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(10) “Yet Dworkin continues to insist that cases in which facts or consequences matter to constitutional decision-making are ‘rare.’”[xxiii][23]
No sane lawyer could think that cases in which facts or consequences matter are rare: they are important in every case. In the passage Posner cites I was discussing a very different question. How often can constitutional cases be resolved simply by pointing out a fact one side to the controversy had missed? I said, “Of course, in some circumstances, pointing out that a doctrine will have surprising consequences – that a welfare program designed to help a particular group will actually harm that group, for example -- is obviously immensely helpful. But these circumstances are rare: most often controversy is not about what means will in fact achieve an agreed end, but about what end should be agreed – about how high efficiency should rank, for example, against social or distributive goals or the protection of rights or goals of integrity.”
(11) “On this construal of ‘democracy,’ every policy the activist wants can be sought from the Supreme Court in the name of democracy. Dworkin makes a similar point even more brazenly, ‘The American conception of democracy is whatever form of government the Constitution, according to the best interpretation of that document, establishes.’”[xxiv][24]
My statement, particularly when read in context, does not suggest that every desirable policy can be demanded in the name of democracy; on the contrary, when read in context, it rejects that idea. It is not enough, I said, to find some conception of democracy that supports one’s demands in order to justify an interpretation of the Constitution that finds those demands in that document, because “‘Democracy’ is itself the name of an abstraction: there are many different conceptions of democracy, and political philosophers debate which is the most attractive.” That sentence precedes the one that Posner quoted.
(12) “See Ronald Dworkin, Taking Rights Seriously 198 (1977), explicitly rejecting the idea that social cost should influence the definition of rights.”
It is not easy to see what I said, on the page Posner cites, that prompted him to that report. In any case, his description is amply contradicted in my writings. Of course social costs figure in a legislature’s creation of legal rights when moral rights are not in play: I emphasized that fact throughout Taking Rights Seriously and Law’s Empire. I also emphasized that consequences and social costs can figure in the definition of moral rights. There is an important difference between appealing to social costs to justify compromising people’s moral rights, which I have opposed except in emergencies, and taking social costs into account in deciding what moral rights people have. A long section of Taking Rights Seriously is devoted to making that distinction, and illustrating the role that social costs properly play in that latter decision.[xxv][25]
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