Dworkin, Scalia, and Unpopular Individual Rights

Dworkin explains that Scalia believes that interpreting the Constitution as “enacting abstract moral principles” (126) is problematic because “it politicizes the appointment of Supreme Court justices and makes it more likely that justices will be appointed who reflect the changing moods of the majority” (126). Thus, if the moods of the majority change in certain ways, “the constitutional rights of individuals will suffer” (126). 

I’m concerned that Dworkin does not adequately respond to this one of Scalia’s worries. 

Dworkin tries to counter this criticism by pointing out that history is on his side. He writes that “[T]he advantages to individual freedom that have flowed from judges’ treatment of the great clauses as abstract” far outweigh any damage caused by the Court’s neglect of less popular individual rights (127). 

But, Scalia jumps on this response by Dworkin, pointing out that while the history of the moral reading of the Constitution (which there is not that much of) may show that substantial individual rights victories have been won by the Supreme Court, “increasingly, the ‘individual rights’ favored by the courts tend to be the same ‘individual rights’ favored by popular majoritarian legislation” (149). 

1) This trend that Scalia notices (and Dworkin does not deny) towards majority morals seems to jeopardize the protection of individual rights that are not favored by the majority. 

2) Dworkin’s argument that the benefits in terms of individual rights secured by the Court have and will continue to outweigh the costs/harms is not compelling to me because I do not think that it is appropriate to weigh certain individual rights against others; aren’t all of our rights ends in and of themselves? 

None of Dworkin’s reasoning seems to be able to challenge – and some of Dworkin’s logic even seems to accept – Scalia’s ominous prediction that “for individual rights disfavored by the majority I think there are hard times ahead” (149), and for this reason I do not believe that Dworkin has properly responded to this criticism from Scalia.