into Truth and Interpretation (New York: Oxford University Press, 1984), pp. 265-80;
107. Davidson, "A Nice Derangement of Epitaphs";
108. Hirsch, Aims and Interpretations, pp. 30-35.
109. Dworkin, "Comment," p.121.
110. Dworkin, "Arduous Virtue," pp. 1255,1256.
111. Dworkin is correct to argue that the manager's task is not simply to ask what the boss would do in this situation. The manager may possess information or skills unavailable to the boss, such that the hypothetical of "what would the boss do" might be misleading. Nonetheless, the manager must be cognizant of what the boss meant, and thus of the specific content of his directive. See also, Richard S. Kay, "American Constitutionalism," inConstitutionalism, ed. Larry Alexander (New York: Cambridge University Press, 1998), pp. 31-32.
112. Dworkin, "Colloquy," p. 1362.
113. Dworkin, "Comment," pp. 124,120 (emphasis added).
114. See also, Dworkin, Freedom's Law, pp. 73,76. Dworkin does not sharply distinguish between his textualist argument based on "plain meaning" and his moralist argument based on "soundest conceptions," but they invoke very different interpretive and theoretical assumptions. Moreover, their interpretive results can potentially conflict. The textualist reading, for example, could refer the judge to dictionary definitions or contemporary popular usage, whereas the moralist reading refers the judge to esoteric philosophical scholarship. Everyday conceptions of equality may not be equivalent to the soundest conceptions of equality.
115. Cf., Dworkin, Freedom's Law, p. 303.
116. E.g., Saul Kripke, Naming and Necessity (Cambridge, MA: Harvard University Press, 1980);
117. Hilary Putnam, Mind, Language, Reality (New York: Cambridge University Press, 1975), pp. 196-290;
118. Nathan Salmon, Reference and Essence (Princeton: Princeton University Press, 1981), pp. 9-157.
119. E.g., John Locke, An Essay Concerning Human Understanding, ed. Peter Nidditch (New York: Oxford University Press, 1975), bk. 3, chaps. 2-10;
120. Gottlob Frege, "On Sense and Reference," in Translations from the Philosophical Writings of Gottlob Frege, trans. Max Black and Peter Geach (New York: Basil Blackwell, 1980);
121. Rudolph Carnap, Meaning and Necessity (Chicago: University of Chicago, 1956), pp. 233-43;
122. John Searle, Speech Acts (New York: Cambridge University Press, 1969), pp. 162-74.
123. Kripke, Naming and Necessity, p. 121.
124. The descriptivists have replies to these criticisms. My concern here is not to arbitrate between the two, but simply to demonstrate the possible Dworkinian appeal of the causal approach.
125. The appeal of Dworkin's approach is further enhanced by the moral skepticism of originalists such as Robert Bork, who, in his constitutional theory, portrays politics as nothing but a battle of will, though in aligning judges on one side of that battle he denies that they make a political "choice." For Bork, the judge does not choose the winner, he merely enforces the will of the winner. E.g., Bork, Tempting of America, pp. 256-257
126. See also, P. F. Strawson, Logico-Linguistic Papers (London: Methuen, 1971), pp. 170-90;
127. John Searle, Intentionality (New York: Cambridge University Press, 1983), pp. 231-61;
128. Kent Bach, Thought and Reference (New York: Oxford University Press, 1987), pp. 4-6,69-88;
129. Davidson, "A Nice Derangement of Epitaphs," pp. 438-43.
130. This case is simplified because of the proximity of the referent (I could have pointed and made my meaning clear), but this merely aids in our interpretation of the warning. On the other hand, the referent may not be proximate, in which case determining my intended referent becomes crucial. You will want to know not only that you are being warned, but also of what you are being warned. As an independent actor, you may decide to ignore my warning. (I have no authority over you.) But first, you must understand it.
131. Ultimately, it would require abandoning a legislative theory of constitutional authority in favor of some other approach. See also, Joseph Raz, "Intention in Interpretation," in The Autonomy of Caw, ed. Robert P. George (New York: Oxford University Press, 1996), pp. 250-259 It is possible that the Founders had no expectation of conflict between objective moral reality and their own understanding of those principles, and that they understood the text to be a transcription of those eternal principles. How should we interpret the text if we now believe the Founders were wrong about the substance of those eternal truths? Although this situation would raise difficult epistemological questions for the interpreter, the interpretive principle is essentially the same-the natural law either served as the inspiration for the distinct textual intentions or was itself the textual referent. It is the difference between explaining the text by saying, "As the esteemed Coke says, all men have a right to property," rather than, "By liberty/ I mean the common law rights of Englishmen." In Dworkin's terms, the question is which concept did the founders intend (and not his standard case of a conflict between the intended concept and the expected conceptions).
132. Cf., Dworkin, Matter of Principle, pp. 48-52.
133. On the inclusion of morality in positive law, see Jules Coleman, "Legal Duty and Moral Argument," Social Theory and Practice 5 (1980): 391-92, 404;
134. Coleman, "Negative and Positive Positivism," Journal of Legal Studies 11 (January 1982): 146-52;
135. Philip Soper, "Legal Theory and the Obligation of a Judge: The Hart/ Dworkin Dispute," Michigan Law Review 75 (1977): 512-514
136. Originalists generally fall back on their own assumptions of intentional specificity because of their overriding concern to limit judicial discretion. Note that the image of originalist interpretation described here offers little to those primarily hoping to impose judicial restraint. Cf., Bork, Tempting of America, pp. 140-41;
137. Berger, Government by Judiciary, pp. 288-99.
138. Dworkin, Freedom's Law, pp. 292-93;
139. Dworkin, Matter of Principle, pp. 49-50.
140. See also, Paul Brest, "The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship," Yale Law Journal 90 (1981): 1091-1092.
141. Dworkin, Matter of Principle, p. 49.
142. Dworkin, Matter of Principle, p. 49, Ibid.
143. Ibid. See also, Dworkin, Freedom's Law, pp. 293,304.
144. This approach is most fully elaborated in Dworkin, Law's Empire.
145. As always, my concern here is not with how easily the interpreter can access that singular intention. In fact, the intent embedded in the text may be inherently indeterminate or unknowable. Originalism may not be able to provide an answer as to what the Constitution requires in every case. For an interesting elaboration of this possibility, see Michael J. Perry, The Constitution in the Courts (New York: Oxford University Press, 1994). My concern is with Dworkin's claim that intentions can be known but without any significant historical investigation. My argument here is that, upon analysis, what Dworkin characterizes as a choice between levels of intention reduces to a problem of determining the intent of a historically distant, collective institution-a standard problem squarely within traditional originalist theory.
146. Dworkin, Matter of Principle, p. 49;
147. Dworkin, Freedoms Law, pp. 292-94.
148. Dworkin, Taking Rights Seriously, p. 134.
149. Dworkin, Matter of Principle, p. 401n20.
150. Dworkin, Taking Rights Seriously, p. 135.
151. The text itself may provide clues as to which intent is conveyed, however. The use of abstract language creates an interpretive presumption of abstract meaning, but that can only be a presumption. As the First Amendment's free speech clause demonstrates, authorial intent does not always follow linguistic conventions. Few have been persuaded that the First Amendment is best interpreted as literally barring all federal restrictions on all forms of speech. And of course, as argued above, principles may be more or less specific in their substantive content, independent of questions of application.
152. The theoretical convergence that Dworkin sees is not toward traditional originalism, however, but rather is toward his own morally infused interpretation of founding intent. In Dworkin's reading, traditional originalists have all implicitly given up the game to him. Dworkin, Freedom's Law, pp. 299, 315;
153. Dworkin, "Comment," p. 1250.