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Monday, June 09, 2008
Right-wing "Dworkinianism"
Mike Dorf has an interesting post about why right-wing "Dworkinianism" has never developed on the right. Of course, as a commenter there suggests, if right-wing constitutional interpretation is equivalent to originalism, it isn't much of a mystery why right-wing "Dworkinianism" never got off the ground. But the equivalence between originalism and conservatism doesn't seem necessary to me without argument (unless one has a very thin account of conservatism as traditionalism or somesuch) -- and so the question seems fair.
Dorf's "guilt by association" argument certainly seems plausible -- yet Amar and Balkin, both liberals, seemed able to get past "guilt by association" to embrace forms of originalism. And, yet, the very idea of associating with Dworkin so scares all conservatives that they can't consider making "political morality" and "fit" arguments on their side of the aisle? Something else must be at work also.
It is also possible that the example of Barnett proves that the question has a false premise. That is, there is a whiff that conservatives have found a way to smuggle political morality and fit arguments through the construction/interpretation divide: right-wing "Dworkinianism" happens through construction, not interpretation. That still leaves some room for Dorf's query, though. Perhaps the answer is, after all, a version of Tushnet's thesis that a conservative theory of legitimacy (whether a consent theory or some other meta-view about political legitimacy) simply doesn't allow for anything but originalism at the level of constitutional interpretation. I think I've suggested something like this in The Perpetual Anxiety of Living Constitutionalism (i.e., that there is a deep connection between originalism and a view of political legitimacy).
UPDATE: Check out Larry Solum's helpful contribution to the conversation here.
Posted by Ethan Leib on June 9, 2008 at 01:15 PM in Blogging | Permalink
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Comments
Isn't Dworkin's response anyway going to be that even an originalist is a Dworkinian because her reasons for being an originalist are grounded in political morality? Isn't that the argument of The Forum of Principle? Or as a friend of mine who was in Prof. Dworkin's legal philosophy colloquium would imitate him, mouth cocked a bit to the side, sounding just slightly like Sean Connery, "It'sh shubshtansh all the way down!"
Posted by: Paul K. | Jun 10, 2008 11:19:16 AM
But, again, my sense is that conservative originalists would never concede that judges should use their political moralities in deciding actual cases. Your response is that they are using their political moralities to decide not to decide and let other institutions decide. Sure. But that really isn't a Dworkinian theory of judging.
My sense is that conservative originalists in the mold of Scalia know that judges using their political moralities is inescapable, so they tend to focus on customary restraint. My response is that they are using their political moralities in deciding to defer to other institutions because their political moralities have greater fit with those of the drafters of the Constitution and what the people who ratified the Constitution thought they were agreeing to and how our country has evolved, including our constitutional norms and aspirations. My response is further that this is a Dworkinian conceptual framework; it just isn't Dworkin's preferred political outcome in most politicized cases.
Posted by: Perhaps Not Confused Any Longer | Jun 9, 2008 9:16:58 PM
I don't think saying that "legislatures should decide this" is a judicial interpretation; it is an interpretive posture or a meta-theory about what judges should interpret and what they should leave to other institutions. That was my point on this matter.
I'm confused about your confusion on the other point -- and I tire of responding to anonymous people, so can't make the effort here. Common law evolution is a perfectly common form of conservative reasoning in many areas of law (Solum makes this point too in his comment); much less so in constitutional law, however. Maybe part of your point is that Scalia's "faint-hearted originalism," which allows for precedent too (though only when he can stomach it -- when he can't, precedent is meaningless), is consistent with Dworkinianism. Maybe. But, again, my sense is that conservative originalists would never concede that judges should use their political moralities in deciding actual constitutional cases. Your response is that they are using their political moralities to decide not to decide and let other institutions decide. Sure. But that really isn't a Dworkinian theory of judging. That's all -- and that's all we are talking about here.
Posted by: Ethan Leib | Jun 9, 2008 9:01:12 PM
If settling questions of political morality emanates from legislatures and/or state legislatures, it isn't embracing the Dworkinian view that these are appropriate techniques of judicial interpretation. Also, if all "fit" arguments require is that they fit some history, all originalist arguments are types of "fit" arguments. The Dworkinian view of fitness is a more dynamic coherence theory about developing norms over time; that type of fitness is in conflict with originalist forms of reasoning and is not exemplified by mere "historical" argument.
Sure, but (1) the judicial determination that "the legislatures should decide this" requires a judicial interpretation, and (2) I didn't say "some history". "A dynamic coherence theory about norms evolving over time" is perfectly consistent with both a Hayekian and a Burkean view that entrusts such evolution to the people through their legislative branches and to the wisdom of common-law rather than a particular Hercules. I'm not sure why you seem to be reading my comment to suggest that conservatives reject Gadamer. I'm not arguing that at all, and not even Robert Bork rejects the view that substantive outcomes in adjudication are wholly frozen by history. If Scalia believed what you caricatured me to have said, then Kyllo would have been impossible as foreclosed by his variant of originalism. It was not.
Posted by: Still Confused | Jun 9, 2008 8:44:20 PM
Actually just submitted that version (near final proofs) to SSRN earlier today. The final version is up on Lexis and Westlaw now. Thanks for your interest.
Posted by: Ethan Leib | Jun 9, 2008 7:31:20 PM
Hey, can you put a PDF of the final version & pagination of your Constitutional Commentary essay online? Balkin did that with his.
Posted by: Chris | Jun 9, 2008 6:28:31 PM
If settling questions of political morality emanates from legislatures and/or state legislatures, it isn't embracing the Dworkinian view that these are appropriate techniques of judicial interpretation. Also, if all "fit" arguments require is that they fit some history, all originalist arguments are types of "fit" arguments. The Dworkinian view of fitness is a more dynamic coherence theory about developing norms over time; that type of fitness is in conflict with originalist forms of reasoning and is not exemplified by mere "historical" argument.
Posted by: Ethan Leib | Jun 9, 2008 6:26:27 PM
I'm not sure why Glucksberg's "careful description" isn't a fit test, or why Scalia's fealty to history isn't a fit test, and I'm not sure why Kennedy's and Scalia's constant references to democratic theory aren't arguments about political morality. It seems that conservatives say we can have all the Dworkin-like theorizing we want, so long as it emanates from legislatures, and on issues of public morality, the state legislatures.
Posted by: Confused | Jun 9, 2008 6:01:28 PM
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