Dworkin's morality: rule by Supremes By Walter Olson

Baltimore Sun, May 5, 1996

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"Freedom's Law: The Moral Reading of the American Constitution" by Ronald Dworkin. Cambridge, Mass.: Harvard University Press. 404 pp. $35.00.

 

Few figures sum up the era now passing away in American law as thoroughly as Ronald Dworkin, author of extravagantly praised books on jurisprudence, professor at Oxford and NYU, and furrow-browed scourge of conservative Supreme Court nominees. This latest collection of his essays may please a few diehards, but in the long run is likely to deflate further the transatlantic blimp of his reputation.

The volume consists largely of New York Review of Books essays, most of which deal with either Roe v. Wade (he's for it) or the Bork and Thomas nominations (against) with excursions into topics like affirmative action and euthanasia (for, in both cases). Newly added is a turgid introductory essay -- the New York Review's editorial skills are missed -- laying out his case that judges should give the Constitution a moral reading, which amounts to what most of us would see as reading their own moral views into that document.

Trained in academic philosophy, Dworkin now bids to be the last defender of the Warren Court philosopher-king ideal under which a wise Supreme Court gets to meditate on moral issues and proclaim the results as constitutionally binding whatever the strain on the document's language, structure or history. Nearly everyone else has grown disillusioned with that ideal; the significant recent trend has been the rise of anti-activist thinking among many who share liberal goals.

Various writers associated with the New Republic thus favor keeping abortion legal or doing away with the death penalty but don't think courts should dig up the Constitution in search of such rights like a lawn mower chasing moles.

Dworkin concedes a "near unanimous" view among today's scholars that too much judicial review endangers the citizenry's right to govern itself -- what he dismisses as the "majoritarian premise" .

There's a consistency worry too. Once judges go activist, what's to stop them from, say, writing free-market economics into law, as they did years ago? (Especially since the Constitution really does contain provisions against impairing the obligation of contracts or taking property without compensation.) Dworkin's answer: the copycat judges would simply be "wrong", since the second group of rights aren't "fundamental to freedom". Thus does James Carville's book title -- "We're Right, They're Wrong" -- get translated into high theory.

The best picks here are the book reviews, where Dworkin grapples with authors' fact-finding and forgets his usual sniffish abstraction. His piece on Renata Adler's "Reckless Disregard" and the two big libel suits it covers is worth a look; he warms to a biography of the famous judge Learned Hand, for whom he clerked, and scores a few hits on Catharine MacKinnon, the Savonarola of Ann Arbor.

But he never strays far from his constitutional hobbyhorse. High court nomination battles preoccupy him much as royal successions dominated stage drama in the age of kings. His writings on them run to intense partisanship, as when he claims President Reagan's court policy was meant to "leave the Constitution no longer an important source of...individual rights against unjustified public authority" -- or, put more plainly, that it was meant to suspend the Bill of Rights.

That kind of thing is as demagogic as any GOP pamphleteer's suggestion that every Clinton judge wants to turn criminals loose, and the pamphleteer doesn't get an Oxford don's chair out of it.

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Walter Olson, a senior fellow at the Manhattan Institute, is the author of The Litigation Explosion: What Happened When America Unleashed the Lawsuit.

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