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A Liberal Reading of the American Constitution
Published online by Cambridge University Press: 09 June 2015
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* Cambridge, MA: Harvard University Press, 1996; pp. 404; US $16.95 pbk. ISBN 0-674-31928-1. I am grateful to Richard Bronaugh and Carlos Bazan for comments on an earlier draft.
1. Following is a select bibliography of Dworkin’s works, omitting articles reprinted in Freedom’s Law. Hereinafter FL. Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977); “What is Equality? Part 1: Equality of Welfare,” “Part 2: Equality of Resources” (1981) 10 Phil. & Publ. Affairs 185,283; “In Defence of Equality” (1983) 1 Soc. Phil, and Policy 24; A Matter of Principle (Cambridge MA: Harvard University Press, 1985); Law’s Empire (Cambridge, MA: Harvard University Press, 1986); “What is Equality? Part 3: The Place of Liberty” (1987) 73 Iowa L. Rev. 1; “What is Equality? Part 4: Political Equality” (1987) 22 U. San Fran. L. Rev. 1; “Liberal Community” (1989) 77 Calif. L. Rev. 479; “Equality, Democracy, and the Constitution: We The People in Court” (1990) 28 Alberta L. Rev. 324; “Foundations of Liberal Equality” in G. Peterson, ed., The Tanner Lectures on Human Values XI (Salt Lake City, UT: University of Utah Press, 1990) 3; “Pragmatism, Right Answers, and True Banality” in M. Brint & W. Weaver, eds., Pragmatism and Law (Boulder, CO: Westview, 1991) 359; Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (New York: Knopf, 1993); “Objectivity and Truth: You’d Better Believe It” (1996) 25 Phil. & Publ. Affairs 87.
2. In “Foundations of Liberal Equality,” ibid. Dworkin explores the neutrality thesis more fully and subtly than he earlier had, as he remarks there at 7n2.
3. See J. Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), and Political Liberalism (New York: Columbia University Press, 1993; paperback with added material, 1995); M. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), and Democracy’s Discontent (Cambridge, MA: Harvard University Press, 1996); and for an overview, which includes a chapter on Dworkin, see S. Mulhall & A. Swift, Liberals & Communitarians, 2d ed. (Oxford and Cambridge, MA: Blackwell, 1996).
4. Dworkin, “Foundations of Liberal Equality,” supra note 1 at 7. See also his Law’s Empire supra note 1 at 206–16 and ‘The Idea of Liberal Community,” supra note 1.
5. See, for example, A. Gutman & D. Thompson, Democracy and Deliberation (Cambridge, MA and London: Harvard University Press, 1996); and M. Sandel, Democracy’s Discontent supra note 3.
6. See A. Hamilton, “Federalist No. 78” and J. Madison, “Federalist No. 10” in A. Hamilton, J. Madison & J. Jay, The Federalist Papers (New York: New American Library, 1961).
7. But Dworkin says: “I put the suggestion that judicial review provides a superior kind of republican deliberation about some issues tentatively, as a possibility, because I do not believe that we have enough information for much confidence either way” {FL 31).
8. FL at 313–15. J. Harrison cites against Dworkin in this context something Dworkin says in defending free speech: “Beware principles you can trust only in the hands of people who think as you do.” See J. Harrison, “Utopia’s Law, Politics’ Constitution” (1996) 19 Harv. J. of L. & Public Policy 917 at 939.
9. For similar points against Dworkin’s earlier books, see K. Greenawalt’s review of Law’s Empire and A Matter of Principle in (1987) 84 J. of Phil. 284 at 290.
10. See I. Berlin, “Two Concepts of Liberty” in Four Essays on Liberty (Oxford: Oxford University Press, 1969) 118; and “The Pursuit of the Ideal” in The Crooked Timber of Humanity (London: Fontana Press, 1991) 1. Dworkin discusses Berlin favourably in FL at 214–16 and 223.
11. A similar concern is in N. Feldman, “Unresolved Tensions” (1996) 106 Yale L. J. 229 at 230–33.
12. Of course, only if the highly general principles are addressed to such things as equality and civil rights, rather than property entitlements which preempt welfare and regulatory measures, can liberal stances follow. On this see, M. Dorf, ‘Truth, Justice, and The American Constitution” (1997) 97 Colum. L. R. 133 at 159–61.
13. See R. Bork, The Tempting of America: The Political Seduction of The Law (New York: The Free Press, 1990) and, now also, Slouching Towards Gomorrah: Modern Liberalism and American Decline (New York: Harper Collins, 1996). Dworkin also criticizes as an exponent of originalism U.S. Supreme Court Justice Antonin Scalia; the new instalment (too late to obtain) is Scalia, A Matter of Interpretation: Federal Courts and the Law in A. Gutman, ed., with commentary by A. Gutman, G. Wood, L. Tribe, M. Glendon & R. Dworkin (Princeton, NJ; Princeton University Press, 1997); on which see J. Rosen, “Originalist Sin” (May 5, 1997) The New Republic 26.
14. 347 U.S. 483 (1954).
15. Typically, the framers were articulating not exclusively moral principles, but rather notions already involving political compromise. Famously, the Bill of Rights was devised and accepted as an accommodation by the federalists to the anti-federalists. See J. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1997); C. Sunstein, The Partial Constitution (Cambridge, MA and London: Harvard University Press, 1993); G. Wood, The Creation of the American Republic: 1776–1787 (New York: W. W. Norton, 1960) at 540–01. Dworkin, on the whole, is overly optimistic about the presence of consensus or possibilities for it.
16. 410 U.S. 113(1973).
17. 505 U.S. 833(1992).
18. I shall focus on fundamentals without pursuing the comparison with the Canadian situation in which abortion was wholly decriminalized in R. v. Morgentaler [1988] 1 S.C.R. 30.
19. M. Sandel, Democracy’s Discontent, supra note 3 at 100–03.
20. 381 U.S. 479(1965).
21. 491 U.S. 397(1989).
22. See I. Cotler, “Hate Speech, Equality, and Harm Under the Charter: Towards a Jurisprudence of Human Dignity For ‘A Free and Democratic Society’” in Hon. G. Beaudoin & E. Mendes, eds., The Canadian Charter of Rights and Freedoms, 3d ed. (Scarborough, ON: Carswell, 1996) at 20–21 and D. Dyzenhaus “Pornography and Public Reason” (1994) 7 Can. J. L. and Juris. 261. Dworkin separately considers the university context, and together with a wide latitude for academic freedom endorses protecting against speech or display which is intentionally offensive (racist, sexist), or inherently so. But he is critical of broader restrictions covering “negligent insult.” And that is challengeable by contextual paradigms and analogies which must anyway be sorted through (along with Canadian human rights legislation).
23. See H. Aronovitch, “The Political Importance of Analogical Argument” and “Analogical Argument, Liberalism, and The Avoidance of Relativism” (1997) 45 Pol. Studies 78 and 97; and “Reflective Equilibrium or Evolving Tradition?” (1996) 39 Inquiry 399; C. Sunstein, Legal Reasoning and Political Conflict (New York, Oxford: Oxford University Press, 1996); S. Brewer, “Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument By Analogy” (1996) 109 Harv. L. Rev. 923. For a critique of analogical reasoning, with discussion of Dworkin, see L. Alexander, “Bad Beginnings (Analogical Reasoning in Law)” (1996) 145 U. Penn. L. Rev. 57.