Hostname: page-component-7479d7b7d-c9gpj Total loading time: 0 Render date: 2024-07-11T22:39:05.517Z Has data issue: false hasContentIssue false
  • English
  • Français

Epistemologieal Skepticism, Hobbesian Natural Right and Judicial Self-Restraint

Published online by Cambridge University Press:  05 August 2009

Sotirios A. Barber
Get access Rights & Permissions [Opens in a new window]

Abstract

Ronald Dworkin has shown that the doctrine of judicial self-restraint, although packaged as a defense of constitutional tradition, is grounded in a legalmoral skepticism that either inadvertently or covertly rejects the possibility of a genuinely normative constitution. The influence of Dworkin's argument challenges exponents of judicial self-restraint to show that their position is consistent with constitutionalist assumptions. This paper considers two attempts to meet that challenge. One defends restraint on epistemologieal grounds; the other on a substantive theory of natural rights. Together, these attempts constitute a comprehensive and systematic attempt to justify restraint within constitutionalist assumptions. Their failure indicates that the doctrine of restraint can form no part of a normative theory of the Constitution.

Type
Research Article
Information
The Review of Politics , Volume 48 , Issue 3 , Summer 1986 , pp. 374 - 400
Copyright
Copyright © University of Notre Dame 1986

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Notes

1 Thayer, James B., “The Origin and the Scope of the American Doctrine of Judicial Review,” Harvard Law Review, 7 (1893), 143, 144.CrossRefGoogle Scholar

2 For commentary on the background and development of the modern debate see The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962), chaps. 1–3Google Scholar; Purcell, Edward, “Alexander M. Bickel and the Post-Realist Constitution,” Harvard Civil Rights-Civil Liberties Law Review, 11 (1976), 520–64Google Scholar; Tushnet, Mark V., “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” Harvard Law Review, 96 (1983), 781–827CrossRefGoogle Scholar; Wiseman, Lawrence E., “The New Supreme Court Commentators: The Principled, the Political and the Philosophical,” Hastings Constitutional Law Quarterly, 10 (1983), 603–716Google Scholar; Carter, Lief H., Contemporary Constitutional Lawmaking: The Supreme Court and the Art of Politics (New York: Pergamon Press, 1985), chaps. 1–5.Google Scholar

3 Bickel, , Least Dangerous Branch.Google Scholar

4 Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980)Google Scholar, chap. 1; Perry, Michael J., The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982), chap. 1.Google Scholar

5 Dahl, Robert, “The Supreme Court as a National Policy Maker,” Journal of Public Law, 6 (1957), 279Google Scholar; Bickel, , Least Dangerous Branch, pp. 23–33; chap. 6.Google Scholar

6 Grey, Thomas, “Do We Have an Unwritten Constitution?” Stanford Law Review, 27 (1975), 703–718CrossRefGoogle Scholar; Ely, , Democracy and Distrust, pp. 22–41Google Scholar; Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), p. 137.Google Scholar

7 Reprinted, with modifications, in Dworkin, , Taking Rights Seriously, chap. 5.Google Scholar

8 Dworkin, Ronald, “The Forum of Principle,” New York University Law Review, 56 (1981), 469–518Google Scholar; idem., “Reagan's Justice,” New York Review of Books, 31 (1984), 27–31Google Scholar; idem., “Reagan's Justice: An Exchange,” ibid., 32 (1985), 39–40.

9 Cohen, Marshall, ed., Ronald Dworkin and Contemporary Jurisprudence (Totowa, New Jersey: Rowman and Allenheld, 1983), p. iv.Google Scholar

10 Bickel, , Least Dangerous Branch, pp. 81–84.Google Scholar

11 Brubaker, Stanley C., “Reconsidering Dworkin's Case for Judicial Activism,” Journal of Politics, 46 (1984), 503–519.CrossRefGoogle Scholar

12 Berns, Walter, “Judicial Review and the Rights and Laws of Nature,” in 1982 Supreme Court Review, ed. Kurland, Philip B., Casper, Gerhard, and Hutchinson, Dennis J. (Chicago: University of Chicago Press, 1983Google Scholar; idem., “Taking Rights Frivolously,” in Liberalism Reconsidered, ed. MacLean, Douglas and Mills, Claudia (Totowa, New Jersey: Rowman and Allenheld, 1983).Google Scholar

13 For example, Bork, Robert H., “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal, 47 (1971), 1–35Google Scholar; Rehnquist, William H., “The Notion of a Living Constitution,” Texas Law Review, 54 (1976), 693Google Scholar; Bickel, Alexane M., The Morality of Consent (New Haven: Yale University Press, 1975)Google Scholar; Berger, Raoul, Government by Judiciary (Cambridge, MA: Harvard University Press, 1977).Google Scholar

14 Brubaker, , “Reconsidering Dworkin's Case for Judicial Activism,” pp. 508, 511, 514.Google Scholar

15 Berns, , “Judicial Review and the Rights and Laws of Nature,” pp. 55–66.Google Scholar

16 Bork, , “Neutral Principles and Some First Amendment Problems,” pp. 2–10Google Scholar; Bork, Robert H., Tradition and Morality in Constitutional Law (Washington, D.C.: American Enterprise Institute, 1984), p. 9Google Scholar; see also Rehnquist, , “The Notion of a Living Constitution.”Google Scholar

17 Dworkin, , “Reagan's Justice,” p. 29.Google Scholar

18 Bork, , “Neutral Principles and Some First Amendment Problems,” pp. 7–12.Google Scholar

19 Dworkin, , Taking Rights SeriouslyGoogle Scholar, chaps. 4–5; idem., “The Forum of Principle”; idem., “‘Natural’ Law Revisited,” University of Florida Law Review, 34 (1982), 165.Google Scholar

20 Brubaker, , “Reconsidering Dworkin's Case for Judicial Activism,” pp. 508–518.Google Scholar

21 Ibid., pp. 513–14.

22 Ibid., pp. 511–12.

23 Dworkin, , Taking Rights Seriously, pp. 133–35Google Scholar; Barber, Sotirios A., On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984), pp. 117–19.Google Scholar

24 Dworkin, , Taking Rights Seriously, pp. 135–36.Google Scholar

25 Brubaker, , “Reconsidering Dworkin's Case for Judicial Activism,” pp. 509, 511, 513–14.Google Scholar

26 Ibid., p. 511, 513–14.

27 Ibid., p. 514n 13.

28 Ibid., p. 505.

29 Ibid., p. 514.

30 Barber, , On What the Constitution Means, chap. 3.Google Scholar

31 Dworkin, , Taking Rights Seriously, pp. 284–87.Google Scholar

32 Barber, , On What the Constitution Means, pp. 79–80, 87–88, 121–22, 147–54.Google Scholar

33 Brubaker, , “Reconsidering Dworkin's Case for Judicial Activism,” p. 514n 13.Google Scholar

34 Ely, , Democracy and Distrust, p. 38.Google Scholar

35 Dworkin, , Taking Rights Seriously, pp. 142–44.Google Scholar

36 Brubaker, , “Reconsidering Dworkin's Case for Judicial Activism,” p. 511.Google Scholar

37 Dworkin, , Taking Rights Seriously, p. 146.Google Scholar

38 Brubaker, , “Reconsidering Dworkin's Case for Judicial Activism,” pp. 515–16.Google Scholar

39 Ibid., p. 515.

40 Dworkin, , Taking Rights Seriously, pp. 125–26.Google Scholar

41 Ibid., p. 126; cf. Perry, Michael J., “The Authority of Text, Tradition, and Reason: A Theory of Constitutional ‘Interpretation,’” Southern California Law Review, 58 (1985), 556–61Google Scholar; Barber, , On What the Constitution Means, pp. 59–60, 84–85.Google Scholar

42 Dworkin, , Taking Rights Seriously, p. 146.Google Scholar

43 Brubaker, , “Reconsidering Dworkin's Case for Judicial Activism,” pp. 511–12.Google Scholar

44 Dworkin, , Taking Rights Seriously, p. 147.Google Scholar

45 Dahl, , “The Supreme Court as a National Policy Maker.”Google Scholar

46 Roche, John P., “Judicial Self Restraint,” American Political Science Review, 49 (1955), 762–72.CrossRefGoogle Scholar

47 One might grant Brubaker's interpretation of Dworkin and thereby acknowledge flaws in Dworkin's broader philosophic view without undermining his argument for judicial activism. Thus, Dworkin's statement may indicate that the ultimate content of rights is determined by convention, albeit a deep convention, not by a natural moral reality known through progressively better theories (see Moore, Michael S., “A Natural Law Theory of Interpretation,” Southern California Law Review, 58 [1985], 291–301, 309n 64).Google Scholar The statement might then indicate that Dworkin had not yet accepted the full implications of his decision to analyze constitutional problems from the perspective of political actors who take constitutional authority seriously (cf. Brubaker, , “Taking Dworkin Seriously,” Review of Politics, 47 [1985], 60–62).CrossRefGoogle Scholar But even if we ignore Dworkin's response, his failure to follow the logic of his case for judicial activism would in itself say nothing about that case. Brubaker would not say that Dworkin's failure reflects the untenable character of the “natural law” premises to which the logic of Dworkin's defense of judicial activism leads, for Brubaker himself admits “ontological confidence,” “right answers” beyond historical intentions and rights claims whose validity does not depend on the wishes or intentions of any individual or group (Brubaker, , “Reconsidering Dworkin's Case for Judicial Activism,” pp. 508, 511, 514Google Scholar; idem., “Taking Dworkin Seriously,” pp. 46–49).Google Scholar

48 Brubaker, , “Reconsidering Dworkin's Case for Judicial Activism,” pp. 516, 517.Google Scholar

49 Dworkin, , Taking Rights Seriously, pp. 217–20.Google Scholar

50 Ibid., pp. 159–96.

51 Ibid., p. 214.

52 Agresto, John, The Supreme Court and Constitutional Democracy (Ithaca, New York: Cornell University Press, 1984), pp. 114–16.Google Scholar

53 Barber, , On What the Constitution Means, pp. 196–99.Google Scholar

54 Agresto, , Supreme Court and Constitutional Democracy, pp. 78–95.Google Scholar

55 Ibid., pp. 11, 125–38.

56 Brubaker, , “Reconsidering Dworkin's Case for Judicial Activism,” pp. 514, 517.Google Scholar

57 Bickel, , Morality of Consent; see also p. 390 below.Google Scholar

58 Berns, , “Judicial Review and the Rights and Laws of Nature,” pp. 55–56.Google Scholar

59 Ibid., pp. 77–80.

60 Ibid., pp. 80–81.

61 Berns, , “Taking Rights Frivolously,” pp. 52–54.Google Scholar

62 Ibid., pp. 55–56.

63 Ibid., pp. 59–60.

64 Ibid., pp. 61–62.

65 Ibid., p. 60.

66 Ibid., quoting Hamilton, Federalist, No. 78.

67 Ibid., pp. 61, 64.

68 Berns, , “Judicial Review and the Rights and Laws of Nature,” p. 50.Google Scholar

69 Ibid., pp. 50–51.

70 Berns, , “Taking Rights Frivolously,” pp. 63–64, 66n 43.Google Scholar

71 Ibid., pp. 63–64.

72 Dworkin, , Taking Rights Seriously, p. 180Google Scholar; Ely, , Democracy and Distrust, p. 82.Google Scholar

73 Berns, , “Taking Rights Frivolously,” p. 59.Google Scholar

74 Berns, , “Judicial Review and the Rights and Laws of Nature,” pp. 80–81.Google Scholar

75 Berns, , “Taking Rights Frivolously,” p. 64.Google Scholar

76 Brubaker, , “Reconsidering Dworkin's Case for Judicial Activism,” p. 512n 12.Google Scholar

77 Ibid., p. 507n 6.

78 See, e.g., Dworkin, , Taking Rights Seriously, pp. vii, 193–95, 197–204; chaps. 8, 9, 12.Google Scholar

79 See, e.g., Ball, Milner, The Promise of American Law (Athens, GA: University of Georgia Press, 1981), chaps. 3, 7, 8Google Scholar; Ely, , Democracy and DistrustGoogle Scholar, chaps. 4–6; Murphy, Walter F., “An Ordering of Constitutional Values,” Southern California Law Review, 53 (1980), 703–760Google Scholar; Richards, David A. J., The Moral Criticism of Law (Encino, CA: Dickenson, 1977).Google Scholar

80 Barber, , On What the Constitution Means, chaps. 4–6.Google Scholar

81 Berns, , “Taking Rights Frivolously,” p. 62.Google Scholar

82 Ibid., p. 59.

83 Ibid., pp. 52, 53–54, 64.

84 Ibid., pp. 58, 59–60.

85 Ibid., pp. 55–56, 62.

86 Ibid., pp. 52, 64.

87 Ibid., p. 62.

88 Flathman, Richard E., Political Obligation (New York: Atheneum, 1972), pp. 58–77Google Scholar; Barber, , On What the Constitution MeansGoogle Scholar, chap. 3; Berns, Walter, The First Amendment and the Future of American Democracy (New York: Basic Books, 1976), pp. 127, 171–75.Google Scholar

89 Tarcov, Nathan, “Philosophy and History: Tradition and Interpretation in the Work of Leo Strauss,” Polity, 16 (1983), 22–26.CrossRefGoogle Scholar