We seek to explain the origin and trajectory of originalism in American legal thought today. Originalism, we argue, is a modern entry in a very old debate between two different approaches to law. One understands law as a project; the other, as a system. Together, these are the master narratives of law. We begin with the most famous jurisprudential debate of mid-century: the Hart-Fuller debate. Hart places himself at the end of a jurisprudential line of development that models law as a project guided by utilitarian standards. Fuller responds by arguing for an internal morality of law – an immanent order of system. From Hart-Fuller, we move on to Ronald Dworkin. The power of Dworkin’s position, we argue, lies in his synthesis of project and system. He defends a systemic idea of legality – the law is “working itself pure” -- linked to a project idea of legitimacy – citizens must understand themselves as the authors of the law. By the end of the century, scholars and judges were uneasy about the possibility of such reconciliation. Originalism is the jurisprudence of project arising in response to the post-war success of a jurisprudence of system. Several signs suggest, however, that originalism’s triumph is only a moment in the contest over the fundamental nature of legal order
Pour citer cet article : Paul W. Kahn et Aurélien de Travy, « Jurisprudence and the American Legal Imaginary : Hart, Fuller, Dworkin and the Origins of Originalism », Droit & Philosophie, no 13 : Aspects de la pensée juridique américaine, 2021 [http://droitphilosophie.com/article/lecture/jurisprudence-and-the-american-legal-imaginary-hart-fuller-dworkin-and-the-origins-of-originalism-311]
Two Models of Law: Project and System
riginalism and its statutory twin, textualism, are now so closely associated with the Supreme Court’s conservative majority that the most important debates occur within, rather than about, these interpretive practices. Increasingly judges and scholars occupy the many rooms of the originalism mansion. In this article, we focus not on the layout of the mansion, but on its foundation. Originalism, we argue, is a modern entry in a very old debate between two different approaches to law. One understands law on the model of a project; the other, as a system. Originalism is a jurisprudence of project. It arose in response to the post-war success of a jurisprudence of system. Approached in this way, we can see a surprising connection between originalism and positivism. They both advance an idea of law as the product of a project; they share a common enemy in systemic approaches to law.
Today, many judges, scholars, and students think of originalism as the natural approach to legal meaning in a democratic political order. The role of the judge, on this view, is to advance the lawmaking project authored by the people and their elected representatives. Originalism grounds the meaning of law in the plan of the authors. However natural this may now seem, originalism rests on the ashes of systemic approaches. The latter half of the 20th century was the site of a vast jurisprudential debate between project and system.
Absent an awareness of this debate, originalism looks as if it emerged as a correction to judicial overreach in the pursuit of liberal ends. We do not deny this, but the interesting question for us is why the reaction took this form. There is no necessary relationship between conservative politics and an originalist jurisprudence or even between that politics and a jurisprudence of projects more generally. Early in the 20th century, for example, conservative politics pursued a systemic approach to law. To understand how conservatives end up as supporters of the originalist project, one must look at what it was they were arguing against.
To understand the origins of originalism, then, is to put it in its proper place in this late 20th century debate between a jurisprudence of system and a jurisprudence of project. Project and system are distinct, but linked, frames of mind. They are like the famous duck/rabbit image. The single image can be seen as a duck or a rabbit. It cannot be seen as both at once, but one’s perception can move back and forth between the two. That seeing as determines a set of expectations, connections, and questions, which sustain different forms of inquiry. Law is like that duck/rabbit image. Whoever says duck will hear rabbit in response, and vice versa.
When we say that law is imagined as a project, we are pointing to a cluster of features that have their origin in the ordinary projects of daily life. The project imagination in law approaches legal rules as if they were made by distinct, identifiable authors deliberately engaging in design and enactment. On this view, the idea of a law precedes its production, just as the idea of a house precedes its construction. If law is the product of a project, it comes into existence at a distinct moment of time – for example, the moment the legislation was passed or a case decided.
The systemic imagination identifies different features and appeals to different categories. A theorist inclined toward system might say that legislation is only declarative of an order that predates the formal expression in a legal text or that a statute only gains meaning as it is read within the surrounding order of legal principles. Law, on his view, is immanent in the social order; it has no identifiable beginning, but is always in a process of growth. The judge is developing and perfecting the existing law, not legislating, even when she ranges wide of the text she purports to be applying. Her role is not fixed by the past; rather she is pulled into the future, for a system strives to realize itself.
The picture of project offers the simplest explanation of the origin of order. Projects can extend from artisan to creator; they can involve objects in the world – for example, a house – or social structures – for example, a law. A legislature has law creation as its project; a people may take up the project of creating a new constitution. A project has a beginning in the action of a free subject, who explains his actions by referring to his intentions. Those intentions may reflect a well thought out theory or simply the agent’s interests. To make a constitution is to take up a project informed by political theory; to make dinner is to take up a project informed by interests. Even the latter, simple as it is, requires an agent capable of reason and decision. He can change his mind and prepare a different dinner.
Projects are the way in which a free agent occupies the world. An animal will look for food, but it will not plan its dinner. An animal can build a nest, but that is not a project because the animal could not have decided to experiment with a new design. It could not have been other than it is, while that “might have been” is critical to projects and thus to freedom. At stake in the picture of law as a project, then, is not just an idea of order but also of the relationship of law to agency. Law as project is law made by an author.
To explain phenomena on a systemic account is to give a narrative of how the particular fits into the whole. Instead of looking backwards to a point of origin in a decision, we offer a synchronic account of reciprocal support among elements: parts, organs, or functions. A system is always greater than the aggregate of its parts. It has the curious temporal quality of preceding the elements that constitute its parts. Its parts are not put together from a blueprint, but grow in a process that has no determinate beginning or end. The acorn grows into the oak not as a project, but as the realization of a systemic whole. How, we wonder, does the acorn, know what it is to become?
The market is the paradigm of system among social phenomena, and economics was the first science of the social. It formalized the idea that human interactions – the social – can have an order that is not the consequence of anyone’s project. An idea captured early on in the slogan, “From private vices, public goods.” An economy displays lawful regularities, but they are not the product of any participant’s project. Participants engage in transactions; they do not set out to follow the law of supply and demand. Economics is the study of the systemic order that emerges spontaneously from individual transactions of barter and trade. Systemic order precedes the knowledge of it – just the opposite of a project in which an idea of order – a plan – always precedes its realization.
These two pictures are as old as the West. The creation account in Genesis is of God’s project: free action of a subject capable of deliberation, decision, and judgment. The project takes time – six days – and is subject to an external, normative evaluation – it was “good.” Arguably, the systemic view also begins in the Garden. Before the arrival of the Serpent, Adam and Eve contemplate the well-ordered nature of the garden in which everything works harmoniously as parts of a single whole. Their role is only to name, not to make, this creation. They have no measure of goodness apart from what is. Their sin is to take up the temptation to have a project of their own.
We are not done with this contest of pictures. In popular culture, we think immediately of the conflict between science and creationism. Modern science is systemic in its approach to nature. To have scientific knowledge is to identify the immanent principles of order. The creationists respond with a different picture, for they cannot imagine order that does not have its origin in a deliberate act, that is, in a project. They offer proof of the existence of God from the “fact” of design. Behind the appearance of order, they see the hand of an author.
The duck/rabbit problem shows itself in accounts of law: popular, professional, and academic. Think, for example, of the problem of criminal accountability. We struggle to reconcile a picture of the criminal as a free agent acting on immoral projects with a picture of his actions as the result of pathological systems of poverty, poor schools, broken families, drug abuse, and neglect. Does crime reflect a systemic failure or an individual’s project; is it duck or rabbit?
We see something similar in jurisprudence. When the common-law judge says that the law has its origins in time immemorial, he is deploying a picture of system. The common law is no one’s project; it has its own immanent order that has emerged spontaneously through the case law, just as market laws emerge through individual transactions. When early British theorists responded that the origin of the common law must be in “lost statutes,” that is, legislative acts lost to history, they were playing the role of creationists. They could not imagine order absent the intentional act of a rational agent. For the American founders, revolution created a space for a new project of constitutional construction to be based on the best political theory of their day. When the French took up that same project of enlightened, constitutional construction a few years later, Edmund Burke famously responded that law is not like that. It is system, not project. It grows immanently; it is not made.
The Burkean response came to America in the course of the 19th century. By the end of the century, the dominant picture of American constitutionalism was that of a system. The real constitution was now the “unwritten constitution” and it developed according to immanent principles of order. Those principles are no one’s project. Rather, they were thought to emerge spontaneously wherever individuals of the Anglo-American race are given the freedom to pursue their own ideals and interests.
In law, every duck invokes its rabbit. Wherever one model dominates, a critical response will deploy the other. Thus, the 20th century begins with a broad alignment of progressives with project and conservatives with system: legal realism against formalism. By the end of the century, conservatives are enthralled by a project idea: originalism. Liberals, on the other hand, find themselves appealing to the systemic idea of a living constitution. From the perspective of early in the century, this is a surprising reversal. The point, however, is that the models have no particular content. They are tools for understanding; in law, they become tools for argument.
These alignments of political beliefs and legal frame could reverse again. Indeed, the recent lively debates in originalist circles suggests that the process may be well underway. Most dramatically, textualism’s systemic possibilities emerged in Justice Gorsuch’s recent majority opinion in Bostock v. Clayton County. The case concerned the meaning of the words “sex” in Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination. The majority allowed that the words of the statute can escape the intentions of the legislature’s plan; they can mean what “[t]hose who adopted the Civil Rights Act might not have anticipated.” This is a move characteristic of a systemic approach; the meaning of law develops as the society grows into a more mature version of itself. The dissenters stand within the limits of project: law is bound by the plan of its enactors as they intended it. For them, “[t]he Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated – the theory that courts should “update” old statutes so that they better reflect the current values of society.” From the systemic perspective, law is always in a process of “updating,” regardless of whether we are aware of it. Thus, not even textualism can stop the feud between the duck and the rabbit of our legal imaginations.
In this article, we use the tension of project and system to explain the turn to originalism at the end of the last century by judges and theorists. Our account begins with the famous Hart–Fuller debate of 1958, carried out in the pages of the Harvard Law Review. We reject the traditional reading of this debate as a confrontation between theories of positivism and of natural law. Hart places himself at the end of a jurisprudential line of development that we characterize as one of project. Fuller responds to Hart as system to project. Fuller seeks to identify the inner morality of law – what we would call its immanent order. The Hart–Fuller debate gives way to the Hart–Dworkin debate.
Dworkin, we contend, wins this debate between project and system because he achieves a synthesis in which they are joined together as necessary aspects of a single whole. That whole is the modern aspiration for self-government through law. Dworkin’s theory of constructive interpretation of law rests upon ideas of immanent order and purposiveness characteristic of systemic approaches. Simultaneously, his idea of popular sovereignty rests on the idea of a law-making project carried out by a single, collective agent: the people themselves. This position, which combines sovereign immanence and transcendence, is as old as Christianity.
Dworkin’s position is not just strong in theory. It captures the conceptual ground of the most important, progressive decisions of the Warren and Burger Courts. For that reason, the critical response, when it comes, takes aim at the diverse legal formations of the era: judicial decisions, jurisprudence, and liberal political culture. That attack poses project against system. The name of that project is originalism.
I. Project and System in Post-War Jurisprudence: Returning to the Hart–Fuller Debate
In 1957, H. L. A. Hart delivered the Holmes lecture at Harvard Law School, offering a vigorous defense of positivism. He had three goals: (1) to claim the intellectual heritage of Bentham and Austin; (2) to respond to the charge of formalism; and (3) to tackle criticisms coming from the postwar revival of natural law. Each element of his argument relies upon the idea of law as project. First, for Hart, as for his utilitarian predecessors, those who make the law are engaged in a legislative project, regardless of their formal status. Second, the charge of formalism arises from a failure of judges to admit that they engage in a legislative project when they decide difficult cases. Third, while the appropriate response to an evil law is to condemn it as immoral, that is more easily done if we recognize law to be nothing more than a contingent, human project. To understand law as project, then, will help us to pursue legal reform, identify the boundaries of interpretation, and clarify the moral stakes of fidelity to law. Fuller responds by rejecting the idea of law as project, invoking instead an idea of system.
A. A Jurisprudential Tradition
“Positivism and the Separation of Law and Morals” locates legal positivism in the jurisprudential tradition of Austin’s and Bentham’s utilitarianism. Their jurisprudence, in turn, has a common source in Hobbes’ critique of the common law’s claim of “right reason.” For all three, the law making of judges needs to be clearly identified. Those legislative projects are grounded in nothing more than the judges own values. Judges possess no common-law science, as if there is an underlying logic running through the cases. Nor do judges have access to a natural law that precedes their decisions.
Debunking the common-law judge’s claim to a science describes the critical edge of the tradition within which Hart wants to place positivism. Judges are not discovering the law, they are making it. Hart identifies the unifying, positive edge of the tradition to be its insistence on the distinction between the law as it is and the law as it ought to be. That judges and legislatures make law is simply a social fact. Nothing about the moral value of the law follows from that fact. A good idea is not a legal rule until it has become the object of an authorized project of law making. Similarly, as the products of human projects, laws can be made well or poorly. The deficiencies of any particular legal rule can be measured in terms of ends in view and the means adopted to reach them.
Neither nature – as in laws of nature – nor God – as in divine law – offers a defense for a poorly made law. Because law is the product of a human project, it can go wrong in all the ways that ordinary people can go wrong, including poor goals, planning, or execution. People pursue immoral projects all the time; sometimes they take the form of law. The answer to bad law is to pass new and better law; it is not to assert that somehow it is not law. That is like saying that a poorly made house is not a house.
Within the utilitarian tradition, understanding law as a project is critical to development of a reformist agenda. It leads, for example, to Bentham’s ambition to subject the entirety of the common law to a process of codification. That project would replace the poorly thought-out projects of the common-law judges with a project grounded in a real science of human value – utilitarianism. Codification is always the response of the project-minded to the common law. Bentham aimed at “the demystification of the law”, or as Hart quotes him, “to pluck the mask of mystery” off its face.
While Hart nowhere endorses Bentham’s proposal for a grand codification, he agrees with its spirit. He repeatedly insists that only by understanding law as a social fact is it possible to maintain a critical, reformist attitude toward the law. Hart uses the language of “social fact,” but he imagines a particular kind of social fact: a project. We must strip law of its pretentions to be more than a project grounded in our own political agency. It is not natural, but artificial.
In his presentation of what he calls “the history of the idea” of legal positivism, Hart carefully distinguishes the essential element – the distinction of the is and the ought – from what he regards as a mistaken element of the utilitarians’ approach to law: the claim that law is a sovereign’s command threatening sanctions for failure to comply. Hart rightly rejects this view as more appropriately describing a robber who commands and threatens. Law, Hart explains, is a more robust project than a heist planned and executed by the thief. There is, for example, much in the law that operates not as a command, but rather as a means of empowering individuals to create legal obligations among themselves. Consider a law of wills and estates; it is not a command, but it is the product of a law-making project. The tradition had confused the ideas of project and command. A command may express a project, but not every project issues commands.
The imaginary of project provides not just a critique of the pretentions of common-law judges, but also a measure of the legislature’s products. If law is to be a democratic project, it must tend to the highest degree of positivity, which means to prefer rules to standards. Only so can citizens gauge judicial fidelity to the law. The citizen guards the guardians of legality, when he holds up the text of the constitution or of legislation to measure judicial outcomes. “Every man his own lawyer,” repeated Bentham. Hart is part of a “dissenting tradition” that Dyzenhaus accurately describes:
Its proponents want law without judges . . . [P]ut positively, they want judges who will limit themselves to conveying the factual content in the judgments already made by the democratic legislature. Put negatively, they want law without judges of the sort envisaged by the common law tradition, that is, judges who regard themselves as independent guardians of a set of principles that transcend particular laws, and that are to be discovered through the artificial reason of the common law.
This, we shall see, is equally a description of originalists. That “artificial reason” discovering immanent principles that “transcend particular laws” is the systemic imagination. This is the model of reason in the natural sciences: the scientist seeks the law behind particular phenomena. To the modern project imagination, there is no natural science of law.
Hart may seem an odd candidate to put in the camp of project, because – unlike his predecessors – he has no interest in defending an idea of law as the sovereign’s project. He abandons that idea when he abandons the idea of command. In its place, Hart places his famous idea of a rule of recognition. This rule refers to a social practice among those responsible for administering the law. That practice directs them to a common set of secondary rules that identify how and under what conditions law is made, applied, and modified. The rule of recognition, thus, specifies the sources, procedures, and actors responsible for producing law. It specifies, that is, the conditions under which a valid project of law making goes forward in a particular society. Some of those conditions might be of a moral nature. As Hart readily acknowledge, “[i]n some systems, like the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values.” This makes room for a richer account of commands and legal directives, but it doesn’t distract from the baseline of project. The rule of recognition imagines law as a sort of regulated industry: it specifies which projects of law making – and under what conditions – are valid. The positivist is not committed to any particular project as the only valid source of law, but he is committed to the idea that origin of law can always be traced back to some project. Despite its “comprehensively normative inertness”, positivism carries a project worldview.
B. Interpretation: No Vehicles in the Park
“Positivism and the Separation of Law and Morals” reads as an inventory and retrieval among the positivist tradition. While Hart abandons his predecessors’ reliance on command, he continues their ambition for “a purely analytical study of legal concepts, that is, a study of the meaning of the distinctive vocabulary of the law.” Hart intends to respond to the charge of formalism leveled against positivism through a study of how words must work if we are to make sense of following a rule.
Hart takes as a first principle of the study of language that every concept – and every legal rule – has a core and a penumbra. He chides his predecessors for their lack of concern for what he calls “the problems of the penumbra.” In the core, the meaning of the rule is sufficiently definite to support the assertion that to apply the rule is to execute the lawmaker’s project. In the penumbra, the words of the rule are neither obviously applicable nor obviously ruled out. In such a case, the judge effectively writes the rule, when she decides the case. This, Hart argues, is judicial legislation.
Hart elaborates the distinction of core and penumbra by discussing a hypothetical case that has gained a certain fame: a sign stating, “No vehicles in the park.” He starts from a philosophical claim about language,
If we are to communicate with each other at all, and if, as in the most elementary form of law, we are to express our intentions that a certain type of behavior be regulated by rules, then the general words we use – like “vehicle” in the case I consider – must have some standard instance in which no doubts are felt about its application.”
In the hypothetical, an automobile is in the core, while bicycles are in the penumbra.
Core and penumbra command different responses from someone who must apply the rule: in the core, literal application prevails; in the penumbra, considerations of purpose are necessary. An ordinary car is an easy case under the rule; an ambulance responding to an emergency is a hard case. With respect to the car, we all apply the rule in the same way; no interpretation is necessary. To follow the rule in the easy case is to carry out a common project. In the second case, we understand that the rule was not written with this case in mind. It is as if the project comes to us as incomplete. The felt difficulty directs us to consider the purpose behind this particular project of lawmaking. We interpret the rule by relating circumstances to purpose. About these matters, different persons, including judges, can disagree, for there may be more than one purpose or different evaluations of the relevant circumstances.
Hart urges us to linger at the core when trying to understand the nature of law. The penumbra is problematic, but secondary. Citizens usually know what the law requires; ordinary references to law are, for the most part, to the core. Hence, “even if there are borderlines, there must first be lines.” Hart’s point seems particularly relevant to a society committed to the idea that the law is a democratic project. If the people or their representatives cannot author a rule with a core, their aspiration to make law for themselves cannot be fulfilled.
If a legal text is all penumbra, the judge becomes the legislator. This is indeed the way much of American constitutional law appears to many positivists: the penumbra dominates the core. Hart’s reading, though not aimed at the integrity of the US constitutional fabric, can nevertheless prove devastating for it. From the perspective he offers, constitutional law appears to be judicial project masquerading as a popular project. The people settle nothing; the judges settle everything. Positivists, of course, are not the only ones who conclude that the Supreme Court has not really been applying the law; rather, their work is the continuation of politics in a judicial form.
At this point, Fuller engages Hart. He rejects the distinction of core from penumbra. He has none of Hart’s fear that, absent a core, the lawmaking project devolves to the judges. He does not have this fear because he does not think of law as anyone’s project – that of the people or of judges. It is, instead, a system realizing its own immanent order in and through judicial decisions.
Fuller thinks there is nothing self-evident about the distinction of core and penumbra, nor about the claim that it is a necessary condition of legality. He offers two critiques. First, legal interpretation does not take words separately and out of context: “Surely a paragraph does not have a ‘standard instance’ that remains constant whatever the context in which it appears.” Second, purposive interpretation is not limited to the penumbra. Judges do not make the distinction between the core and the penumbra; they do not register a difference in their authority in the two dimensions.
If the rule excluding vehicles from parks seems easy to apply in some cases, I submit this is because we can see clearly enough what the rule “is aiming at in general” so that we know there is no need to worry about the difference between Fords and Cadillacs. If in some cases we seem to be able to apply the rule without asking what its purpose is, this is not because we can treat a directive arrangement as if it had no purpose. It is rather because, for example, whether the rule be intended to preserve quiet in the park, or to save carefree strollers from injury, we know, “without thinking,” that a noisy automobile must be excluded.
For Fuller, in the penumbra, we do the same thing that we do in the core; it is just more difficult to do there – like walking up a hill instead of on level ground.
Fuller claims there can be no separation between the words a rule employs and the purpose of the rule. There is no such thing as literalism, for words only have meaning as they are used. A judge working with a statute is always disciplined by its purpose. That purpose is not contained at the core of the words, but in the larger enterprise of living with and under the law. Any particular legal rule only makes sense when viewed as a part of the larger legal network. As citizens living under a regime of law, we do not come to rules one at a time. They are not the products of separate projects, but elements of a single system. Only with a sense of the whole can we make sense of the parts.
Fuller’s depiction of a judicial opinion differs from Hart’s account of judicial classification not in muddling categories, but by arranging them purposefully. Purposiveness is the first principle operating in Fuller’s account of legal interpretation because a judicial opinion is not a datum but “always an explained thing.” To know what we are about in the law is to have an idea of why we are acting as we are. We understand what we are doing, by looking to the why.
While Hart tends to model all law on the paradigm of legislation, Fuller points to the common law: “I had thought that a famous judge of the English bench had something like this in mind when he spoke of the common law as working ‘itself pure.’” Purity is not present in a core that is there from the beginning. It is, rather, approached asymptotically as judges consider the sense of a legal rule in more and more situations. Think, for example, of the way in which the meaning of “equal protection” in the Fourteenth Amendment has developed over time. There was never a core and a penumbra; there was always interpretive disagreement over the meaning of equality. A society, we might say, grows into its concept of equality, and the law will reflect this growth. This conflict over how and when legal texts create meaning will be at the center of the debate some 50 years later when the Supreme Court divides over constitutional protection for gay marriage: Have we learned the meaning of equality as we have grown as a society or are we bound by the core of the original project?
Fuller invokes the systemic imaginary to oppose the picture of law as project. Purpose is no longer carried by a project of discrete intention; purpose is not prior to the legal rule. Rather, it now refers to a more general purposiveness within the legal order: the law is always moving toward its own realization. As one of us recently wrote:
The move from the descriptive to the normative – from what law is to what it should be – is inevitable in systemic jurisprudence. Avoiding it would be like avoiding the idea of health once one has identified the immanent principles of order of an organism. Health just is that condition of realizing the immanent order.
For Fuller, law too strives toward its own health, that is, toward the immanent morality of law.
C. Fidelity: Law in dark times
Fuller and Hart were brought to their jurisprudential standoff as much by the times as by their theories. Post-war Germany had to rebuild its legal order from the rubbles of Nazi law. Some legal scholars were eager to confront the thorny question of their own responsibility for what had happened in Germany. On this point, Hart and Fuller come to their most intense exchange. That exchange again reflects the interplay of project and system.
1. Radbruch’ Change of Heart
Gustav Radbruch, a prominent lawyer from Weimar, survived the horrors of the Third Reich by going into exile in the German countryside. After the war, he wrote several important articles in which he publicly apologized for his former positivistic leanings. He believed that there was some relationship between the positivism that had characterized Weimar legal scholarship and the failure of legal professionals to resist Nazism. In a short polemical piece, Statutory Lawlessness and Supra-Statutory Law, published in 1946, Radbruch defended a general turn to natural law among post-war German lawyers. He formulated what came to be known as the Radbruch formula (“Radbruchsche Formel”):
The positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as ‘flawed law’, must yield to justice.
Radbruch developed his thesis through a discussion of a series of criminal cases in which spies and informers were punished for acts they had committed under color of law during the war. Hart responds to Radbruch’s disavowal of positivism by looking closely at the case of the “Grudge Informer.” The facts were as follows. In 1944, a woman denounced her husband for criticizing the Führer. That criticism allegedly violated two statutes, dating from 1934 and 1939: one criminalized critical remarks made in public; the other sanctioned acts that impaired the defense of the German people. The criticisms were initially conveyed orally but were repeated in a letter to the wife from the husband. He was sentenced to death by a military tribunal. In the end, he was not executed, but sent back to the front. In 1949, a West German court prosecuted the woman as well as the Nazi-era judges who sat on the case. All were charged with attempted murder and with depriving the husband of his liberty (“rechtswidrige Freiheitsberaubung”). Those actions were criminal offenses under the German Criminal Code of 1871, which had remained in force right through the war. The jury found the defendants had acted lawfully under the Nazi era statutes. An appellate court reversed.
Hart agrees with the outcome of the case, but not with its reasoning, which he took to be an application of the Radbruch formula. He favored, instead, passing explicitly retrospective legislation. Hart acknowledged that such laws ordinarily offend the ideal of the rule of law. Nevertheless, he would rather take direct responsibility for that offense than appeal to a mysterious idea of law that is not really law. If law is always the product of a human project, we can measure its moral quality and condemn it; sometimes, we can even start over. We should not, however, pretend that the facts, including the law, are not what they are.
Hart specifically takes issue with Radbruch’s celebration of a higher law under which “certain rules cannot be law because of their moral iniquity.” A candid actor, Hart thought, would acknowledge the social fact of the existence of the statute, before moving to a moral inquiry into its soundness. “Surely the truly liberal answer to any sinister use of the slogan ‘law is law’ or of the distinction between law and morals is, ‘Very well, but that does not conclude the question. Law is not morality; do not let it supplant morality.’” Societies have many different projects; some are good and some are bad. As projects, none has a warrant by which to escape our capacity for moral judgment.
Fuller rejects Hart’s approach, but he also rejects the idea of the judge appealing to a law of nature to dispose of Nazi statutes. Natural law is not a set of rules coming from on high, as if it were the product of God’s legislative project. Fuller identifies that understanding of natural law with the Church: “It is chiefly in Roman Catholic writings that the theory of natural law is considered, not simply as a search for those principles that will enable men to live together successfully, but as a quest for something that can be called ‘a higher law.’” He was not interested in the defense of natural law as God’s project. His interest was in elaborating the immanent order of a legal system – law as system.
2. Fuller on Fidelity and the Internal Morality of Law
Fuller uses the grudge informer case to identify the “inner morality of law.” He begins with the story of an absolute monarch who, despite his efforts, finds himself “failing to make law.” He has power and intention, but his projects fail. His efforts suffer from arbitrariness, inconsistency and unintelligibility. No one can follow an unintelligible rule or one applied in an arbitrary and inconsistent manner.
The monarch’s commands cannot gain the status of law, not because they contradict some substantive higher law, but because they do not satisfy requirements internal to the idea of submitting conduct to rules. Legal rules relate to each other as elements of a system that has its own immanent order. Failure to acknowledge those internal requirements of legal order leaves the monarch with coercion alone. He is more robber than lawmaker; he may oblige his subjects, but he fails to create obligations.
If there are immanent conditions on the possibility of rule following, then “[W]e have . . . to inquire how much of a legal system survived the general debasement and perversion of all forms of social order that occurred under the Nazi rule.” The “how much” suggests that the existence of a legal system is “always a matter of degree.” Accordingly, it becomes impossible to dismiss the problems presented by the Nazi regime with a simple assertion that law is one thing, its moral evaluation another. If law has a necessary immanent order, then it does not exist simply as a matter of social fact. Fuller insists that law is not an “amoral datum.” Law must meet systemic conditions, which are immanent and spontaneous in the sense that they show themselves wherever legality is successfully pursued.
A few years later, Fuller expressed his point as follows: “I embrace and accept what may be called the concept of an institutional or procedural morality.” Unlike manufacture or production, law is not something done to an object, “a one-way projection of power.” Unlike violence or threats of violence, law is not imposed on a subject regardless of his or her status as a person. Legal rules must reckon with the individual person’s irreducible autonomy as a moral agent. Accordingly, laws are subject to norms that are independent of the ends to which any particular law might be directed. The analogy to a market captures the point: any individual transaction is directed to a particular end, but it is also bound to the laws of the market. A transaction out of synch with those immanent laws will not succeed. Similarly, any particular lawmaking project that is out of synch with the immanent order of law will not succeed.
This idea of immanent order sets Fuller to inquire into the pathologies of Nazi law, and not simply into the evil ends of their projects. He mentions four. First, the recurrent use of retroactive statutes; second, reliance on secret legislation; third, secret determinations of the meaning of public law; and fourth, a willingness to use party violence in “disregard even [of] their own enactments.” These are all systemic pathologies: they undermine the kind of order that is constitutive of law.
Turning to the statutes under which the husband was convicted, Fuller finds the provisions to be hopelessly vague and replete with administrative discretion. In addition, the law was spuriously interpreted, for the section punishing any “public criticisms” was extended to acts that could not reasonably be deemed public. Fuller stops right here; he does not discuss the issue of the statutes’ validity as written or originally intended. If this is natural law, it is also statutory interpretation. Shortly, we will see that it is just the sort of statutory interpretation pursued and defended by Ronald Dworkin.
Hart grants that justice in the administration of the law is a valuable ideal. But he believes there are lots of norms – some good, some bad – that could be brought to bear on law. This follows from the idea of law as a distinct project. None of these norms establishes a necessary connection of law to morals. “The word ‘ought’ merely reflects the presence of some standard of criticism,” Hart writes, and “one of these standards is a moral standard but not all standards are moral.”
Hart was no less for justice than was Fuller, but he thought it playing with words to deny the possibility of evil laws. Yet some years later, in The Concept of Law, his opposition to Fuller softens. Referring to Fuller’s work, he writes, “if this is what the necessary connection of law and morality means, we may accept it. It is unfortunately compatible with very great iniquity.” In his last reply, Fuller will question Hart and his critics’ sharp separation of efficacy from morality in a legal system. Living in the law should not be understood as an impediment to living a good life, but rather as an important contribution to it.
Fuller thinks Hart missed his deepest critique of the positivist’s approach to law as a social fact. He argues that if law is only a fact, while morality requires a norm, there can be no conflict between the two. This leaves a puzzle: Where does our sense of an obligation of fidelity to law come from, if not from the immanent norms of legal order ? In Fuller’s terms, “The fundamental postulate of positivism – that law must be strictly severed from morality – seems to deny the possibility of any bridge between the obligation to obey law and other moral obligations. No mediating principle can measure their respective demands on conscience, for they exist in wholly separate worlds.” The positivist interpretation “never gives any coherent meaning to the moral obligation of fidelity to law.”
Fuller insists that the claim for fidelity to law rests on a necessary internal morality of the legal order. Legislative and judicial projects that fail to satisfy those immanent norms fail as a matter of law. Such rules cannot be part of the system of legal obligation any more than gills can belong on a bird. We cannot have law without a minimal concern for its consistency, coherence, and the means of its realization. We owe no fidelity to law that fails these conditions for the simple reason that it is not law. David Dyzenhaus has underlined the point: “Fuller’s special contribution to the conception of judges doing justice according to law is to point out that the problem of interpreting an unjust law becomes extremely acute for judges when the clash is not simply between moral standards external to the law and the law in question but between the law and the moral standards internal to law-the internal morality of legal order.”
For Fuller, the moral and legal cohabit the same normative space. The immanent order of legality informs the interpretive function. It is already deployed to say what the law is and, conversely, to say what cannot be law. Thus, while the penumbra marks the limits of the legislative project for Hart – the point at which law runs out – for Fuller there is no penumbra. The immanent morality of the law, together with the purposiveness of system, provides an endless resource for interpreting what the law is.
If Hart never quite understood the nature of Fuller’s critique, Fuller never quite grasped the full implications of his idea. Neither Fuller nor Hart fully understand the way in which their legal theories depend upon the conceptual structures they bring to the enterprise: project or system. Because of this, they tend to talk past each other. Dworkin has a better grasp of these structures in his defense of an interpretive approach that builds on Fuller’s contribution. For that reason, the center of the jurisprudential debate of last decades of the century moves from the debate between Hart–Fuller to that between Hart–Dworkin.
II. Dworkin: An American Synthesis
Dworkin advances beyond the Hart–Fuller debate by offering a synthesis of project and system. He does so by linking jurisprudence to political theory, a concern absent from both Fuller and Hart. To Fuller’s idea that law has an immanent morality, Dworkin adds that law in a constitutional democracy also has a political morality. Dworkin’s jurisprudence remains deeply bound to system, but his political theory imagines the law as a democratic project. Had his synthesis held, he would have brought two centuries of conflict over the nature of American law to a successful conclusion. Constitutional theory, in the words of a sympathetic commentator, would indeed have found its soul. In the end, however, the synthesis does not hold.
Dworkin draws from the common-law practice of reasoning from precedents to build a theory of interpretation bound to the two primary characteristics of system: immanent order and teleological development. These characteristics were already evident in Fuller’s theory, but Dworkin puts them front and center of an explicit theory of interpretation that is the systemic response to a positivism of project. Dworkin also draws upon America’s revolutionary project of constitutional construction to argue that the political legitimacy of the legal order resides in the citizens’ ability to see themselves as the author. Looking at law from the perspective of the judge, Dworkin sees a system. Looking from the perspective of a citizen, he sees a project. This synthesis of legality and legitimacy is difficult to maintain as a matter of theory; it may be impossible to maintain as a matter of practice.
A. A comprehensive system of Interpretation
1. Immanent Order: A Demanding Conception of Legality
Among Dworkin’s best-known jurisprudential contributions is the distinction between principles and rules. The distinction traces back to the writings of the great common-lawyers of medieval England. Mansfield remarked in 1774, “The law of England, which is exclusive of positive law enacted by statute, depends upon principles; and these principles run through all the cases, according as the particular circumstances of each have been found to fall within the one or other of them.” Even then, this view was not altogether new, but a powerful restatement of the common ground in the classics of Bracton, Fortescue, St German, Coke, Selden and Hale. All thought the law to be informed by maxims, doctrines, definitions, and principles. All understood the cases to function not as the source of law, but as evidence of law. The common-law judge is not making law as a project, but declaring the immanent principles of the legal system. This idea was carried forward by Blackstone, who did not think legislation to be law by virtue of its enactment: the Parliament can, and often does, get the law wrong.
Dworkin reminds us that this set of tools remains ready-to-hand to the judge. He uses Riggs v. Palmer to make the point. In that case, decided in 1889, the defendant, Elmer, had been named heir in his grandfather’s will. Elmer then proceeded to kill his grandfather to gain his inheritance. The court ruled against the claim, reasoning that “all laws as well all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own inequity, or to acquire property by his own crime.” The dissent argued that Elmer’s claim should be upheld, for it fell within the statutory language and it is not up to the judges to “correct” legislation that they believe to be mistaken. Dworkin seizes on the case to illustrate the meaning of disagreement within legal practice. The judges do not disagree with respect to the relevant statutes or precedents. Nor do they disagree on the facts. Rather, they disagree on what the law is. None of the judges believes he is making law; none thinks it a matter of discretion. All seek to apply the law as it is to Elmer’s claim.
Dworkin uses Riggs to argue that law is system not project. It remains a system even in the face of what seems a clear legislative project, for “the words of the statute of wills that figured in Elmer’s case were neither vague nor ambiguous.” Hart might describe the peculiar circumstances of Riggs as setting it within the penumbra of the statute. For him, that would mean that judges must exercise discretion to make law. Dworkin disagrees. The judges are, he argues, interpreting the meaning of the law; they are saying what the law is, not what they think law should be. The words of the statute alone do not capture the meaning of the statute. Nor do we have any reason to think that the authors of the statute had contemplated Elmer’s case at the time of enactment. The meaning of the statute is realized over time; it is not established at its origin.
Dworkin is elaborating the idea that “law has always something unsaid about it, something implicit that is still waiting to be unearthed by the judge.” This is a defining characteristic of the systemic model of order: the law is already there and needs only be set forth clearly by the judge. Thus, Dworkin writes, “the gravitational force of a precedent is defined by the arguments of principle that support the precedent.” Or as Mansfield put it, “precedent, though it be evidence of law, is not law itself, much less the whole of the law.”
Dworkin’s reading of the statute in Riggs is, effectively, set against Hart’s entire enterprise, which had understood law on the model of legislation. Dworkin rejects any lingering belief that we first read a statute as it is written – a “social fact” – and then evaluate it from a normative perspective. He claims that the first step never happens. The background principles immediately pull the reading of the statute in one direction or another. They place the text in the system of law. Dworkin presents us with one consequence of this process: “it is a commonplace that lawyers will often misrepresent the rules that a statute enacted if they simply repeat the language that the statute used.”
That Dworkin begins Laws Empire with a case from 1889 is no surprise. The end of the 19th century was exactly the moment at which the model of law as a system of immanent principles dominated American jurisprudence, law schools, and judicial practice. Dworkin’s analysis of the underlying, immanent principles of law, along with his view of the statutory text as not the “real law,” would have fit easily in Langdell’s Harvard law school classroom. They would have agreed with his claim that the text of the statute is not the law; it is rather the occasion for a constructive interpretation of law.
This is just the sort of legal reasoning that the legal realists attacked a few decades later as “transcendental nonsense.” In their view, claims of immanent principles were ideological imaginings that served only to hide real interests and real parties maneuvering to advance their goals before judges and legislatures. The realists would replace these claims of immanent order, with the analytic approach of the social sciences. In place of false claims of deductive reasoning from first principles, they would ask, for example, about the costs and benefits of the adoption of different rules on inheritance, urge legislative inquiries, professional administration, and everywhere a modern a project of reforming common-law rules in light of contemporary social science. To the project imagination, law presents an endless subject of reform. Oliver Wendell Holmes, who had made a name for himself as a scholar of the common law, urged just this sort of reform project in the early decades of the 20th century. That movement from system to project was “the path of the law.” The “man of statistics” was to be the man of the future, while the “black-letter law man” was of the past.
Hart provides an analytic jurisprudence for the world Holmes imaged – a world in which statutes replace the common law as the paradigmatic expression of law. Fuller resisted this attack, placing himself in the common-law tradition. Nevertheless, contemporary readers are more likely to identify him with a natural law position – a label he only reluctantly accepted – suggesting our own failure to understand any longer the worldview of the common law. That Fuller had less success than Dworkin in his effort to defend systemic reasoning comes in part from Fuller’s reluctance to engage with the work of a newly active, progressive Supreme Court. Dworkin makes use of one of the great paradoxes of the age: while the Langdellian project of identifying the immanent principles of order in the traditional common-law subjects declined in the face of legal realism and the growth of the regulatory state, constitutional law, despite its origins in the project of writing a constitution, becomes the great redoubt of systemic reasoning.
2. Telos: The law works itself pure
A project refers to an external intent; we ask what its author was trying to do. The author precedes and stands apart from the project, whether that project is God’s creation, Solon’s law, or the people’s constitution. A system has a telos; we ask about the end toward which it strives. A living organism strives to become itself. It demonstrates, in Kant’s words, “purposefulness without a purpose.” So does an economy and, more broadly, a society. Dworkin famously describes an imagined society that practices civility, not as a ritual, but as a purposive practice. He extends this teleological approach to law. It too is “working itself pure,” that is, it strives fully to realize its immanent order. Such a purposive practice will always raise questions of interpretation as members of the society consider what the practice requires under particular circumstances. This is familiar ground from Fuller’s argument against Hart’s core/penumbra distinction.
Dworkin captures his idea of “constructive interpretation” as system, rather than project, in his metaphor of the chain novel, in which each judge is imagined as if he were writing the next chapter in an endless enterprise. The chain novel begins with the arbitrary choice of a participant to write a first chapter. She will introduce certain characters and suggest some lines of possible plot development. Her chapter will contain more possibilities than she can understand. The next chapter is written by another member of the group, again chosen by chance. His task is that of writing a sequel, which means to take seriously that which has already been said in the first chapter. He must continue the same story. What it means to be the same, however, will be determined as the chapter develops some possibilities, but not others. Both chapters are then sent along to a third participant who repeats the exercise, and so on.
As the novel develops, some possibilities that were there at the beginning become difficult, if not impossible, to retrieve. Characters cannot be brought back from the dead; they cannot ordinarily change their personalities. Exceptions happen – perhaps the earlier death was a deception – but it takes a good deal of interpretive work to fit the exception into the broader scheme of the novel. If the exception fails to articulate an adequate justification, it will be “dropped” from successive chapters. It will be labelled a bizarre twist that goes nowhere. Each successive writer finds himself in the position of both author and critic: he has to create, yet his chapter cannot betray the story as it existed before he took up the pen. The ambition of each writer is to make a lasting contribution, which means to leave the novel more secure in its plot and character development than it was before.
The chain novel, at any moment, contains an indeterminate number of possibilities. It is not destined to become one thing, even as its development is purposive. Each author will have a different sense of what the novel is about; none can control its future by eliminating all other possible readings. Its movement is bound to the past, even as it realizes possibilities not quite imagined in that past. The story has a telos, but not one that can be identified apart from the interpretations offered by the authors. When they disagree, they are arguing over the meaning of the story; they are not expressing subjective feelings. Any particular author may disagree, as a matter of personal values, with that which she nevertheless believes to be the point of the story. Each author is free to write his or her own chapter according to beliefs about what is best. This is not a freedom to do whatever they want. The space for each author is neither wholly free nor wholly determined. She has a responsibility toward all the other authors – past and future – who share in the work, but they will not do her work for her.
The judge, Dworkin tells us, is like this one-time novelist. Both have to grasp the principles that underlie their practice before adding the next chapter. Novelist and judge both follow the same regulative ideal, for they aim to produce the best sequel to the story. Their responsibility is always to make a single story of all of the different chapters/opinions. It is to maintain the purposive unity of the whole as a system advancing on its own terms. Dworkin refers to this quality of coherence as “integrity.” The law should have the integrity of a good novel. It should have that integrity even as it is written by different hands. These are all systemic virtues. To the project-minded, the correct measure has been established at the moment of legal production. On this view, there is no virtue in maintaining a subsequent error of interpretation or sustaining a direction of legal development, even if it means abandoning many chapters of the law.
In law and literature, it matters who the author is, but not because each is free to say whatever he or she likes. Each is trying to “get it right,” even as they disagree over what is right. Their disagreement is not a matter of rejecting what came before; it is rather an interpretive disagreement over the meaning of past contributions. To take on this interpretive task, one must suppose that there is a “right answer” to how the story/law should proceed. The right answer is that which best advances the purposiveness of the whole; it is that which maintains the integrity of the system. This claim is at the core of Dworkin’s approach. As he wrote in the concluding pages of Law’s Empire, “[l]aw as integrity (we might say) is the idea of law worked pure.” Working itself pure is the language of system.
The chain novel is the best metaphor we have for understanding the hermeneutics of constitutional adjudication in the second half of the 20th century. Consider the two most famous cases, Brown v. Board of Education and Roe v. Wade. In neither does the argument rely on text, original intent, or original public meaning. Both decisions rely on ideas of growth and law’s self-realization. Both are concerned with the integrity of a legal system committed to principles of equality and liberty.
While Roe begins with a rapid canvas of the history of abortion practices, that account has nothing to do with identifying a lawmaking project. The history, instead, begins with the ancient Greeks; it is designed to illustrate changing social attitudes rather than to clarify a specific project of law making. The opinion elaborates an idea of privacy, as a principle that has been developing through the case law. Privacy is not mentioned in the constitutional text and the Court seems quite indifferent to the choice of textual hooks upon which the argument might hang. At work in the opinion, although not yet explicitly given voice, is an idea of dignity: for the state to intrude upon the private decision whether or not to have a child is to treat someone as less than an autonomous agent capable of deciding for herself. This idea will, in turn, grow through the subsequent cases on gay rights until it reaches a sort of crescendo in Justice Kennedy’s opinion for the court in Obergefell, recognizing a constitutional right to gay marriage. Justice Kennedy speaks explicitly of the Justices learning the full meaning of the constitutional ideal of freedom only as the cases develop – a direct expression of the hermeneutics of system.
This approach was not a novelty in 1973. We see much the same imagination of system in Brown and its successor cases. Brown begins with a frank admission that the history of the 14th Amendment’s creation – the project of drafting and enacting – can contribute little to resolution of the contemporary problem of school desegregation. After reviewing the historical sources, the Court concludes, “[a]t best, they are inconclusive”. As in Roe, the relevant history is not that of law making – drafting and enactment – but that of practices of social citizenship that change through time. It is history as the context within which a constitutional norm develops and must make sense. The Court sees equality as a principle immanent in diverse forms of social, economic, cultural, and political life. The constitutional meaning of equality shows itself – presses for recognition – in all of these phenomena.
The modern Court approached constitutional law as the interpretation of principles immanent in society. This was judicial practice across the diverse range of constitutional rights and institutional structures. Indeed, there are many opinions in which no mention of the constitutional text or its original history occurs at all. A case about free speech, for example, rarely looked to 18th century practices. Instead, it understood the doctrine to be developing the “right” idea of the role of speech in a democratic polity. Or consider the most famous opinion on executive authority over national security: Justice Jackson’s tripartite distinction in Youngstown. He offers a systemic analysis, looking at the way in which executive and congressional power interact in reciprocally supporting ways to maintain the integrity and purposiveness of the whole.
This interpretive approach – a hermeneutics of system – is behind the most important progressive decisions of the modern Supreme Court, including decisions on race, gender, religion, speech, privacy, and criminal procedure. Nevertheless, the method is not essentially tied to progressive outcomes. The same method characterized the opinions of the Lochner court early in the century. The Court’s recent decision to invalidate the most important provision of the Voting Rights Act elaborated an immanent principle of state equality. In law, method is tied to outcomes rhetorically not deductively.
B. The community of equals
Dworkin often writes of his work as aiming to build “bridges” between jurisprudence, on the one hand, and moral and political philosophy, on the other. That bridge might also be characterized as one between system and project. His writings on interpretation are mainly concerned with showing jurisprudence to be a philosophical exposition of the systemic character – immanent principles and teleological movement – of the legal order in a community of principle. His work on democratic theory tackles the different task of identifying the grounds of political legitimacy of such a legal order. In the latter task, Dworkin appeals to a narrative of project. We can best approach this argument by first examining his early criticism of Rawls. That critique leads Dworkin to reject the traditional way in which liberal political thought relied upon a narrative of project – the social contract – and to look for a better metaphor. Instead of imagining a social contract, he proposes imagining self-authorship.
1. Metaphors of liberalism
Rawls’ idea of a social contract, formed behind the veil of ignorance, is the most famous modern iteration of a long tradition of liberal thought relying on ideas of project – a tradition that extends back to Hobbes. Rational individuals in the original position would join in this project. Dworkin responds that the veil alone will not guarantee the outcome Rawls describes: agreement on the equal liberty principle and on the difference principle. To get there, Dworkin argues, requires a sort of precommitment among the citizen participants. The Rawlsian outcome requires “as a condition of admission to the original position” that everyone recognize that each participant is entitled to equal respect.
If we imagine the social contract as the original project, Dworkin argues, it cannot arise from a blank slate. It can arise only within a community that already has an immanent principle of order: mutual recognition of a right to equal respect among its members. Indeed, Dworkin’s point is even stronger: given the premise of equal respect, the community will self-organize liberally. The participants are not free to establish some other order based upon their particular circumstances. That would be to deviate from their political DNA.
The priority of community over consent is even sharper in Law’s Empire. There, Dworkin detaches political obligation from any foundation in the mutual consent of the parties. He reconceives it as an associative or communal obligation, akin to that which one owes to friends or family. We are bound to them, before we take up any projects. “We have friends to whom we owe obligations in virtue of a shared history, but it would be perverse to describe this as a history of assuming obligations. On the contrary, it is a history of events and acts that attract obligations. We are rarely even aware that we are entering upon any special status as the story unfolds.” Such communities have a telos.
Consent lacks sufficient explanatory power to ground our most basic moral experiences of family and polity. In place of consent, Dworkin speaks of fraternity – an idea that tightens the social fabric among citizens, while rejecting the binary of compulsion or consent. A family may have projects, but it is not itself a project. The same is true of the democratic polity. A legitimate legal order is the project of a special kind of community: one that understands legal form as the means by which it realizes itself. While adding an egalitarian twist, Dworkin is taking us back from contract to status.
2. Self-Authorship of Law
Dworkin works toward a theory of collective agency as the source of law. He refuses the primacy of the democratic synecdoche according to which the part – the majority or legislators – stands for the whole – the people. We make the law our own when we affirm it as our project. That must be a collective affirmation. It depends upon the whole of the people seeing the whole of the law, and seeing it as their own. At that moment of affirmation, Hercules moves from ideal judge to popular sovereign. In classic terms, popular sovereignty and the rule of law become the same. This is not a matter of taking particular steps to advance an agenda, but of imagining the nature of the political. It is not an argument for new constitutional conventions or popular referenda; rather, it is an interpretation of the history of our law as a sort of national autobiography. Writing the law, we have realized ourselves.
Dworkin, thus, shifts the concern with democratic projects from legislation proposed by a majority of the voters, to a sense of collective responsibility for the legal order as such. “When we insist that a genuine democracy must treat everyone with equal concern,” says Dworkin, “we take a decisive step towards a deeper form of collective action in which ‘we the people’ is understood to comprise not a majority but everyone acting communally.” This “everyone acting communally” imagines the sovereign people as the author of the law.
To achieve this ideal of collective agency, Dworkin argues that integrity – the systemic virtue of constructive interpretation – is essential. A legal order without integrity is only a collection of laws and legal acts that exhibit no internal consistency. Absent an immanent order, different laws would be read as favoring different groups. The whole of the legal order, in that case, would be no one’s project, let alone the project of all. Integrity, accordingly, is both a quality of system and a condition of project. It is what allows the purposiveness of system to become the purpose of a project. The community of principle that satisfies integrity is also a free community because its citizens imagine themselves as the authors of law.
Dworkin’s account of the project of law as one of collective self-authorship gives little space to ordinary political representation, just as it gives little space to voting as the paradigmatic, democratic act. The primary site of the democratic project shifts from the legislature to the courts, from legislative texts to judicial opinions. The Supreme Court – or maybe the figure of Hercules – becomes the icon of democracy as simultaneously a project of collective authorship and a system of legal order. From the Court, we are to learn who we are, by learning what it is that we have done together.
Like the Christian God, Dworkin’s sovereign people are both transcendent and immanent. Law is their project even as they find themselves within the system of law. Thus, Dworkin’s concern for a “deeper form of collective action” bridges the gap between system and project. The immanent order of a community of principle makes it possible to affirm law as the product of a project of self-legislation. He has achieved a synthesis of the duck and rabbit of our social imaginations.
3. Modern Syntheses
Efforts to reconcile project and system are as old as the Republic itself. Consider the ideal of making “a machine that would go of itself.” The most common synthetic efforts, however, appeal to space and time. Project and system can be assigned different spaces. Alternatively, they can be assigned different times – revolutionary versus ordinary times. Before Dworkin, the most successful effort at reconciliation had been offered by Alexander Bickel. Bickel took from Eugene Rostow the idea that the Supreme Court conducts a national seminar on the meaning of constitutional principles. Like professors, Rostow argued, judges have the luxury of time to read deeply and investigate thoroughly. They are above the partisan fray and, therefore, able to concern themselves with fundamental principles. Their opinions constitute the school of the nation. They are to identify and elaborate those principles that constitute the immanent order of our society. They deliberate and argue in order to hash out those principles necessary to, and embodied by, our constitutional traditions.
Bickel couples Rostow’s idea of the professorial judge to an idea of democratic legitimacy. The task of the Justices is to persuade citizens to approve the principles set forth in the opinions. With this move, Bickel recasts the Court as a representative body. It does not exactly stand for election, but it does stand before a continuing referendum on its work. Its political authority comes not from getting the law right, but from persuading the electorate to support its work. If the principles expressed in the opinions do not gain popular support, Bickel thought the Justices must retreat. They have no warrant to rule absent the success of their claims to represent. Accordingly, they “labor under an obligation to succeed.”
Bickel’s description of the Supreme Court “at the bar of politics” links legality to legitimacy. He thinks of legality as a matter of principle and of democratic legitimacy as a matter of consent. His theory of reconciliation captures the Warren Court’s idea of “deliberate speed:” the speed at which the Court can persuade voters to support the principles it expresses. This ideology extends deep into the beliefs of the Burger Court, and one finds it even at a defining moment of the Rehnquist court, at the heart of the majority opinion in Casey:
Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.
Dworkin offers a more sophisticated version of the Bickelian theory of the Court’s role. He moves from a theory of reconciliation to synthesis. For him, the distinction between legality and legitimacy turns not on where we look, but on the question that we ask. Authorship provides legitimacy; system provides legality. He frees the idea of democratic legitimacy from Bickel’s commitment to the project of electoral politics, tying it instead to the imagination of self-authorship. That in turn requires a theorizing of the agency of a temporally extended collective subject. With that, Dworkin also escapes Bickel’s worry that the Court is a countermajoritarian institution.
Dworkin’s work stands not only as a tour de force in constitutional theory; it also lays bare the conscience of the age. He was the theorist of the progressive opinions of the Warren and Burger Court. The last years of his life, however, were an increasingly lonely protest against the direction of American law. By the end of his life, he was read more in political philosophy classes than jurisprudence classes. The judgement in the law schools was that Hart won the debate. Those progressive opinions relying on an idea of systemic integrity were attacked as exceedingly thin; unable to stand up against the weight of historical evidence marshalled by the new originalists.
III. The Origins of Originalism: System in an Age of Distrust
If Dworkin was so successful in theory, why did he fail? Rather than constructive interpretation, the dominant approach on the courts is now originalism. In our law schools, scholars debate variations of originalism and its close ally, textualism. In theory and practice, we have moved from system to project. Dworkin fades from view; Fuller is out of sight completely. Hart remains. Some contemporary originalists are even picking up The Concept of Law as if it contained the jurisprudential truth against which their own theories must be measured. They find there a theoretically sophisticated presentation of law as project that they seek to harness to their unsophisticated critique of the progressive decisions of the Warren and Burger courts.
A. From Brown to Roe
Dworkin’s legal and political theory can appear to belong to an age long past. Political polarization and the general lack of trust in authority had, by the end of the last century, taken on a particular jurisprudential form: systemic legality confronted accusations of an illegitimate exercise of judicial discretion. Thus, Casey invoked a furious dissent from Justice Scalia. Barely able to contain his anger at the majority’s reliance on “reasoned judgment” in its refusal to overturn Roe, he accuses them of exercising discretion unbound by law. He could see no reason to think that such an exercise of judicial will can – or should – persuade the general public to see the law as a product of citizen self-authorship. The judge-made regime simply reflected the social and political values of those Justices who joined the majority. He predicted – and encouraged – a backlash of distrust in the Court, for the Justices were no longer doing “lawyer’s work.” Nor was this critique confined to the cenacles of the Supreme Court. The social conservative journal First Things, for example, took up the invitation in a symposium accordingly titled “The End of Democracy”. As Keith Whittington reports, “[c]ontributors to the issue pondered whether a US government dominated by an unrestrained Court had lost legitimacy. For many on the right, ‘the Court’s continuing injection of its power into so-called culture war issues’ was the primary concern, and this had not abated with the appointment of more conservative justices.”
Almost 25 years later, the Chief Justice would express a similar anger, accusing the majority in Obergefell of acting without regard for law: “The majority’s decision is an act of will, not legal judgment. The right [to gay marriage] it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial ‘caution’ . . . openly relying on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’” The difference between Obergefell and Casey is that, by 2015, the dissenters had substantially won the battle. Unsurprisingly, Justice Kennedy’s retirement in 2017 unleashed what was arguably the most bitter, politically polarized debate ever fought over an appointment. By now, the dispute over a method of interpretation – originalism – has come to be fully identified with a partisan takeover of the Court.
Could the Court and its academic supporters have sustained a belief in a judicial role of identifying the immanent principles of constitutional order? Those who rejected this role saw in it a repeat of the jurisprudential errors of the Lochner Court. Those who defended the systemic constitutionalism of Brown and Roe, accordingly, had the burden of explaining how Lochner had been wrong, but this time, the Court was right in its pursuit of a systemic jurisprudence. That was a difficult – probably impossible – burden to bear by the end of the century.
In the post-War era, there had been a hopeful belief that the nation was united in its underlying moral principles. We were all liberals according to Hartz. Or, all republicans, according to Pocock. The Supreme Court, following Bickel and other constitutional scholars, had the task of identifying and expressing the common principles to which the national community was committed. This belief in the Union, as simultaneously legal, moral, and political, was inspired by changing attitudes toward race. America was finally addressing its race problem and few were willing to defend publicly the racism expressed in policies of segregation and subordination. Resistance would be overcome by the Court’s deliberate expression – as in “all deliberate speed” – of the full range of constitutionally guaranteed equality. That began with schools, moved through commerce and public institutions, to end at the ballot box. Explicit opposition, it was hoped, would become more and more exceptional as the nation accepted politically what the Court held legally.
For a generation, Brown was the model of the possibility of melding legality and legitimacy. What theorists such as Bickel and Dworkin would imagine at an abstract level was given concrete political expression in passage of the Civil Rights Acts. At the start of the sixties, “all deliberate speed” would turn out to be the ten years between Brown and congressional action. The ideal of an intersection of legality and legitimacy, made visible with race, was thought to be a model for other forms of progressive liberation from traditional restraints on full and equal citizenship of women, gays, and other disfavored minorities. The system would work itself pure. Such was the “integrity” of the liberal vision. Though only grudgingly accepted in some quarters, it crashed into the politics of abortion.
The conservative critics of the work of the Court moved the paradigm case from Brown to Roe. The former announced a norm that could plausibly be put forward as one toward which public opinion was moving. Such a systemic narrative was at hand. The Court’s decisions were just one element in a two-hundred-year political effort to affirm equality as the organizing norm of American law and politics. That effort began with the Declaration of Independence, moved through the Civil War and Reconstruction, and then was reconstituted and reaffirmed in the Civil Rights Movement. About Roe, however, no similar narrative was available. The very history reviewed in Roe demonstrated no single trend, but rather a diversity of views. There had been a recent liberalizing trend among elite professional organizations – doctors and lawyers – but there was no indication that those who disagreed were commonly held to be violating a moral norm. They were not the equivalent of segregationists.
With Roe, liberals learned that a Dworkinian synthesis cannot hold when the constructive interpretations offered by the Court rest on moral principles rejected by a substantial portion of the nation. If I believe abortion to be murder, can I find an expression of my political identity in Roe? But if I believe access to abortion to be an issue of liberty and women’s political equality, how can I accept the reversal of Roe as an expression of my political identity? If constructive interpretation relies upon our deepest moral values, it will head toward a legitimacy crisis in the face of a deeply divided community. Efforts at constructive interpretation are likely to exacerbate the crisis by claiming to express a moral consensus that does not exist, for that suggests that the views of the dissenters do not merit recognition. This is exactly what happened.
That abortion would be the pivot around which opposition to the entire range of progressive decisions would mobilize was not obvious before the fact. The right to life did not drive the conservative reaction to the Court; rather, the opposition drove the political commitment to the right to life. The conservatives had found their point of political leverage. Abortion became the symbolic point at which multiple strands of conservative reaction against liberalism could converge. The right to life fed into wider claims of family values, religious values, and cultural values, finally pushing toward an embrace of white nationalism. It provided a nexus around which several distinct sensibilities could hope to unify.
In this deeply polarized political environment, persuasion is impossible. Today, once an issue attains political salience, no one believes that persuasion can resolve the differences. Political division exceeds the capacity of the courts to heal, which means that the courts become nothing more than another site of political contestation. The conditions for an imaginary of system disappear from view.
B. Discretion as an Issue in Jurisprudence and Constitutional Theory
Beginning in the late 1970s with the work of Raoul Berger, the assault on the Court’s integrity took aim at the exercise of judicial discretion. This attack was not explicitly political. Berger was, after all, a liberal hero after his scholarship was credited with some success in Nixon’s impeachment. Berger’s strictures against modern fourteenth amendment doctrine were jurisprudential. He appealed to lessons learned in the earlier confrontation with the systemic reasoning of the Lochner court. Berger was not alone among lawyers, judges, and scholars who had learned their constitutional law from those shaped by the New Deal experience. They had all been taught to fear judicial law making and were quick to identify that project with expansive applications of the due process clause. For many of them, the race cases posed less of a problem because black equality was at the core of the 14th amendment. The liberty provision of the due process clause was a different matter.
While Hart had not imagined such an assault on the Court, and even though the early originalist literature kept its distance from any specific legal theory, his theory of discretion nevertheless provided the jurisprudential background for the assault. Once the distinction between core and penumbra is accepted, it is hard to avoid seeing discretion everywhere in constitutional law. Every dissent to a majority opinion announces that it could have been otherwise. Justices make choices among the available legal materials that are themselves indeterminate. The very fact that appellate decisions are made by multimember courts suggests discretion: we do not do science by committee votes.
Indeed, the Court itself quite explicitly deploys the idea of a penumbra at the very start of the line of cases that would lead to Roe. In Griswold v. Connecticut, Justice Douglas writes that the text of various constitutional provisions creates penumbras to which the norms extend because otherwise those norms would fail to achieve their purposes. This is not quite Hart’s use, but it is close. It distinguishes a core from a penumbra, and it links decision in the latter to the purpose of the norm. Those who would limit the reach of the norms will have to cabin the language of the text within a core. As Hart wrote, however, it is a feature of all legal texts that they create a core and a penumbra: “No vehicles in the park.” The originalists intervene just here: they attempt to limit the open feature of a text by binding the meaning to a determinate project. What text cannot do alone, history will accomplish.
Absent an idea of system, claims to reasoned judgement looks like nothing more than post-hoc justifications of an exercise of judicial discretion. From his earliest papers, Dworkin’s response had been to deny that judicial discretion exists at all. Yet, this is a losing battle in our skeptical age. Discretion seems obvious to ordinary perception; constructive interpretation is not obvious. Judicial majorities appear to exercise political power, which they can align with one political faction or another. This appearance is maintained by constant accusations by critics on and off the bench. The Court will not convince its opponents that the Justices have Herculean insight into the immanent order of the legal system, if they cannot even convince their colleagues.
When Hart takes up directly the argument with Dworkin, he sees that judicial discretion is at the heart of their dispute:
The sharpest direct conflict between the legal theory of [positivism] and Dworkin’s theory arises from my contention that in any legal system there will always be certain legally unregulated cases in which . . . no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete. If in such cases the judge is to reach a decision . . . he must exercise his discretion and make law for the case . . .
Hart fails to see why this issue of judge-made law is of overriding importance in the American context. He thinks of discretion as raising an issue of retroactive law making by judges who happen to fall into the penumbra in a particular case. But Dworkin’s position on discretion does not arise out of a concern with the justice of ex post facto laws. It is a concern with self-government. The discussion is not only jurisprudential but also political. This is why Hart can reasonably express some frustration at Dworkin’s criticism, for one might argue that he simply changed the topic.
Hart seems to think that a mature democracy should be able to tolerate a bit of judicial discretion because it is “convenient” to have controversies disposed of by judges, without going back to the legislature. This may be British common sense, but theorizing discretion in the face of American constitutional adjudication is an invitation to a legitimacy crisis. It hardly passes unnoticed that the right answer theorized by Dworkin seems inevitably to reject the beliefs and values of Evangelicals, cultural conservatives, and traditional, white rural America. They are not persuaded that the work of the Court corresponds to their own political project. It appears, rather, as something done to them, as if they are being subordinated to an elite project of lawmaking. This is, indeed, what their leaders tell them.
We might describe the situation in terms of a difference between an English context of production and an American context of reception of the positivist’s thesis. Positivists defend the separation thesis as their first principle. The argument within their ranks is between inclusive and exclusive interpretations of the thesis: Can the social facts of law include reference to normative standards? But American judges, public intellectuals, and political leaders took from positivism a different lesson: judges are exercising discretion. The distinction between core and penumbra, which generates the need for discretion, sounds to the American legal ear as if were framed with the Constitution in mind. Originalism is the response to the legitimacy crisis triggered by judicial discretion in a nation committed to the idea that law is authored by the people acting within democratic institutions. To speak of judicial discretion called forth by the penumbral quality of constitutional norms is only another way of describing the counter-majoritarian difficulty of American constitutionalism.
Recognition of a penumbra in which law is indeterminate creates a legitimacy problem, then, that rises in prominence in proportion to the importance of the substantive issue. After Brown, the Court was deciding issues of overwhelming political importance to the nation, meaning that the legitimacy issue had to be addressed. The major figures of constitutional theory, all tried to address the issue: Bickel, Ely, Ackerman, and Dworkin. None could withstand the tide of opposition from a rising culture of disbelief. Decisions of the Court no longer settle issues; rather, they identify the lines of political battle. This is explicitly suggested in the sharp dissents in our most visible constitutional cases: they assert that the majority decision is not law, but politics. For that reason, the dissenters do not think they are bound by the majority decision. But if not them, why us?
C. The Originalist Way Out
Once a democratic skepticism about the operation of judicial discretion takes hold, three responses are imaginable. All are hallmarks of the constitutionalism of project, for discretion only appears as the problem to the project imagination. Each has been tried out in constitutional history. First, we can try to impose electoral controls, as if judges should be treated like other officials exercising delegated, law-making authority. This is a move from Bickel’s metaphorical, popular referendum to the thing itself. The Progressives responded to judicial discretion in this way at the beginning of the 20th century. Remnants of that movement remain in a dozen states. In some, judges are directly elected for a term of office; in others, they are subject to democratic recall or retention election. This approach is also embraced by those who would fight political battles over appointments. If discretion cannot be limited, the question to the judge will inexorably be “which side are you on?”
Second, we can try to limit the jurisdiction of the Court. If we cannot eliminate discretion, we can reduce the occasions upon which the courts will have authority to exercise judgment. Congress might strip jurisdiction directly. Similar reductions might be accomplished by changing the voting rules on the Court or devising something like Thayer’s “clear mistake rule” in order to keep judges out of the legislative business. Those ideas are gaining new support today.
The third option has been the most popular recently. It tries to limit discretion by appealing to an objective measure. Outside the United States, this response has taken the form of proportionality review. Judges are treated as experts in applying this method of measuring costs and benefits. The metaphor of quantification becomes ubiquitous. Its defenders speak of a new legal science. Not the systemic science of the common law, but a science closer to the calculations imagined by Bentham. American courts and lawyers, however, have been exceptional in their skeptical attitude toward proportionality review. For them, the balancing of costs and benefits looks like a legislative project. It is, after all, just the sort of reasoning that a well-functioning legislature or an administrative agency would pursue. As a universal technique of governmental reasoning, it makes no contact with the idea that American law is a project of self-authorship by the people. Instead of turning to proportionality to control discretion, Americans turned to originalism. Like proportionality review, originalism purports to be neutral with respect to content and formal with respect to method. It promised to revitalize formalism while removing its negative overtones.
For originalists, judges are bound to remain at the core meaning of the legal text. The core is established at the moment of origin of the law. This idea, too, has support from Hart, who argued that the core was a necessary condition to linguistic intelligibility: a legal project must have a core. Predictably, however, there has always been some hesitation among originalists over the exact content of the core. Different accounts of intention and meaning have been tried. Much of the internal debate among originalists has concerned the means of specifying the core to which judges are bound. Text meets history, opening a space of some indeterminacy. An earlier generation of originalists focused on the intent of the framers or of the ratifiers; a new generation mostly believes that the original public meaning of the text controls the inquiry.
Originalists fight an unending battle against their critics to show that these sources can produce a determinate core. Sometimes, they fight among themselves. Because even the public meaning of a text that uses broad, normative terms can be open ended – and thus introduce a space for discretion – originalists seek to reduce abstract terms to particular usages. Thus, we find an increasing reliance on contemporary dictionaries and a tendency to collapse the meaning of text into its original expected applications. These techniques express an idea of law making as a project of specifiable dimensions to which judges are bound. A project without such specification is like a project of housebuilding that fails to specify the layout of the rooms. That would be either an incoherent project or no project at all.
Originalism has shown itself to be a powerful contender against Dworkin’s theory of constructive interpretation. Both find the idea that judges exercise discretion in hard cases to be democratically intolerable. Both believe in a “right answer” to a legal controversy. Both see an identity between judges and scholars, although each imagines scholarship differently. Both believe that there must be a convergence of legality and democratic legitimacy. Both believe that the right legal answer must find its ground in popular sovereignty, for the legitimacy of the rule of law depends upon its intersection with rule of the people. Dworkin finds that convergence in and through the systemic idea of integrity; originalists through an idea of the public meaning of the law at the moment that it emerges from a democratic project of law making. The key jurisprudential difference between the two approaches reflects different attitudes toward time: for the originalists, the meaning of a constitutional provision is established at its enactment, while for Dworkin, the meaning of the text emerges over time as the law realizes itself. This is a characteristic difference of projects and systems. It is as old as the account of Creation; it haunted Christian theology; it is a theme of American history. Surely, it can be no surprise that it is at the root of jurisprudential controversy today.
D. The Originalist Grounding for Political Obligation
At the heart of the originalist enterprise one finds an idea of the project of self-government. Originalism identifies popular sovereignty with specific iterations of electoral politics. The project of law creation legitimately binds citizens because it is the output of a democratic political process – either the extraordinary politics of the founding or the ordinary operation of legislative majorities. What else could democracy mean in America? Only in this way, they believe, can legality and legitimacy coincide. To the originalist these propositions have the self-evidence of a high-school civics class. This explains the tendency of some originalist history to find the roots of their movement directly at the Founding, long before Edwin Meese and the conservative revival of the seventies. Originalism has, for them a place in a decadent narrative in which Progressives, giving shape to a “living constitution” at the end of the nineteenth century, stray away from an original design that has now to be restored. Originalism is the way for such a restoration.
This aspect of originalist belief is displayed in the recent, so-called “Oath controversy.” That controversy begins from the claim that the text of Article VI, requiring an oath to “support this constitution,” entails a commitment to originalism as an interpretive method. By referring to “this Constitution,” the argument goes, the words must assume an unchanging text whose identity remains the same for us as it was for eighteenth century readers. The argument discards the possibility of swearing an oath to an evolving constitution. That idea is taken to be contradictory, for the content of an evolving constitution is precisely not what “this” constitution was at the founding. This is hardly an argument to those not already committed to originalism. It sets forth a petitio principi: it simply assumes that this constitution would have changed if it were to be interpreted in a non-originalist fashion. The argument effectively discards any other way of interpretation as self-evidently illegitimate. The alternatives substitute rule through judicial discretion – an elite project – for the project of democratic self-government.
Originalists believe that their jurisprudential aim of eliminating discretion coincides with their political theory of the conditions of democratic legitimacy. To solve the problem of discretion, however, they adopt an under-theorized view of democratic governance. Originalists have no answer to the most fundamental question of legitimacy in a democracy: why are citizens bound by past political decisions in which they did not participate? Not participating, they did not consent. Recourse to implicit consent will not work, if the mechanisms for withdrawing consent are not themselves democratic. Constitutional amendment is about as counter-majoritarian a process as can be imagined. Even ordinary legislation, however, fails this test, for the status quo is easily sustained by a determined minority.
Jefferson and Madison argued over the same issue. Jefferson defended democracy, which meant no constitution could legitimately bind more than a single generation. Madison responded that only chaos lies in that direction. A polity, it seemed to them, could be democratic or it could be stable. Hart addresses the problem of time early in The Concept of Law, when he takes up the issue of succession to the reign of Rex. For Hart, orderly succession illustrates his basic idea that law is a practice of recognizing rules, not of complying with orders from a particular sovereign. To say there is a rule, even a rule of recognition, however, does little more than restate the problem: how is the legitimacy of such a rule imagined in a democratic order? Hart fails to see Jefferson’s problem of assuring that it remains the people’s project. Hart, of course, is doing jurisprudence, not political theory. In America, however, we have a hard time keeping them apart. On this, originalists and Dworkin agree.
Jefferson’s problem of reconciling a project idea of legality and a democratic idea of legitimacy reappears over the course of the career of Robert Bork, an early leader of the originalist movement. His commitment to originalism as the proper form of legality eventually came into conflict with his attachment to democratic legitimacy. As long as he was an academic preaching originalism as a weapon against the Warren Court, he promised both judicial restraint and fidelity to the constitution’s original public meaning. Over the course of the next decades, as originalists gained positions on the bench, it became clear that this formula was, at best, unstable. Bork now confronted the problem of the dead hand of the past. As one sympathetic commentator writes, “consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer.” Bork’s originalism of project ran into a problem of democratic legitimacy: whose project is it? In the end, he chose deference to the democratic process over fidelity to the original constitution.
Bork stood with Jefferson against Madison, in choosing democratic legitimacy over legality. Later originalists would embrace legality over legitimacy, adhering to the original meaning against current majorities, even to the point of abandoning judicial restraint. For them, we are bound to the project until and unless there is a formal change. This is hardly a self-evident proposition. Indeed, without addressing the question of whose project it is, we are left with a gap between legality and legitimacy.
As Robert Cover wrote years ago, we live in a nomos. We experience the social order, including law, as fully within a meaningful world – a world in which justification is not added on, but built in. The originalists are right to see that, in the American nomos, claims of law are tightly related to a narrative of a democratic project; they are right again to see that law is bound to history. Because these are common features of the American nomos, there has been a widening of originalism toward embrace of even its opponents: we are, in some sense, all originalists.
We may all be originalists, yet we are not just originalists. For this reason, the seeds of the movement’s failure have been present from the beginning. They reside in its failure convincingly to connect the present to the past in a way that justifies the authority the past exercises upon us through law. To address that, there must be a turn to systemic, immanent order, and to a collective, transgenerational subject: We the People. Historians do not believe the lawyer’s accounts that pass for history in briefs and opinions. They do not believe that there is such a thing as history stripped of interpretation. Similarly, political philosophers do not believe that binding the present to archaic meanings has a democratic warrant. Without integrity, America’s constitutional project cannot answer the question of its own legitimacy.
The Meaning of a “Constitution in Exile”
In the account we have offered of late 20th century jurisprudence, Ronald Dworkin has occupied the center. His career begins with a critique of Hartian positivism and ends with the critique of the originalist turn in constitutional law. Our argument has been that there is a connection between Dworkin’s enemies: each relies upon an idea of law as project. Dworkin is the last great theorist of law as system. Revealing the underlying tension between system and project gives a new perspective on the nature and origins of originalism, which dominates so much of legal thought today.
By putting these developments in their proper conceptual context, we have tried also to put them in their historical place. History is more than a succession of moments of partisan politics. There is also a history of ideas within which partisan battles proceed. Understanding originalism as the project response to a constitutional law of system allows one to connect the movement with other moments in American history. It reminds us as well that despite the claims of its supporters, not only is originalism not self-evident, but there have been moments in American constitutional history when the originalism project was not evident at all. There is no project of originalism, for example, in an era in which the dominant constitutional narrative speaks of an evolving, unwritten constitution.
American constitutional theory is often dominated by narratives of restoration and redemption. It proceeds according to a “dynamic of eternal return” to the promises concealed in the fundamental law. Today it may seem that originalists have the better position in the contest of constitutional redemption. We have argued that originalism’s success finds its origins in deeper patterns of American legal thought: the contest of project and system. Viewed from that perspective, the rise of modern positivism and the rise of originalism point toward a single swing in the pendulum. Riding together on the opposite swing were Fuller and Dworkin. Swinging this way and that have been the decisions of the Court. That, we suspect, will never change.
As a remedy to judicial discretion, originalism confronts insuperable difficulties. It is theoretically unstable; it cannot deliver determinate answers in hard cases. Moreover, it rests on an incoherent identification of popular sovereignty with past political decisions that were themselves unlikely to have had much of a democratic warrant given America’s history of discrimination. Absent resolution of these problems, originalism becomes a sort of test of one’s political commitment; it becomes a rallying cry or an article of faith. For a conservative movement with such strange bedfellows as social conservatives and libertarians, those unresolved disagreements on a core doctrine can provide what Jack Balkin calls a “platform for persuasion.” Originalism filled the role of a lingua franca for the conservative legal movement, allowing its different contenders each to imagine the realization of their own distinctive ideologies through direct access to the constitution. Simultaneously, affirmation of originalism became a sort of mantra among those seeking to fill the Bench with partisans. Thus, by the time Trump arrived, originalism had itself become a cultural marker as much as a doctrine of legal interpretation.
The country now finds itself in an unusual situation. What started out as a response to an “undemocratic” exercise of judicial discretion has become a partisan position. To the degree that professors of law embrace originalism, the teaching of law has itself become a partisan activity. One has to wonder whether the law school belongs in the university any longer.
Did law schools ever really belong in the university? They obtained entry in the late 19th century by casting law as a science of system. Yet, law is not a science; it is a practice of persuasion in which claims to system compete with those of project. There is no single, enduring truth of the matter. By the beginning of the 21st century, the claim of system no longer persuaded. One way or another, the opposition was going to organize under the idea of project. For reasons that we have traced, originalism was the product of that effort. The response, when it comes, will no doubt take the form of system. This will then be the path for the next narrative of constitutional restoration. This can already be observed in some contemporary variants of originalism. There are renewed signs, in the conservative legal movement, of impatience with originalism itself.
The tension between these two formations of order, and the commitment to both as elements of our law and legal history, means that there are always arguments available to the opposition. This is the real meaning of a “constitution in exile.” It belongs to neither conservatives nor progressives. There are always constitutional arguments waiting for some political movement to make use of them. Today, there may seem to be little space for the re-emergence of a constitution of system, but to think that we are at the end of history is as short-sighted as thinking that history will give us determinate answers to our constitutional arguments.
Paul W. Kahn
Robert W. Winner Professor of Law and Humanities at Yale Law School, and Director of the Orville H. Schell Center for Human Rights. He earned his Ph.D. in Philosophy from Yale University, and his Juris Doctor (JD) from Yale Law School. From 1980 to 1982, he clerked for Justice White on the U.S. Supreme Court. Before joining Yale in 1985, he practiced law in Washington, D.C., during which time he was on the legal team representing Nicaragua before the International Court of Justice. He teaches in the areas of constitutional law and theory, international law, cultural theory and philosophy. He has written many books in the fields of constitutional law, political theory, and cultural studies. His latest books are Origins of Order: Project and System in the American Legal Imagination (Yale University Press, 2019), Testimony (Cascade Books, 2021), and Democracy in America 2020 (Yale University Press, forthcoming 2022).
Aurélien de Travy
PhD student in Public law at the University of Paris II, Panthéon-Assas, Institut Michel Villey.