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Dworkin's 'Originalism': The Role of Intentions in Constitutional Interpretation

Abstract

Ronald Dworkin has criticized traditional theories of constitutional original intent by arguing that the constitutional text embodies multiple layers of intention. Abstract principles are among these layers of constitutional intent, and those principles should be the primary focus of a method of constitutional interpretation concerned with fidelity to the Constitution and the intentions of the Founders. This article argues that Dworkin's reconceptualization of originalism is theoretically flawed. It may be possible to construct a normative theory requiring that the judiciary always enforce abstract constitutional principles in accord with current substantive ideals. Such a theory, however, cannot be reconciled with or be required by an originalist interpretive method primarily committed to fidelity to founding intent.
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Resumen En sentido estricto, Bostock no es un caso constitucional. Más bien, es un caso de derecho laboral: más concretamente, un despido discriminatorio. Neil Gorsuch, que escribe para la mayoría de la Corte Roberts, limita la cuestión a la interpre-tación de la Ley de Derechos Civiles (1964), sin desarrollar un verdadero "argu-mento constitucional". Desde la perspectiva del razonamiento jurídico, Bostock es una decisión originalista. Tanto la opinión mayoritaria como las opiniones discrepantes de Samuel Alito y Brett Kavanaugh son intentos de reconstruir y aplicar el significado original de la locución "por razón de sexo". En esta decisión se entrecruzan varias formas de originalismo: hay un choque entre la doctrina textualista, por un lado, y la doctrina del significado público combinada con ar-gumentos basados en la intención, por el otro. Pero, en realidad, el textualismo de la opinión mayoritaria parece "disfrazar" una interpretación dinámica y evo-lutiva que actualiza el sentido original de la Ley de Derechos Civiles, para incluir la orientación sexual en la protección contra las discriminaciones por razón de sexo. Combinada con otras decisiones recientes, Bostock parece formar parte de una estrategia más amplia de la Corte Roberts, orientada a la sistematización de la ley federal en el ámbito de la discriminación laboral.
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The article analyses the concept of constitutional interpretation of Ronald Dworkin, one of the most eminent representatives of contemporary liberal legal thought. Its basic assumption is the conviction that fundamental laws contain abstract concepts which are the domain of political philosophy (e.g. ‘freedom’, ‘property’, ‘due process’), and that those who interpret them – judges in particular – must refer to axiological, ontological or epistemological findings in an attempt to find the best possible interpretation of such terms. Dworkin rejects the originalist paradigm of interpretation, which assumes a static content of the provisions of the Basic Law. The interpreter is obliged to search for the proper meaning of the constitution, regardless of both the intentions of its drafters and its original public meaning. The article also shows Dworkin’s application of this theory to the First Amendment to the United States Constitution in the area of freedom of speech.
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The objections to the two main justifications for affirmative action made in the first two chapters are not meant to suggest that another, more promising line of argument is unavailable. In this respect, the reconceptualization of the policy undertaken by the liberal-egalitarian1 philosopher and legal scholar Ronald Dworkin deserves a careful examination. As we shall see, Dworkin conceives of affirmative action as a more or less effective means of eradicating a specific disadvantage suffered by all black Americans that stems primarily from the still obvious correlation between “race” and class, a correlation which is itself the product of past injustice. In what follows, some interesting implications of this alternative argument will be underlined, most importantly the fact that it is based on an implicit, debatable yet ultimately plausible political and sociological judgment as to the irreducible distinctiveness of blacks’ past and present social experience. I will then proceed to describe some of the processes generating the specific disadvantage that members of this group are still faced with in more details than Dworkin himself does. But first, let us consider how this sophisticated argument of his fits into a broader conceptual framework.
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In recent years, some have asked: "Are we all originalists now?" My response is: "I hope not!" In this Article, I explain why. But first, I show that there is a trick in the question: Even to pose the question "Are we all originalists now?" suggests that one is presupposing what I shall call "the originalist premise." To answer the question affirmatively certainly shows that one is presupposing it. The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation. Put more strongly, it is the assumption that originalism, rightly conceived, has to be the best, or indeed the only, conception of constitutional interpretation. Why so? Because originalism, rightly conceived, just has to be. By definition. In the nature of things-in the nature of the Constitution, in the nature of law, in the nature of interpretation, in the nature of fidelity in constitutional interpretation! I will sketch some of the problematic assumptions underlying this premise (and thus underlying the projects of many scholars who seek to reconstruct originalism or to put forward new originalisms). Worse yet, raising the question "Are we all originalists now?" may presuppose that we all have come around to Justice Antonin Scalia's and Robert Bork's ways of thinking, without conceding that many versions of originalism themselves have been moving targets that have moved considerably toward the positions of their critics. If I hope we are not all originalists now, what do I hope we (at least some of us) are? Much of the best work in constitutional theory today is not originalist in either an old or a new sense; rather, it is what I have called "constructivist." I am interested in developing a constructivist account of the uses of history in constitutional interpretation. A constructivist world would look somewhat like the pre-originalist world (that is, the pre-Borkian world), although it would be far more sophisticated theoretically than that world was. It would treat original meaning as one source of constitutional meaning among several, not the exclusive source, let alone the exclusive legitimate theory. It would use history for what it teaches rather than for what it purportedly decides for us. In a constructivist world, we would understand that history is a jumble of open possibilities, not authoritative, determinate answers. We would understand that we-self-styled originalists no less than the rest of us-always read the past selectively, from the standpoint of the present, in anticipation of the future. We look to the past, not for authoritative answers, but for illumination about our experience and our commitments. Finally, we would understand that it dishonors the past to pretend-in the name of originalism-that it authoritatively decides questions for us, and to pretend that it avoids the burden of making normative arguments about the meaning of our commitments to abstract moral principles and ends. I argue that fidelity in interpreting the Constitution as written requires a philosophic approach to constitutional interpretation. No approach-including no version of originalism-can responsibly avoid philosophic reflection and choice in interpreting the Constitution.
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This Article suggests that, with the publication of Jack Balkin's Living Originalism, we are witnessing the "Balkanization" of originalism (when originalism splits into warring camps) along with the "Balkinization" of originalism (when even Balkin, hitherto a pragmatic living constitutionalist, becomes an originalist). It goes on to argue that Balkin's living originalism is what Ronald Dworkin has called a "moral reading" of the Constitution, for it conceives the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. Furthermore, despite important differences, there are unmistakable affinities between Balkin's commitment to interpret the Constitution so as to redeem our faith in its promises and aspirations, and Dworkin's commitment to interpret the Constitution so as to make it the best it can be.
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The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court, and the Reagan Administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This Article assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and highlights the primary areas of continuing separation between originalists and their critics.
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This book explains how the debate over originalism emerged from the interaction of constitutional theory, U.S. Supreme Court decisions, and American political development. Refuting the contention that originalism is a recent concoction of political conservatives like Robert Bork, Johnathan O'Neill asserts that recent appeals to the origin of the Constitution in Supreme Court decisions and commentary, especially by Justices Antonin Scalia and Clarence Thomas, continue an established pattern in American history. Originalism in American Law and Politics is distinguished by its historical approach to the topic. Drawing on constitutional commentary and treatises, Supreme Court and lower federal court opinions, congressional hearings, and scholarly monographs, O'Neill's work will be valuable to historians, academic lawyers, and political scientists. © 2005 The Johns Hopkins University Press. All rights reserved.
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I hope that some people see some connection between the two topics in the title. If not, anyway, such connections will be developed in the course of these talks. Furthermore, because of the use of tools involving reference and necessity in analytic philosophy today, our views on these topics really have wide-ranging implications for other problems in philosophy that traditionally might be thought far-removed, like arguments over the mind-body problem or the so-called ‘identity thesis’. Materialism, in this form, often now gets involved in very intricate ways in questions about what is necessary or contingent in identity of properties — questions like that. So, it is really very important to philosophers who may want to work in many domains to get clear about these concepts. Maybe I will say something about the mind-body problem in the course of these talks. I want to talk also at some point (I don’t know if I can get it in) about substances and natural kinds.