The Thinking 

Dworkin on the “Crippling Burden” of the Constitution

June 11, 2012



Ronald Dworkin has had a long career in legal studies as a liberal-left philosopher of politics and law.  His bibliography is extensive, and his NYU faculty profile states that he is “probably one of two or three contemporary authors whom legal scholars will be reading 200 years from now.”  It is a fitting prophecy for this craftsman of exaggeration.

Dworkin’s recent essay “Why the Mandate is Constitutional,” is, as the expression goes, a piece of work. The reader is confronted with the following hyperbole at the opening of the piece:

The Supreme Court’s hearings in the health care case, US Department of Health and Human Services v. Florida, over a nearly unprecedented three days of oral argument in late March, generated all the attention, passion, theater, and constant media and editorial coverage of a national election or a Super Bowl.  Nothing in our history has more dramatically illustrated the unique role of courtroom drama in American government and politics as well as entertainment.

The first line alone manages to combine fluency of expression with smugness, obfuscation, and distortion; and it does so by conflating public excitement over national elections with that of Super Bowl Sunday and both events with reporting and commentary on the oral argument before the Court.  Dworkin trivializes widespread focus on the story as a kind of national hoopla, even though he knows that twenty-five states have joined Florida in a suit that targets the financing mechanism of the administration’s health care act, and he acknowledges with some emphasis that the duration of the argument was “nearly unprecedented.”

And it was so for good reason, because the mandate raises fundamental questions on constitutional limits to the power of the federal government.  Seen in this light, Dworkin’s attempt to belittle the public’s attention to the case also has the strategic goal of diverting attention from the fact that millions of supposedly unreflecting Americans have consistently opposed both the mandate and other hot button provisions of Obamacare and have perceived them as a threat not only to the quality of medical care they now enjoy but also to their liberties.

In one quick stroke, Dworkin has obscured the public’s personal stake in the case and made an exaggerated claim in the same spirit of sensationalism that he has just ascribed to the media: “Nothing in our history,” he declares, exemplifies “the unique role of courtroom drama” in American life such as HHS. v. Florida.  Nothing, not Dred Scott v. Sandford, Roe v. Wade, or Brown v. Board of Education, to cite three of the high points.  As for courtroom drama as national theater, it’s hard to beat the trial of Bruno Richard Hauptmann in the baby Lindbergh kidnapping case (H. L. Mencken called it “the greatest story since the Resurrection”), although two previous cases also went to the top of the charts: the Leopold-Loeb trial of 1924 and the Scopes “Monkey Trial” of 1925, both of them dominated by that most dramatic of defense lawyers, Clarence Darrow.  All three became the subject of novels and films.

“Nothing in our history” covers a lot of ground, but Dworkin’s sense of moral superiority makes him incapable of curbing his appetite for absolutes, as when he states that if the Court rules against Health and Human Services, “we would have to accept that our eighteenth-century constitution is not the enduring marvel of statesmanship we suppose but an anachronistic, crippling burden we cannot escape, a straitjacket that makes it impossible for us to achieve a just national society.”  As Keith Burgess-Jackson, an associate professor of philosophy at U. Texas Arlington, writes in his blog on April 9, “How convenient!  When the Constitution stands in the way of Dworkin’s progressive agenda of remaking this country, it’s antique.  When it supports his agenda, it’s a bulwark of liberty. Heads I win, tails you lose.”

Dworkin’s either-or claim is not only arbitrary, however, but precisely contrary to real-world experience, since any genuine “marvel of statesmanship” requires long-range judgment, principled action combined with a healthy respect for history and human nature, and political talent in the art of compromise, all of which the founders had in surplus and none of which has anything in common with Dworkin’s utopian goal of “a just national society,” which always has been and always will be “impossible for us” or any social order to attain.  And in the here and now, who is this “we” who will “have to accept” that the Constitution will turn into a “straitjacket” if the Court rules against the mandate?  Dworkin’s divisiveness, like the President’s, is exemplified by the fact that his “we” excludes millions of Americans who fear with good reason that it is the mandate itself which will be a “crippling burden that we cannot escape.”

Again, hyperbole comes easily to Dworkin.  Recent Court decisions with which he disagrees were “very badly reasoned,” “soiled the Supreme Court’s reputation,” and “harmed the nation,” while the very “prospect” of the Court’s striking down the mandate is “frightening.”  Letting out all the stops, he warns us that “American health care is an unjust and expensive shambles,” so much so that “only a comprehensive national program can even begin to repair it.”  Blind to the consequences of his exaggerations, Dworkin has unwittingly made an excellent case for the opposition; for if the entire act is only a tentative first step in tackling the wreckage, then there is no way even to estimate the time and cost for “repair,” so that the government essentially has a blank check for the ever-receding goal of “a just national society.”

In reporting the Solicitor General’s argument that the mandate does not open the gates to unlimited federal power to coerce the purchase of products, Dworkin notes that Donald Verrilli “offered several ways to distinguish health care from electrical cars and broccoli,” saying “first, that people do not have to buy cars or broccoli but almost everyone, eventually, has to receive health care.”  True, but that point only reinforces the case against the mandate, since failure to purchase insurance carries a penalty that is directly contingent on an existential fact for which we are not responsible, namely, that everyone has a body, or put another way, that without any choice in the matter one happens to have been born.  This is no small point; for Dworkin’s claim that only a coercive federal program “can even begin to repair” our national health care recalls similar warnings of damage to the very atmosphere as a result of our “addiction” to fossil fuels, on which modern life in fact depends.  Given the administration’s concerted drive to limit their production and consumption, together with the EPA’s 2009 designation of the carbon dioxide released on both ends as a pollutant (in a regulation upheld by the Court), people have every right to be alarmed by the grip that the government is increasingly extending over the basic terms of their existence.

In one of his many attempts to trivialize opposition to the mandate, Dworkin writes that “most analysts think” that the legal issues themselves “are not really controversial,” as though sheer quantity (as in “most experts”) had any bearing on the quality of the thinking or that the strong questioning of the Solicitor General during “a nearly unprecedented three days of oral argument” did not reflect a substantive dispute over constitutional law.

Like today’s version of climate catastrophism, however, the act remains controversial because controversy was with it from birth: highly questionable Senate maneuverings were required to get it passed at all; Florida and twelve other states filed a federal lawsuit against the legislation the day the president signed it into law; the case is now before the Court with an additional thirteen states joined in the suit, and Dworkin himself acknowledges that the decision may rest upon a single vote.

If it does, writes Dworkin, the fate of the act may be in the hands of Justice Kennedy, who is “often the swing vote between [the Court’s] liberals and ultraconservatives.”  In his essay on the 5-4 decision against the Bush administration in Bush v. Boumedienne (2008), he refers to the ultras as the “conservative phalanx” and declares that Kennedy “in this case . . . rejected the phalanx” by ruling that the Constitution not only safeguards the rights of “America’s own citizens” but also affords protection “against American tyranny to foreigners.”  A scant four years later, this same justice could conceivably force us to regard it as a “crippling burden” if he rules against the act.  With a condescension that borders on insult, Dworkin writes, “There is still reason to hope, as I discuss later,” that Kennedy “will have sufficient respect for congressional authority to save the act.”  If it is indeed true, however, as Kennedy said to Verrilli, that the act fundamentally “changes the relationship of the Federal Government to the individual,” the Court may well have sufficient respect for the Constitution to strike it down.

                                          — Comments —-

Paul writes:

Mr. Dworkin does indeed praise the Court decisions he likes and denounce those he dislikes. Worse, he is writing an essay rather than a legal brief and yet is casually assuming that our tax system and social security are constitutional because the Court has upheld them. He is not writing to lawyers but to the public. And the public does not want to know what evils the Court has done. We want to know why it is moral to mandate that everyone buy a product, health insurance, and why the system will not lead to rationing.

Because murder causes more deaths among young black males than any other single cause, Mr. Dworkin would not be shocked if the government were to mandate that young black males buy and possess guns to protect themselves. (Now that would be an upside down reason for stop and frisk laws.) Most people know that guns deter crime by individuals and by governments. (This might not hold true among blacks in America.)

He even has the boldness to quote Justice Kennedy’s outrageous admissions:

The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses: first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities.

He supposes this blatant disregard for the Founders’ intent is reasonable

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