Balkinization  

Thursday, February 14, 2013

What Were Dworkin's Most Important Ideas?

Stephen Griffin

The passing of Ronald Dworkin stills a great and powerful defender of the American liberal tradition.  From a historical point of view, how did Dworkin contribute to that tradition, especially as it relates to our understanding of the Constitution?  To my mind, two of Dworkin's early contributions still stand out for their historic significance.  It is hard to recall now, but liberalism in constitutional law before Dworkin was often skeptical that moral values could take a leading role in constitutional interpretation.  The origins of this skepticism are well described in Ed Purcell's essential book The Crisis of Democratic Theory and exemplified by Herbert Wechsler's critique of Brown and John Hart Ely's reluctance to concede that democracy had to be defended using moral arguments that were inevitably controversial.  From the beginning, Dworkin was a determined critic of moral skepticism.  Like John Rawls, his writings created an inviting space in which there could be a reasonable debate between opposing values.  Although I may be wrong, I have always thought that Dworkin's "right answer" argument could be understood as an anti-skeptical thesis.  If one was not a skeptic about moral values, then some version of the "right answer" thesis followed.  Anyway, that's the thought that occurred to me after I was lucky enough to study Law's Empire in Dworkin's seminar at NYU in 1986.  He was of course a brilliant teacher and a wonderfully engaging person.

The other early, important idea was that of rights as trumps.  Here the argument was that if you had a constitutional right, if you really had a right, then you had something that could not be overcome by a passing majority or what I believed Rawls referred to as "the calculus of social interests."  Again, it is hard to recall that the constitutional law of the time seemed to be dominated by a Frankfurterian balancing of the interests approach.  There were exceptions, such as the flag salute case in which Frankfurter dissented.  But a Frankfurter-influenced legal academy sometimes seemed reluctant to argue for rights that could stand as pillars of freedom and equality that could not be eroded.  This insight has perhaps been absorbed into the general corpus of liberal thought.  But Dworkin was an early and distinctive voice in support of this valuable idea.  We will all miss the author of these and many other contributions to the liberal tradition.

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