deshaney revisited: justifying an enriched sense of liberal justice
DESCRIPTION
The implications of liberal philosophy on the judicial interpretation of DeShaney v. Winnebago and a broader examination of liberal philosophy in the United States.TRANSCRIPT
Channing TurnerHON 494: Law, Justice and Democracy — Final PaperMay 7, 2010
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
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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
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clarifying the principles at work, these principles will be placed into the greater, meta-
doctrine 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
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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,”
1 DeShaney v. Winnebago, 489 U.S. 189 (1989).2 Id.3 Id. at 9.4 Alexander Hamilton, Federalist 78 (1788).5 Id.
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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
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
6 Ronald M. Dworkin, Natural Law Revisited, University of Florida Law Review. V. 34
(1982). 7 Id.8 Id.9 Id.10 Id., emphasis added.
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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
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
11 Id.12 Id.
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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.
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
13 Id.
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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
“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,
14 See DeShaney, supra note 1, at 10.15 Id.16 Id.17 Id.18 Id.
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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
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
19 Estelle v. Gamble, 457 U.S. 307 (1982).20 Youngberg v. Romeo, 457 U.S. 307 (1982).21 Robinson v. California, 370 U.S. 660 (1962).22 See DeShaney, supra note 1, at 15.23 Id. at 23.
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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 meta-
principle 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
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
24 Id. at 11.
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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
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
25 John Rawls, Political Liberalism (1993)26 Immanuel Kant, Freedom As Autonomy (1785), in Michael Sandel, Justice: A Reader
(2007), at 163.
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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
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
27 Id. at 331.
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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.
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
28 Michael Sandel, Liberalism and the Limits of Justice, at 192.29 Id.30 John Rawls, A Theory of Justice (1999), at 561.
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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
31 See Rawls, supra note 25, at 77.32 Id.33 Id. at 12.34 See Rawls, supra note 30.
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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 self-
determination 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
35 See Rawls, supra note 25, at 77-78.36 See Sandel, supra note 26, at 210.37 Id. at 205.
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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
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
38 See Rawls, supra note 25, at 11.39 Id. at 304.
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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.
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
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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
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
40 See DeShaney, supra note 1, at 22.
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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,
“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
41 Id. at 24.42 Id.43 Id. at 36.
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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
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.
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END NOTES