Ronald Dworkin, who died on February 14 at the age of eighty-one, published over one hundred articles, reviews, and letters on legal and philosophical issues in The New York Review, from his 1968 defense of conscientious objectors to the draft during the Vietnam War to his 2012 argument against color-blind college admissions policies. Over more than four decades he took up some of the most important controversies in American public life, including affirmative action, abortion, assisted suicide, pornography, 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.”
As we mourn the loss of a long-standing contributor and friend, we present the following selection of his writings from The New York Review.
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.
It is the worst possible misunderstanding to suppose that affirmative action programs are designed to produce a balkanized America, divided into racial and ethnic subnations. They use strong measures because weaker ones will fail; but their ultimate goal is to lessen not to increase the importance of race in American social and professional life.
President Reagan’s nomination of Judge Robert Bork to succeed Justice Lewis Powell on the Supreme Court presents the Senate with an unusual problem. For Bork’s views do not lie within the scope of the longstanding debate between liberals and conservatives about the proper role of the Supreme Court. Bork is a constitutional radical who rejects a requirement of the rule of law that all sides in that debate had previously accepted. He rejects the view that the Supreme Court must test its interpretations of the Constitution against the principles latent in its own past decisions as well as other aspects of the nation’s constitutional history. He regards central parts of settled constitutional doctrine as mistakes now open to repeal by a right-wing court; and conservative as well as liberal senators should be troubled by the fact that, as I shall argue here, he has so far offered no coherent justifications for this radical, antilegal position.
There is a particular way of reading and enforcing a political constitution, which I call the moral reading. Most contemporary constitutions declare individual rights against the government in very broad and abstract language, like the First Amendment of the United States Constitution, which provides that Congress shall make no law abridging “the freedom of speech.” The moral reading proposes that we all—judges, lawyers, citizens—interpret and apply these abstract clauses on the understanding that they invoke moral principles about political decency and justice. The First Amendment, for example, recognizes a moral principle—that it is wrong for government to censor or control what individual citizens say or publish—and incorporates it into American law. So when some novel or controversial constitutional issue arises—about whether, for instance, the First Amendment permits laws against pornography—people who form an opinion must decide how an abstract moral principle is best understood. They must decide whether the true ground of the moral principle that condemns censorship, in the form in which this principle has been incorporated into American law, extends to the case of pornography. The moral reading therefore brings political morality into the heart of constitutional law.
The Supreme Court has finally and decisively rejected 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.… [T]he 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.
If a nation capped permissible electoral expenditure at a very low level, it would achieve the greatest possible financial equality. But it would damage the quality of political debate by not permitting enough discussion and by preventing advocates of novel or unfamiliar opinion from spending enough funds to attract any public attention. Delicate judgment is needed to determine how much inequality must be permitted in order to ensure robust debate and an informed population. But allowing corporations to spend their corporate treasure on television ads conspicuously fails that test. Judged from the perspective of this theory of the First Amendment’s purpose—that it aims at a better-educated populace—the conservatives’ decision is all loss and no gain.