Most American legal scholars have been slow to recognize the significance of John Rawls’s idea of public reason for law. This failure on their part is surprising, given the applicability of public reason to American constitutional theory, doctrine, and practice; it is also unfortunate constitutional theorists are not availing themselves of one of the most interesting ideas found in contemporary political philosophy literature. The main purpose of this contribution is to explain why American legal scholars must develop a conception of constitutional public reason (CPR) that suits the particulars of the American legal system. The other purpose is to address an objection to CPR, namely that it would be too shallow to provide sufficient normative orientation when judges must answer the most challenging constitutional questions. The objector alleges that even if judges were to endorse the same conception of CPR, it still might be indeterminate. As it turns out, CPR probably is no more prone to indeterminacy than any other theory of constitutional adjudication. Indeed, such reason may generate more determinacy when the pool of reasons that judges may draw from is considerably smaller.

In the first part of this chapter, I defend public reason against a number of well-known objections and then try to explain its appeal in a society like our own. An ideal of public justification cannot be too controversial if it is to serve as the mode of public reasoning that will help us to resolve constitutional disputes as fairly as possible. Those who are reasonable but have different conceptions of good must use the same principle of public reason when they exchange reasons with one another to narrow the range of their initial disagreement. I shall show that none of these objections is compelling and that some of them rest on misconceptions about the nature of Rawlsian public reason.

In doing so, I deviate from Rawls's own view by insisting that people who are not judges should not feel obligated to limit themselves to public reasons when they deliberate and vote on the most important political questions. Public deliberation should be as participatory and open ended as possible to enable everyone to express their sentiments and articulate their deepest convictions. My position is distinct, then, from that of Rawls, who believes that citizens and public officials should have a self-imposed duty to limit themselves to sufficiently public reasons in certain circumstances. Instead, I believe that judges should limit themselves and others to public reasons when they exercise the power of judicial review.

In the previous chapter, I tried to show how a concern about public justification emerges when the state legislates on the basis of reasons that reasonable people may be justified in rejecting. In exercising the power of judicial review, the judge assesses the quality of the reasons that the state has offered on behalf of the law in question. The less controversial the underlying reasons, the more publicly justified, and thus legitimate, that law is likely to be. After taking into account a presumption of freedom and equality, if the judge concludes that a reasonable person would accept those reasons, then the law is constitutional. If a reasonable person would reject the reasons, then the law is unconstitutional. An ideal of public justification serves a normative standard for the use of public reason. However, those who adhere to this ideal are divided over how to draw the line between public and nonpublic reasons and whether deliberators may rely on nonpublic reasons in certain situations. As a consequence, there are “competing conceptions of public reason.” In this chapter, my aim is to sketch the debate about public reason, to spell out the similarities and differences of the three basic paths to public justification, and to identify some of the main questions about how such justification can be accomplished.

THE THREE CONCEPTIONS

According to Lawrence Solum, there are three basic principles of public reason: “laissez-faire,” “exclusion,” and “inclusion.”

The purpose of this book is to explain how judicial review can be justified in a country like our own, which is committed to democratic self-rule but also to the freedom and equality of all of its members. A striking feature of the contemporary American political landscape is the prominence of the judiciary in making important constitutional choices that many other democratic countries leave to the people or to their elected representatives. There used to be something characteristically American about turning the most divisive political questions into legal questions with the hope that courts could answer them and thereby defuse political conflict. At the same time, the practice of judicial review has engendered understandable worries about the appropriate relationship between legislative and judicial power. Alexander Bickel once referred to judicial review as a “deviant institution” in a democracy. A number of conservative critics of judicial activism have used what Bickel called the “counter-majoritarian difficulty” in trying to show that the judiciary is the most dangerous branch. Robert Bork has written, “The progression of political judging, judging unrelated to law,…has greatly accelerated in the past few decades and now we see theorists of constitutional law urging judges on to still greater incursions into Americans' right of self-government.” According to Bork, America is “helpless before an antidemocratic, indeed a despotic, judiciary.” Lino Graglia has alleged that “the Constitution has been made the means of depriving us of our most essential right, the right of self-government.”