Dworkin vs. Scalia

Dworkin and Scalia disagree about what the Constitution says. For example, Scalia believes it is obvious that the Constitution permits capital punishment; Dworkin thinks the opposite. (They also disagree about the meaning of the 14th Amendment; it is harder to characterize exactly what they disagree about in that case.)

Dworkin maintains that Scalia could reach his conclusions about the Constitution by one of two routes.

  1. Expectation originalism: the Constitution should be interpreted to have the consequences that its authors expected it to have.

  2. Semantic originalism plus a dated and concrete original meaning: the Constitution should be interpreted according to what its words originally meant and what those words originally meant should be understood in a dated and concrete way.

Scalia maintains that he is a semantic originalist. But he splits the terms “dated” and “concrete” apart. He thinks that the original meaning of the Constitution is dated but that it is abstract and not concrete.

OK, now we have the vocabulary on the table. What does it all mean?

Expectation and semantic originalism

Dworkin begins with a distinction between what he calls expectation originalism and semantic originalism. The difference between the two is best illustrated with the example of the boss who instructs his employee to hire “the best person for the job.” What does the phrase “the best person for the job” mean?

The boss’s expectation was that the employee would hire his nephew. But that is not what the phrase means. The phrase means that the employee should hire the person best qualified to do the job. That might not be the boss’s nephew.

We could reach Scalia’s conclusions about the Constitution if we interpreted it in the light of the expectations of its authors. But both Dworkin and Scalia agree that so-called “expectation originalism” is a bad way to interpret laws, so we can put this aside.

Scalia opts for semantic originalism. That is, he thinks we should interpret the Constitution according to its original meaning: the way it was understood at the time it was written. So far, they agree with one another.

They part company over their understanding of what the Constitution was originally understood to mean. Dworkin says that the original meaning of its words is “abstract” and “principled.” He argues that Scalia can reach his conclusions only if the original meaning of the Constitution’s words is “concrete” and “dated.” Scalia disagrees.

Abstract and principled vs. concrete and dated

So we have two pairs of terms with opposite meanings:

  1. abstract vs. concrete
  2. principled vs. dated

Dworkin treats “abstract” and “principled,” on the one hand, and “concrete” and “dated, on the other hand, as always going together. Scalia argues that they can be split apart.

So, for instance, Scalia thinks that key terms in the Constitution were meant to be abstract. That is why he can ask whether the 8th Amendment’s prohibition on cruel and unusual punishment applies to technologies that were unknown at the time the Constitution was written, such as electric cattle prods. The terms “cruel” and “unusual” are abstract terms that can apply beyond the concrete cases with which people were familiar in the eighteenth century.

Scalia and Dworkin split over exactly what kind of abstraction the Constitution’s words express. Scalia thinks the abstraction must be “dated” while Dworkin thinks it is “principled.” As Scalia understands it, the abstraction has to involve asking what people in the eighteenth century would have thought of, say, electric cattle prods. It is abstract because the question is not “what did they think?” but rather “what would they have thought?”

Dworkin thinks the original meaning of the Constitution’s prohibition on cruel and unusual punishment is that the state is forbidden to use whatever punishments are truly cruel. The challenge they left for future generations was to figure out what cruelty genuinely means. It is an invitation to engage in moral philosophy in order to discover the truth about the abstract values mentioned in the Constitution in order to apply them to novel cases.

In other words, Scalia thinks we have to use history to settle questions about the Constitution’s meaning while Dworkin thinks we have to use philosophy.

How do you argue one way or the other?

Each author thinks he has conclusive reasons for thinking that his views best capture what the Constitution originally meant. That is the part of their exchange that you should focus on.

In a nutshell, Dworkin thinks the authors of the Constitution believed in progress and were keenly aware of the limitations of their own points of view. Scalia thinks they sought to make backsliding away from their values extremely difficult.

There is more to it than that. This is what you should concentrate on understanding. I have just tried to lay out what, exactly, they disagree about.

Key concepts

  1. Concrete and dated vs. abstract and principled
  2. How the debate plays out concerning the death penalty
  3. Backsliding


One problem with pairing these two is that we get more of Dworkin’s criticisms of Scalia than we do of his own views. Dworkin’s opinions are most fully articulated in his book Law’s Empire (Dworkin 1986). But he also published a more compact statement in an article in the New York Review of Books titled “The Moral Reading of the Constitution” (Dworkin 1996). Its themes are very close to what we read, but it does more to flesh out Dworkin’s views.


Dworkin, Ronald. 1986. Law’s Empire. Cambridge: Harvard University Press.

———. 1996. “The Moral Reading of the Constitution.” New York Review of Books, March 21.