Hostname: page-component-586b7cd67f-r5fsc Total loading time: 0 Render date: 2024-11-27T18:33:57.113Z Has data issue: false hasContentIssue false
  • English
  • Français

Dworkin's “Originalism”: The Role of Intentions in Constitutional Interpretation

Published online by Cambridge University Press:  05 August 2009

Keith E. Whittington
Get access Rights & Permissions [Opens in a new window]

Extract

Ronald Dworkin's effort to distinguish multiple layers of “intention” that are embedded in the constitutional text has been taken as a substantial critique of traditional originalist jurisprudence. Dworkin has strongly argued that the constitutional text embodies abstract principles. These principles are understood to be both fundamental to the Founders' intentions and the primary focus of correct constitutional interpretation faithful to those intentions. This article argues that Dworkin's reconceptualization of originalism is theoretically flawed. Although there may be normative reasons for preferring that the judiciary always enforce broad constitutional principles, such a jurisprudence cannot be understood as either consistent with or required by an originalist interpretative method whose primary commitment is to fidelity to founding intent.

Type
Research Article
Information
The Review of Politics , Volume 62 , Issue 2 , Spring 2000 , pp. 197 - 229
Copyright
Copyright © University of Notre Dame 2000

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Kalman, Laura, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996), pp. 132–246.Google Scholar

2 E.g., Grey, Thomas, “Do We Have an Unwritten Constitution?” Stanford Law Review 27 (1975): pp. 710–14CrossRefGoogle Scholar; Ely, John Hart, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980), p. 1Google Scholar; Perry, Michael, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982), p. 16.Google Scholar

3 Dworkin, Ronald, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), pp. 34–38.Google Scholar

4 Dworkin, Ronald, Freedom's Law (Cambridge, MA: Harvard University Press, 1996), pp. 291–305Google Scholar; Dworkin, , “Comment,” in A Matter of Interpretation, Scalia, Antonin et al. (Princeton: Princeton University Press, 1997), pp. 116–27Google Scholar; Dworkin, , “The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve”, Fordham Law Review 65 (1997): 1252–62.Google Scholar

5 Farber, Daniel A., “The Originalism Debate: A Guide for the Perplexed”, Ohio State Law Journal 49 (1989): 1085Google Scholar; Bassham, Gregory, Original Intent and the Constitution (Lanham, MD: Rowman & Littlefield, 1992), pp. 17–37Google Scholar; Gerber, Scott Douglas, To Secure These Rights (New York: New York University Press, 1995), pp. 1–15.Google Scholar

6 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 Bork⃛they wanted to hang onto moderate originalism” (Legal Liberalism, pp. 137, 138).

7 Dworkin, , Freedom's Law, pp. 287–90Google Scholar, “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.

8 Quoted in Kalman, , Legal Liberalism, p. 139.Google Scholar

9 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. 1258n18. See more generally, Dworkin, , Law's Empire, pp. 313–99Google Scholar; Dworkin, , Freedom's Law, pp. 10–11Google Scholar; Dworkin, , “Arduous Virtue”, pp. 1249–51.Google Scholar

10 Dworkin, , Freedom's Law, pp. 290–93, 299Google Scholar; Dworkin, , “Comment”, 115–127Google Scholar; Dworkin, , “Arduous Virtue”, pp. 1249–1262.Google Scholar

11 Dworkin, , Freedom's Law, pp. 9–14Google Scholar; Dworkin, , “Arduous Virtue”, pp. 1252–56Google Scholar. 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). 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]: 1270Google Scholar). And Dworkin has recently been taken to task for “how little actually separates Dworkin from Bork” in the former's most recent work (Foley, Edward B., “Interpretation and Philosophy: Dworkin's Constitution”, Constitutional Commentary 14 [1997]: p. 173).Google Scholar

12 E.g., Perry, , Constitution, The Courts, and Human Rights, pp. 70–72Google Scholar; Original Intent, Bassham, , pp. 72–75.Google Scholar

13 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.

14 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., Bork, Robert, The Tempting of America (New York: Free Press, 1990), pp. 143–160Google Scholar; Berger, Raoul, Government by Judiciary (Cambridge, MA: Harvard University Press, 1977), pp. 283–311, 351–72Google Scholar; Scalia, Antonin, “Originalism: The Lesser Evil”, University of Cincinnati Law Review 57 (1989): 849Google Scholar; Monaghan, Henry P., “Our Perfect Constitution”, New York University Law Review 56 (1981): 353.Google Scholar

15 In fact, Dworkin has sometimes offered precisely such a defense. Dworkin, , Freedom's Law, pp. 7–15Google Scholar. Even here, however, Dworkin hedges his bets, contending that “the moral reading insists that the Constitution means what the framers intended to say” (ibid., p. 13).

16 Dworkin, , “The Jurisprudence of Richard Nixon”, New York Review of Books (4 05 1972), p. 27.Google Scholar

17 E.g., Dworkin, , Matter of Principle, pp. 48–50Google Scholar. But see, Dworkin, , Law's Empire (Cambridge, MA: Harvard University Press, 1986), pp. 70–72.Google Scholar

18 Dworkin, , Life's Dominion (New York: Alfred Knopf, 1993), p. 145.Google Scholar

19 Dworkin, , Matter of Principle, p. 49.Google Scholar

20 E.g., Dworkin, , Freedom's Law, pp. 7–12.Google Scholar

21 Dworkin, , “Arduous Virtue”, p. 1253Google Scholar. See also, Dworkin, , Freedom's Law, pp. 13–14, 290–93Google Scholar; Dworkin, , “Comment”, pp. 116–24Google Scholar; Dworkin, , Law's Empire, pp. 52–55, 70–72Google Scholar; Dworkin, , Matter of Principle, pp. 48–50.Google Scholar

22 Dworkin, , Taking Rights Seriously, pp. 135–36Google Scholar; Dworkin, , Matter of Principle, pp. 48–49, 53Google Scholar; Dworkin, , Freedom's Law, pp. 291–92.Google Scholar

23 For a different argument characterizing Dworkin as a “textualist”, see Foley, “Interpretation and Philosophy”, p. 153.

24 Dworkin, , Taking Rights Seriously, pp. 135, 136Google Scholar. See also, Dworkin, ,Freedom's law, pp. 7–10, 13–14.Google Scholar

25 Dworkin, , “Comment”, p. 116.Google Scholar

26 ibid., p. 119.

27 Dworkin, , Freedom's Law, p. 293.Google Scholar

28 Dworkin, , Matter of Principle, p. 49.Google Scholar

29 Dworkin, , Law's Empire, pp. 47–55.Google Scholar

30 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” (ibid., p. 380).

31 Dworkin, , Freedom's Law, p. 7.Google Scholar

32 E.g., Dworkin, , Matter of Principle, pp. 48–55Google Scholar; Dworkin, “Comment”; Dworkin, , Freedom's Law, p. 7Google Scholar. Cf., Dworkin, , Matter of Principle, p. 172Google Scholar. See also, Brink, David O., “Legal Theory, Legal Interpretation, and Judicial Review,” Philosophy and Public Affairs 17 (1988): 105Google Scholar; Moore, Michael S., “The Semantics of Judging”, Southern California Law Review 54 (1981): 151.Google Scholar

33 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. 171–74Google Scholar; Dworkin, , Freedom's Law, pp. 13, 294.Google Scholar

34 Dworkin, , Taking Rights Seriously, pp. 134–136.Google Scholar

35 ibid.

36 Dworkin, , Matter of Principle, p. 49Google Scholar; Dworkin, , Freedom's Law, pp. 291–93Google Scholar; Dworkin, , “Comment”, pp. 119–21Google Scholar; Dworkin, , “Arduous Virtue”, pp. 1253–57.Google Scholar

37 Dworkin, , Freedom's Law, pp. 13–14, 293–99Google Scholar; Dworkin, , “Comment”, p. 122Google Scholar; Dworkin, , “Arduous Virtue”, p. 1257.Google Scholar

38 Dworkin, , “Arduous Virtue,” p. 1262.Google Scholar

39 Dworkin, , “Comment,” pp. 116–22Google Scholar; Dworkin, , Freedom's Law, pp. 9–17, 76, 291, 350n10, 350nllGoogle Scholar; Dworkin, , “Arduous Virtue”, pp. 1255–60.Google Scholar

40 Dworkin, , “Arduous Virtue,” pp. 1251, 1252, 1255.Google Scholar

41 Dworkin, , “Arduous Virtue,” p. 1255Google Scholar; Dworkin, , “Comment”, p. 119Google Scholar; Dworkin, , Freedom's Law, p. 291.Google Scholar

42 Dworkin, , “Reflections on Fidelity,” Fordham Law Review 65 (1997): 1808Google Scholar; Dworkin, , “Arduous Virtue,” p. 1255Google Scholar; Dworkin, , Freedom's Law, pp. 9–11.Google Scholar

43 Dworkin, , “Arduous Virtue,” pp. 1260, 1253Google Scholar; Dworkin, , Freedom's Law, p. 9Google Scholar; Dworkin, , “Comment,” p. 116Google Scholar. See also, Dworkin, , Freedom's Law, pp. 72–76.Google Scholar

44 Schauer, Frederick, in “Fidelity as Integrity: Colloquy”, Fordham Law Review 65 (1997): 1361.Google Scholar

45 Dworkin, , “Reflections”, p. 1807.Google Scholar

46 Dworkin, , “Colloquy”, p. 1360.Google Scholar

47 Dworkin, , “Arduous Virtue,” pp. 1251–52.Google Scholar

48 Dworkin, , “Colloquy,” pp. 1360–61.Google Scholar

49 Dworkin, , “Arduous Virtue”, p. 1252.Google Scholar

50 E.g., Dworkin, , Freedom's Law, p. 36.Google Scholar

51 Dworkin, , Freedom's Law, p. 76.Google Scholar

52 See also, Skinner, Quentin, “Motives, Intentions and the Interpretation of Texts”, in Meaning and Context, ed. Tully, James (Princeton: Princeton University Press, 1988), p. 73Google Scholar; Hancher, Michael, “Three Kinds of Intention”, Modern Language Notes 87 (1972): 829.Google Scholar

53 On the distinction between meaning and significance, see also Hirsch, E.D. Jr., The Aims of Interpretation (Chicago: University of Chicago Press, 1976), pp. 1–13.Google Scholar

54 In fact, “a knowledge of the writer's intentions in writing⃛is 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).

55 See especially, Davidson, Donald, “A Nice Derangement of Epitaphs”, in Truth and Interpretation, ed. LePore, Ernest (New York: Basil Blackwell, 1986), pp. 433–Google Scholar. 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.

56 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”.

57 Davidson, Donald, Inquiries into Truth and Interpretation (New York: Oxford University Press, 1984), pp. 265–80Google Scholar; Davidson, , “A Nice Derangement of Epitaphs”Google Scholar; Hirsch, , Aims and Interpretations, pp. 30–35.Google Scholar

58 Dworkin, , “Comment”, p.121.Google Scholar

59 Dworkin, , “Arduous Virtue”, pp. 1255, 1256.Google Scholar

60 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, Kay, Richard S., “American Constitutionalism”, in Constitutionalism, ed. Alexander, Larry (New York: Cambridge University Press, 1998), pp. 31–32.Google Scholar

61 Dworkin, , “Colloquy”, p. 1362.Google Scholar

62 Dworkin, , “Comment,” pp. 124, 120 (emphasis added)Google Scholar. See also, Dworkin, , Freedom's Law, pp. 73, 76Google Scholar. 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. Cf., Dworkin, , Freedom's Law, p. 303.Google Scholar

63 E.g., Kripke, Saul, Naming and Necessity (Cambridge, MA: Harvard University Press, 1980)Google Scholar; Putnam, Hilary, Mind, Language, Reality (New York: Cambridge University Press, 1975), pp. 196–290CrossRefGoogle Scholar; Salmon, Nathan, Reference and Essence (Princeton: Princeton University Press, 1981), pp. 9–157.Google Scholar

64 E.g., Locke, John, An Essay Concerning Human Understanding, ed. Nidditch, Peter (New York: Oxford University Press, 1975), bk. 3, chaps. 2–10Google Scholar; Frege, Gottlob, “On Sense and Reference”, in Translations from the Philosophical Writings of Gottlob Frege, trans. Black, Max and Peter, Geach (New York: Basil Blackwell, 1980)Google Scholar; Carnap, Rudolph, Meaning and Necessity (Chicago: University of Chicago, 1956), pp. 233–43Google Scholar; Searle, John, Speech Acts (New York: Cambridge University Press, 1969), pp. 162–74.CrossRefGoogle Scholar

65 Kripke, , Naming and Necessity, p. 121.Google Scholar

66 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.

67 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. 256–57.Google Scholar

68 See also, Strawson, P. F., Logico-Linguistic Papers (London: Methuen, 1971), pp. 170–90Google Scholar; Searle, John, Intentionality (New York: Cambridge University Press, 1983), pp. 231–61CrossRefGoogle Scholar; Bach, Kent, Thought and Reference (New York: Oxford University Press, 1987), pp. 4–6, 69–88Google Scholar; Davidson, , “A Nice Derangement of Epitaphs,” pp. 438–43.Google Scholar

69 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.

70 Ultimately, it would require abandoning a legislative theory of constitutional authority in favor of some other approach. See also, Raz, Joseph, “Intention in Interpretation”, in The Autonomy of Law, ed. George, Robert P. (New York: Oxford University Press, 1996), pp. 250–59Google Scholar. 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). Cf., Dworkin, , Matter of Principle, pp. 48–52.Google Scholar

71 On the inclusion of morality in positive law, see Coleman, Jules, “Legal Duty and Moral Argument”, Social Theory and Practice 5 (1980): 391–92, 404CrossRefGoogle Scholar; Coleman, , “Negative and Positive Positivism”, Journal of Legal Studies 11 (01 1982): 146–52Google Scholar; Soper, Philip, “Legal Theory and the Obligation of a Judge: The Hart/ Dworkin Dispute”, Michigan Law Review 75 (1977): 512–14.CrossRefGoogle Scholar

72 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. 140–41Google Scholar; Berger, , Government by Judiciary, pp. 288–99.Google Scholar

73 Dworkin, , Freedom's Law, pp. 292–93Google Scholar; Dworkin, , Matter of Principle, pp. 49–50Google Scholar. See also, Brest, Paul, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship”, Yale Law Journal 90 (1981): 1091–1092.CrossRefGoogle Scholar

74 Dworkin, , Matter of Principle, p. 49.Google Scholar

75 ibid. See also, Dworkin, , Freedom's Law, pp. 293, 304.Google Scholar

76 This approach is most fully elaborated in Dworkin, Law's Empire.

77 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 Perry, Michael J., The Constitution in the Courts (New York: Oxford University Press, 1994)Google Scholar. 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.

78 Dworkin, , Matter of Principle, p. 49Google Scholar; Dworkin, , Freedoms Law, pp. 292–94.Google Scholar

79 Dworkin, , Taking Rights Seriously, p. 134.Google Scholar

80 Dworkin, , Matter of Principle, p. 401n20.Google Scholar

81 Dworkin, , Taking Rights Seriously, p. 135.Google Scholar

82 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.

83 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, 315Google Scholar; Dworkin, , “Comment,” p. 1250.Google Scholar