Dworkin's Plain Statism
By Tibor Machan - September 24, 2012

As is usually the case, The New York Review of Books gives ample room to some leftist jurists, like Professors David Cole or Ronald Dworkin, to provide the politically correct commentary on a major ruling by the US Supreme Court. And so unsurprisingly, Professor Dworkin penned such a piece in the magazine's August 16, 2012, issue. It is a beauty of statist jurisprudence arguing that all in all the Roberts Court's recent decision to give President Obama's signature healthcare program a pass was a welcome thing from the Left's perspective. (Others, like Professor Randy Barnett, have made arguments from the libertarian side, holding that the ruling isn't so bad for those who want to advance the cause of human liberty. See the interview with Professor Barnett in Reason, October 2012.)

I leave others to deal with the legal technicalities of Professor Dworkin's argument and wish to focus on what is actually a sort of sidebar remark he makes about the Court's earlier ruling, in the 2010 Citizens United case, which Dworkin, of course, detests. By his account business corporations − companies of people coming together voluntarily so as to embark upon various commercial projects − are not to be treated as people who can offer political opinions and give support to politicians or to public policies. It is the following passage that jumped out at me:

"The conservative majority's opinion in that case insisted that such corporate expenditures [in support of championing some public policies or opposing others] would not create even the appearance of corruption. This year the state of Montana pleaded with the Court to rethink that judgment: the state said that the amount and evident political impact of corporate electioneering in the past two years has conclusively demonstrated a risk of corruption…" (NYRB, 8/2012:6).

What stood out to me in this remark is how readily Professor Dworkin refers to the state of Montana, and by implication any other state or country, as if it were a person who can make statements, issue pleas, etc. He has no problem with writing "the state of Montana pleaded," and "the state said." Yet the entire point of his piece is that corporations are not persons who can have opinions, hold views, make statements, etc.

Such personalization flies in the face of the plain fact that states, unlike corporations, are comprised of highly diverse citizens and to see them as having one mind and one voice is simply wrong. It reveals the ideology of a statist who treats governments as personas even while refusing to admit that voluntarily assembled business corporations and labor unions can express opinions and champion political causes.

In short, for Professor Dworkin states or governments that are collections of extremely diverse populations can but companies of human beings who decided to embark upon common projects cannot be regarded as persons. That is the height of collectivism.

In the case of Justice Roberts himself, Professor Dworkin refuses to accept the Justice's argument at face value and contend with it as such; instead, he proceeds to speculate on Justice Roberts's motives − he "must feel threatened" by various elements of the political landscape, etc., and made his ruling because of such facts, not because he judged the case as meriting his ruling.

Such psychological speculations do not belong in disputations about whether a given ruling by a court has or lacks validity and is usually indulged in by people who want to avoid real arguments. But never mind that. What is more important is how easily Professor Dworkin slips into his statist parlance, endorsing the idea that states, unlike voluntarily assembled companies of people, are persons! It is not surprising, considering that the good professor is a leading opponent of all traces of individualism and voluntarism from our legal system.

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