Dworkin's Justice in RobesMike Rappaport

I have been reading Ronald Dworkin's Justice in Robes, which I find interesting, but problematic.  Here I want to discuss a small mistake but one that I think may be indicative of something important.

In the beginning of the chapter on Originalism, Dworkin notes that George Bush promised to appoint judges who adhered to the intentions of the Constitution's framers, and cited Dred Scott as an example of what happens when one does not enforce the framers' intentions.  Dworkin writes:

Bush is not a constitutional scholar and his mistake was evident: Dred Scott was an example of justices not ignoring but enforcing the framers' intentions because the original constitution contemplated slavery.  But his meaning was clear enough: he meant he would not appoint the kind of judges who voted in the majority in Roe v. Wade.

I mention this because Dworkin's statement is clearly mistaken.  His suggestion that Dred Scott would have been justified under originalism (even original intent originalism) because the constitution contemplated slavery is puzzling.  Originalists generally believe that Dred Scott was wrongly decided.  But that is not because they ignore that the constitution contemplated slavery.  Rather, they believe, as Justice Curtis argued in his dissent, that Chief Justice Taney and the majority misapplied the provisions of the Constitution.  For example, they believe that the diversity of citizenship clause did not exempt free blacks from citizenship.  It said nothing about blacks and there was no reason to infer any prohibition.  In fact, the Constitution itself drew a distinction between slaves and free people, providing in Article I, section 2, that Representatives and Direct Taxes shall be apportioned among the several states which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons. . . , three fifiths of all other persons."  Thus, free blacks would count for representation and would be citizens. 

One might believe that I am picking on a single sentence by Dworkin here, and I am.  But when he suggests that a nonconstitutional scholar like President Bush has mistakenly applied the constitution, with a sentence that betrays his own misunderstanding of the constitution and its history -- a misunderstanding worthy of a nonconstitutional scholar -- it is worth calling him on it.

Comments

[y81]

Well, you aren't going to be very popular in the faculty lounge, if you insist in reading Dworkin closely when he criticizes President Bush and responding. Bush is ee-vul! That is rule number 1 of academic life. Your cavils about originalism clearly mark you as a torturer and war criminal.

[dearieme]

Historically, did white indentured labour count as free?

[Tom Smith]

This may be an example of something Brian Leiter said in a speech he gave some time ago, that Dworkin seems careless about other people's views and frequently mischaracterizes them. This has made him much less influential among jurisprudes than he might otherwise have been, Leiter claims. In Dworkin's defense, getting all the various nuances of jurisprudes' views right seems like it would be very tedious work, but it is work Dworkin has chosen. Maybe he is a kind of anti-Guido: he would have made a better judge than law professor. Not better for the republic, mind you, just more suited to his personality.

[Gail]

In response to dearieme: I read something about the 1790 Census recently. If I'm remembering correctly, white indentured servants were regarded as "free" under the 1790 Census. Then again, prisoners and institutionalized lunatics were also counted as "free." The distinction was free/slave, not free/not-so-free. On the other hand, the 1790 Census was quite clear that black and slave were not equivalent. There were three categories: free white, free non-white and slave. Free blacks were in that second category.

[tvk]

Actually, I am not sure you are being compeletely fair to Dworkin here. Originalists do tend generally to believe that Dred Scott was wrongly decided. They also tend to believe that Plessy was wrongly decided and that Brown was rightly decided. That is because everybody believes these things. If an originalist was to write a persuasive defense of Dred Scott, that would create problems for originalism and not for the 13th Amendment. It is politically untenable, even with academic tenure, to write in defense of Dred Scott. See Ward Churchill.

Can a non-frivolous case at least be made that Dred Scott was consistent with orignialism? I think it most certainly can. The distinctions you point to are hardly dispositive of whether free blacks could be citizens; so the question resolves around inferences on both sides.

Originalists have always had to bend over backwards to show that their theory is consistent with modern political preferences (Dred Scott is wrong, Plessy is wrong, Lochner is wrong, and Brown is right). But the framers were not omnipotent. Some day, originalists are going to find a popular decision (on the scale of Brown) that they can't find an originalist argument for. Indeed, most would put Brown in that category--originalists have had to reinvent their arguments in light of history to conform. Put another way, if originalism can be turned and twisted to fit whatever popular result eventuates, then it loses its core meaning.