Structure, Rights, Gay Marriage, and the Future

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.

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A Republic Worthy of Ronald Dworkin

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.

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A Course on Ronald Dworkin

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 to know whether that was because of the professor or the theories he is discussing.  In any event, I don’t know of any online courses on the subject, and therefore would recommend the course if you are interested in learning more about Dworkin (or the other subjects discussed in the course).


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.

Constitutional Interpretation as Fairness: Ronald Dworkin and the Axioms of Obamacare

Ronald Dworkin, a liberal supernova who has long radiated more heat than light, seems to be fading faster than we knew. In a recent piece in the The New York Review of Books (“A Bigger Victory Than We Knew,” August 16, 2012) he embraces a liberalism so platitudinous it would make even his academic colleagues blush, if he taught anywhere other than a top-10 American law school. For him, the Affordable Care Act satisfies “a fundamental requirement of political decency.” Obamacare’s baffling and formidable mixture of mandates, regulations, and taxes can, it seems, be derived almost syllogistically from a conception of justice as fairness, though Dworkin also claims that the scheme “is less efficient and rational than a single-payer system like Great Britain’s” (something a legal philosopher oughta know). 

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Ronald Dworkin on the Supreme Court’s Health Care Decision

Ronald Dworkin has published a New York Review of Book Essay on the Supreme Court’s health care decision.  The essay has all of the characteristics of the typical Dworkin NY Review essay: it stakes out the liberal position, argues for it with power and verve, but in the end is often to me unpersuasive.

Dworkin spends some time criticizing Chief Justice Roberts’s opinion.  As readers may remember, I am no friend of his opinion, but I don’t agree with much of Dworkin’s criticism.  Let me just discuss one issue.  Dworkin is upset that Roberts first concludes that the Congress does not have the power to impose the mandate under the Commerce Clause before concluding that Congress does have the power to do so under its Taxing Power.  Dworkin writes:

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