October 6, 2005

Ronald Dworkin on John Roberts and Principles of Constitutional Interpretation

The New York Review Of Books has published an insightful piece by Ronald Dworkin, a brilliant political philosopher at NYU, on what we can expect from John Roberts. For those of you who are on familiar, Dworkin wrote an excellent book entitled Sovereign Virtue in which he develops a systematic political philosophy which is capable (if successful) of justifying the voting patterns of moderate Democrats. This is very impressive, as most political philosophies end up in one of three extremes (libertarianism, Marxism, or utilitarianism), or else are hopelessly unsystematic. However, as you might expect I, having adopted one of the three aforementioned extremes, find Dworkin's theory to be flawed, and I find it to be flawed in two places: first, it requires that we develop moral obligations (particularly the obligation to pay taxes) based on actions we would probably have taken in a purely hypothetical situation (the "hypothetical insurance market"). Secondly, it makes the government very much like the Mafia: they try to sell us insurance against the application of coercive force against our person or property, then apply coercive force to us (throw us in prison) if we refuse to buy the insurance. Nevertheless, I was extremely impressed by Dworkin's book and, accordingly, was very interested in his article. (He also once wrote a paper, which I have not yet read, with a title along the lines of "Objectivity and Truth: You'd Better Believe It" - another reason to like him!) The article basically argues, rather compellingly, that Roberts's assertion that he will just follow "the law" are hollow in that following the law requires and overarching theory of legal interpretation, which Roberts claims not to have. As such, he has left himself with a very great amount of room for subjectivity, and has not successfully isolated his jurisprudence from his personal political views. I, for one, think this was him playing politics with the Senate, and that he does have an overarching theory of interpretation, but we will soon see. I didn't appreciate Dworkin's cynical, sideways remarks at justices like Antonin Scalia (a favorite of mine), but he also makes a good point about originalism, a point Roberts himself made during the hearing: the founders may have originally intended that certain parts of the Constitution be interpreted on the basis of current cultural beliefs, and the vagueness of certain portions of the text seem to bear this out (for instance, "cruel and unusual punishment").

Overall: a long article, but worth the time.

Posted by Kenny at October 6, 2005 11:21 PM
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