Freedom's Law: The Moral Reading of the American Constitution.

• Author: Eisele, Thomas D.

By Ronald Dworkin. Cambridge: Harvard University Press. 1996. Pp. viii, 404. $35.

What is to be done? We can finally, after two hundred years, grow up and begin to take our actual Constitution seriously, as those many nations now hoping to imitate us have already done. We can accept that our Constitution commands, as a matter of fundamental law, that our judges do their best collectively to construct, reinspect, and revise, generation by generation, the skeleton of liberal equal concern that the great clauses, in their majestic abstraction, demand. We will then abandon the pointless search for mechanical or semantic constraints, and seek genuine constraints in the only place where they actually can be found: in good argument. We will accept that honest lawyers and judges and scholars will inevitably disagree, sometimes profoundly, about what equal concern requires, and about which rights are central and which only peripheral to liberty. [pp. 81-82]

-- Ronald Dworkin(1)

1. DWORKIN'S CHALLENGE

   This estimable book is the latest book-length work published by Ronald Dworkin, whom many people, myself included, consider to be the most important Anglo-American legal philosopher of the past two decades. Freedom's Law does two things. First, it discusses "a variety of constitutional issues" (p. 1). In fact. Dworkin suggests that the book covers "almost all of the great constitutional issues of the last two decades, including abortion, affirmative action, pornography, race, homosexuality, euthanasia, and free speech" (p. 1). In addition to these specific issues, however, and the particular cases dealing with them, Dworkin also allows that "[t]he book as a whole has a larger and more general aim," which he identifies as "illustrat[ing] a particular way of reading and enforcing a political constitution, which I call the moral reading" (p. 2).

   In this review, by concentrating on the general aim of Dworkin's book, I hope to contribute to the discussion this book is sure to generate. What does the "moral reading" of our Constitution amount to, and what alternative do we have to endorsing such a reading? I ask these questions from what I would call a jurisprudential perspective. For, while I do teach Jurisprudence, I do not teach Constitutional Law, other than some constitutional law themes that find their way into my Property and Wills & Trusts courses. Accordingly, I am not well placed to review the details or the nuances of developments after Roe v. Wade,(2) or the progeny spawned by New York Times Co. v. Sullivan,(3) two cases that dominate Parts I and II, respectively, of the book. But this personal limitation leaves me room perhaps for a more considered review of Dworkin's main thrust in this book, which is directed toward making his view of the Constitution credible, or palatable, to his reader. Dworkin's theory of how to read the Constitution is, after ale central to his argument. And Dworkin would apparently support the idea of a review of his theory from a jurisprudential perspective, for he makes the following remark: "Scholars and lawyers disagree about constitutional theory not because some of them have read more cases than others, or read them more carefully, but because they disagree about the philosophical and jurisprudential issues that I emphasize" (p. 35).

   In Freedom's Law, Dworkin collects seventeen of his recent articles, all published between 1987-1995 and almost all of which first appeared in The New York Review of Books. The collection groups itself around three foci. The first convergence of interests, comprising the six essays of Part I, considers matters associated with the constitutional right of privacy. These essays take up abortion rights, the right to practice homosexuality among adults, the right to determine the timing and circumstances of one's death, affirmative action as a constitutionally permissible remedy on behalf of minorities who have experienced constitutionally forbidden discrimination, and certain other matters subsumed under the heading, "Life, Death, and Race." The second center of interest -- found in Part II, which is titled "Speech, Conscience, and Sex" -- consists of five essays on topics within the First Amendment, including matters involving freedom of speech and religion, hate speech, pornography, and academic freedom. Dworkin's focus of attention in Part III is the role of the judiciary in our constitutional polity and, in particular, the importance of the Senate confirmation process in vetting and constraining the appointment of judges to the U.S. Supreme Court. This Part, "Judges," contains five essays that deal with the Robert Bork and Clarence Thomas hearings, and a final essay that affords us a personal and rather moving remembrance of Dworkin's clerkship with Judge Learned Hand.

   To this collection of articles, Dworkin has added an Introduction, "The Moral Reading and the Majoritarian Premise," which does the main philosophical work in this book. Dworkin's introductory remarks lay out in considerable detail his idea that the U.S. Supreme Court, inferior courts faced with constitutional issues, and plain lawyers and citizens of the realm should all follow the same approach to reading and understanding the U.S. Constitution. Dworkin calls this approach a "moral reading" of that document. Everything he says in the book both flows from and is meant to explicate his view that this is the common view of the U.S. Constitution, and the correct one: "[T]he moral reading is not revolutionary in practice. Lawyers and judges, in their day-to-day work, instinctively treat the Constitution as expressing abstract moral requirements that can only be applied to concrete cases through fresh moral judgments. . . . [T]hey have no real option but to do so" (p. 3). But why should it require an extended argument if, as Dworkin claims, this approach to the U.S. Constitution is in fact the approach to the Constitution that is commonly taken by U.S. judges and justices, as well as by American lawyers and lay people? Dworkin claims that while we do in fact engage in a moral reading of the Constitution, we still deny that this is what we are doing, and we continue to doubt that such a method of reading is a legitimate approach to our founding document.

   In the first step of his argument, he tries to get us -- the practitioners of this common approach -- to acknowledge our use of the moral reading openly. He wants us to admit that this is the approach we take to reading and understanding the Constitution. Such candor, he believes, would do wonders for us. It would, for example, help to improve our understanding of our own fundamental law, which Dworkin believes we do not fully appreciate. Given our current understanding of how we read our Constitution, under which judicial review is legitimate only in so far as judges divorce themselves officially from any consideration of our shared moral convictions, Dworkin's proposed "moral reading" stands in disrepute. In part, Dworkin argues that this disrepute results from our failure to see that our fundamental law is itself based upon principles of political morality. This evident blindness on our part has tragic consequences:

   [T]he American ideal of government not only under law but under

   principle as well is the most important contribution our history has

   given to political theory. Other nations and cultures realize this, and

   the American ideal has increasingly and self-consciously been

   adopted and imitated elsewhere. But we cannot acknowledge our

   own contribution, or take the pride in it, or care of it, that we should.

   [p. 6]

   According to Dworkin, we interpret the Constitution in a state of dissonance, exhibiting "a striking mismatch" between what we do and what we say we do. Reading the Constitution on its moral level becomes, then, a kind of guilty pleasure, something we can indulge only surreptitiously and without any intellectually respectable justification:

   [I]t would indeed be revolutionary for a judge openly to recognize the

   moral reading, or to admit that it is his or her strategy of constitutional

   interpretation, and even scholars and judges who come close to

   recognizing it shrink back, and try to find other, usually metaphorical,

   descriptions of their own practice. There is therefore a striking

   mismatch between the role the moral reading actually plays in

   American constitutional law and its reputation. It has inspired all the

   greatest constitutional decisions of the Supreme Court, and also some

   of the worst. But it is almost never acknowledged as influential even

   by constitutional experts, and it is almost never openly endorsed even

   by judges whose arguments are incomprehensible on any other

   understanding of their responsibilities. [p. 3]

   Dworkin urges us to make a candid admission of how we relate ourselves to the Constitution, so that we might begin to appreciate the extent to which we are bound by a gravely moral document, which devolves upon us a moral trust. We might then resolve to protect the constitutional treasure that is ours. As Dworkin says in the quotation that I have placed as the motto to this review,(4) to understand our "actual Constitution" would be to begin to take it as seriously as do "those many nations now hoping to imitate us" (p. 81). Those other nations realize more fully than we, apparently, the moral and political treasure that we have.

   To understand what we possess requires, first of all, that we acknowledge the extent to which our ordinary, normal constitutional practice is a matter of moral reading of the constitutional text and associated history. It also requires, however, that we defend our constitutional practices -- not all of them, but the bulk of them; those that are rationally defensible -- against criticisms from the critical Left and the radical Right. In this respect, Dworkin sees his "moral reading" as a moderate position centered within the great tradition of Western liberalism, and...