Dworkin as an originalist.

I. INTRODUCTION

Ronald Dworkin is regarded as one of the leading critics of originalism in constitutional interpretation. But he has recently undergone something of a conversion, and now apparently endorses a version of originalism.

In his latest writings, he draws a distinction between "semantic" and "expectation" intentions.(1) Semantic intentions are what people intend to say by uttering certain words on a particular occasion, whereas expectation intentions are what they intend--or expect or hope--will be the consequences of uttering them.(2) He therefore distinguishes between two kinds of originalism: "`semantic' originalism, which insists that the rights-granting clauses be read to say what those who made them intended to say, and `expectation' originalism, which holds that these clauses should be understood to have the consequences that those who made them expected them to have."(3)

Dworkin has always rejected expectation originalism. Indeed, whenever he has criticized "originalism" by name, he has clearly meant expectation originalism.(4) Surprisingly, he now rejects non-originalism as well.(5) It does not necessarily follow that he endorses semantic originalism, and he has recently reaffirmed his "long-standing opposition to any form of originalism."(6) But I will argue that the differences between semantic originalism and the interpretive methodology he now recommends are so slight that he should be regarded as a semantic originalist -- or, at the very least, as a "virtual" semantic originalist. It follows that his preferred methodology is similar to the one advocated by Robert Bork and Justice Antonin Scalia, prominent originalists whose views Dworkin has often criticized. It now seems that his quarrel is not so much with the methodology they advocate, but with their failure to apply it properly. His principal objection is that they preach semantic originalism, but practise expectation originalism.(7) Moreover, the interpretive methodology he now advocates is very different from the one he recommended in 1986, in Law's Empire, although (characteristically) he denies that it is. Given Dworkin's reputation as a leading critic of originalism, it is astonishing that this apparent change in his position has not been more widely commented on. To document this change, it is necessary to describe in some detail the evolution of his views, illustrated with quotations from his writings.

II. EARLY DWORKIN: PARTIAL ORIGINALISM

Although I will argue that Dworkin's position has shifted since he wrote Law's Empire, elements of originalism can be found even in the writings that precede it.

It is useful to begin with his early discussions of statutory interpretation, which raise similar questions concerning the relevance of the original intentions of legislators. Dworkin rarely discussed statutory interpretation before 1978, and had little to say when he did. For example, the essays reprinted in Taking Rights Seriously include very little analysis of it.(8) In The Model of Rules I, first published in 1967, he showed that the courts often use general legal principles as "background standards" which justify statutory interpretations that depart from literal meanings.(9) But he did not discuss how this was justified. In particular, he did not attempt to explain how non-constitutional common law principles can be used in this way, given the doctrine of legislative supremacy over the common law, otherwise than in accordance with some kind of legislative intention. He did not address that question until Law's Empire.

In Political Judges and the Rule of Law, first published in 1978, he concluded that ...

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