The Passing of Ronald Dworkin

The legal giant, Ronald Dworkin, has passed on.  I was interested to read the New York Times obituary to see what a non-specialized paper would see as his most important contribution.  Significantly, the obituary did not highlight his contributions to jurisprudence until the latter part of the review.  Instead, the article led with the following:

Professor Dworkin’s central argument started with the premise that the crucial phrases in the Constitution — “the freedom of speech,” “due process of law,” “equal protection of the laws” — were, as he put it, “drafted in exceedingly abstract moral language.”

“These clauses,” he continued, “must be understood in the way their language most naturally suggests: they refer to abstract moral principles and incorporate these by reference, as limits on the government’s power.”

It is not hard to hear echoes of Professor Dworkin’s approach in the writings of Justice Anthony M. Kennedy, who often holds the crucial vote in morally charged debates before the United States Supreme Court and is quite likely to play a decisive role in two pending cases on same-sex marriage.

I would have suspected that this would be the New York Times’s perspective.

That’s too bad, because I believe this aspect of Dworkin’s work was mistaken.  While I am not sure about his jurisprudential views, I am much more open to them than to this constitutional argument.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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