In response to:
Reagan's Justice from the November 8, 1984 issue
To the Editors:
Ronald Dworkin, whose scholarly trademark is the bold extension of familiar concepts in the service of idiosyncratic results, has outdone himself in his attack on Judge Robert Bork [NYR, November 8, 1984]. To accuse a judge of being “incoherent,” a practitioner of “the jurisprudence of fiat,” and a stalking horse for Jerry Falwell might be appropriate if the judge had announced that he regarded “moral philosophy” as a proper source of constitutional law and that Falwell’s was the moral philosophy he intended to apply. To level these accusations on the ground that the judge has renounced recourse to moral philosophy is most peculiar. And it is perhaps equally peculiar to accuse the judge of infidelity to Supreme Court precedent for not reaching a result that the Court itself has pointedly refused to reach.
The crux of Dworkin’s criticism is that Bork is wrong to distinguish “the creation of new rights” (such as the rights to abortion and homosexual conduct) from the judicial elaboration of rights (such as the right to be free from racial discrimination) that were put into the constitution by somebody other than judges. Dworkin shows that the difference between these two processes, like the difference between any two things in the universe, can be seen as a continuum rather than as a dichotomy. He points out that Bork himself, defending the Court’s school desegregation decision in a 1971 law review article, acknowledged that a constitutional provision can have applications not specifically contemplated by those who proposed and ratified it. Dworkin argues persuasively that in defending the antisegregation principle Bork necessarily engaged in moral philosophy: he chose from among various linguistically and historically defensible rules the one that seemed most “principled.” Since Bork made a kind of moral choice in arguing that “equal protection of the laws” forbids school segregation, Dworkin contends, he is wrong to disdain a similar exercise—more ambitious perhaps, but no different in “structure”—that would find laws against homosexual conduct a denial of “liberty” without “due process.”
It is on this that the charges of incoherence and judicial fiat rest: having taken a tentative step in 1971 down the slippery slope that leads to Dworkinism, Judge Bork must explain where he turned back and why. Bork did, however, offer such an explanation in his law review article: if a judge, having extracted from a constitutional provision the principle that seems to him most “neutral” and “general,” finds that the principle will strike down laws or institutions which, in his judgment, those who proposed and ratified the provision would have wished neither to prohibit nor to give future judges the power to prohibit, then he has got the wrong principle. In Bork’s judgment, the evidence on the attitudes of those who proposed and ratified the Fourteenth Amendment about the amendment’s effect on segregated schools is not clear enough to constrain judges from applying what seems to them the most neutral and general principle of “equal protection.” In contrast, all the evidence there is suggests that the framers of the Bill of Rights and of the Fourteenth Amendment wished to continue living in a society in which practices deemed by the majority to be immoral, including extramarital sexual activity and emphatically including homosexual acts, could be prohibited by law. Bork implicitly rejects Dworkin’s halfhearted suggestion that “perhaps” the constitution makers actually intended to delegate to future judges the power to enforce as supreme law whatever rules those judges believed most consistent with “the general idea” of “liberty.”
One can argue with Judge Bork’s reading of history and with his standard of constitutional interpretation. But they are not incoherent and they are not the jurisprudence of fiat. Nor does Dworkin offer any evidence for his innuendo that Bork and other judges he dislikes are motivated by a desire to effect the political programme of “moral and religious fundamentalism.”
Judge Bork offers exactly the opposite explanation for his attitude toward the judicial function: since he has no reason to assume that his own moral insight is better than anyone else’s, it would be wrong for him to use his own moral judgment as the basis for overturning the collective judgment of the majority of his fellow citizens on questions whose resolution the constitution makers apparently intended to leave to the majority. Aside from pointing out that skepticism is itself a kind of moral stance, Dworkin gives no reason for his conviction that Judge Bork is disingenuous in professing to doubt his own superiority as a philosopher. Perhaps it is because he cannot imagine what it would be like to be so constrained.
Dworkin, like his bête noir Falwell, believes that there are objectively correct answers to moral, social, and political questions such as whether abortion and homosexual conduct should be legal. Dworkin further believes that courts should incorporate into the Constitution his own answers to these questions rather than, say, Falwell’s opposite set of answers, because he can prove that his answers are right. That is, he can justify his solutions by reference to “argument” rather than “prejudice.”
Arguments, however, must proceed from premises, which frequently take the form of quiet borrowings from the prejudices of one’s own profession, generation, and social class. Dworkin is hardly the first legal theorist to believe that his political ideas are “is” questions rather than “ought” questions, flowing inexorably from one or two concepts that are undeniable in modern political discourse. The problem—most evident during the early twentieth century when the Supreme Court was striking down minimum wage and maximum hours laws as denials of liberty without due process—is that reasonable people can disagree not only about the application of such a concept but about its essence. Arguments about the meaning of liberty do not ordinarily arise because one of the parties has committed an error of logic, but because they believe in different ideas to which they have given the same name.
Consider, for instance, the codification of sexual constitutional law that Dworkin finds inherent in the idea of liberty. Dworkin states that sadism and child abuse need not be constitutionally protected because these activities result in “actual harm.” Assuming that Dworkin would classify sexual intercourse with unresisting children as “abuse,” we know that “harm” must include some things other than physical injury and coercion. But what things?
Since Dworkin would strike down laws against homosexual conduct, it seems that he would not leave society free to define certain “unnatural” sexual acts whose performance is itself a kind of harm to the participants. Nor does other people’s psychological discomfort in knowing that such acts are going on around them seem to qualify as “actual” harm. It must also be unconstitutional, therefore, for society to prohibit sex with unresisting animals—unless animals are to be classified along with children as beings whose virtue or mental health the state may protect from the effects of acts to which they have apparently but not “actually” consented. Similarly, laws against prostitution are impermissible unless we may assume that somebody who does something for money has not actually consented to it, or unless the status of being a prostitute (unlike the status of being a active homosexual) may itself be defined as actual harm. And the fifty state laws limiting marriage to heterosexual couples must fall unless homosexual marriage is harmful in a way that homosexual intercourse is not.
Maybe Dworkin’s laws are the laws our society should adopt. I could live with them and I suspect Judge Bork could too. But they are something other than the chemically pure results of taking just the right amount of liberty and then filtering out the actual harm. In each instance the decision whether to define the consequences of an activity as “actual harm” is a policy judgment whose basis is intuitive and debatable. It is Bork’s decision to let the debate take place—to let society choose among Dworkin’s intuitions and Falwell’s and everyone else’s—to which Dworkin objects. His charge that the Supreme Court may soon be transformed into “the clubhouse of the Moral Majority” thus boils down to a warning that the proles are about to be re-enfranchised. It is Dworkin himself who wishes the Court to be a clubhouse, a quiet place in which society’s important decisions are made by the unprejudiced elite.
The second count in Dworkin’s indictment is that Judge Bork failed to observe binding precedents. A judge who is confronted with what he regards as an incorrect interpretation of the Constitution by a higher court is in a difficult moral and intellectual bind. He has taken an oath to uphold the Constitution, the same oath taken by the Justices of the Supreme Court. As John Marshall observed in Marbury v. Madison, for a judge to “close his eyes on the Constitution” and render what he believes to be an unconstitutional judgment in deference to somebody else’s interpretation is arguably a violation of his oath. The judge’s obligation to follow the precedents of higher courts, on the other hand, is imposed primarily in the interest of the efficiency of the judicial system. However a judge should reconcile these obligations when the precedent clearly applies to the case at hand, it seems harsh to berate a judge for not extending a precedent of dubious relevance in order to reach a result he regards as unconstitutional.
Judge Bork did not, however, base his failure to apply the Supreme Court’s privacy cases on a theory of limited obligation to follow precedent in constitutional cases. Rather, he expressly relied on the closest thing there was to a precedent about homosexual rights, the Court’s summary affirmance of a judgment upholding a state law against sodomy. The other privacy cases, he said, imposed no contrary rule because they had conflicting things to say about sexual autonomy and because their only references to homosexual rights were denials that such rights exist.
Dworkin, on the other hand, is able to find these cases coherent and therefore binding only by treating them just as he treats the text and history of the Constitution. He distinguishes away the most specific and relevant evidence, restates the remainder at lofty levels of abstraction, then re-particularizes in ways that would have stunned the people whose principles he claims to be expounding.
The best way to clear up this disagreement would seem to be for President Reagan to appoint either Dworkin or Bork to the Supreme Court. Perhaps Justice Dworkin could get four other votes for a comprehensive right to homosexual and heterosexual autonomy that would give clear guidance to the lower courts, although I doubt it. Or perhaps Justice Bork will do something for the coherence of constitutional doctrine by helping it have more to do with the Constitution.
Grover Rees III
University of Texas, Austin
Ronald Dworkin replies:
Professor Rees is outraged that I should dare to charge Judge Bork and other ultraconservative judges with the very sin they accuse more moderate judges of committing: enforcing their own political convictions instead of the law. But Rees begs the key question at issue. He just assumes that the Constitution, correctly interpreted, provides that the majority of voters have the right to decide, through officials they elect, whether homosexuals are wicked, and whether they should be punished or discharged from government service.
If that is true, then of course Bork’s decision upholding the Navy regulation reached the right result, and any judge who struck down the regulation as unconstitutional would have been acting against the law. But the issue in Dronenburg was exactly whether the Constitution does leave this decision to the majority of voters or whether it provides that no one, not even the majority, has the power to discriminate against homosexuals in that way. The Constitution, on any plausible interpretation, insulates minorities from some moral convictions of the majority. It protects black school-children, for example, from segregation even when the majority thinks their views wrong and dangerous. Does it protect homosexuals in the same way? That is a threshold question of law a judge must answer, not because he or she belongs to a moral elite, but because it is a judge’s job to decide what the law is. It would be silly to say that a judge upholding the right of the Nazis to march in Skokie, Illinois, for example, has substituted his judgment for the majority’s on the question whether Nazis are good people or their doctrines right.
The important question, therefore, is how a judge should decide whether the Constitution removes some decision from the majority’s power when the text uses abstract language that might or might not be deemed to apply, like the language of the Fourteenth Amendment that forbids denying “liberty” without “due process of law.” I said that judges, in these circumstances, should use the normal style of legal analysis: they should try to find a coherent and general principle, defining liberty and due process, that fits and explains the general structure of the Constitution and the past decisions of the Supreme Court enforcing the Fourteenth Amendment. I acknowledged that different judges might reach different conclusions about homosexuals using this method; I criticized Bork not for reaching a result I thought wrong but for turning his back on this kind of analysis and providing no legal argument for his decision at all.
Rees apparently prefers a different method of constitutional analysis. He thinks that the due process and other abstract clauses should be construed very narrowly by limiting them to whatever protection the historical authors of the clauses actually had concretely in mind, whether or not this narrow construction fits the Constitution’s structure or past Supreme Court decisions. That view is not incoherent, though it does rest, as I tried to show in an essay I cited in my article,1 on a highly arbitrary and peculiar version of the idea of legislative intention which can itself be justified only through the political argument that, contrary to our traditions, true democracy requires that the majority be as powerful as possible and minorities have as few constitutional rights as possible. I did not explore this method based on “framers’ intention” further, however, because, as I said, Bork had himself rejected the method in discussing the Supreme Court’s decisions about racial discrimination.
Rees tries to distinguish the race cases from Dronenburg by suggesting that the character of the evidence we have about the framers’ intentions is different about the two issues. He says that while Bork might have thought the evidence of intention “not clear enough” in the race cases, “all the evidence there is suggests that those who wrote and ratified the Fourteenth Amendment wished to continue living in a society in which” the majority had the power to prohibit homosexual acts.2 He should have given us a hint, at least, of what “all the evidence there is” comes to. Suppose the “evidence” is only this: it is reasonable to assume that the framers shared the general prejudices of their society about homosexuals, and would have rejected the idea, had it been proposed, that the constitutional rights they were creating extended to them.
But this is only speculative evidence, however persuasive, that the framers did not intend to give constitutional rights to homosexuals. Though Rees fails to mention this, there is positive and direct evidence that they did not intend to desegregate schools. For when Congress debated the civil rights bill eventually made constitutional law by the Fourteenth Amendment, the House manager of the bill expressly assured his colleagues that “civil rights…do not mean that all citizens shall sit on juries, or that their children shall attend the same schools,” and the same Congress that enacted the amendment continued to segregate the schools of the District of Columbia. So the “explanation” Rees attributes to Bork and Rees’s own attempted distinction both fail. If the express and specific opinions of the authors of the Fourteenth Amendment are not decisive of whether the abstract language of that amendment entitles blacks to attend unsegregated schools, their presumed though unexpressed opinions cannot be decisive of the constitutional rights of homosexuals either. 3
I accused Bork of judging by fiat because he made no serious legal argument at all, but said only that he was “unwilling” to extend a constitutional principle in ways he found unattractive.4 He was relying on his own personal convictions not (as Rees thinks I think) that homosexuals are wicked or should be jailed or discharged—no doubt Bork could “live with” laws that treated them better—but that sexual minorities do not deserve the same constitutional protection that racial or “ethnic” minorities do. Bork has said, in his academic writing, that no moral position is “inherently” better than any other, and he uses that skepticism as an argument why judges should not rely on their moral convictions in deciding how the Constitution should be interpreted. But this is the argument (and only this argument) I said was incoherent. and Rees offers no defense for it.5
It is incoherent because if moral skepticism is the reason why judges ought to decide constitutional cases in the way Bork does, then his decisions presuppose the truth of that controversial position, and it is as much “elitist”—as much assuming his superiority as a moral philosopher—for him to rely on his skepticism as for other judges to rely on their view that skepticism is wrong. In one way Bork’s position might be said to be more elitist because his skeptical view of morality is rejected by the overwhelming majority of Americans whose opinions his style is supposed to respect.
Rees provides his own example of the confusion I tried to expose. He points to the obvious fact that people have different opinions about the “essence” of liberty as an argument for why judges should not rely on any of these opinions. But his own argument depends on his own, controversial, view about the “essence” of democracy. He thinks democracy requires judges to reject any interpretation the framers would have rejected; but “reasonable people” disagree with that view of democracy as much as about any view of liberty, and if the controversiality of liberty disqualifies any constitutional theory that presupposes one view of it, Rees’s own theory is disqualified in the same way.
I emphasize this point because Bork and his right-wing colleagues defend their dismantling of our constitutional law as a campaign against judicial elitism, and it is important to see how silly that is. Each judge must rely on his own convictions, however controversial and however unsusceptible to what Rees calls “proof,” at some level: if a judge defers to majority opinion out of Bork’s kind of skepticism, then he relies, at a more foundational level, on a conviction of moral theory the majority rejects. If he defers to the highly specific opinions of framers, in the way Rees suggests, then he relies on a controversial conception of democracy that our legal tradition has decisively rejected, and that is alien to our constitutional system as a whole. There is no wholly neutral, Archimedean point from which any judge can declare what the Constitution is without relying on political convictions of some sort.
The traditional method of legal analysis I described, which Bork and now Rees disdain, disciplines personal convictions in two ways. It insists that they be principled, that they not draw distinctions like distinctions between racial and sexual minorities, that are left arbitrary and undefended, and it insists that they fit and flow from the history of our legal practice.6 These are the ideals of legality and the rule of law. If Bork’s buccaneer contempt for Supreme Court precedents is typical of Reagan’s judges, as I fear it is, they are ideals about to be despoiled.
I did not say, finally, that I could “prove” Mill’s principle. I said that some version of it would seem to figure in any adequate justification of the Court’s “privacy” decisions, and Rees does not trouble, any more than Bork did, to give reasons for rejecting that claim. The principle requires government to have some reason for restricting liberty beyond the bare fact that the majority is offended by knowledge of the practice it would outlaw. But it does not follow, just from that principle, that a state could have no reason for making prostitution or sex with animals a crime, as Rees suggests. Many people think that prostitution inevitably creates a serious public nuisance for example, and that even animals should be recognized to have a kind of dignity that is outraged when they are used for sexual purposes. These arguments are both debatable, but neither contradicts the version of Mill’s principle I described, and, if they are plausible, a state could accept them without violating that principle.
Mill’s principle, that is, does not in itself define any absolute sphere of immunity, as I acknowledged by describing the arguments the Navy could make within the principle for banning homosexuals from security-sensitive jobs. It does require, however, that some case be made for any political decision that inflicts serious damage on the lives of a minority, some case beyond just the fact that the majority dislikes the kind of people they are or is disgusted by what they want to do in private. We should be proud, not embarrassed, if ordinary legal analysis shows that principle to be part of our fundamental law.
February 14, 1985
“The Forum of Principle,” NYU Law Journal 56 nos. 2–3, to be reprinted in a forthcoming volume of essays, A Matter of Principle (Harvard University Press). ↩
Rees actually says they wanted to live in a society in which the majority had the power to prohibit any practice it found immoral. He cannot have meant that: if the framers had wanted to live in a society in which the majority could prohibit blacks exercising any civil rights, for example, or people making antigovernment speeches, they would have repealed not extended the Bill of Rights. Nor can he mean they wanted the majority to have that power over any sexual practice. What evidence could we have that the framers “wanted to live” in a society in which the majority would have had the power to prescribe sexual positions for married couples? ↩
Rees suggests that Bork’s history might be mistaken. So perhaps Rees would reply that my argument shows only that Brown and the other race cases were wrong, in which case he would presumably think that a Supreme Court of true conservatives should repeal them, as unconstitutional, and reinstitute the right of states to practice racial discrimination. I hope that any future Reagan appointees will be asked, in their confirmation hearings, whether they agree, and if not whether they then agree that the Constitution is not limited by the specific opinions of its framers. ↩
Rees insists that Bork was entitled to rely, as the most specific precedent in point, on the Supreme Court’s summary affirmance of Doe v. Commonwealth, a district court decision that upheld Virginia’s sodomy statute. I wish he had commented on the reasons I gave, which have been widely noticed in the literature, for treating the decision as at best what Bork himself called an “ambiguous” precedent. (See, e.g., L. Tribe, American Constitutional Law, page 943. Tribe says, “Apart from the relatively limited precedential value of such summary affirmances, this one in particular might be thought to stand for relatively little.”) In a “summary” affirmance the Supreme Court does not state its reason for affirming, and affirming would have been amply justified on purely procedural grounds whatever the Court thought of the constitutional rights of homosexuals. In later decisions the Supreme Court has itself made plain that it did not regard the summary affirmance as deciding the constitutional issue. See Carey v. Population Services, 431 US 678, 694, and New York v. Uplinger, 104 S. Ct. Reporter 2332. ↩
Rees’s own skepticism is apparent. His joke, that the argument between Bork and me could be “settled” if Reagan were to appoint one of us to the Supreme Court, is another piece of evidence that the “new” judicial conservatism is actually the old claim of the legal “realists,” that law is only what the judges say it is, and this is confirmed by his remarkable view that judges’ attention to precedent is “primarily” only a matter of “efficiency.” ↩
The old decisions of the Supreme Court Rees and others point to, striking down progressive social legislation, violated rather than honored these requirements. But they do show what I emphasized: that mere lip service to the traditional methods of legal analysis does not guarantee sound legal results automatically. These methods depend on judgments that are always open to criticism. But that is hardly a reason for abandoning them for more arbitrary methods that would have denied us, for example, the Supreme Court’s decisions against racial discrimination. ↩