Whittington 2000 Dworkin's Originalism

Summary

2023-09-27: Whittington Dworkin's "Originalism": The Role of Intentions in Constitutional Interpretation (PDF) 2000

• Specifically, Ronald Dworkin's elaboration of the distinction between different forms of authorial intent has not been persuasive at establishing the warrants for his form of moral interpretation.
• In doing so, I contend that Dworkin's discussion of constitutional intentions has not rendered traditional originalism incoherent as he has claimed and that there remain substantial differences in what different constitutional theorists are seeking to intepret.
• In doing so, Dworkin has constructed an originalist theory that ... he has offered ... as the correct version of originalism if one were to take originalism seriously.
• My concern is whether originalism must really be Dworkin's "originalism."
• The first section elaborates Dworkin's argument for expanding our originalism and the three possible supports for Dworkin's distinctions.
• The second section examines Dworkin's concept of "semantic intentions," which contends that the Founders chose abstract principles through the language that they employed.
• The third section examines a "moral realist" defense of Dworkin's arguments.
• The fourth section considers Dworkin's normative argument, in which the Founders are understood as employing abstract concepts, which can in turn be accessed through the text.
• Dworkin's Case for an Expansive Originalism (201)
• ... this section will simply reconstruct the several versions of the categorization that Dworkin has offered over the years. [concept/conceptions --> abstract/concrete intentions]
• Those who wish to emphasize the degree to which the Constitution only creates a "skeleton of freedom" understand the text as embodying certain abstract principles.
• Others contend that the Constitution is actually composed of specific "conceptions" of freedom and equality. Later interpreters need not struggle with the definition of "freedom," for the text already contains lists of specific freedoms to be protected. [and no others?!]
• Dworkin has argued that abstract intentions are just as much th intentions of the Founders as the concrete intentions emphasize by traditional originalists, and indeed the abstract concepts bett capture their intentions than does "a concrete, dated reading."
• The question then becomes how we know that the Constitution contains abstract as well as concrete intentions, and that the form are to be interpretively preferred to the latter.
• Dworkin offers essentially three reasons for thinking th abstract principles have been constitutionalized in the text.
• First, Dworkin has contended that the Founders necessarily intend to constitutionalize only the broad concept because they employ abstract textual language. ... an emphasis on abstract principles is the only correct "originalist" approach, for only it interprets the Founders' intentions rather than their predictions about future legal applications.
• A second argument suggests that concepts and conceptions should be prioritized not on the basis of the Founders' intentions but rather on the basis of our own normative commitments. Thus, in writing an a text, the Founders meant to prohibit that which is really cruel and unusual, and not simply whatever they themselves might have thought was cruel and unusual. Later interpreters might contradict the Framers' concrete intentions by correctly interpreting abstract intentions. [how to apply search and seizure to non-physical items...e.g. electronic records including assets.]
• A "good" originalist will focus on the abstract principles embedded in the constitutional text, and this in turn will require an originalist interpreter to make substantive moral judgments and not simply empirical historical judgements.
• The remainder of this paper is concerned with demonstrating the flaws in this position. [207 ... on page 12 of 34]
• The Problem with "Semantic Intentions" (207)
• A properly conceptualized originalism ... must insist on the priority of historical inquiry [over moral reasoning] in faithful constitutional interpretion. [why? is there definitive material to determine the meaning of "cruel and unusual"?]
• The critical piece of evidence of founding intent, for Dworkin, is the words or phrases actually used in the relevant text.
• [sidebar: pitch in baseball that ignores the action of the batter; non-standard speech conventions (are such used in the text?)]
• Dworkin is correct to caution originalists against relying on the Founders' expectations about their text, but he is wrong to equate intentions with the plain meaning of the text. His "semantic" reading of the text leads Dworkin to conclude that the Founders' intended to embody abstract principles in the textual language rather than a more specific set of commitments. [what are the specifics of "cruel and unusual" and what do these words mean for methods unknown at the time.]
• Moreover, Dworkin ignores the possibility that the Founders were being concrete when employing broad but not necessarily abstract language. [apply to "cruel and unusual". which punishments?]
• Quite possibly, however, they meant to express a quite specific principle through the cruel and unusual clause. [what is the specific principle?]
• [sidebar into a boss's statement ... boss is present and can be queried. Framers are all dead. No replies to queries.]
• Of course, given the contested nature of these concepts, the boss might have been well advised to make explicit and concrete his particular understanding of "best," but his meaning was understandable regardless. The boss's intent was discoverable [via query].
• [Appears that Whittington asserts that Dworking says] In employing abstract language the Founders meant to convey an abstract, and ultimately empty, concept.
• The Possibility of a Moral Referent (216; 21 of 34)
• This approach links moral theory with interpretation through the suggestion that, in employing broad textual language, the Founders referred to real moral concepts. [if not, then?]
• [sidebar into misunderstanding of Newtonian mass as compared to Einsteinian mass and posits that there are "Newtonian" physicists.]
• If the former [descriptivist model], then equality is simply defined by local convention. If the latter, then equality is defined by objective reality [causal model].
• In the first case [descriptivist model], "interpretation" becomes a political task of determining which side will control the definition. In the second case [causal model], interpretation becomes a philosophical task of discovering moral reality.
• But Dworkin's stark dichotomy is misplaced. [WHERE did Dworking state this dichotomy? Whittington raises the descriptive vs casual choice. Dworkin states real moral concepts, abstract intentions]
• [sidebar into warning about crouching tigers and non-conventional uses of language "notice the tiger next time you visit the zoo". Is Whittington equally out of his depth in linguistics as he is in physics?]
• The Founders may have intended their language to refer to either broad concepts or to specific conceptions or applications. [Why did they leave room for doubt when the could have been specific?]
• Reading by the "Best Light" (222 ... page 27 of 34)
• In this reading, the Founders did not specify between abstract and concrete intentions. Instead, the Founders possessed both and both kinds of intentions are embedded in the text.
• Historical evidence cannot arbitrate between the two intentions because both are historically accurate. A further effort to search for intent is "a wasteful irrelevance."
• Emphasizing the abstract intentions available in the constitutional text allows the contemporary judge to reconcile the terms of the Constitution with current morality.
• Dworkin's effort to hold the Founders to both kinds of intentions is unsuccessful, and the tools for laying that failure bare have already been provided in the second section above. Dworkin's analytical claim that the Framers held both kinds of intentions rests on obscuring the distinctions between motivations, expectations, and intentions.
• The belief that cheating is unfair is here understood to be the "abstract intention," and the instruction not to cheat on exams is the "concrete intention." [no. fairness is the abstract intention. Cheating is one category of unfair behavior that encompasses cheating on exams, using non-regulation equipment, exceeding weight limits, etc.]
• It is of course the case that the father would not have cautioned against cheating. [A father may instruct his children to treat other fairly.]
• Knowing the father's belief system may clarify the instruction and it might help explain why the instruction was issued, but it is not itself the instruction. [How does one follow the instruction without knowing and understanding the abstract concept?]
• Is "not cheating on exams" a translation of the father's instructions, or is it merely an application?
• Drawing this distinction, in fact, emphasizes the separation between what Dworkin labels as abstract and concrete intentions.
• ... but abstraction does not allow interplay of levels of meaning that Dworkin portrays. An text, or intent, has a substantive content, and it excludes the simultaneous existence of a concrete intent. [why?]
• Conclusion (227 ... page 32 of 34)
• Early in his contributions to constitutional theory, Dworkin successfully argued that the division among constitutional scholars was not over "whether" to interpret but rather was over "what" to interpret.
• Dworkin's internal critique of traditional originalism usefully reminds us of the possibility of intended principles, and that the Constitution embodies moral principles as well as specific directives.