James E. Fleming, an orthodox confessor in the moral-philosophic church of Ronald Dworkin, has a problem. He declares himself an avowed enemy of constitutional originalism in any form on account of the debilitating effect it has on the American public conscience. Yet Fleming contradicts himself when he defines “the originalist premise” as the “assumption that originalism, rightly conceived, has to be the best—or indeed the only—conception of constitutional interpretation.” Why does it have to be? “Because,” writes Fleming, “originalism, rightly conceived, just has to be. By definition. In the nature of things—in the nature of the Constitution, in the nature of…
Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half. I could rest my case there, but I haven’t gotten to the point yet. If the Supreme Court is a court, it is a weird one, and that often creates a great deal of confusion about how the Court does or should operate.
Generally speaking, we might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules.
Let’s unpack that a bit.
The old Democratic playbook on Republican Supreme Court nominations will no longer work for the Gorsuch confirmation hearings. Democrats used to spend much of their time talking about the importance of precedent and demanding that nominees follow it. The point, of course, was to protect one particular precedent above all—Roe v. Wade—and more generally keep alive the precedents favoring liberalism that were minted in the Warren and to some extent Burger and even Rehnquist eras.
But this approach no longer fits the times. One reason is multiplication of precedents that the Democratic base wants overruled. Citizens United is the best example. Hillary Clinton was even going to make its overruling a litmus test of her judicial appointments. But there are others too. Senator Schumer has already complained in the context of this nomination about Shelby County v Holder, which found a portion of the Voting Rights Act unconstitutional. And few cases enraged the left like Hobby Lobby, which held that closely held corporation had religious freedom rights under the Religious Freedom Restoration Act. More generally, given that liberals have not been a majority on Court in several generations, there is growing body of precedent they do not like.
And much of the Democratic party too is changing to become more openly radical. Thus, its base is not satisfied with simply standing on past precedent while hoping that the Court will drift their way. It wants the Court to be a more active partner in progressive social change.
This creates a dilemma for Democrats. The very important advantage of prioritizing precedent is that that appears to make them adherents of following the law, where the law is defined as the past case law of the Supreme Court.
Adrian Vermeule, John H. Watson Professor of Law at Harvard University, is a bold, original, and often brilliant thinker—and at times his own worst enemy. Along with a cornucopia of trenchant insights on (administrative) law, his copious output contains cheap polemics; intemperate attacks on scholars and judges who peddle “libertarian” law; reckless flirtation with proto-fascist legal tropes; and wild theorizing backed by little more than ipse dixit. That latter tendency in particular is on display in Law’s Abnegation: From Law’s Empire to the Administrative State. The book’s principal theme is the perennial tension between the lawful government of “classical” constitutionalism and…
A plausible concern animates Francis J. Beckwith’s Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith. If you don’t get religious rites, you can’t uphold, defend, or even understand religious rights. As Beckwith notes, many with “real legal and political power” as well as “highly respected and influential academics, writers, and media figures” mischaracterize and seem to misunderstand religious beliefs and the people who hold them. One side of the culture wars “sees itself and its advocates as the guardians of rationality” and its opponents as people who adopt “nonrational delusions that deserve no greater constitutional protections or civil respect…
A while back I did a bunch of posts on the relationship between positivism and originalism. At the time, I also planned on doing a post on Dworkinian theory and originalism, but never got around to it. I am finally doing the post.
Dworkin favored an interpretive theory of law that attempted to interpret or give an account of a legal practice by considering the criteria of fit and justification. Under this view, one would first consider the actual legal practice – in the constitutional area, the actual Constitution and the judicial (and other) decisions interpreting it. One would seek a constitutional interpretation that “fits” with these legal materials – that is consistent with the practice. But one would also seek a constitutional interpretation that is justified – that renders the actual practice to be the best that it can be on normative grounds. The overall best interpretation would be based on both fit and justification.
Under these criteria, I believe there is a strong argument for originalism – especially the type of originalism that John McGinnis and I have developed. This type of originalism is both attractive normatively and does a reasonable job of fitting the practice.
Ronald Dworkin’s posthumously published Religion without God could instead have been called Law without Religion.
The book is founded in a great hope: that religious believers can be persuaded that they have more in common with atheists than they may think, and vice versa. Dworkin believes that “the zealots have great political power in America now” and that “militant atheism” is “politically inert” (though it is, he adds, “a great commercial success”!).
The late Ronald Dworkin might have seen last week’s arguments as a repudiation of his life’s work. His project was all about law (very loosely speaking) as a high-toned principle, imported with Herculean effort into open-ended rights guarantees. That pitch, hurled at the Court by the unlikely Olson-Boies team, ended up wide off the plate. Instead of grand rights claims, questions of constitutional structure took center stage: standing; federalism; justiciability.
The death of Ronald Dworkin on February 14, 2013 provides an occasion to reflect not only on his contributions to legal philosophy, but to the entire enterprise of jurisprudential theory from the point of view of progressive thinkers.
By the time Dworkin collected a decade’s worth of his writings into Taking Rights Seriously in the late 1970s, he was responding to a deep need within the liberal intelligentsia. From the tumult of the 1960s and early 70s, liberals felt the need to substitute, once and for all, high principle for politics, yet at the same time not abandon the notion that all “truth”—and constitutional norms—must be time-bound, and permitted to grow as circumstances and progressive insight dictate.
There have been many discussions of Ronald Dworkin’s work in recent blogs. For some examples, see Jim Fleming, Cass Sunstein, and Richard Epstein. Many people consider Law's Empire to be Dworkin's most important work on law. For those interested in a college level course on the book, I recently listened to this one. It is a 14 lecture course that spends 7 of the lectures discussing Law's Empire. (The first several of the lectures are on legal positivism and H.L.A. Hart, and the last 4 are on Bruce Ackerman’s constitutional theory.) At times, I found the course frustrating, but it is hard…