Legal Commentary

Mike Dorf has an interesting post about why right-wing "Dworkinianism" has never developed on the right.  Of course, as a commenter there suggests, if right-wing constitutional interpretation is equivalent to originalism, it isn't much of a mystery why right-wing "Dworkinianism" never got off the ground.  But the equivalence between originalism and conservatism doesn't seem necessary to me without argument (unless one has a very thin account of conservatism as traditionalism or somesuch) -- and so the question seems fair.

Dorf's "guilt by association" argument certainly seems plausible -- yet Amar and Balkin, both liberals, seemed able to get past "guilt by association" to embrace forms of originalism.  And, yet, the very idea of associating with Dworkin so scares all conservatives that they can't consider making "political morality" and "fit" arguments on their side of the aisle?  Something else must be at work also. 

It is also possible that the example of Barnett proves that the question has a false premise.  That is, there is a whiff that conservatives have found a way to smuggle political morality and fit arguments through the construction/interpretation divide: right-wing "Dworkinianism" happens through construction, not interpretation.  That still leaves some room for Dorf's query, though.  Perhaps the answer is, after all, a version of Tushnet's thesis that a conservative theory of legitimacy (whether a consent theory or some other meta-view about political legitimacy) simply doesn't allow for anything but originalism at the level of constitutional interpretation.  I think I've suggested something like this in The Perpetual Anxiety of Living Constitutionalism (i.e., that there is a deep connection between originalism and a view of political legitimacy).

UPDATE:  Check out Larry Solum's helpful contribution to the conversation here.