A Special Supplement: The Jurisprudence of Richard Nixon

By Ronald Dworkin

When Richard Nixon was running for President he promised that he would appoint to the Supreme Court men who represented his own legal philosophy, that is, who were what he called "strict constructionists." The nominations he subsequently made and talked about, however, did not all illuminate that legal philosophy... These men, he said, will enforce the law as it is, and not "twist or bend" it to suit their own personal convictions, as Nixon has accused the Warren Court of doing.

Now the President has expressed his legal philosophy in a different way: he has asked Congress in effect to overrule the Supreme Court's interpretation of what the Constitution requires... Nixon now wants Congress to take the power to order busing away from the courts. His recent bill would, in effect, overrule Swann, which held unconstitutional a North Carolina statute that itself tried to take that power from the courts...

The constitutional theory on which our government rests is not a simple majoritarian theory. The Constitution, and particularly the Bill of Rights, is designed to protect individual citizens and groups against certain decisions that a majority of citizens might want to make, even when that majority acts in what it takes to be the general or common interest. Some of these constitutional restraints take the form of fairly precise rules, like the rule that requires a jury trial in federal criminal proceedings or, perhaps, the rule that forbids the national Congress to abridge freedom of speech. But other constraints take the form of what are often called "vague" standards, for example, the provision that the government shall not deny men due process of law, or equal protection of the laws.

This interference with democratic practice requires a justification. The draftsmen of the Constitution assumed that these restraints could be justified by appeal to moral rights which individuals possess against the majority, and which the constitutional provisions, both "vague" and precise, might be said to recognize and protect.

The "vague" standards were chosen deliberately, by the men who drafted and adopted them, in place of the more specific and limited rules that they might have enacted. But their decision to use the language they did has caused a great deal of legal and political controversy, because even reasonable men of good will differ when they try to elaborate, for example, the moral rights that the due process clause or the equal protection clause brings into the law. They also differ when they try to apply these rights, however defined, to complex matters of political administration, like the educational practices that were the subject of the segregation cases.

The practice has developed of referring to a "strict" and a "liberal" side to these controversies, so that the Supreme Court might be said to have taken the "liberal" side in the segregation cases and its critics the "strict" side. Nixon has this distinction in mind when he calls himself a "strict constructionist." But the distinction is in fact confusing, because it runs together two different issues that must be separated. Any case that arises under the "vague" constitutional guarantees can be seen as posing two questions: 1) Which decision is required by strict, that is to say faithful, adherence to the text of the Constitution or to the intention of those who adopted that text? 2) Which decision is required by a political philosophy that takes a strict, that is to say narrow, view of the moral rights that individuals have against society? Once these questions are distinguished, it is plain that they may have different answers. The text of the First Amendment, for example, says that Congress shall make no law abridging the freedom of speech, but a narrow view of individual rights would permit many such laws, ranging from libel and obscenity laws to the Smith Act.

In the case of the "vague" provisions, however, like the due process and equal protection clauses, lawyers have run the two questions together because they have relied, largely without recognizing it, on a theory of meaning that might be put this way: If the framers of the Constitution used vague language, as they did when they condemned violations of "due process of law," then what they "said" or "meant" is limited to the instances of official action that they had in mind as violations, or, at least, to those instances that they would have thought were violations if they had had them in mind. If those who were responsible for adding the due process clause to the Constitution believed that it was fundamentally unjust to provide separate education for different races, or had detailed views about justice that entailed that conclusion, then the segregation decisions might be defended as an application of the principle they had laid down. Otherwise they could not be defended in this way, but instead would show that the judges had substituted their own ideas of justice for those the constitutional drafters meant to lay down.

This theory makes a strict interpretation of the text yield a narrow view of constitutional rights, because it limits such rights to those recognized by a limited group of people at a fixed date of history. It forces those who favor a more liberal set of rights to concede that they are departing from strict legal authority, a departure they must then seek to justify by appealing only to the desirability of the results they reach.

But the theory of meaning on which this argument depends is far too crude; it ignores a distinction that philosophers have made but lawyers have not yet appreciated...

http://www.nybooks.com/articles/10204