Henry: Scalia, Dworkin, Vermeule, and Moral Readings of the Constitution

In this blog post, I plan to outline the risks associated with Ronald Dworkin's "moral reading" (Dworkin 127) of the Constitution.

Ronald Dworkin, in his comment on Antonin Scalia's paper, advocates for what he calls a "moral and principled reading of the Constitution" (Dworkin 123) in which "judges must treat [certain Constitutional] clauses as enacting abstract moral principles and must therefore exercise moral judgment in deciding what they really require" (Dworkin 126). Dworkin rejects the idea of a "settled understanding" (Dworkin 125) of the abstract principles outlined in the Bill of Rights. As he notes, "Enlightenment statesmen [like the framers] were very unlikely to think that their own views represented the last word in moral progress" (Dworkin 124). For Dworkin, our understanding of the implications and applications of abstract moral principles in the Constitution changes as society changes.

Scalia takes issue with Dworkin's moral reading of the constitution. Scalia agrees that while certain sections of the Constitution deal with "abstract principles" (Scalia 145), that does not give judges the leeway to use modern moral reasoning in Constitutional interpretation. Scalia uses the example of the Eighth Amendment, which bans "cruel and unusual punishments." Scalia agrees that while this amendment invokes abstract principles, "what it abstracts, however, is not a moral principle of 'cruelty' that philosophers can play with in the future, but rather the existing society’s assessment of what is cruel" (Scalia 145). Thus, for Scalia, we should not determine if modern forms of torture are unconstitutional based on our moral judgment of whether they are cruel and unusual. Instead, we should rely on the hypothetical moral judgment of the framers' generation to determine their constitutionality. Thus, according to Scalia, the moral meaning of a text is "rooted in the moral perceptions of the time" (Scalia 145). Scalia sees this as a way to make Constitutional provisions immune to the temporal drift of moral perceptions. Scalia argues that "the Americans of 1791 surely thought that what was cruel was cruel, regardless of what a more [or less] brutal future generation might think about it. They were embedding in the Bill of Rights their moral values, for otherwise all its general and abstract guarantees could be brought to nought" (Scalia 146). Thus, Scalia believes that proper Constitutional interpretation holds faithful to the moral values of the enacting time period. In practice, Scalia believed that if people come to understand that the Constitution is open to the subjective moral interpretation of the judges, people "will look for judges who agree with them as to what the evolving standards have evolved to; who agree with them as to what the Constitution ought to be" (Scalia 47). Scalia sees this judicial subjectivism as the true danger of a moral reading of the Constitution.

Dworkin believes that "history disagrees" (Dworkin 126) with Scalia. Dworkin writes that in practice, "justices whose methods seem closest to the moral reading of the Constitution have been champions, not enemies, of individual rights" (Dworkin 126-7). Dworkin's litmus test for the effectiveness of the moral reading of the Constitution is whether it preserves individual rights and autonomy. He writes that "the people seem content not only with the moral reading but with its individualist implications" (Dworkin 127). Dworkin highlights what he sees as "the advantages to individual freedom that have flowed from judges’ treatment of the great clauses as abstract" (Dworkin 127). Ultimately, Dworkin believes that his moral reading of the Constitution best promotes liberal ideals using the abstract principles in the Constitution.

Another constitutional scholar, Adrian Vermeule, in his Atlantic article, "Beyond Originalism," presents a competing view of the proper moral reading of the Constitution. Vermeule believes that "originalism has now outlived its utility" and is wanting of replacement by a "robust, substantively conservative approach to constitutional law and interpretation" (Vermeule). Vermeule coins the term "common-good constitutionalism" to describe a legal theory "based on the principles that government helps direct persons, associations, and society generally toward the common good" (Vermeule). According to Vermeule, common-good constitutionalism's "main aim is certainly not to maximize individual autonomy or to minimize the abuse of power" but rather to "promote peace, justice, abundance, health, and safety, by means of just authority, hierarchy, solidarity, and subsidiarity" (Vermeule). In practice, Vermeule believes that "the Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism" (Vermeule). 

In some key facets, Vermeule's common-good constitutionalism is similar to Dworkin's moral reading of the Constitution. Vermeule writes that common-good constitutionalism is "methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent" (Vermeule). Dworkin might argue that Vermeule's moral reading of the Constitution does not square with "the skeleton of freedom and equality of concern" (Dworkin 123) outlined in the Constitution. Vermeule might respond that "Constitutional words such as freedom and liberty need not be given libertarian readings; instead they can be read in light of a better conception of liberty as the natural human capacity to act in accordance with reasoned morality" (morality, of course, as understood by Vermeule). Vermeule, like Dworkin, believes that "the sweeping generalities and famous ambiguities of our Constitution, an old and in places obscure document, afford ample space" for a moral reading (Vermeule). That said, Vermeule and Dworkin simply have substantially different understandings of what that moral reading ought to look like.

Ultimately, I tend to agree with Scalia's assessment of the risks associated with moral readings of the Constitution. As Dworkin and Vermeule show, those moral readings can diverge quite sharply.