In 2013, The New York Review of Books celebrates its fiftieth anniversary. During the course of the year we will reprint excerpts from some other notable pieces published in the Review over the last five decades. For news and features about the fiftieth anniversary, visit www.nybooks.com/50.
Ronald Dworkin, who died on February 14 at the age of eighty-one, published more than one hundred articles, reviews, and letters on legal and philosophical issues in The New York Review between 1968 and 2012. In these pages he took up some of the most important controversies in American public life, including resistance to the draft during the Vietnam War, affirmative action, abortion, assisted suicide, health care, civil liberties and the war on terror, and what he called the “embarrassingly bad decisions” of the Supreme Court’s “right-wing phalanx.” Throughout his career he worked to elaborate what he called “the moral reading of the Constitution”: the idea that “we all—judges, lawyers, citizens—interpret and apply [its] abstract clauses on the understanding that they invoke moral principles about political decency and justice.”
The articles by Ronald Dworkin from which the following excerpts are drawn can be read in full at www.nybooks.com.
On Not Prosecuting Civil Disobedience
How should the government deal with those who disobey the draft laws out of conscience? Many people think the answer is obvious: the government must prosecute the dissenters, and if they are convicted it must punish them. Some people reach this conclusion easily, because they hold the mindless view that conscientious disobedience is the same as lawlessness. They think that the dissenters are anarchists who must be punished before their corruption spreads. Many lawyers and intellectuals come to the same conclusion, however, on what looks like a more sophisticated argument. They recognize that disobedience to law may be morally justified, but they insist that it cannot be legally justified, and they think that it follows from this truism that the law must be enforced…. But the argument that, because the government believes a man has committed a crime, it must prosecute him is much weaker than it seems. Society “cannot endure” if it tolerates all disobedience; it does not follow, however, nor is there evidence, that it will collapse if it tolerates some.
—June 6, 1968
Taking Rights Seriously
The bulk of the law—that part which defines and implements social, economic, and foreign policy—cannot be neutral. It must state, in its greatest part, the majority’s view of the common good. The institution of rights is therefore crucial, because it represents the majority’s promise to the minorities that their dignity and equality will be respected. When the divisions among the groups are most violent, then this gesture, if law is to work, must be most sincere.
The institution requires an act of faith on the part of the minorities, because the scope of their rights will be controversial whenever they are important, and because the officers of the majority will act on their own notions of what these rights really are. Of course these officials will disagree with many of the claims that a minority makes. That makes it all the more important that they take their decisions gravely. They must show that they understand what rights are, and they must not cheat on the full implications of the doctrine. The government will not reestablish respect for law without giving the law some claim to respect. It cannot do that if it neglects the one feature that distinguishes law from ordered brutality. If the government does not take rights seriously, then it does not take law seriously either.
—December 17, 1970
Is Affirmative Action Doomed?
Colleges, universities, and professional schools use race-sensitive standards not in response to any central government mandate but through individual decisions by individual schools. They act, not to fix how many members of which races will occupy what roles in the overall economy and polity, which is in any case beyond their power, but only to increase the number of blacks and other minorities who are in the pool from which other citizens—employers, partners, patients, clients, voters, and colleagues acting in their own interests and for their own purposes—will choose employees, doctors, lawyers, and public officials in the normal way.
The distribution of position and power that affirmative action helps to achieve, that is, flows and changes naturally in accordance with millions of choices that people make for themselves. If the policy works to improve the overall position of any minority—as the River study suggests it has helped to improve the position of blacks—it does so only because other people have chosen to exploit the results of that policy: the greater range and variety of graduates with the motive, self-respect, and training to contribute effectively to their lives. Affirmative action in universities, in that way, makes the eventual economic and social structure of the community not more artificial but less so; it produces no balkanization, but helps to dissolve the balkanization now sadly in place.
If the justices recognize this aspect of what our best universities aim to do, as well as their academic need for educational diversity, then they will have served us particularly well. They will have acted not just as judges allowing a crucial educational initiative to continue, but as teachers helping to explain to the nation the true and continuing costs to everyone of our racist past, and the distinct promise of an educational policy that can help us all to achieve, if we really want it, a more perfect union.
—November 5, 1998
What the Court Really Said
The Supreme Court has finally and decisively rejected [in Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush] the Bush administration’s outrageous claim that the president has the power to jail people he accuses of terrorist connections without access to lawyers or the outside world and without any possibility of significant review by courts or other judicial bodies…. The justices’ arguments provide the legal basis for a much more powerful conclusion than the Court itself drew—that the Constitution does not permit the government to hold suspected enemy combatants or terrorists indefinitely without charging and convicting them of crimes, according them all the traditional protections of our criminal law process, unless they are treated in effect as prisoners of war.
—August 12, 2004
The ‘Devastating’ Decision
Against the opposition of their four colleagues, five right-wing Supreme Court justices have now guaranteed [in Citizens United v. FCC] that big corporations can spend unlimited funds on political advertising in any political election…. We should notice not just the bad consequences of the decision, however, but the poor quality of the arguments Justice Kennedy offered to defend it…. The opinion announces and perpetuates a shallow, simplistic understanding of the First Amendment, one that actually undermines one of the most basic purposes of free speech, which is to protect democracy. The nerve of his argument—that corporations must be treated like real people under the First Amendment—is in my view preposterous. Corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.
—February 25, 2010
A Bigger Victory Than We Knew
It is time that our constitutional courts formally recognize what constitutional interpretation has created over two centuries. Of course constitutional law is limited by the document’s text. But we must interpret the text by finding principles that justify it in political morality, and we must test statutes against the text not by abstract semantics but by asking whether the statutes respect those principles. The Chief Justice’s reasoning [in the Affordable Care Act case] contains an unwitting insight. The national power to tax is not just a mechanism for financing armies and courts. It is an indispensible means of creating one nation, indivisible, with fairness for all.
The Affordable Care Act’s mandate is not just another example of economic regulation of an interstate industry like cars or steel. It does not impose a tax in the ordinary political meaning…. But the act is nevertheless best understood as in the long tradition of mandatory insurance for the sake of justice.