Academic

Check out Leib on Dorf on RIght-Wing Dworkinianism

By Lawrence Solum

Check out Ethan Leib on Michael Dorf on Right-Wing Dworkinianism.  Here is a taste:

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. 

There are two points I should like to make here.  (1) We need to distinguish explicit reliance on Dworkin and the general conceptual structure of law as integrity from implicit reliance on the Dworkin's basic picture--that the content of the law is determined by the method "fit and justification.  Conservatives who implicitly rely on the idea that the content of the law is determined by the theory that best fits and justifies the legal landscape might nonetheless eschew labeling thier views as "Dworkinian," because of the strong association of Dworkin's general theory of the nature of law with Dworkin's political views. (2) I believe that implicit Dworkinian is almost as pervasive on the right as it is the left.  Implicit Dworkinianism is the standard mode of normative legal scholarship for most doctrinal fields in which caselaw predominates.  The exception is formalism--neoformalists of various stripes reject the imperial ambitions of the Dworkinian picture--that is, they reject the claim that the method of fit and justification explains everything.   Barnett is a complex case: Barnett was explicitly a Dworkinian before he embraced "The New Originalism" and there are still Dworkinian elements in his theory of constitutional construction--as Leib perceptively observes.

And speaking of Leib, I want to recommend his The Perpetual Anxiety of Living Constitutionalism.

Full post as published by Legal Theory Blog on June 09, 2008 (boomark / email).