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DeShaney Revisited: Justifying an Enriched Sense of Liberal Justice
INTRODUCTION Few cases offer a greater emotional impression than that of DeShaney v. Winnebago, the tragic story of an aggrieved mother denied remedies for government inaction that resulted in the savage beating and permanent retardation of her 4-year-old son. Yet, many cite the case as a revered instance of the law’s superiority over the base emotions such tragedies can produce. Despite fervor for justice and proper amends, the Supreme Court sought to decide the case as its capacity demanded: impartial interpreters of the law. The majority opinion authored by Chief Justice Rehnquist effectuated that duty and now stands as a landmark application of the principle of negative liberty, the ideal of restricting government institutions from interfering in the lives of individuals regardless of the welfare it might provide. The Rehnquist opinion ultimately rejects Melody DeShaney’s claim that, by failing save her son, Joshua, from the abuse of her ex-husband, the Wisconsin Department of Social Services violated his equal protection under the Fourteenth Amendment.1 Despite overwhelming evidence of abuse and numerous reports indicating the agency suspected Joshua’s father had repeatedly beaten him into the hospital, DSS declined to remove the child. Finally, in March 1984, Randy DeShaney beat Joshua so severely he fell into a coma, suffering brain damage so acute he will spend the remainder of his life “profoundly retarded.”2
Turner 2 Regardless, Melody DeShaney’s § 1983 action against the agency failed. Even extreme incompetence on the part of DSS could not constitute a breach of the Fourteenth Amendment, said the Court. Its protection extends only to instances of state interference against individuals, and by declining to act, the agency had never interfered. Further, the Fourteenth Amendment confers no affirmative guarantee to “freedom…from unjustified intrusions on personal security” by private individuals.3 Indeed, the judgment appears a levelheaded interpretation of the law. Prohibition on unequal treatment has historically applied to cases of affirmative government interference or conferred benefits, not failure to perform a duty. For example, police who in good faith fail to stop a murderer from murdering should probably not be held liable for their inaction. On its face, therefore, the majority opinion rests comfortably within the legal system’s traditions. Yet, as stoic legal scholars nod in time with Rehnquist’s gavel, this principle and the interpretation leading to DeShaney’s outcome merit another look. The approach a justice chooses can change everything—from the cases deemed relevant precedent to the principles those cases uphold in the law. The tragic circumstances of DeShaney earnestly beg the question: Must the law remain neutral in the face of such blatant abrogation of duty? A far-from-simple principle, the invocation of negative liberty cannot simply be accepted as a platitude substituting deeper examination. This essay will argue for broader theory of interpretation, one that provides a more comprehensive analysis of DeShaney and its affect on the underlying principles of our legal system. While it may fit into our legal tradition, is a decision’s fit the only basis for evaluating DeShaney’s outcome? After
Turner 3 clarifying the principles at work, these principles will be placed into the greater, metadoctrine of our liberal society in order to yield a more holistic interpretation that calls into question negative liberty’s excusive application in this case. While the Court’s interpretation in DeShaney fits one possible outcome of our country’s liberal principles, these same principles leave open the possibility for a richer sense of justice—formed in light of the values cherished by, and integral to, our liberal society. I: A HOLISTIC THEORY OF INTERPRETATION In the American political system, the chief duty of the judiciary is generally held to be interpretation of the law, a view dating back to Alexander Hamilton’s defense of the judicial branch in Federalist 78. There, he advanced the view that “the interpretation of the laws is the proper and peculiar province of the courts…to ascertain [their] meaning, as well as the meaning of any particular act proceeding form the legislative body.”4 However—as fortune or misfortune would have it—Hamilton and his contemporaries remained conspicuously silent regarding the proper approach to such interpretation. Federalist 78 offers only cursory guidelines, namely that judges must be “bound down by strict rules and precedents…in every particular case that comes before them” to mitigate arbitrary judgments, and only in deference to the “fundamental law” of the Constitution should judges exercise the power to review and invalidate actions of the legislature.5 Notwithstanding these restrictions, judges have considerable discretion in the techniques they employ to interpret the law. Nonetheless, judges typically favor formal approaches to interpretation. Consistent and structured approaches provide stability and legitimacy to the legal system, for the system’s reliance on precedential justification grants court cases much greater
Turner 4 significance than mere adjudication. Cases establish and advance principles that shape the legal system as a whole, linking every opinion into an indelible, evolving body of law. By basing new decisions on the gestalt of precedent and principle, the law insulates itself from radical interpretations that might undo or misapply cherished principles and allows the law to evolve holistically to benefit society. Therefore, judges must interpret and adjudicate in a holistic manner, knowing that their decisions go far beyond the single case before them—every one a step forward for the system as a whole A: Two-Dimensional Interpretation Accordingly, a holistic view of the law should take into consideration the way precedent weights on new decisions and, reflexively, how that decision may affect subsequent views of that precedent. Such an approach parallels the theory of legal interpretation advanced by the legal philosopher Ronald Dworkin. In formulating a general theory of interpretation—something he believes all judges must do—Dworkin urges judges to view court decisions as “embedded in a much larger system,” evaluating not only how they relate to past decisions but how they honor or deviate from the greater legal tradition going forward.6 To this end, he proposes a two-dimensional approach to interpretation based on factors “any plausible theory of interpretation” should reference: fit and best light.7 The first dimension of interpretation, fit, evaluates the extent to which any decision logically follows from precedent. A decision must “fit the data it interprets,” meaning it must conform to the line of reasoning preceding it or else give good reason why that reasoning should be overturned. The force of reasoning required to overturn precedent correlates with the strength of that precedent. Deviation from precedent should
Turner 5 be avoided when that precedent represents long-standing tradition, for it would require that tradition to be viewed as mistaken, and consequently, the principles it sought to uphold as mistaken. The relative fit of a decision, therefore, depends on how many cases must be “set aside as mistakes.”8Accordingly, judges should seek an interpretation that fits within a reasonable “‘threshold’ of fit” with respect to preceding decisions, with a strong preference for upholding prior interpretations.9 In this way, interpretation is constrained to a reasonable continuation of the law’s underlying principles. In contrast to the first, fairly uncontroversial dimension of interpretation, Dworkin’s second dimension of interpretation—the forward-looking dimension—enters the oft-debated realm of substantive interpretation. According to Dworkin, a judge restricted by a case’s fit may still face several possible interpretations that reasonably continue existing underlying principles. In selecting from among them, he says, judges should pick the interpretation that most clearly honors those principles for future interpreters—the interpretation that, as an result of its promulgation, casts principles “in the best light, not aesthetically but politically, as coming as close to the correct ideas of a just legal system as possible.”10 This approach has many critics, who point out that such substantive interpretation relies heavily on a judge’s personal ideals of political morality, a point Dworkin does not dispute. In fact, Dworkin presses the point by saying judges must rely on conceptions of political morality in deciding “whether any putative interpretation is to be preferred because it shows legal practice to be better as a matter of substantive justice.”11 To him, the interpretive process requires an element of substantive judgment—the reason judges can reach differing interpretations of the law in the first place. Nevertheless, Dworkin
Turner 6 quickly qualifies the scope and manner to which personal ideology can legitimately enter judicial interpretation, specifying that substantive interpretation, similar to fit, must examine precedent and seek to honor its principles going forward. A judge’s substantive interpretation cannot simply inject all his or her beliefs into the law; it must consider the affect they will have on the preceding legal tradition as a whole. An interpretation that casts the larger body of law in unfavorable light weakens the integrity of the system moving forward, and thus, an interpretation cannot disregard the collective aims of precedent because to do so would weaken its basis for continuation. To illustrate these dimensions, Dworkin likens a judge’s role in the legal system to the situation of multiple authors writing a chain novel, each contributing a chapter to an ongoing story. Authors must read and understand the chapters that came before his or her own, reach a reasonable interpretation of the story as a whole, and add to the work accordingly. Of course, recognizing that “a novel whose plot is inconsistent or otherwise lacks integrity is thereby flawed,”12 authors strive to continue in a way that not only preserves the work’s integrity but also makes it a better work of art on the whole. As a result, they cannot choose an interpretation “the text rules out,” nor can they justify radically departing from the plot’s progression.13 By applying this allegory, judges cannot reach decisions ruled out by precedent, nor can they significantly reinterpret the past to alter the law’s fundamental path, even in light of their own ideological inclinations. However, whenever the text leaves open two or more possible interpretations, judges must, as the authors must, use their best judgment to proceed by advancing the law in a direction that best honors the ideals and principles of society.
Turner 7 B: The Dworkinian Yardstick Even if the second dimension sits ill at ease with critics, Dworkin’s two-tiered interpretive approach offers a reasonable structure in which to evaluate judicial decisions. By placing possible interpretations along the axes of fit and best light, a basis for comparing those interpretations emerges. For instance, a particular interpretation may be viewed as the best fit for a line of cases, and therefore, worthy of adoption. Alternatively, two cases that seem to equally fit the law may yield disparate substantive outcomes, which the judge must evaluate according to the affect each has on the law’s principles if adopted. Dworkin’s dimensions offer the means to measure an interpretation’s affect on a holistic scale. C: Fit vs. Substance in Rehnquist’s Opinion In their claim, DeShaney’s petitioners appeal to the substantive nature of the Fourteenth Amendment’s Equal Protection Clause, alleging that failure to provide adequate protective services violated Joshua DeShaney’s due process rights. Rehnquist rejects their claim after considering its fit and the light its affirmation would cast on one principle of the Constitution in particular: the principle of negative liberty. In his analysis of the claim’s fit, Rehnquist concludes that the Constitution does not afford guarantees of state affirmative duty. Looking to the wording and history of its application, Rehnquist points out that “nothing in the language of the Due Process Clause itself requires the State to protect life, liberty, and property of its citizens against invasion from private actors.”14 In fact, “the Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.”15 Similar conclusions emerge from the Fourteenth Amendment’s history, as Rehnquist explains its
Turner 8 “purpose was to protect people from the State, not to ensure the State protects them from each other.”16 This, however, does not bar the state from adopting affirmative duties, but any guarantee of state protection must originate in legislative action, not the Constitution.17 While his analysis seems to quickly invalidate the claim under the fit test, the best-light dimension requires a bit of interpretation in itself, specifically in identifying the principles Rehnquist employs to reach his rejection. In his examination of prior cases, Rehnquist invokes a powerful principle consistent with the adoption of his decision, namely the preeminent ideal of individual freedom from unwarranted government interference18—the principle of negative liberty. Rehnquist interprets the Constitution and relevant precedent to clearly contain the supremacy of negative liberty, and consequently, seeks to advance this principle by authoring a decision that promotes the unfettered freedom of individuals over conceptions of positive liberty, or rights aimed to actively promote individual welfare. At its most abstract, therefore, Rehnquist’s opinion upholds the necessity of government neutrality toward individual liberties—negative liberty writ large. However, Rehnquist must overcome a line of cases upholding certain affirmative government duties to specific individuals, such as Estelle v. Gamble19 and Youngberg v. Romeo20—the extension of Eighth Amendment protection against cruel and unusual punishment to involuntarily committed mental patients that requires the government to provide services necessary to their well being—or Robinson v. California21—requiring government provision of medical care for incarcerated prisoners. To break with these cases in a way that does not invalidate them, Rehnquist distinguishes their rulings from
Turner 9 the circumstances of DeShaney, defining a narrow window in which affirmative obligations manifest. Affirmative duties arise, Rehnquist says, after the state has taken prior action to remove an individual’s self-reliance—a “limitation which [the State] has imposed on his freedom to act on his own behalf.”22 Therefore, because the state never acted to remove DeShaney’s self-reliance, no affirmative duty was due, and Rehnquist’s interpretation successfully comports with precedent. Ultimately, Rehnquist’s interpretation causes him to reject the idea that “the Constitution safeguards positive as well as negative liberties.”23 Instead, he interprets the Constitution as an exclusively negative-liberty document, and as a part of it, the Due Process Clause only “affords protection against unwarranted government interference…it does not coffer an entitlement to such [aid] as may be necessary to realize all the advantages of that freedom”24—the triumph of negative liberty in his interpretation. D: Reinterpreting DeShaney As should be expected of a Supreme Court chief justice, Rehnquist’s opinion appears ironclad—a perfectly acceptable opinion by legal standards. His interpretation finds justification in both dimensions of analysis, and this subsequent opinion reasonably furthers the principle he finds most at issue. Yet, a truly holistic interpretation requires referencing, not only principles upheld by precedent, but also the roles those principles play in the larger legal system—a metaprinciple approach examining the abstracted interplay of principles in our overall conception of justice. This approach is, no doubt, far too philosophical to be realistically included in a written opinion—its inclusion would likely bewilder legal scholars and possibly ignite denunciation for judicial activism—and Rehnquist should be forgiven for
Turner 10 not pursuing it. However, such analysis illuminates a decisions affect on the fundamental principles of our constitutional democracy at the most abstracted level of substantive reflection—the most holistic examination of judicial interpretation. This meta-analysis will require two steps. First, a reasonable conception of justice must be defined—or at least loosely described in the context of a liberal society like our own—and its interaction with principles of justice, i.e. negative liberty, must be specified. Then, Rehnquist’s application of the principle of negative liberty can be evaluated in light of the role it plays—or could play—in such a system. The conclusions reached should suggest an abstract evaluation of the DeShaney decision as it contributes to the whole of our legal tradition, from which we can judge if it truly represents a step forward—or the only step forward—for the system as a whole. II: A POLITICAL CONCEPTION OF JUSTICE In comparison to the already ethereal realm of judicial interpretation, defining a conception of justice reaches a new plateau of philosophical abstraction. In an effort to keep this analysis as pragmatic as possible and conform closely to the American system, the basis for a conception of justice will be limited to the political conception of justice proposed by modern legal philosopher John Rawls. In his Political Liberalism,25 Rawls sets out a pragmatic formulation of liberalism modeled heavily on the modern constitutional democracy used in America—an ideal formula for the conception of justice we seek. A: The Aims and Structure of Rawlsian Liberalism Typical liberal theory, including the liberal theory of Rawls, aims at a system of government that remains neutral toward individuals’ particular conceptions of the good
Turner 11 life. Liberal thought seeks to promote an individual’s essential autonomy, usually with a special tolerance for choices of religious or moral nature. Underlying this commitment to autonomy, liberalism asserts the individual will, and the capacity to express that will, as the preeminent human end—as Kant first put it: “a will which is good in itself, not just good as a means to some further end.”26 In his modern formulation, Rawls posits two interrelated elements that promote the political ideal of autonomy: the ideal of the liberal self and a shared conception of political justice. The liberal self, along with the fundamental aim of liberalism, leads Rawls to the theory of reasonable pluralism, the idea that liberal society must remain neutral toward a plurality of views regarding morality. Ultimately, the implication of this protected pluralism necessitates Rawls’ political conception of justice, which defines a structure for society that tolerates the will’s capacity for moral autonomy without sacrificing society’s cooperative and collective nature. B: A Plurality of Liberal Selves Born from the Kantian tradition that elevated the individual will, the liberal self represents the ideal of self-determination, that “what matters above all…is not the ends we choose but our capacity to choose them” and the respect due to all others with a similar capacity.27 This elevation of choice rests mainly on the importance of rational and moral autonomy, the capacity for individuals to select the good things they pursue, the means most appropriate to pursue them, and the values they cherish. Only in attaining these three capacities can individuals be considered autonomous, and therefore fully human, in the liberal conception. Accordingly, a liberal system of government exists to promote the concept of the liberal self among its populous, regarding the expression of
Turner 12 autonomy as essential to all individuals. Rawls’ conception of a politically liberal self, which he calls a “political conception of the person,” largely adopts this tradition but with a few alterations. He too holds the will’s capacity for moral judgment, self-validation, and self-determination as essential to an individual’s personhood; however, the expression of these capacities is limited to public life.28 This allows Rawls to proceed to his description of social institutions without justifying a deep-seeded basis for the liberal self in Kantian metaphysics—a turn he sought explicitly to avoid.29 In political liberalism, a principle securing the preeminence of the autonomous will must only govern the public sphere, thus limiting the theoretical implications of the theory on the nature of autonomy to only political autonomy—a more reasonable, and justifiable, description. The principle of the liberal self fundamentally shapes liberal society. To create true moral autonomy, society must afford the preeminence of all individuals’ wills, respecting their capacity to strive for diverse ends and arrive at different conclusions, for “a moral person is a subject with ends he has chosen, and his fundamental preference is for conditions that enable him to frame a mode of life that expresses his nature…as fully as circumstances permit.”30 Thus, assuming every individual will not choose identically, autonomy gives rise to a plurality of moral views within society. Yet, this pluralism also presents liberalism’s greatest obstacle. Any society must coalesce around some common ground; rampant pluralism of human morality must conform to some common goal or principle lest society risk breaking into irreconcilable factions or plunging into anarchy. So without something to guide and hold society together, liberalism’s core devotion to moral autonomy becomes its undoing.
Turner 13 C: Rawls’ Conception of Political Justice Rawls’ theory of political justice attempts to remedy this paradox by promulgating principles even radically divergent views would agree to: his conception of political justice. In formulating his conception, Rawls attempts to define a basic structure for society that allows individuals to express their moral autonomy while taking as their common ground the principle of plurality itself. His conclusions comprise a framework of fundamental rights, which individuals agree to follow, that “enable citizens…to become full persons, that is, adequately to develop and exercise fully their moral powers.”31 The conception is only “partially comprehensive,” in that it loosely presents some, but not all, nonpolitical values and virtues, attempting to remain as morally neutral as possible.32 It may draw some justifications from comprehensive moral doctrines, but “it is presented as a free-standing and expounded apart from, or without reference to, any such wider background,”33 thus avoiding dictations about what is of value in human life. The political conception of justice, therefore, serves as a skeletally principled common ground that allows the inclusion of reasonable pluralism and the expression of human autonomy. While Rawls goes on to enumerate what principles of justice hypothetical individuals would agree to follow from his vaunted “original position”34—at once Rawls’ most praised and controversial theory—this analysis need follow him no further. Without specifying actual principles, Rawls supplies a suitable definition for a political conception of justice, viz. the common ground that allows a liberal society to reconcile the fact of human pluralism with its adherence to individual autonomy. It represents a common agreement within society for which individuals must relinquish complete autonomy in
Turner 14 exchange for the promise of political autonomy—autonomy in all else—for “full [political] autonomy is realized by citizens when they act from principles of justice that specify the fair terms of cooperation they would give to themselves…[by] enjoying the protections of the basic rights and liberties…and sharing in [society’s] collective selfdetermination over time.”35 Liberalism must, therefore, abandon its toleration of pluralism in regard to justice, forcing individuals to conform to a minimally principled ideal of justice that permits society to crystallize. Here, many have criticized Rawls, and the greater theory of liberalism, for his inconsistency regarding tolerance, a view best articulated by his philosophical colleague Michael Sandel. Sandel claims that, because Rawlsian liberalism cannot accommodate multiple conceptions of justice, liberalism cannot remain faithful to its toleration of any plurality, for “political liberalism…rests on the assumption that our moral and religious disagreements reflect a ‘fact of reasonable pluralism’ that our disagreements about justice do not.”36 In fact, by advancing a conception of justice at all, Rawls has specified certain parameters for society that limit the expression of true autonomy. His shared conception of justice defines a “thin theory of the good” that rules out all value systems too far from the Rawls’ “fact of reasonable pluralism”—classifying them as unreasonable.37 While Sandel’s critique of liberalism has significant implications, it is less clear how it affects Rawls’ pragmatic brand of political liberalism. Political Liberalism itself serves as a kind of meta-doctrine to bridge the gaps between more comprehensive social doctrines, defining the “main political, social, and economic institutions, and how they fit together into one unified system of social cooperation.”38 Yet, it remains neutral enough to allow pluralist tendencies to flourish by favoring no particular doctrine. So while it
Turner 15 does exclude certain moral views, the political conception of justice seeks primarily to alter the base justification for social institutions, replacing more comprehensive doctrines with a partially comprehensive political doctrine, so that “the social union is no longer founded on a conception of the good as given by a common religious faith or philosophical doctrine, but on a shared public conception of justice.”39 These shared principles, out of respect for the ideal of the autonomous individual, should strive for the maximum tolerance allowable while still preserving society. In this respect, therefore, political liberalism escapes systemic criticism on its formulation as a pragmatic theory— the best that realistic circumstances allow. Furthermore, the political conception of justice, by restricting certain conceptions of the good, actually grants individuals significantly increased autonomy. Even if the ideal of full individual autonomy eludes it, political liberalism comes as close as possible for existing society, actually enabling individuals to express greater degrees of autonomy than under other systems. By striking a balance between its duty to honor the autonomy of individuals and its need to enforce a workable framework for society, political liberalism enhances individual autonomy to a level other systems do not—making a strong case for its adoption by liberal theorists. III: RETURN TO DESHANEY Having defined a conception of justice and its role in liberal society, all that remains is to examine Rehnquist’s negative-liberty interpretation with respect to the goals of our conception of justice. This meta-analysis, therefore, examines the affect an interpretation has on our system’s overall respect to individual autonomy and the shared values that enable liberal society.
Turner 16 A: The Role of a Conception of Justice—and our Constitution In respecting individual autonomy, Rehnquist’s opinion seems, at least prima facie, well suited to the liberal tradition. Indeed, his interpretation of negative liberty seems to adequately respect individual autonomy by providing increased protection from government intrusion into the lives of individuals. However, this view ignores the role a political conception of justice plays in liberal society. If we accept Rawls’ formulation for a political conception of justice—a reasonable conception to accept due to its pronounced reflection of our American system —the government need not remain neutral toward the principles of justice it chooses. In fact, a liberal society must choose certain principles to enforce on individuals as the basis for social union. Without these principles to ensure a quasi-neutral framework for more comprehensive doctrines, autonomy would likely erode under the practices of an oppressive doctrine or escalate into pluralistic anarchy. In short, enforced principles of justice actually promote autonomy rather than restrict it. Thus, our description of the principles of justice has arrived at a description not of negative liberty but of positive liberty—principles that allow individuals to exercise greater liberty if enforced on them. This description has strong implications for Rehnquist’s application of negative liberty in DeShaney. A policy of negative liberty can still apply to doctrines within the framework of justice, but not in regard to justice itself, which must take a position based on our shared conceptions of justice. It therefore invalidates his exclusion of an affirmative duty by showing that the application of positive liberty, on a meta-level, is not antithetical but crucial to liberal societies. Much of this seems to be confirmed simply by examining the Constitution’s role
Turner 17 in society. It provides a loose framework of justice while remaining as neutral as possible to more comprehensive doctrines such as religion, morality and ideas of the good. Interpretation of the Constitution’s more specific tenets, as has been show, often yields conflicting interpretations. However, by modeling our understanding of the Constitution’s role in society on the Rawlsian conception of political justice, it becomes clear that it does not preclude the establishment of positive liberties with respect to justice —after all, it is one. Therefore, the concerns raised in DeShaney should not be rejected simply on the assumption that the Constitution precludes the establishment of positive liberties. The plaintiffs in DeShaney actually seek an increased level of autonomy, viz. the liberty to hold the government responsible for failing to act in the face of overwhelming evidence to support such action. Admittedly, no guarantee of such a liberty appears explicitly in the Constitution, but this does not bar the adoption of such a liberty. If deemed appropriate, the Court could choose to hold DSS liable for its failure to act—the very approach Justice Brennan champions.40 B: Establishment of an Affirmative Duty in DeShaney In his dissent of the majority opinion, Justice Brennan seems to at least implicitly acknowledge the above reasoning to ultimately justify the establishment of an affirmative duty owed Joshua DeShaney. He remarks that, by immediately leaping to an affirmation of negative liberty, the Court “perhaps even preordains” its rejection of an affirmative duty without deeply examining the claim before them41 (Brennan 24). In contrast to their quick dismissal, Brennan believes an affirmative duty can be—in fact, has been— established. By creating an agency to handle child protective services, Wisconsin has,
Turner 18 “by word and by deed,” promulgated its intention to protect children when certain facts would trigger that duty.42 The Department has therefore assumed an affirmative duty to protect a specific class of citizens, namely children, and can be held responsible for abrogating it. Protecting the equal right to such a duty does not violate liberal considerations of neutrality because it concerns an element of justice, and moreover, attempts to promote autonomy. By “reliev[ing] ordinary citizens and governmental bodies other than the Department of any sense of obligation to do anything more than report their suspicious of child abuse to DSS,” the duty assumed by the Department allows a greater level of autonomy for the rest of society.43 While by no means required by our conception of justice, this duty further promotes the ideals of autonomy essential to a liberal society. Thus, by failing to act in upholding this duty, the Department has violated the liberty it intended to afford ordinary citizens—a clear breach of principle that diminishes individual autonomy. CONCLUSION: The tragic and complex circumstances of DeShaney can make it difficult to parse out the interests most relevant to our conception of justice. The Court’s empathy for the actors involved quickly becomes engulfed by the complicated interactions of state and individual interests—interests the DeShaney Court phlegmatically attempts to address, regardless of enflamed clamor that justice has been violated. Ultimately, the Court arrives at a ruling that denies remedies for the plaintiff, choosing to uphold the preeminence of the law’s most integral principles. By revisiting the interpretations at work, however, a clearer picture of relevant
Turner 19 considerations comes to light. The law’s interpretation often yields two or more possible outcomes, and the official holding often rests with the views of individual justices. Thus, while Court’s decision indeed fits prior law and comports with our social principles, it may not be the only—or even the best—interpretation available. Using the interpretive approach presented by Dworkin and the liberal conception of justice defined by Rawls, an interpretation that affords the establishment of affirmative duties emerges. Though the contrary opinion now indelibly marks our legal tradition, its implications should be similarly reexamined for future cases—evaluating anew its reflexive affects in a holistic interpretation.
Turner 20 END NOTES
1 2 3 4 5 6 7 8 9
DeShaney v. Winnebago, 489 U.S. 189 (1989). Id. Id. at 9. Alexander Hamilton, Federalist 78 (1788). Id. Ronald M. Dworkin, Natural Law Revisited, University of Florida Law Review. V. 34 (1982). Id. Id. Id. Id., emphasis added. Id. Id. Id. See DeShaney, supra note 1, at 10. Id. Id. Id. Id. Estelle v. Gamble, 457 U.S. 307 (1982). Youngberg v. Romeo, 457 U.S. 307 (1982). Robinson v. California, 370 U.S. 660 (1962). See DeShaney, supra note 1, at 15. Id. at 23. Id. at 11. John Rawls, Political Liberalism (1993) Immanuel Kant, Freedom As Autonomy (1785), in Michael Sandel, Justice: A Reader (2007), at 163. Id. at 331. Michael Sandel, Liberalism and the Limits of Justice, at 192. Id. John Rawls, A Theory of Justice (1999), at 561. See Rawls, supra note 25, at 77. Id.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32
33 34 35 36 37 38 39 40 41 42 43
Id. at 12. See Rawls, supra note 30. See Rawls, supra note 25, at 77-78. See Sandel, supra note 26, at 210. Id. at 205. See Rawls, supra note 25, at 11. Id. at 304. See DeShaney, supra note 1, at 22. Id. at 24. Id. Id. at 36.