Dworkin, the Bard, and Boumediene

Catching up on my reading from the August 14 issue of the New York Review of Books, I was struck by a passage from Ronald Dworkin’s review of the Supreme Court’s decision in Boumediene v. Bush. Dworkin explains Justice Scalia’s dissent as based on an historical view of the extension of the habeas writ. According to Justice Scalia, the writ “could not possibly extend farther than the common law provided when that Clause was written.” Dworkin writes:

Was Scalia right to make the history of the Constitution decisive? We can read the suspension clause in two ways. We can take it to declare, as Scalia did, that the United States should never deny any prisoner the rights he would have had if he had lived in England or America in 1789, except in rebellions or invasions. Or we can read it to state a constitutional principle: that except in those cases government must allow anyone it imprisons the right to challenge his imprisonment in court. Like other constitutional principles, this requirement could not be read as absolute. It would not require habeas rights when it would be impossible or particularly burdensome to grant them—for example, if a prisoner would have to be flown to a US court from a battlefield abroad.

That qualification would not, however, allow government to escape habeas responsibility by building its prison camps in a foreign territory that is as much under its control as any base in this country. As Kennedy said, “The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.” Scalia’s historical reading demeans the Constitution and insults those who made it. It is absurd to translate their clear declaration of principle into a rule pointlessly limiting prisoners’ rights to those enjoyed at some fixed and essentially arbitrary date. Kennedy adopted the second, principled, reading. The scope of the constitutional right to habeas corpus, he said, should be determined by what he called a “functional” test: the right should be available unless it would be, in his words, “impracticable and anomalous” to grant it—as it would be in the midst of military operations. (emphasis added)

I want to share some reflections on the italicized sentence, and in particular the following claim: “Scalia’s historical reading demeans the Constitution.” Is Dworkin right? Is the Constitution the kind of thing that can be demeaned? Does Justice Scalia demean the Constitution? I would like to suggest that the answer to all three questions is “yes.”


Whether the Constitution can be demeaned, and what counts as having demeaned it, depends on what kind of thing we take it to be. Dworkin has argued for years that the Constitution is a text requiring interpretation; the objects of interpretation are not mere assemblages of words, however, but the principles the text embodies. If the Constitution enacts principles, yet is read as assemblages of words, then the status of the Constitution – what it does, what it means, and the respect it is owed – is diminished. This proposition forces us to consider whether the Constitution is properly understood to embody principles. For example, does the Constitution embody the principle that government must provide equal treatment, status and concern for all persons? Or does the document embody the principle that “[l]iberty protects the person from unwarranted government intrusions into a dwelling or other private places” as Justice Kennedy states in Lawrence v. Texas? It would perhaps seem apparent that the Constitution is chock-full of principles of this kind. Moreover, the substance of many Supreme Court opinions is based on articulating these principles and the conditions of their application. Accordingly, the Constitution suffers a dignitary harm when we fail to accord it the status of principle when it does in fact embed or embody one. That is, we demean the Constitution – fail to accord it proper respect – when we treat it as presenting assemblages of words when it in fact announces principle.

Justice Scalia’s interpretive method asks us to determine what the words meant to the average late-Eighteenth century speaker. In his A Matter of Interpretation, Justice Scalia makes clear that what he looks for in the Constitution is “the original meaning of the text, not what the original draftsmen intended.” (p.38). Meaning is understood as the extension of the word, or as Dworkin and Jack Balkin have each described Justice Scalia’s position – meaning is the expected application or extension of the words or provisions. Evidence of meaning for Justice Scalia is to be found in the actual practices in which the words functioned.

Nothing I’ve said tells us how to determine when the Constitution is about principle and when it is not (when it is about allocating powers, for example). The point is only that when the Constitution announces a principle that is taken to be mere words, the Constitution suffers a dignitary harm. The thought that the Constitution has a particular status seems right to me. Moreover, that status is bound up with the role it plays in our political system as announcing certain principles to which we are committed, even if efficiency or necessity should tempt us to abandon our commitments in favor of constitutionally unconstrained action. No doubt, the Constitution is comprised of words, but when we want to examine constitutional meaning, we often look to the principles constituted by those words. To look only at words is to see only the elements of the composition, and never the composition itself.

The conflict between Dworkin/Justice Kennedy and Justice Scalia is as follows. Dworkin claims that the Constitution announces the following principle: except in cases of rebellion or insurrection, “government must allow anyone it imprisons the right to challenge his imprisonment in court.” Justice Scalia, by contrast, treats the provision as words that had a definite meaning to particular individuals at a historic moment, and that in virtue of that meaning, had an expected extension.

I cannot resist the temptation to suggest the debate is not unlike the following exchange from Shakespeare’s Hamlet:

Polonius: What do you read, my lord?

Hamlet: Words, words, words.

Polonius: What is the matter, my lord?

Hamlet: Between who?

Polonius: I mean, the matter that you read, my lord

Hamlet: Slanders, sir;

Act II, ii, 191-197.

Justice Kennedy and Ronald Dworkin want to know what is the matter – looking for a substantive principle – to which the writ of habeas, and the limitation on its suspension, are addressed. Justice Scalia, by contrast, responds that he reads only words.

If the Constitution embodies principle here, as Dworkin suggests, then Justice Scalia demeans the constitution by treating it as only words. Although I am not defending the claim here, I think that the matter is one of principle, and thus that Justice Scalia does demean the Constitution. Perhaps he even slanders the Constitution by ascribing to it a lesser status. If Justice Scalia is right, the worst offense Justice Kennedy has wrought to the document is the improper elevation of its status by aggrandizing it. In a close choice between principle or words, it may be better to avoid the dignitary harm and risk the mistaken courtesy.

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7 Responses

  1. A.J. Sutter says:

    Nice post.

  2. David Bernstein says:

    I assume that Dworkin also agree that the Contract Clause embodies the principle of liberty of contract, that the Takings Clause embodies the principle that property rights should be sancrosanct, and Tenth Amendment embodies the principle that the Federal government is one of limited and enumerated powers, with the states being the primary sovereigns. Or are those “only words?”

  3. A.J. Sutter says:

    Apropos of the comment immediately above, it’s a sad commentary on our present era that one should be putting economic rights on a par with an individual’s right to be free from unjustified imprisonment. Ditto for the federalism issue. Even a quarter century ago, I don’t think many people would have made such comparisons so glibly.

  4. David Bernstein says:

    A.J., I thought we were talking about what the constitution says, and supposedly respecting the constitution, not just reading our own views into it. Or maybe it’s Dworkin who “demeans the Constitution” when he does not like its principles? Surely, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” embodies a principle, just as much as the habeas corpus provision does, even if you don’t happen to think as much of the relevant principle.

  5. Orin Kerr says:

    By coincidence, I was talking to the Constitution just the other day and I asked it this exact question. It told me — and this is a direct quote — “Nino is a funny guy, yeah, sure. But Ronnie, that dude demeans me more than anyone!” So I don’t think we need to speculate about this anymore, as we have a direct quote from the Constitution itself.

  6. Chris says:

    “Whether the Constitution can be demeaned, and what counts as having demeaned it, depends on what kind of thing we take it to be.”

    Amen!

    “Nothing I’ve said tells us how to determine when the Constitution is about principle and when it is not …. The point is only that when the Constitution announces a principle that is taken to be mere words, the Constitution suffers a dignitary harm.”

    To say that taking the Constitution to be merely textual “harms” it is to presuppose that it isn’t textual already. But why think that, when you agree you haven’t presented a method for figuring out the nature of particular provisions?

    Orin: “By coincidence, I was talking to the Constitution just the other day and I asked it this exact question.”

    As it happens, I spent a good bit of the summer talking to the Constitution–or rather, investigating its self-presentation in the phrase “this Constitution.” I argue that the phrase refers to the historically-situated text, not (inter alia) Dworkin-Gallie-style principles.

  7. see, that’s probably why the Constitution is in (self-imposed) exile – its feelings have been hurt one too many times by that demeaning SOB, Antonin Scalia.