Response to Levinson
Siegel, Fred
IIIwo questions inform Sandy Levinson's essay. He asks (a) why we should respect and obey the law, particularly when there is so often a tension between morality and law, and (b) by what...
...The demands of justice might best be served by reducing the liberal dependence on priests in black judicial robes as a way of sparking liberalism's political revival...
...Therein lies the rub...
...What makes for a community, says Lord Devlin, is that people share "not political ideas alone but also ideas about the way its members should behave and govern their lives...
...The public, unconcerned with technical niceties, simply wants a generalized right of privacy, the New Right and the arguments be damned...
...q Sanford Levinson will return to these issues in a future issue of Dissent — Eds . SUMMER • 1988 • 313...
...Dworkin's justification of judicial power is, in short, a purely academic construct that, when applied as in Roe v. Wade, is incapable of commanding the community assent on which it is supposedly based, Levinson himself is caught between the logic of his argument for the unintelligibility of a written Constitution, which most reasonably leads to judicial restraint, and his desire to narrow the gap between law and morality, which leads to judicial activism...
...Dworkin tries to assure us that, having abandoned fidelity to the written Constitution, his superhuman judge "Hercules" will not be free simply to impose his own will on legal disputes...
...But even as Dworkin tries to anchor his arguments in community, he is also fundamentally committed on the basis of our constitutional "moral text" to an individual's right to personal autonomy, independent of the perceived moral consequences for others...
...But they were entirely beside the point...
...Levinson and his academic colleagues are not alone in questioning the current judicial regime...
...The dilemma's resolution, insofar as there is one, probably lies outside the courts...
...But the evidence suggests that, to the contrary, the current dissatisfaction with the courts has come precisely because of the efforts, left and right, to bridge that gap...
...It's an insoluble dilemma within the confines of the judicial sphere, and he wisely concludes by preaching tolerance...
...The practical effect of insisting on absolute moral 312 • DISSENT autonomy is to destroy community sentiment by putting individual behavior beyond not only the reach of government, but of social censure as well...
...Justice Robert Bork's criticisms, during the recent hearings on his appointment to the Supreme Court, of the landmark Griswold case, which helped establish the "right" of privacy, were to some degree both intellectually persuasive and a replication of the earlier criticisms of that great New Deal liberal Justice Hugo Black...
...He asks (a) why we should respect and obey the law, particularly when there is so often a tension between morality and law, and (b) by what authority judges impose their will on the rest of us...
...But in fact on issues like racial quotas, abortion, and school prayer, overwhelming majorities are strongly opposed to the current rulings...
...This is a combination that cannot hold...
...For these majorities, the problem is that the Court has imposed its own version of the Constitution's hidden "moral text...
...But Levinson, uncharacteristically sympathetic to Dworkin, gives only a passing indication of the deeply contradictory nature of Dworkin's argument...
...The logic of Levinson's essay and the examples he uses, such as the Antelope case, suggest that the problem of respect for the law derives, as Ronald Dworkin and Owen Fiss would agree, from our failure to bridge the gap between law and moral purpose...
...A recent poll conducted by the National Law Journal found that three-quarters of the voters favored the election of lower-court judges, three-fifths favored the election of Supreme Court judges, and nine out of ten wanted to replaced life tenure for federal judges with fixed terms...
...Most readers will, I suspect, have been enlightened by Levinson's use of Frederick Douglass to give a better account of Dworkin's theory of judging than Dworkin gives for himself...
...The defeat of the New Right on the privacy, issue led some like Anthony Lewis to see the Bork hearings as a generalized vindication of the Warren Court in particular and judicial activism in general...
...Hercules's narrative interpretation, he tells us, will be constrained by community values...
Vol. 35 • July 1988 • No. 3
