Channing Turner

HON 494: Law, Justice and Democracy — Final Paper

May 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,”

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
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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
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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.

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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
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“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
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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 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
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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
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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
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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.

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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
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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

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

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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.

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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

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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,

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“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

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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
1
DeShaney v. Winnebago, 489 U.S. 189 (1989).
2
Id.
3
Id. at 9.
4
Alexander Hamilton, Federalist 78 (1788).
5
Id.
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.
11
Id.
12
Id.
13
Id.
14
See DeShaney, supra note 1, at 10.
15
Id.
16
Id.
17
Id.
18
Id.
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.
24
Id. at 11.
25
John Rawls, Political Liberalism (1993)
26
Immanuel Kant, Freedom As Autonomy (1785), in Michael Sandel, Justice: A Reader (2007), at 163.
27
Id. at 331.
28
Michael Sandel, Liberalism and the Limits of Justice, at 192.
29
Id.
30
John Rawls, A Theory of Justice (1999), at 561.
31
See Rawls, supra note 25, at 77.
32
Id.
33
Id. at 12.
34
See Rawls, supra note 30.
35
See Rawls, supra note 25, at 77-78.
36
See Sandel, supra note 26, at 210.
37
Id. at 205.
38
See Rawls, supra note 25, at 11.
39
Id. at 304.
40
See DeShaney, supra note 1, at 22.
41
Id. at 24.
42
Id.
43
Id. at 36.