Document Type

Article

Publication Date

1997

Abstract

Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or her interests is entitled -- morally and legally -- to a reasoned decision illustrating why moral principles held constitutionally dispositive in earlier cases regarding similarly situated groups should not be equally dispositive for him or her. When done well, the result of this method is what Dworkin has called an "integrity of principle," which, in turn, is a necessary, albeit not sufficient, condition for the moral justification of the constraints of constitutional law in a democratic state. Stated differently, if constitutional law is to be a part of a morally justified form of democratic self-governance, then the moral principles at its core must be applied even-handedly, and they must be applied even-handedly no matter how difficult, inexpedient, inefficient, or simply politically unpopular it may be, from time to time, to do so. Finally, commitment to such a view defines membership in the "party of principle," intended as a contrast to the membership of the "party of history," who defends and locates rights not by reference to general principles even-handedly applied, but rather, by reference to whether the argued right respects distinctions honed and honored by tradition.

In these comments, I want first to suggest a non-relativist argument for the necessity of integrity to constitutionalism, intended, frankly, to resolve the above noted tension, and to do so by identifying the grounds for integrity and principle in neither the interpreted constitution nor in liberalism, but in a substantive value that is deeper and broader than both, and hence both informs and constrains both. The constraint of integrity, I will argue, arises not from the "sail" of constitutional precedent itself, which goes wherever the wind blows it, nor from liberalism per se, but from a source external to both, which accordingly constrains the direction which constitutional authority might take. The argument that I will suggest is by no means inconsistent with Dworkin's arguments and indeed is strongly suggested in much of his earlier writing, particularly Law's Empire." In the second part of my comments, I will suggest some limitations on this conception of integrity. Finally, I will offer a friendly amendment to Dworkin's account of integrity.

Publication Citation

65 Fordham L. Rev. 1313 (1997)

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