What are the strengths and weaknesses of originalism as a method of constitutional
interpretation? What are the strengths and weaknesses of Dworkin’s approach to reading
the constitution? Which is better and why?
To be sure, originalism has considerable theoretical strengths: It is straightforward; it
reduces judicial discretion by focusing on constitutional text and history (which
leaves more room for decision making by the democratically elected branches of
government); and its insistence that the ratifiers' understanding should govern judicial
decision making helps to put judicial decision making on a more democratic footing
since ratification was more or less a democratic act. There are problems, however,
with many of originalism's claims to the theoretical high ground. It is not clear, for
example, that ratification can be fairly characterized as a democratic act since the
ratifiers hardly included a representative sampling of women and minorities. It is also
unclear whether the ratifiers themselves intended future courts to follow their
understanding of the Constitution. And in any case, it is problematic to suggest that a
21st-century judge can meaningfully think her way into the 200-year-old mindset of a
ratifier in order to figure out how he would have approached a modern constitutional
problem. (How would a Colonial-era ratifier answer questions about the
constitutionality of wiretapping under the Fourth Amendment? Is that even a
Dworkin argues that the abstract language of the Constitution was intended by the
framers, and as such, requires a moral reading. Constitutional interpretation is a
species of moral reasoning, the aim of which is not to determine and enforce the
Constitution's intrinsic meaning (whatever that may be in any particular instance), but
to do 'justice.'
See generally Law's Empire (1986).
Consequently, Dworkin, like all
liberals, rejects the notion that the Constitution establishes certain fixed parameters
within which the nation's political process operates, but otherwise leaves the outcome
of that process to the democratic will of the people.
Not surprisingly, he endorses a
constitutional right to abortion and affirmative action, among other liberal causes
The fact that such 'rights' are nowhere to be found in the actual text of the
Constitution, or in the Framers' understanding of the Constitution's meaning, is of no
moment for Dworkin, who has argued that the Framers 'misunderstood' the meaning
of the constitutional language they themselves enacted into law.
See 'The Moral
Reading of the Constitution,' New York Review of Books (Mar. 21, 1996) at 49.
Ultimately for Dworkin, and other liberal theorists, the Constitution's meaning is
limited only by the imagination of five Supreme Court Justices.
This is the 'elaborate
theory of judging' that Mr. Mulhern argues 'has more intellectual mass' than anything
put forward by Robert Bork, Justice Scalia, Justice Thomas, and many other