and unusual" and therefore unconstitutional in spite of explicit textual references clearly
contemplating its use, was taken as a symbol of the ipse dixit nature of the Court.
It was not so much that the argument that some punishment once thought of as acceptable
might nowadays be deemed "cruel and unusual." Most originalists would not be shocked if
judges outlawed a revival of dismemberment even if the Constitution contemplates "jeopardy of
life or limb." Indeed, none criticize our concept of "double jeopardy" as extending to punishment
generally, and not limited to those two extreme categories.
The damning part of the Marshall-Brennan position as that they based it on contemporary
opinion as exemplified by the response of the European community. The Warren court tried to
stimulate a similar response by holding the death penalty system a crazy-quilt (which it was) and
demanding each state reconsider its laws and process. Instead of the expected revulsion against
the death penalty, additional states took the occasion to restore it. Public opinion polls showed
this was a reflection of mass attitudes. Brennan and Marshall had argued contemporary opinion
was anti-death penalty. Instead of retreating, or insisting on the cruelty of execution—which
would have been seen as elitist—they insisted an educated future public opinion would support
them—which was seen as foolish.
These emblematic positions were characterized as an attitude to law in which mere
plausibility and current fashions in intellectual circles were all that were needed to create new
rights, ephemeral and changeable. Law classes encouraged conceptual creativity and the mass
media were awash in shows with judges ruling on an extraordinary range of personal, private,
and even bizarre dilemmas with Solomon-like, Kadi, or common-sense conclusions. (David
Kelly has strung together an impressive and lucrative series of super-soap operas built around
such a loose structure.) Obviously a caricature, such presentations nonetheless hint at a deeper
perception of what is law.
More to the point was the climate of the law reviews and the hot issues of the
jurisprudential world. Obviously this could be a paper it its own right: but for our purposes it
can be boiled down to two disputes: the deconstructionist view of legal process as exemplified
by the Fish-Dworkin discussions and the interpretivist non-interpretist debates of the post-Roe
era. (We will skip over the legal critics movement whose essence is that law is a sham, masking
a hallow society.)
Ronald Dworkin is the chosen heir to HLA Hart's chair at Oxford as well as Professor at
NYU Law school. Seemingly effortlessly he has moved from a critic-reconstructor of the Hart
System of rules, to a system built of enduring principles, to a notion of law analogized to chain-
novel writing in which the author in successive chapters are bound by the previous writers, but
use their instincts pass on their enterprise to their successors. So far as I am aware Dworkin has
not dealt with the issue of integration or reconciliation of these views nor of whether they are
analytically on the same plane.
Not a man to hide his light under a bushel, Dworkin writes regularly for the New York
Review of Books and appears on educational TV as well as his two university posts. Not shy in
his views, he carries his message even in his titles "Why Bakke has no case" (there is no
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Convention