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

by Ronald Dworkin

Ronald Dworkin argues that Americans have been systematically misled about what their Constitution is, and how judges decide what it means. The Constitution, he observes, grants individual rights in extremely abstract terms. The First Amendment prohibits the passing of laws that “abridge the freedom of speech”; the Fifth Amendment insists on “due process of law”; and the Fourteenth Amendment demands “equal protection of the laws” for all persons. What does that abstract language mean when it is applied to the political controversies that divide Americans―about affirmative action and racial justice, abortion, euthanasia, capital punishment, censorship, pornography, and homosexuality, for example? Judges, and ultimately the justices of the Supreme Court, must decide for everyone, and that gives them great power. How should they decide? Dworkin defends a particular answer to that question, which he calls the “moral reading” of the Constitution. He argues that the Bill of Rights must be understood as setting out general moral principles about liberty and equality and dignity, and that private citizens, lawyers, and finally judges must interpret and apply those general principles by posing and trying to answer more concrete moral questions. Is freedom to choose abortion really a basic moral right and would curtailing that right be a deep injustice, for example? Why? In the detailed discussions of individual constitutional issues that form the bulk of the book, Dworkin shows that our judges do decide hard constitutional cases by posing and answering such concrete moral questions. Indeed he shows that that is the only way they can decide those cases. But most judges―and most politicians and most law professors―pretend otherwise. They say that judges must never treat constitutional issues as moral issues because that would be “undemocratic”―it would mean that judges were substituting their own moral convictions for those of Congressmen and state legislators who had been elected by the people. So they insist that judges can, and should, decide in some more mechanical way which involves no fresh moral judgment on their part. The result, Dworkin shows, has been great constitutional confusion. Is the premise at the core of this confusion really sound? Is the moral reading―the only reading of the American Constitution that makes sense―really undemocratic? In spirited and illuminating discussions both of the great constitutional cases of recent years, and of general constitutional principles, Dworkin argues, to the contrary, that the distinctly American version of government under principle, based on the moral reading of the Constitution, is in fact the best account of what democracy really is.

Genres: Philosophy, Law, Politics, Nonfiction, Government

414 pages, Paperback

First published January 1, 1996

About the author

Ronald Dworkin, QC, FBA was an American philosopher of law. He was a Jeremy Bentham Professor of Law and Philosophy at University College London, Frank Henry Sommer Professor of Law at New York University, and has taught previously at Yale Law School and the University of Oxford. An influential contributor to both philosophy of law and political philosophy, Dworkin received the 2007 Holberg International Memorial Prize in the Humanities for "his pioneering scholarly work" of "worldwide impact." His theory of law as integrity is amongst the most influential contemporary theories about the nature of law.

Reviews

[Burger King · Rating 4 out of 5]

Dworkin is a brilliant philosophical and legal scholar. Like his own expertise, He combines philosophy with legal interpretation and defends the famous legal interpretivism. Interpreting statutes, precedents, and constitutions is the same as writing chain novels, in which we must understand the antecedent chapters and write to make those novels in their best light. Dworkin denies that legal materials are the only factors of legal interpretation, on the contrary, he thinks that they are just some legal inputs required to be interpreted themselves. The most important considerations in interpretation are the moral principles making the legal system just and ethical. In conclusion, any interpreter must seek moral principles fitting and justifying our current legal practices. Therefore, this book can be regarded as a practical implication of his legal theory. Nevertheless, this book is still informative and worthwhile for anyone interested in the American Constitution to read.

In this book, Dworkin not only discusses many controversial and critical constitutional issues, such as abortion, affirmative action, euthanasia, pornography, and so on but relentlessly rebuts other interpretation theories, especially originalism. He maintains that originalism cannot achieve purported neutrality in their interpretation, since they still need to convince the public of the moral soundness of their theory, and they fail to do this job. Even though you might think that Dworkin's conclusions of those constitutional issues are only cliche, his eloquent and meticulous arguments would still help you learn much.

[Larry Van Valkenburgh · Rating 4 out of 5]

Like many other Dworkin's writings, this is dense and difficult in the extreme. His writing style takes immense patience to parse, and I for one was frequently confused about what he was saying. It took me several days, on and off, to understand his recent (and posthumous; Ronald Dworkin died on February 14, 2013.) article in the New York Review of Books "Law from the Inside Out", November 7, 2013. He asks, "What is law?" He then proceeds to describe contemporary definitions such as "legal positivism" and why they fail. He proposes his own interpretive theory of law.
He asks an important question though: can moral claims be true or false? His opponents, the anti-realists, say no, because judgments about moral rights and duties cannot be empirically tested. Instead, they say these judgments are really only recommendations for conduct, and that nothing we say about the law is true or false. He gives an excellent counter-example: "A judge who sentenced a defendant to jail while admitting that [his own] view of the law is only an emotional expression would probably be sent to jail himself."
Dworkin argues that there is actual truth in morality and politics and therefore in law. What is this truth, he asks, to questions about what is justice, liberty, equality, democracy? In a key quote he asserts, "It is crucial to establish that there are, in principle, better and worse answers to these questions, and therefore a best answer, and therefore a true answer."
He therefore proposes two fundamental principles that underlie the search for these truths:
First, that it is objectively important that each and every human life succeeds rather than fails, and that this is important from everyone's point of view.
Second, that each person has a fundamental, inalienable, responsibility to take charge of his or her own life: that it is finally up to that person to decide what living well would mean and to pursue that life.
Is this view elitist and unrealizable for most people? In his latest book, "Justice for Hedgehogs", Dworkin argues "that people in radically different economic and cultural situations can recognize that their lives are important and can recognize what their own responsibility to live well, in their own circumstances, means."

[Joseph Stieb · Rating 4 out of 5]

This was a challenging and dense read, but rewarding and insightful. It's really a set of essays disguised as a book, which leads to some duplication. A few of the essays were too technical for me to care about. Still, the larger argument is worth considering.

RD's main argument is the the Constitution should be read as a holistic document (not simply a list of rules) that has an underlying moral message that relates to a certain kind of democracy. Sometimes people frame democracy as mere majoritarianism, in which individual rights can be trampled. Any protection of individual rights against the majority will (by a court, for instance) is seen as a compromise with raw democracy.

But RD says that's a flawed understanding of democracy. Here's what I would describe as his thesis: "America’s principal contribution to political theory is a conception of democracy according to which the protection of individual rights is a precondition, not a compromise, to that form of government.”

Democracy for RD means not just the rule of the majority but the rule of each person; this means that each person must be able to self-determine, to have a role in politics, and decide big questions for his/herself. This is the moral commitment that underlies the Constitution and provides coherence to much Supreme Court decision making, especially since the Warren Court. It's about not just the majority rule but the dignity and empowerment of each citizen. I think this is a good way of thinking about what liberal democracy means.

RD applies this approach to a number of prominent cases leading up to the 1990s, especially on issues like abortion, euthanasia, and affirmative action. I enjoyed these, as well as his discussion of different judges. His critique of Bork's originalism and general jurisprudence was particularly compelling.

This was a dense read for sure. I might not have checked it out in hindsight, but it was still good and it sharpened my thinking on a lot of these constitutional issues.

I would have also liked to see more attention from RD on whether the Framers of the constitution believed it had something like the moral content he argues that it has. He's not an originalist who believes that only the Framers' intentions mattered, so his argument doesn't hinge on this. Still, it would have been interesting

[Vincent Li · Rating 4 out of 5]

A series of essays on various legal topics. The first few chapters lays out the general theory and the remainder of the book collects various op-eds and short essays that demonstrate various applications of the general theory. Dworkin's general idea is two fold, the first is that judges interpreting the law must use moral judgment, according to Dworkin, it is unavoidable. That moral judgment is not unbound, since it is cabined by Dworkin's famous fit and justify. Judges are not permitted to decide based on their personal politics, rather the law has its own morality. Dworkin argues that the role of judges is not counter-democratic, because democracy isn't the majoritarian preference being enacted but the protection of the dignity of individuals so that they may participate in democratic society.

The essays are interesting and thoughtful but somehow Dworkin always arrives at a liberal answer. I found his arguments challenging and well-reasoned but not flawless. He had some interesting suggestions on free press cases, he argues that the Sullivan standard of malice actually still chills speech because the motivation of writers requires fact intensive discovery- instead he argues that the original libeler should be required to print a retraction/allow the libeled subject to respond on their print or face suit. Dworkin faults Justice Thomas for not admitting that reading the constitution is necessarily moral, and for not disclosing that morality. Most controversial in the book are Dworkin's views on abortion. Dworkin argues that opponents of abortion cannot mean that the unborn are people protected by the constitution, as they typically still concede that abortions in situations threatening the life of the mother are permissible, and in law generally there is no principle that allows one to kill an innocent to save another innocent. He argues that the right to an abortion flows from the first amendment right to free exercise of religion, as a woman should be able to make a choice on something so life-changing and that implicate their understanding of the universe. Dworkin agrees that the state has an interest in protecting life, and that it may fear that a disregard for the unborn could lead to social disregard for life. He then argues that this the basis for why there may be more restrictions on abortion, as the term comes closer, as that resembles life more and a disregard for that may lead to disregard for life. Interesting arguments, though it would not solve anyone's deeply held moral beliefs, and it is somewhat puzzling that Dworkin's conclusions somehow manages to always align with contemporary liberal legal doctrine (not to mention his secular-atheist views). Regardless, an interesting collection of essays on what a very intelligent man has to say about different topics. I do not always agree, but I do find it worthwhile to read, as it's good to know opposing positions. I also enjoyed the vignettes about Judge Learned Hand, such as the fact that the judge loved admiralty cases and refused to pay Dworkin a bonus out of the treasury but gave him funds out of his personal savings as a wedding gift.