To the Editors:

Since the partisan rejoicing died away, there has been surprisingly little serious effort to justify the Supreme Court’s tentative support for quotas in Steelworkers vs. Weber. After reading Professor Dworkin’s attempt (“How to Read the Civil Rights Act,” NYR, December 20, 1979), it is easy to see why.

Essentially, Professor Dworkin makes three points:

  1. Although the literal wording of the 1964 Civil Rights Act forbids all racial discrimination, Professor Dworkin somewhat arbitrarily feels this can’t really mean, in view of America’s past record, such racial discrimination, in the form of Affirmative Action, as he personally approves;
  2. Although congressional debate at the time of the Civil Rights Act stressed that Affirmative Action-type quotas were prohibited, Professor Dworkin claims legislative intent (sniffily dismissed as “an exercise in reconstructing the mental states of a variety of senators and congressmen”) is too nebulous to provide any guide for puzzled—even dimwitted—judges;
  3. Therefore, concludes Dworkin, judges should go right ahead and decide Weber et al. on the basis of their own “political morality,” i.e., personal preferences.

Since no legislation could have been framed or debated more carefully than the Civil Rights Act, Professor Dworkin is in effect asserting that the Supreme Court has a sort of divine right to do as it pleases. The blatancy of his position is a symptom of the decay of American liberalism. Once a theory of freedom, it has become a prescriptive ideology, serving the interests of an upper-middle-class faction and its electoral clients. The immediate victim is the white working class, exposed to quotas (Weber) from which medical students are apparently exempt (Bakke). But the ultimate victim is the American (classical) liberal tradition, savagely attacked by an imperialistic bureaucracy and abandoned by progressives with an alacrity which is shocking to us slower-moving conservatives. (An honorable exception has been the American Civil Liberties Union, which submitted briefs supporting both Bakke and Weber.)

While as a politician I admire Professor Dworkin’s loyalty to his friends on the Court, no amount of academic verbiage can disguise the fact that the circle he is tracing is actually a square. The Weber decision is incompatible with any normal concept of law.

Orrin G. Hatch

United States Senate, Washington, DC

To the Editors:

The problems of Constitutional interpretation and of searching legislative history to get at the intentions of the Framers are vexed. It may be that our Constitution is not literally color-blind as the first Justice Harlan and others have thought, if only because the Constitution is whatever the Supreme Court declares it to be. But from this it does not follow that the court ought not to declare it color-blind.

Though it may be that the original intentions of the Framers cannot be got for Constitutional provisions, the case is different with recent statutes. The inhibiting strictures placed by Professor Dworkin upon the interpretation of statutes and the deciding power of their legislative histories require detailed comment. I wish here merely to deal briefly with his initial move.

In order to reach an end he wishes Professor Dworkin, like others, must deny that Title VII of the 1964 Civil Rights Act says what the words mean with which it is written. Unlike others, by an appeal to ordinary language and usage, he attempts to support his claim that expressions like “nondiscrimination” apply in the act solely to those who, like blacks, were formerly victims of discrimination. Professor Dworkin writes, “Against the background of centuries of malign racial discrimination, phrases like ‘discriminate against someone because of race’…may be used in a neutral…sense so that any racial classification whatsoever is included. Or they may be used (and I think typically are used) in an evaluative way, to mark off racial classifications that are invidious….”

But ordinary language or usage does not come trailing meanings behind it. To see what a word means, or an expression, it is necessary to look to see how it is used in the context of interest. A brief examination shows that sometimes expressions like “discriminate against someone because of race” are used as Professor Dworkin thinks, and sometimes they are not. In order to see how they were used in the 1964 Civil Rights Act it is necessary to look at the whole context of discussion of racial discrimination at that time and also at the legislative history of the act. That discussion and history show rather clearly that a great many, perhaps most people of the early 1960s who supported and lobbied for a civil rights act and who believed discrimination against blacks shamefully wrong, also believed that the key to black progress was equal treatment for all and discrimination against none. They may have been wrong, though I don’t believe they were, but it is that which they believed and it is in that context at that time that the words of the 1964 Civil Rights Act were written. It must follow that these words in the act carry with them what Professor Dworkin calls the “neutral” meaning which forbids discrimination on the basis of race against anyone.

Beliefs change and some now think mere “neutral” nondiscrimination not enough. This is understandable if misguided. To apply this changed belief to the interpretation of words in a statute written and passed at an earlier time when beliefs were different is at best anachronism. Professor Dworkin’s attempt to reconstruct the 1964 Civil Rights Act contains, I fear, three mischiefs at once: bad history, bad philosophy, and bad social policy.

Barry R. Gross

York College


Jamaica, New York

To the Editors:

In his penetrating examination of the meaning of the 1964 Civil Rights Act, Mr. Ronald Dworkin argues that the criterion of legislative intent in interpreting the statute is highly problematical. This contention is based partly on the premise that “the concept of collective understanding [must be] carefully limited to the hopes rather than simply the beliefs of legislators,” regarding the judicial consequences of the statute. Since congressional actions are presumably expressions of the will of the legislators, the meaning of any legislation is contained in their wishes.

It is a subtle argument, but I would urge Mr. Dworkin to reconsider it. He must be aware that a legislator often votes for a statute which he does not approve of, or for a section he does not approve of, as a price he is willing to pay to achieve some other purpose. A statute passed with this kind of support is not invalidated by revealing that it did not accord with the desires of all those who voted for it. It is neither illegal nor dishonest to vote against one’s desires. The fundamental assumption here is not that a legislator likes what he is voting for, but that he knows what it is. He may wish he did not have to compromise, but his vote still counts in determining the will of Congress.

The problem of intepreting legislative intent becomes just a shade easier if we focus on what legislators thought they were doing, rather than on what they wished they were doing.

Henry Glickman

Scarsdale, New York

Ronald Dworkin replies:

Senator Hatch’s three-point “summary” of my article does his reputation as a reader no good. His own argument is also weak. He says that “no legislation could have been framed or debated more carefully than the Civil Rights Act.” If he means that no statute could have been more explicit in making affirmative action plans like Kaiser’s illegal, he is plainly wrong. In section 703(j) the statute explicitly provides that affirmative action plans in private industry are not required by the act. That section might also have said (as the majority in the Supreme Court pointed out) that such plans were not permitted either.

Even Professor Gross allows that the words the statute actually used are used in different senses on different occasions. A draftsman framing his language carefully to prohibit voluntary plans like Kaiser’s would not have settled for such ambiguous language. But of course my point was not that the draftsman were careless, but rather that we have no reason to believe that Congress took any decision about the permissability of affirmative action, and so no reason to think that the draftsmen failed to record any decision actually reached.

Incidentally, Senator Hatch is entirely wrong about the ACLU. That organization did file briefs in the cases he mentions, but against Bakke and Weber, in both cases arguing that the affirmative action plans in question were legal.

Professor Gross concedes, as I said, that the key words of the Civil Rights Act are words that are sometimes used in what I called an evaluative rather than a neutral sense. But he is sure that they were used in a neutral sense in that act, and he relies wholly on his claim that “a great many, perhaps most people of the early 1960s who supported and lobbied for a civil rights act…believed that the key to black progress was equal treatment for all and discrimination against none.” Of course that is so: even the strongest present advocates of affirmative action believe that it respects equal treatment and does not constitute discrimination. The pertinent historical question is whether “most” advocates of civil rights legislation in 1964 were opposed to affirmative action.

I can see no basis for Professor Gross’s assumption that they were. Many affirmative action programs for admission to professional schools were in place by the late Sixties. The first affirmative action case to reach the Supreme Court—the De Funis case—arose from an application to law school in 1970, and the great bulk of the traditional civil rights groups filed briefs supporting affirmative action in that case. It is possible, of course, that these organizations changed their minds dramatically between 1964 and the end of the decade. But Professor Gross offers no reason to think that they did.

It is plausible, however, to suppose that many fewer people were concerned about affirmative action in 1964 than later. Several scholarly studies of the period point out that admission to professional schools became vastly more difficult in the late Sixties. In 1960, for example, the excellent law school at Berkeley admitted 73 percent of all applicants, and only applicants with college averages less than B were required even to take an LSAT test. By the late Sixties that school was rejecting more Harvard magna cum laude graduates than it accepted. It might have appeared, early in the decade, that a race-blind admissions policy would provide a significant number of black and other minority students in professional schools. But it was plain by the end of the decade that it would not. This argument supports, of course, not Professor Gross’s assumption that most civil rights advocates thought that affirmative action was wrong in 1964, but at best the very different assumption that they were not as much concerned about affirmative action then as they later became. That different assumption hardly requires reading the concededly ambiguous words of the statute so as to make affirmative action illegal.


Dr. Glickman raises an important and difficult point. If some provision in a statute is clear and unambiguous, and a congressman votes for the statute as a whole, then he votes for that provision, in spite of the fact that he might have preferred the statute without it. Why do I therefore say that if the statute is not clear, but admits of two interpretations, courts should take into account a particular congressman’s hopes rather than his expectations about what the statute will do? The difference between clear and ambiguous provisions is important. If some provision a congressman disapproves is clear, then he knows that everyone who has read the statute shares his belief about what it will do, and he therefore accepts the provision he dislikes as a necessary compromise.

If the provision is unclear, however, he has no great reason to suppose that everyone shares his belief, and his own expectation may be based on some theory of legislation that has nothing to do with a political compromise, but represents, instead, only his own theory about how judges are likely to interpret the language he deems ambiguous. In that case, it seems wiser and more consistent with democratic theory to take his expectation into account only if it represents his will as well. That argument is independent of the more conceptual point I made in the article: that it is self-defeating to make a legislator’s expectations decisive if these expectations are in turn based on the legislator’s assumption that the court will enforce what he and others expect. That problem does not, of course, hold for hopes.

Dr. Glickman is right, however, that the idea of collective understanding would be marginally more useful if his suggestion were adopted, and (if the conceptual problem could be met by more careful statement) he might also be right that that would be a wise amendment to my remarks. His letter illustrates that the idea of a collective understanding, and the more general idea of a legislative intention, are parts of a theory of legislation about whose details reasonable people might well disagree. But no plausible theory of collective understanding could, I think, support the opinion of Justice Rehnquist (or of Senator Hatch and Professor Gross) that a collective understanding on the issue of affirmative action existed among those who voted for the Civil Rights Act.

Several lawyers who have discussed my article with me believe that I did not sufficiently attend to a different argument that might support Justice Rehnquist’s dissent. They argue that even though the statements of key legislators (like the statements of Senator Humphrey and others that the Civil Rights Act would not permit affirmative action) are not credible evidence of any understanding among congressmen generally, and even though they do not constitute a legislative intention through some convention understood among congressmen and lawyers, they nevertheless furnish a better basis for interpretation of the statute than the Justices’ own opinions about the political morality of affirmative action.

But legal practice should not encourage legislation by a contest of floor speeches, in which congressmen suppose that they must trumpet their own interpretations of doubtful passages in order to prevent the speeches of others from achieving legislation by default. Is it not wiser to insist that floor speeches cannot settle a politically controversial issue unless they are recorded in actual amendments, as in the case of section 703(j), or unless the understanding they state can be shown to be general? It seems better that inherently ambiguous provisions be clarified by principled arguments of judges trying to respond to contemporary problems and opinions, rather than by the accident of which small group of congressmen spoke more often than its opponents fifteen years ago.

Of course, if there is good reason to suppose that that small group expressed the will of Congress, then judges might well be required to defer to that will. But if, on the contrary, there is reason to think that Congress had no will and took no decision on the issue at all, judges would do better to respond to a more contemporary assessment of principle, even though they might disagree among themselves about how to assess it. That opinion may be debatable, but it hardly supposes, as Senator Hatch says it does, that “the Supreme Court has a sort of divine right to do as it pleases” when Congress has already done something else.

This Issue

May 15, 1980