According to scholar Ronald Dworkin, the Constitution shapes the public debate over issues such as AIDS prevention, pornography, and racial discrimination.
TRANSCRIPT
BILL MOYERS: I’m Bill Moyers. And this leg of our journey in search of the Constitution has brought us to Oxford University in England. John Locke taught and studied here, and was so carefully read by our first statesmen that he’s considered the intellectual father of the American Constitution. The great Blackstone taught here. And every colonial office in the New World had a copy of his Commentaries on the Law. But it’s not the past that’s brought us here today. Almost twenty years ago, Oxford University offered its prestigious Chair of Jurisprudence to a young American professor of law. He was only 37 at the time and since then he’s become one of the most influential philosophers of law in the English speaking world. His views on the current debate over the meaning of the Constitution today are so robust and controversial, they’re making waves on both sides of the Atlantic. John Locke, meet Ronald Dworkin.
RONALD DWORKIN: Somebody looks at the story so far and he says, “I tell you what. The American story is about the principle of sainthood. Our law has been simply the unfolding of the principle that if I have two loaves of bread and my neighbor has none, I must give him one.” Now that’s a very appealing attractive principle. I don’t know any government could actually enforce that principle. I rather doubt it. Nevertheless, certainly at some level it’s very attractive. But no one could responsibly claim that that principle can be seen at work in our history. The same is true of Marxism. I mean, there are those who find the ideals of a classless, Marxist society, a dictatorship of the proletariat, very attractive. It’s not my view, but there are plenty who have that view. But no one could claim that the story so far could find that reading. The past limits us rather severely. It doesn’t mean that there’ s only one choice. That’s the point that I want to emphasize. It rules out a great deal, but it leaves within a fairly narrow compass different readings of our history. And my view is that we must ask , it would be perverse not to, we must ask those who happen to be put in the position of authority on the Supreme Court to reflect, to consider, to try and find articulate principles, to draw these from our history, but then if more than one set of principles fits, to pick that which they think represents the best in our history.
BILL MOYERS: Ronald Dworkin is as much at home on the narrow streets of Oxford as he is the busy intersections of New York or the seacoast of New England. He moves often between these worlds, teaching at University College, Oxford’s oldest, or at New York University, where he is Professor of Law, or writing yet another book joining the theory of law to its everyday interpretation by the courts . For a dozen years now his works have been lavishly praised or sharply contended , but never ignored. His concern has been for principle and how it affects the hard choices society must make in the search for justice. For Ronald Dworkin, the broad sweep of constitutional history in America is an exciting story, a narrative stretching across the centuries with each generation adding new chapters. He compares himself to the literary critic who seeks to understand and interpret the novel-in-process, a story never ending. And it doesn’t matter whether it’s written in English or in American.
BILL MOYERS: I find a paradox in this setting at the University College here. Here we are talking about the Constitution in a country that doesn’t have a written document. Why doesn’t Britain have a written constitution?
RONALD DWORKIN: They think they don’t need it. Course, Britain has a constitution. It has, as you suggest, an unwritten constitution. The main difference between Britain and America in this respect is not that America’s Constitution is written down and the British constitution is a matter of culture and tradition and a statute here or there. The main difference is in judicial review. In the United States, everyone under- stands that the Congress and the President are subject to control by another body, the Court interpreting the Constitution. In this country, Parliament could change the constitution anytime it wants . There is — the idea that a court can decide that what Parliament has done is somehow unconstitutional is simply unknown and the British regard it with some horror.
BILL MOYERS: What difference does it make that a constitution is written? The British seem to have gotten along several thousand years without one. What difference does it make?
RONALD DWORKIN: Well, the main difference is not that the constitution is written in America and unwritten in this country. The main difference is the idea of judicial review, that in America the Constitution is the highest law of the land so that the courts can sit in judgment on what parliament does against this standard of higher, of higher law. I think it makes a considerable difference. In recent years, for example, Britain has run into a lot of controversy about something called the Official Secrets Act. It limits what journalists can do. It would be unconstitutional in the United States. A couple of months ago the police raided the house of a journalist, searching for papers that he was going to use to write a story. Well, that couldn’t be done in the United States. It’d be un constitutional. In this country it raises a matter of political controversy. But no one can say to the prime minister or to the Parliament, “You can’t do that. ” That’s the main difference.
BILL MOYERS: Are the British who look at America surprised that the Supreme Court has such authority to limit what the Congress and the executive do?
RONALD DWORKIN: Yes, they’re amazed at it. From time to time people suggest, happened a few weeks ago actually, people suggest, well, maybe Britain should go down that route. People tried to introduce the European Convention of Human Rights as a kind of written constitution here. The British don’t want it. They think that it’s undemocratic. They think that judges are going to stop progress toward social justice.
BILL MOYERS: What about the difference it makes or doesn’t make to the everyday lives of individuals, that there is a document to which appeals can be made in the United States?
RONALD DWORKIN: I think it changes the character of how people think about their relation to the government. In the United States, people think that there’ s a kind of common enterprise under principle. And if they’re dissatisfied, if they think their rights have been violated, they can run to a lawyer. Everyone makes fun of America for this. You know, de Tocqueville said in America everything always ends up in the courts if it’s important. And we’re, to some extent, the object of ridicule around the world for this . But my own opinion is that it ties us together in a distinct way. We all have the feeling that we’re in it together as a matter of principle, and that there’s no one above the law.
BILL MOYERS: Are the British as prone to speculation about the law as we are and to all of these theoretical debates that rage back and forth in America right now? Some English judge once said that judges in this country are vaccinated against speculation by their career at the bar.
RONALD DWORKIN: Yes, there’s a remarkable difference. The British barrister shies away from theory. By the time he gets to the bench, he’s so frightened of any theoretical speculation that he sort of shudders when any lawyer makes an argument that might touch on philosophy in any way. It simply, simply horrifies him. When I first came to this country, I was a witness — it was a very rather odd trial — was a witness in a pornography proceeding against a book called Inside Linda Lovelace and I was a witness for Inside Linda Lovelace. And the lawyer said to me, “Now Professor Dworkin, can you tell us what the situation would be under the American Constitution?” So I said, “Well, of course, under the American Constitution and so on, you’d be protected. ” The judge leaned down and said, “Are you about to tell us philosophy, Professor Dworkin?” So I said, “No, I wouldn’t’ t think of doing such a thing.” He said , “Then let us pass on to another topic.”
BILL MOYERS: Something of more practical consequence.
RONALD DWORKIN: Yes, indeed.
BILL MOYERS: I guess they must be terribly confused or, at least, curious about the debate in the country right now over “original intent.” Are you surprised that the United States, at this moment, is engaged in such a robust and divisive controversy over principles?
RONALD DWORKIN: I’m quite happy about it. I’m very glad it’s robust. I don’t, myself, think that it’s divisive. I think it’s actually the contrary. I think that when we argue at the plane of principle, when people come in and say, “This is wrong because it violates our traditions .” And other people say, “No, you’ve mis-understood our traditions .” That behind all of the controversy, there’s something that unites us and ties us together. I mean, it’s the story of America.
BILL MOYERS: Is this what you mean when you write about constitutional interpretation as a chain novel, an ongoing story written by many hands and many minds over a long period of time?
RONALD DWORKIN: Yes . I made that analogy because I wanted to resist the idea that every time a constitutional case comes to court, it’s like opening afresh story. That the Supreme Court can just look at it and say, “What do we think ought to be? What do we think justice requires about this?” The Court is writing on each occasion or ought to see itself as writing a new chapter in a story that’s been going on for a very long time. And that means that there’s a constraint on the exercise of its creative imagination. the constraint is just this – it’s got to see itself as part of history, as the story it’s telling is a development of a story that’s been told before. And it’s, therefore, got to show us, it’s got to defend to the American public and to the profess1ion that there’s a strain in what we’ve done before, that the Court is continuing, so it’s only the last chapter.
BILL MOYERS: Alright, let’s take that for a moment because I see a contradiction in that premise. Take the example you used, Charles Dickens’ Christmas Carol. You say, suppose you were given the early pages and then challenged to complete the story. Wouldn’t’ t it make a great deal of difference whether you thought the story, from the first few pages, was about original sin, the character of Scrooge, or about the harmful impact of the Industrial Revolution on society?
RONALD DWORKIN: Yes.
BILL MOYERS: would make a big difference, wouldn’t it?
RONALD DWORKIN: It would make a big difference.
BILL MOYERS: So if you came along to write — well, let’s just take you, Ronald Dworkin. If you were going to finish Christmas Carol, would you decide it was about Scrooge and his character or about the industrial society and the impacts of modernization on human beings?
RONALD DWORKIN: I think I’d say it was about both. That I’d try and show the interrelation between them, but I just think that would be the best way to finish A Christmas Carol. But I accept your point and, indeed, insist on it, that how you see the story so far is going to depend upon your own, in the case of finishing a novel, your own aesthetic taste and conviction. In the case of continuing the story of the American republic, it’s going to depend on your sense of political morality. Every judge’s political conviction is going to affect what that judge sees as the best in our past. That’s certainly true and there’s no blinking it. Indeed, there’s no way that can’t be true. You know, as you’ve said, looking at A Christmas Carol, you can do it in two ways . And you can’t use the text of the opening passages to prove that one is right and one is wrong. I like to put it this way. There are a variety of different interpretations, each of which will fit to, more or less, the same degree, the story so far. And you’ve got to select among them.
BILL MOYERS: When judges are making these decisions, how much tribute should they pay to what’s called “original intent,” the intent of the Framers when they fashioned that document two hundred years ago? What about this doctrine of original jurisprudence that has come to the fore now under the Reagan Administration?
RONALD DWORKIN: It’s very interesting that. I mean, this is an idea that one has heard about from time to time, constitutional history. And I thought it was dis credited, I thought it was gone. And Attorney General Meese and his acolytes have brought it back. The idea seems to be this. That you alway9 go back and see if you can find out what they actually thought their general principles meant concretely or required concretely. Now, of course, if you did that, you’d — it’d mean that we’d be governed in concrete detail by opinions that people had two hundred or a hundred years ago, which is already rather odd. You also don’t know who you’re talking about typically. I mean, think about the original Constitution composed in Philadelphia by the group of extremely distinguished people. But then ratified among the several states, a process that thousands of people participated in. And interpreted by . statesmen and judges over the course of our history. So whose intention are you interested in? And I’ve never had any very satisfactory answer to why you pick out a few of them right at the beginning as somehow special importance. There’s a bigger, deeper problem to the idea of “original intention” that I think people should pay more attention to. You know, you say we should go back , this is a law and you should go back and you should look at the intentions of the people who actually passed this law. People vote for and against statutes and constitutions for a variety of reasons and motives . I mean, most of the time senators vote for a statute in hope that it will help them get re-elected or something. Now we don’t want to attend to that kind of intention. We want to attend to convictions, what they thought was right. That’s what “original intent” should mean. But if you go back and look at “original intention” in that way, then you find the following complexity. Statesmen, certainly including the Founding Fathers of our Constitution, mean to lay down principles as moral principles . They had their own opinions about what these require, but it doesn’t follow that they intend the nation to be bound by the opinions they happen to have. They intend the nation to be bound by the principle.
BILL MOYERS: How do you know that?
RONALD DWORKIN: Well, look , there’s a certain kind of common sense comes into play. In fact, we have some evidence I’ll mention in a minute, but I think the common sense point is — Suppose I say to my son, “Look , I know you’re going to go into business . I want you always to behave honorably in business .” And then Saturday I die and he leads his life and then from time to time he remembers my instructions, so he says, “Oh, I’ve got to go and behave honorably. My father told me to .” And he goes back and tries to find my diaries to see whether he can discover what I thought was honorable behavior. Now there’s a certain craziness to that because what I meant was not, “Do what I now think is honorable. ” I meant, “Do what is, in fact, honorable. ” And he’s got to exercise his own judgment about that. Now you say, “Well, how do we know that the Founding Fathers took that attitude towards what they were saying? That they were laying down a principle, they didn’t mean to restrict it to their present opinions?” We have very good evidence of that. James Madison, for example, if he’s not a Founding Father, nobody is. James Madison said that the records of the Constitutional Convention should not be kept and made available because he didn’t think that people should interpret the general principles they were laying down in the light of the actual, particular opinions they had. So I think , in summary, the” original intention” thing is crazy in principle. There’s no reason to be bound by the concrete opinions rather than the general principles . It’s also self- defeating because if we really did take it seriously, we’d go back and we’d discover that they didn’t mean us to be bound by their concrete, particular opinions .They laid down principles and they assigned us the rather daunting responsibility of living up to them from our own conscience.
BILL MOYERS: If they had intended for us to be bound by the precise debate that took place, they did a strange thing when, at the end of the convention, they actually, in effect, shredded the official record of the debate within Independence Hall.
RONALD DWORKIN: Yes, exactly. And as Madison pointed out, the reason they did this was exactly because they didn’t want the rest of history to be dogmatized y what they thought then. They were writing a constitution.
BILL MOYERS: What do you think was the basic,)fundamental, irreducible principle that they were grappling with two hundred years ago?
RONALD DWORKIN: I think it was something that they might have put this way, as the dignity of the individual. In a way, that’s too crude. They were trying to create a constitutional structure. The first thing they were doing was trying to get a system that will work. They were trying to replace the Articles of Confederation, which had a very bad press at the time. They wanted a structure that would work. But if we pay attention to the Bill of Rights, the things that actually we now argue most about, I think what they were trying to do was to pursue the idea that John Locke had is set in train and the idea that, in a way, the arguments about religious tolerance in England had brought to the front, and that is the idea, the Enlightenment idea, that each individual human being has a life to lead , which is of fundamental importance. And that the dignity of that life had to be respected. That’s what I think the notion of individual rights is all about.
BILL MOYERS: When I think of rights I’ve always thought of individual rights, the right of an individual, protected by the Constitution, against an abstract state enforcing conformity. I don’t want the state enforcing conformity on me. But the new debate in America seems to me to be developing of individual rights against group rights, group rights against group rights, the right of one group in a community to defend its identity and its traditions against another group, the homosexuals versus the Moral Majority. What if my name is Jerry Falwell and my religion, I take sincerely to teach that homosexuality is morally wrong. What is my obligation to the homosexual?
RONALD DWORKIN: I think people in that position have got to ask themselves this question. They’re assuming, perhaps, that in requiring a homosexual to reform that they’re acting in that person’ s interest. I mean, they must be assuming that if they believe themselves entitled to force him to, what they regard as, salvation. They must at least have the justification that he would be a better person, his life would be a better life if they were able to reform him. Then, I think , they have to ask themselves whether a life can be valuable if it’s lived according to a regime imposed from outside, rather than lived from within. So Jerry Falwell better ask himself, “Suppose my life were directed from outside in some way. Wouldn’t’ t that mean that, no matter how good a life it was externally, it lacked a fundamental value of a decent life, namely, autonomy, namely, inner directedness . And I think he’d have to say on reflection, if he was being honest, that he couldn’t tolerate, couldn’t accept that his life would have any value at all if it weren’t lived from the inside. So that means that he can persuade them. He can follow a vocation to argue with them. But what he can’t do is coerce them.
BILL MOYERS: Are you at all concerned that the Moral Majority, so called, is finding in the new conservative impulses of the judiciary sanction for its religious and social views?
RONALD DWORKIN: I wouldn’t’ t be disturbed if it were finding, let’s say, confirmation of its religious views . Because it’s no part of my idea that any particular religious creed or, more generally, way of life should be officially stamped as wrong in principle. What I object to is the Moral Majority finding confirmation of its political opinion, that it’s got the right to impose that way of life on others. That’s what is obnoxious . It isn’t a question of government choosing amongst ways of life and saying to the Moral Majority, “We condemn religious fundamentalism. ” It’s just a question of the government, in my view, through the court as the ideal place in which to say this, is to say something quite different, which is, “We respect your conception of dignity and your fundamentalist view of religion. But, by the same token, we respect competing views of others, and you must let them alone.”
BILL MOYERS: If it were firmly established by science that sexual conduct between homosexuals was the chief means of transmitting the disease AIDS, would the state be morally justified in passing laws regulating homo- sexual conduct? Not individual homosexuals, but homo- sexual conduct? 1
RONALD DWORKIN: My own view, and it’s a subject of some terror, is that the AIDS epidemic, if it progresses in the way people fear, will become the greatest challenge to the idea of individual rights that we’ve had in the country for a very long time. Because you combine both a kind of natural, primitive but very widespread revulsion that people have against homosexuals with the terror that people have about the spread of a contagion and , in this case, a lethal one. There are signs already of this kind of panic. The other day the police in London raided a gay bar and they wore surgical gloves when they went in as a kind of way of suggesting their fear and hatred. So I think we are going to have, if the AIDS epidemic continues, we’re going to be put to a very important test. We’d better approach it with a certain kind of attitude in place. We’re entitled to protect ourselves from disease and, particularly, from fatal disease. Of course we are. But we mustn’t think that we’re entitled to do anything and everything that will slightly increase our degree of safety. See, it’s like the notion of public order. Course we’re entitled to public order, but there’re some things we mustn’t do to achieve marginal gains, like prohibit political demonstrations . So in the case of the AIDS scare, I think we ought to adopt the same strategy. We’re entitled to do some things, but we’re not entitled to do things that would only give us marginal gain and security over alternatives if the devices that would give us the slightly greater gain in personal security would be destructive of the lives of those against whom they would work. Now —
BILL MOYERS: So you might be prepared to require all of us to be tested —
RONALD DWORKIN: Yes.
BILL MOYERS: — but you certainly wouldn’t’ be prepared on principle to quarantine gays or —
RONALD DWORKIN: Exactly.
BILL MOYERS: –tattoo them, as some conservative columnist has suggested.
RONALD DWORKIN: Yes, that’s right. And, again, I mean, one shouldn’t speak about what one would be willing to do and not willing to do in advance of the story as it unfolds . Because we just don’t know what science is going to do or what mutations the virus is going to create. But if we keep that attitude in mind then, though it doesn’t seem to me horrifying to require people to be tested, we’d have to be vigilant about the use of the information.
BILL MOYERS: What about the right of the majority to a stable society? What about the right of the majority to order, to stability?
RONALD DWORKIN: Notice that order, stability, prosperity, these are all ideas that supply in themselves no limit. I mean, to say society has a need for order is not to say society has a need for the most order it could possibly have.
BILL MOYERS: Right.
RONALD DWORKIN: Or prosperity, that it has a right to be as rich overall as it possibly could be. Those very ideas carry with them the notion of balance, of compromise. So the question becomes, when you talk about society’s need or, as some people say, society’ s right to law and order or to prosperity, then I want to say that is just a way of raising the question, “How much? How far is society entitled to go with respect to the rights of individuals in order to have the degree of order that it wants?” Now consider the First Amendment, for example. You might say, well, society has a right to order on the public streets, which would be disturbed when you have parades marching down Fifth Avenue in New York and people have to go around and it takes them two hours to make a trip that would ordinarily take them half an hour. so society’s order is being disrupted. But the Constitution has made a judgment. The judgment is – we don’t want order purchased at the price of inhibiting the free expression of ideas.
BILL MOYERS: Let’s say that the majority of people in the community do not approve of, read or indulge pornography. Does the majority have a right to pass through Times Square and not have its sensibilities offended by the blazened pornography all around one? Does the community, therefore, have the right to pass a law that says pornography shall not be displayed or sold right here in this part of town?
RONALD DWORKIN: Yes, I think so. The important thing is, though, that there’s a difference between saying “shall not be purveyed or displayed in this part of town” and “shall not be displayed or publised or purveyed anyplace. ”
BILL MOYERS: What’ s the difference?
RONALD DWORKIN: The difference is that in the first case there’s a kind of rationing that goes on. That is, we say, society does have an interest in the integrity of its environment and society is entitled to protect that. But there’s a minority of people whose right of free expression, whose right, I would say, of moral independence in their own personal lives is also to be respected. Now the first decision offers what you might call a compromise. It says the right of free expression, the right of moral independence is not the right to have pornography available at the most convenient depot. So that if there’s a part of town suitably marked and identified in which you can go to buy this, then your right of free expression has not been violated.
BILL MOYERS: Nor has my liberty been violated because I have to walk a few blocks .
RONALD DWORKIN: Exactly. I mean, otherwise, my liberty would be violated whenever a corner gr9cery store moves a few blocks away.
BILL MOYERS: So what’s the balance we’re striking there, between the power of the majority to act in a way it finds pleasing to itself, and the right of the individual? What’ s the balance?
RONALD DWORKIN: The balance we’re striking is this, it seems to me. We have to distinguish between two reasons the majority might have for wanting to, in some way, inhibit the sale of pornography, for example. One reason is the reason you gave and a reason I would respect. The majority is entitled to have the design of its environment conducive to the way of life it wants to live. If that’s its reason, then there is nothing in that reason which in any way suggests that there shouldn’t be a part of town, a few streets here or there, set aside conveniently, conveniently for the majority so that those who want to read pornography have got to take a subway ride perhaps. There’ s a second reason the majority might have. And that is because the majority finds offensive that anyone, even in the privacy of his own home, is indulging in this obscene and lewd behavior of reading pornography. Now, of course, if that were the majority’s reason, then the zoning technique, having pornography available some place, wouldn’t satisfy the majority. But in my view, the majority has no right to — it has a right to protect the environment. It has no right to govern what people might or might not do in the exercise bf their own independent moral judgment in their own home.
BILL MOYERS: Take another current, controversial issue that’s being much debated back in the States these days, affirmative action. The Court just decided last week another case of affirmative action. The Civil Rights Act of 1964 had as its chief purpose the ending of discrimination against blacks . Now the courts have been using it to justify singling blacks out for favored treatment. Affirmative action minorities get moved ahead of whites who, themselves, have not been individually guilty of discrimination. Why is it proper for government to keep you or me from discriminating against blacks or minorities if government then turns around and acts out of preference for a minority?
RONALD DWORKIN: Affirmative action programs are of many different kinds and sometimes they consist of quotas . More often, they consist of practices, say, the practice of Harvard University, which just says, among the things that we’re going to look at as goals when we choose an entering class, we’re going to look at a certain racial balance. So affirmative action programs come in many different forms and shapes. I don’t think people think that the Civil Rights Act of 1964 mandated these programs . The question, rather , is whether it prohibits them. Or whether IT doesn’t prohibit them, whether the Constitution prohibits them. You’ve got a phrase in the Civil Rights Act that says that people must — may not discriminate on grounds of race or color. Now I don’t think that that language settles the question of whether people can take race into account as a legitimate means of attempting to reach desirable social goals. After all, would you say that when a university selects entering students and tends to favor those who do well on test scores, that it’s discriminating against those ho don’t? The word “discrimination” to me has a certain kind of pejorative emphasis. So I don’t believe the language settles the question one way or another. I think that when you study the legislative history and you study the language, I think you’re left with the constitutional question. And the constitutional question is what the Court grappled with in the famous Bakke case.
BILL MOYERS: The Bakke case was the one in which it ruled that the University of California —
RONALD DWORKIN: — could not administer a strict quota system to choose applicants for medical school. That it could not use a strict quota system in which it set aside in advance a certain number of places for blacks, no matter how well qualified or ill qualified they were, vis-a-vis white applicants. It said it couldn’t do that. And since that’s what the University of California had done, had an explicit quota system, it struck that arrangement down and allowed Bakke, who was a white applicant, to attend the school. But the Court, in the course of its opinion, said, “We don’t go so far as to say that a school may not take race into account. ” And it specifically mentioned the Harvard application system, which says race doesn’t use a quota, but says race can be one of the things that we look to. Now that decision, and it’s an intriguing one, it’s one that I actually changed my own mind about as I tried to study the issues involved. After all, everyone understands that Brown against the Board of Education was a great breakthrough —
BILL MOYERS: Because it said that little black child had to be treated as an equal.
RONALD DWORKIN: Yes, and it also said that that little black child is not treated as an equal if she can only attend a black school. It required, it said , treating people as equals means integrated education, not segregated education. So what the Court was saying in that famous decision that everyone now celebrates was you can’t discriminate against people on grounds of color. Well now, as you say, the very success of that campaign that the Court started to get color out of the law as a barrier, the very success of that campaign, produced a new idea. And the new idea was, remain — perhaps in certain, selected ways and on a trial and error basis, we ought actually to give some preference to people who are a member of the despised minority for so long. That’s the affirmative action idea. And the opponents of this idea said, “You can’t have it both ways. If it’s wrong to use color as ‘ test to discriminate against blacks, then it must be wrong to use color as a test in their favor.”
That seemed right to me when I first thought about it. But the important thing about our constitutional system is that it requires people who have an immediate reaction like that actually to inspect and defend it on the plane of principle. And what it — it seemed to me, when I tried to do that, that we actually couldn’t justify a principle that would protect Bakke, the white student, in this climate. I’ll tell you, if I may, what seemed to drive me to that conclusion. Of course it’s a principle of justice. In any event, it’s a principle that our constitutional structure has now settled on firmly, that you must not put someone to disadvantage because he is a member or she is a member of a race that has been the object of prejudice. That seems to me a principle that we have to embrace. But, of course, Bakke, the white candidate, was not a member of a race that had been vilified or had suffered disadvantage because of prejudice. So if we’re going to say that it’s wrong to deny him a place and give it to a black candidate, we’ve got to find some other principle. Now what other principle could we find? Well, people say you ought not to be put at disadvantage because of a property over which you had no choice. I mean, Bakke had no choice but to be white, you might say. And, therefore, how can we use his whiteness as a ground to give him less opportunity? In fact, that principle is a principle we rejected. We couldn’t possibly accept that. Because, go back to the normal university method.
RONALD DWORKIN: People are selected, in this case it was a medical school, people are selected for medical school generally, mainly on grounds of ability as revealed in test scores . Well, look , my inability to do well on a biochemistry exam, which is profound, my inability to do well is not something I chose to have any more than I chose to be white or black or anything else. So then you have to think about what other principle Bakke might – appeal to? And I was unable to find any principle that he could appeal to. I mean, I put the point this way. No one has a right to a place in medical school. We expect medical schools to pick people for places — it’s a great advantage, it’s an advantage that very few people can have. We expect our institutions to pick people who will do society some good if they’re given the education. It just happens, it’s sad but it’s true, that in contemporary America being black means that you can perform a function as a doctor that whites can’t perform as well. That is, that you will give honor and be respected and trusted by a section of the community that’s been taught to distrust the whites. And also you can be valuable in a different way.
You can show blacks, if you’re a black doctor, that blacks can make it and can make it in the professions. Now these happen to be talents we need. I don’t think that we have any more reason to bar ourselves in advance by some supposed constitutional principle from attending to that advantage than we would have, for example, for picking gregarious doctors with a good bedside manner. It’s unrealistic to deny that, in this day and age, being black actually has a social value, so that it ranks beside such things as having good hands or a gregarious personality in deciding what would be most useful for us to provide now to the community by way of doctors. And we can all regret that history has produced this. It doesn’t follow we have any right to ignore it.
BILL MOYERS: In your writing you’ve created this ideal, all wise, objective, superhuman judge named Hercules who always has the time and the wisdom to answer what you call “the hard questions. ” What does it mean, in your judgment, for our chances for justice that we have to rely on judges who are human, over worked and simply cannot be deaf to the noise rising from the street out there? They are not Hercules .
RONALD DWORKIN: They’re not Hercules and Hercules never existed except in my fantasy. Look , I use this idea because I think it’s always good , when you’re pressed in, when you can’t help but be aware of the pressures of time, the public concerning debates within the fact that the justices disagree and have to get a formal majority somehow. It’s always good to have in mind some picture of how we would do it if we weren’t su9jected to these constraints . So, I mean, just to take the question about time. Hercules, when he gets a case, looks — has somehow computer-like imagination and memory and he runs through all the law of all the countries and so forth. We can’t do that, but Hercules teaches us something. Namely, that in principle, decisions in cases that seem remote from the present may be relevant after all. Hercules can do it all at once. The justice can do it only in bits and pieces, but he can strive, he can emulate. It’s a role model.
BILL MOYERS: We’re told in Exodus that ordinary judges . solve the easy cases and they took the hard cases to Moses . Do we have a Moses today?
RONALD DWORKIN: No, of course not. We do have, however, something that Moses didn’t have, which is a profession. I mean, we have in legal education, in the nation’s press, which writes, actually writes editorials about constitutional cases, we have a nation engaged collectively in an argument. So we’re not trusting a Hercules or a Moses on his own, coming down from some mountain. We’ re trusting in a capacity that we have and it’s the capacity to debate things in a certain way, as matters of principle. And of course, let me say again, this doesn’t mean that we’ll agree. It doesn’t mean we won’t each be relying on a vision that others don’t share. We have a capacity, nevertheless, to conduct an argument in a certain way. History has shown that we can do that. After all, no theory, nobody’s ever invented a theory about how judges should decide cases under the Constitution or anything else, to kind of protect you from people making mistakes. But at least if we insist that judges compare their notions with history and the way in which an interpretation of a novel can be checked against the text, then at least we’re going to force them to make arguments that we can.
BILL MOYERS: But if the Court puts limits on the majority and the Court puts limits on the executive and the legislature, isn’t — who limits the Court? Isn’t the Court the only branch of our government, in fact, that is not limited by the other two?
RONALD DWORKIN: In one respect that’s right. However , the Court’s jurisdiction is much more narrowly defined. I mean, the Court can’t declare war. The Court can’t decide to have nuclear plants or not, or raise or lower taxes . The Court is in the business of defining the sovereignty of the individual within the grand constitutional scheme. And that’s a rather limited role. Furthermore, the Court’s power is limited by the fact that replacements on the Court, when people die or retire, they’re replaced by the president and they’re replaced by the president representing the last declaration of national purpose. And we’ve seen in President Reagan’s appointments how much control over the work of the Supreme Court that actually gives a sitting president.
BILL MOYERS: Are you troubled in any way by what you see of these new conservatives? I mean, you once were a law clerk to one of the most conservative of all justices, Learned Hand.
RONALD DWORKIN: Well, he was conservative in a way. He was very conservative about the Court going off and having adventures in the protection of civil liberties . And he and I disagreed about that, but he was also a person of profound integrity. That is, he accepted and , indeed , taught me a good deal about the idea of the integrity of the law, of not trying to start a fresh novel but of trying to continue the story so far. And he was rather adept, a genius, at doing this. So I would say, though I disagreed with his political convictions and , therefore, with a good deal of the conclusions that he reached, I certainly thought he was a model of the kind of judicial statesmanship that I’m advocating.
BILL MOYERS: Are these new conservatives different? Sandra Day O’Conner? Justice Rehnquist? Bork on the Circuit Court of the District of Columbia?
RONALD DWORKIN: I think that Justice Rehnquist is a bit different. I think Justice Rehnquist has, this involves a good deal of interpretation and one has to be terribly cautious about attributing general principles to someone else that haven’t been announced, but if I were sort of interpreting Justice Rehnquist, sort of as a literary critic saying what story he’s telling, I think that Justice Rehnquist wants to go back to a, in my view, quite mythic, earlier period of states’ rights . I think he does believe in the kind of majoritarianisrn that I earlier said that I don’t think is part of our story. And I think he believes in this in a rather strong form. Justice Rehnquist said, not in an opinion but in an essay, that though it was, of course, something to be regretted when judges didn’t honor an individual right, when they misunderstood the Constitution and didn’t give enough protection to the individual, though that was regrettable, it was not as serious as when the government made — when the Court made a mistake in the other direction and gave too little power to the majority, too little power to the states.
BILL MOYERS: But some of this concern on his part and the other conservatives corning to power grows out of the fact that although, as you say, the Court, in effect, limits itself over time by new appointees corning on and grabbing the pendulum and swinging it back, it is still true that in our time the federal courts have extended themselves into areas often of the most, constitutionally, petty effort. Just recently there was a federal judge that ordered a warden in a prison to change all the toilets in that prison because those there did not meet minimum humane conditions. Do you think that the Founding Fathers foresaw the Court would be engaged in this kind of minutiae?
RONALD DWORKIN: I doubt it very much. I mean, the Founding Fathers didn’t anticipate an Air Force either.
BILL MOYERS: But an Air Force is not on the same level as — a state can’t have an Air Force. But a state can have a prison system.
RONALD DWORKIN: Yes, yes, I agree. I should say at the start that I think in many cases the courts have gone too far into the detail of bureaucracy. And, however , there’s a certain logic that drives them there, and I think before we’re too quick to criticize you have to notice the logic. Take the question of prisoners’ rights . You start with this overall question: is it part of our national concern for the rights of our fellow citizens that we should have some concern for what happens to prisoners? I mean, people are sent to jail as punishment but not for punishment. That’s been a longstanding idea. So we have to be concerned at the constitutional level, at the level at which we’re thinking about individual rights, about what happens to prisoners . We can’t say that they’ve left the moral community. They’re still members of it. And they’re objects of our concern. So we try and lay down general principles. We say they have to be treated humanely. Well, now when that actually comes down to a case _ and someone comes, through his lawyer, to a court and says, “I’m not being treated humanely,” then he may very well- find himself talking about the toilets and the sanitary facilities. It’s only natural. It’s a kind of humanity that becomes terribly important under prison conditions .Unless we’re pathological, we can’t help treating how our own life goes as a matter of great importance. But I also think that if you, people are honest with them- selves and reflect about why it’s important that our lives as individuals go well, about why it’s so important that we lead a good and valuable life, I can’t think of any reason why that applies to me and doesn’t apply to other human beings as well.
BILL MOYERS: Well, I agree with that and I accept it, but isn’t it enough for the Court to say, “You must take this into consideration, ” but then leave it to the legislature of the state or the executive of the state actually to remedy the past wrong?
RONALD DWORKIN: But what happens, surround that by the iron logic, “Of course that’s desirable. ” Now what happens if the prisoner comes back or , in the case of race, the local black community comes back and says, “But they haven’t done it.” Now what happens? Well, there are two possibilities . The judge can just say again, “Go and do it.” And that’s a process that can continue a very long time.
BILL MOYERS: And has.
RONALD DWORKIN: And has continued a very long time and nothing can happen. Now the pressure on judges actually to issue a decree at this moment, actually to define so the legislature can be in no doubt or the prison warden can be in no doubt about what’s wanted, that’s terribly tempting on the part of a judge frustrated with this, from his point of view, behavior verging on contempt of his original order. Now at this point, of course we worry. Judges aren’t equipped to do this . But the demand, so long as the legislature is recalcitrant, will be intense.
BILL MOYERS: Are you saying that the political system will not often deliver the morally correct conclusion and that we have to look to judges to bring to bear on the community the moral imperative that it imbedded deep within our story?
RONALD DWORKIN: Yes, that’s my view certainly, that that’s the office, that’s what the Constitution does for us. That’s why we revere it, because it gives us what other nations just don’t have. Which is that dimension of politics, decisions rising above the play of interest groups, the press of a budget. After all, the legislature that doesn’t improve the prison isn’t acting out of some meanness. It’s acting out of oppressive, political pressure. And what we have in our country is a different forum. It’s a forum where that kind of pressure is taken off , where the question faced is one of principle. And we’re better off for it.
BILL MOYERS: Isn’t there a case to be made that only by ignoring what appear to be the plain commands of the Constitution has the United States became what it is today? The Louisiana Purchase, the Mexican-American War, the Supreme Court’s protection for so long of what Justice Frankfurter called “finance capital.” That all of these things were done contrary to the Constitution in order to consolidate the growth and the power of American society, so that, in effect, the Constitution was only what, at the given moment, people made it, even sometimes in contrast to the spirit of it?
RONALD DWORKIN: Some of the decisions that you named , I would concede were a violation of the Constitution, certainly. We’ve had this Constitution for two hundred years . It was written in the eighteenth century. It was written for a very small group of states, a very small population. And it’s become the structure under which the most successful nation in history is now governed. And , of course, it’s changed , and some of the changes have been structural changes that were brought about simply by people doing things in violation of the Constitution. And it settled down and people accepted this . On the other hand , the Constitution has proved resilient against people attempting to change it, particularly in recent decades, presidents . I mean, the Watergate episode stands out to a constitutional lawyer as the period in which the Constitution resisted the effort of a president to transform the structure of the American republic by increasing the, most people would say, despotism available to the presidency.
BILL MOYERS: Not even the president is above the law, finally it was said.
RONALD DWORKIN: Yes, yes. So the Constitution there resisted a change. In — I can remember, one long time ago now, when the Supreme Court banned prayer in public schools on the ground that that infringed the First…amendment guarantee of freedom of religion. Well, it’s a debatable decision. But people said at that time,” Look , this just won’t be worn. No one will accept this. The country will continue on as before, they’ll ignore the Supreme Court. ” Well, they didn’t.
BILL MOYERS: Are you saying that the most important work of the Constitution may be in its role as a unifying symbol?
RONALD DWORKIN: Yes . That’s central. I mean, if you think of the Constitution as, two things, first, it’s a document that we revere. But it’s also a structure of principles under which we live. It allows us to have the kind of arguments that other nations find so surprising at the level of principle. Now if , as I think , that’s something that does tie us together , it’s a kind of secular religion that we can embrace together , it’s the only religion we can embrace together, why shouldn’t we be enthusiastic about that? Every country has a sort of mythic past, a glorious formation. And, I mean, England has King Arthur, the Knights of the Round Table, this sort of dim , mythic past. The United States has a glorious past, a mythic foundation that’s still alive. I mean, we revere that document because we have had for two hundred years a constitutional structure that has survived, adapted, under which we still live. I mean, that’s a glorious national achievement, more important than putting a man on the moon.
BILL MOYERS: From Oxford University, I’m Bill Moyers.
This transcript was entered on April 16, 2015.
