Constitutional Interpretation as Fairness: Ronald Dworkin and the Axioms of Obamacare

Ronald Dworkin, a liberal supernova who has long radiated more heat than light, seems to be fading faster than we knew. In a recent piece in the The New York Review of Books (“A Bigger Victory Than We Knew,” August 16, 2012) he embraces a liberalism so platitudinous it would make even his academic colleagues blush, if he taught anywhere other than a top-10 American law school. For him, the Affordable Care Act satisfies “a fundamental requirement of political decency.” Obamacare’s baffling and formidable mixture of mandates, regulations, and taxes can, it seems, be derived almost syllogistically from a conception of justice as fairness, though Dworkin also claims that the scheme “is less efficient and rational than a single-payer system like Great Britain’s” (something a legal philosopher oughta know). 

Dworkin finds it “depressing” that the Supreme Court’s upholding of the Act came as a surprise to members of the public. After all, “They could not have formed that expectation by reflecting on constitutional law; almost all academic constitutional lawyers were agreed that the act is plainly constitutional.” And as we all know, the Constitution is what academic constitutional lawyers say it is.

It’s hard to tell what pains Dworkin more—the fact that Anthony Kennedy, the “least doctrinaire” of the judges who are so used to “ignoring argument and overruling precedent to remake the Constitution to fit their far-right template,” signed the “intemperate” and “outrageous” dissent that was so full of political “venom”—or the fact that John Roberts lied about being reluctant to overrule the national legislature, in aid of providing political cover for himself and the Court as, in the near future, they abolish affirmative action, support traditional marriage, and constrict voting and abortion rights.

Or perhaps the thing that really gets his goat is that we’re saddled with an “eighteenth-century constitution” that makes it challenging for progressive judges to argue convincingly for the outcomes they deem the document demands. Chief Justice Roberts—by no means the sharpest or straightest knife in the drawer according to Dworkin—must rely on “alchemy” rather than jurisprudence to save the day. On this, Dworkin and Roberts’ conservative critics agree. In the words of Mark Twain, “There was things which he stretched.”

But while conservatives would allow that Roberts at least told the truth on the commerce clause, Dworkin wouldn’t. The distinction between activity and inactivity doesn’t hold, according to Dworkin, having no basis in text, precedent, or principle. He doesn’t mention the logic and structure of the Founders’ Constitution, intending as it does to preserve the sovereignty of the states in the vast majority of regulatory matters, or the fact that the Founders would not have recognized a claim that the national government has the power to dictate the healthcare choices of individual citizens of those sovereign states. Such minor details must of course bow before the claims of principled decency, especially when “a uniform national scheme” appears “imperative.” So perhaps it’s more true to say the Constitution is what academic constitutional lawyers with undying belief in the efficacy of bureaucratic management and national power say it is.

Dworkin is bothered by Roberts’ blindness to the wisdom of placing the Constitution in such expert hands. He’s equally bothered by the fact that Roberts fails to embrace enthusiastically enough his own argument that the Act’s mandate provision is constitutional if it’s considered a tax. Far from being a weak but possible fallback position that allows a deferential judge to uphold a legislative scheme, the national taxing power must be understood as plenary so long as it overcomes self-interest in the name of “fairness.” The taxing power allows for true and comprehensive “social insurance.” Dworkin in effect embraces what Paul Ryan laments: everything is free but us.

According to Dworkin, it’s finally time for courts to recognize what they really should be doing: interpreting constitutional text “by finding principles that justify it in political morality.” Not the Founders’ eighteenth century morality, of course, but ours (that is to say, academic constitutional lawyers, or almost all of them at any rate). Statutes that respect such principles of political morality are constitutional ipso facto. What after all could be more neutral and less controversial among the people who count?

John Podhoretz recently wrote that “So insulated are many, if not most, American liberals that they simply presume that which they despise is inherently despicable, and that what they fear is inherently fearful. As they gather in their echo chamber, all they hear are voices resounding with the monstrousness of redesigning Medicare and the parlousness of cutting the federal budget.” Dworkin’s liberalism comes across as self-assured, sad, and tired as The New York Review of Books itself. The odds are at least even that Mitt Romney will be elected President on an explicit promise to repeal Obamacare. If that comes to pass, Ronald Dworkin and most everyone in the NYU faculty lounge will be surprised—nay shocked—because between them they won’t know a soul who voted for him.