Abstracts
This chapter discusses John Rawls’ idea that the Supreme Court is the exemplar of public reason. In a pluralistic democracy, public reason is framed by the constitution. Reciprocally, public reason contributes to the development of a constitutional consensus that provides the principles for the expression of differences which exist in society. As it takes place within the framework of constitutional consensus, legal argumentation must be independent of any comprehensive idea of the good and compatible with a plurality of comprehensive ideas of the good. It thus contributes to the legitimacy of the law. Those who function in a judicial capacity should be exemplars of such public reason. In the end, the ideal of Supreme Court Justice may be seen as an ideal type of argumentation for judges, legislators, politicians and citizens at large.
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Notes
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Rawls J (1996). Political Liberalism. New York: Columbia University Press,, p. 231. It should be noted that when Rawls returned to the idea of public in the article, “The Idea of Public Reason Revisited” (Rawls J. Collected Papers. Cambridge: Harvard University Press, pp. 573–615.) he seems less enthusiastic about the idea of having the Supreme Court Justice be the exemplar par excellence of public reason. However, it should be noted that behind the selection of the exemplar is the theory that Supreme Court decisions function for democracy in the sense that they function for the protection of minorities from the tyranny of majorities.
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The phrase ‘juridification of politics’ may not have been acceptable to Rawls. I simply use it to characterize the significant role given to the courts in the American democratic system when compared with parliamentary democracies.
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One of the most interesting discussions of the differences between the United States and Europe on the issue of the differences between the United States and Europe is found in the essay, “Juridification of Politics in the US and Europe” by Lars Trägardh and Micheal X. Delli Carpini, appearing in, After National Democracy: Rights, Law and Power in America and The New Europe. (Ed. Lars Trägardh). Referring to the differences between the United States and Europe regarding jurifification they state: “The key reason for this startling difference is that while in Europe majority rule is taken for granted, there is at the heart of the American political system the belief that no one institution or process can or should represent the ‘public will’. To the contrary, the system was from the outset designed to explicitly distribute power among individual citizens, various organized interests, the 50 states, and the different branches of national government. This design was meant to check the abuses of any one individual, group or institution, while at the same time forcing these various sites of power to interact with each other in order to create and execute public policy.” p. 53.
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“To understand the long-standing and widespread suspicion of the idea of an independent judiciary that has prevailed in continental Europe, one must begin by noting that the dominant tradition has been legal positivism. That is, unlike the English and American common law tradition, with its emphasis on adversarial proceedings, the crucial role played by the jury, and the law-making powers of judges, in Europe courts and judges have primarily served as officials of the state, applying positive, written, codified law. Law was not independent of state power, nor was there a higher law to appeal to, no independent source of authority, no basis for judicial review, whether a constitution or some species of natural law. Given this, it is not surprising that once opposition to authoritarian regimes began to emerge in earnest during the nineteenth century, critics often viewed the law as simply a matter of state power or anti-majoritarian class interest.” After National Democracy, p. 46.
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“In this uniquely American schema, the judicial branch was accorded a significant role. In Federalist n. 78, for example, Alexander Hamilton specifically assigned the courts the task of keeping the legislature ‘within the limits assigned to their authority’. In their role as ‘an intermediate body between the people and the legislature’, the courts were to be responsible not only for preventing ‘infractions of the Constitution’, but also for ‘mitigating the severity and confining the operation of [unjust and partial] laws’ which injure ‘the private rights of particular classes of citizens’ (Hamilton, Jay and Madison 1937/1787, 506 and 509). Far from deferring to the legislature, then, judges in the American system were, from the start, to maintain a critical eye in their review and application of legislation, remaining ever wary of implicit and explicit transgressions of individual rights upheld in the constitution.” Hilbink L. Law and Politics in a Madisonian Republic. In After National Democracy, pp. 125–126.
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“In the legal community, and among American liberals in general, many interpret the framers’ intentions as giving the Supreme Court ultimate authority over constitutional interpretation, or a trumping position in the political system. Indeed, this was the claim set forth in the famous US Supreme Court case of 1803, Marbury v Madison, which established the Court’s judicial review power. Therein, Chief Justice John Marshall held that the very logic of a written constitution required judicial supremacy. Without it, he claimed, elected officials would be able to circumvent or ignore the legal restraints that the constitution placed on them, and the entire concept of limited government would thus lose meaning.” Hilbank L in After National Democracy, p. 126.
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John Rawls defines a constitutional consensus in the following way: “In a constitutional consensus, a constitution satisfying certain basic principles establishes electoral procedures for moderating political rivalry within society. This rivalry includes not only that between classes and interests but also between those favoring certain liberal principles over others, for whatever reasons. While there is agreement on certain basic political rights and liberties – on the right to vote and freedom of political speech and association, and whatever else is required for the electoral and legislative procedures of democracy – there is disagreement among those holding liberal principles as to the more exact content and boundaries of these rights and liberties, as well as on what further rights and liberties are to be counted as basic and so merit legal if not constitutional protection. The constitutional consensus is not deep and it is also not wide: it is narrow in scope, not including the basic structure but only the political procedures of democratic government.” Political Liberalism, pp. 158–159.
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I gather the example would be something like the Treaty of Westphalia, October 24, 1648, which officially ended the 30 years and laid down the conditions for the various parties renouncing war and living at peace with one another.
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Constitutional interpretation begins officially with John Marshall’s insistence on the right of judicial review. Certainly, one would have to claim that much of the development of public reason would be found in the history of Supreme Court cases.
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Kant states: “If, in thinking about public right as jurists customarily do, I abstract from its matter(i.e., the different empirically given relations among men in a nation or among nations), the form of publicity [From der Publizität] whose possibility every claim of right intrinsically contains, still remains, and unless every such claim has this form there can be no justice [Gerechtigkeit] (that can be regarded as publicly knowable), thus no right either, since the right can be conferred only through justice. Every claim of right must have this capacity for publicity, and since one can easily judge whether or not it is present in a particular case, i.e., whether or not publicity is compatible with the agent’s principles, it provides us with a readily applicable criterion that is found a priori in reason; for the purported claim’s (praetensio iuris) falseness (contrariness to right) is immediately recognized by an experiment of pure reason.” Kant I (1983). Perpetual Peace and Other Essays. (Trans. Ted Humphrey) Indianapolis: Hackett Publishing Company, p. 134. Kant goes on to work out the “transcendental formula of public right: “All actions that affect the rights of other men are wrong if their maxim is not consistent with publicity.” p. 381
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Rawls states: “A political society, and indeed every reasonable and rational agent, whether it be an individual or a family or an association, or even a confederation of political societies, has a way of formulating its plans, of putting its ends in an order of priority and of making its decisions accordingly. The way a political society does this is its reason; its ability to do these things is also its reason, though in a different sense: it is an intellectual and moral power rooted in the capacities of its members.” Political Liberalism. pp. 212–213. In a later statement he broadens the conception somewhat. “The idea of public reason, as I understand it, belongs to a conception of a well-ordered constitutional democratic society. The form and content of this reason – the way it is understood by citizens and how it interprets their political relationship – are part of democracy itself. This is because a basic feature of democracy is the fact of reasonable pluralism – the fact that a plurality of conflicting reasonable comprehensive doctrines, religious, philosophical and moral, is the normal result of its culture of free institutions.” Rawls J. Collected Papers. p. 573.
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Rawls associates himself with the argument for a dualist democracy which of course, has Madisonian origins but find the most current expression in Bruce Ackerman’s We the People: Foundations. Cambridge: Harvard University Press, 1991. The question that arises in the context of my argument is, does public reason apply only do the duelist democracy formulation or does it apply to parliamentary democracies as well? In the essay, The Idea of Public Reason Revisited” he seems to want to broaden the idea of public reason beyond reference to any particular democracy to include modern democracies in general. He states: Central to the idea of public reason is that it neither criticizes nor attacks any comprehensive doctrine, religious or nonreligious, except insofar as that doctrine is incompatible with the essentials of public reason and a democratic polity. The basic requirement is that a reasonable doctrine accepts a constitutional democratic regime and its companion idea of legitimate law. While democratic societies will differ in specific doctrines that are influential and active within them – as they differ in the western democracies of Europe, the United States, and Israel, and India – finding a suitable idea of public reason is a concern that faces them all.” Collected Papers, p. 574.
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Political Liberalism, p. 231.
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Rawls states: “A democratic constitution is a principled expression in higher law of the political ideal of a people to govern itself in a certain way. The aim of public reason is to articulate this ideal. Some of the ends of political society may be stated in a preamble – to establish justice and to promote the general welfare – and certain constraints are found in the bill of rights or implied in a framework of government – due process of law and equal protection of the laws. Together they fall under political values of public reason.” Political Liberalism, p. 232.
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Breyer S (2005). Active Liberty: Interpreting Our Democratic Constitution. New York: Alfred A. Knopf, p. 10.
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Antonin Scalia puts his position on textualism in the following way: “To be a textualist in good standing, one need not be too dull to perceive the broader social purposes that a statute is designed, or could be designed, to serve; or too hidebound to realize that new times require new laws. One need only hold the belief that judges have no authority to pursue those broader purposes or write those new laws.” A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press, 1997, p. 23.
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Rawls states: “Suppose we agree that the three most innovative periods of our constitutional history are the founding, Reconstruction, and the New Deal. Here it is important that all three seem to rely on, and only on, the political values of public reason. The constitution and its amendment process, the Reconstruction amendments that sought to remove the curse of slavery, and the modern activist so-called welfare state of the New Deal, all seem to fit that description, thought it would take some time to show this. Yet accepting this as correct, and seeing the Court as the highest judicial thought not the final interpreter of this body of higher law, the point is that the political values of public reason provide the Court’s basis for interpretation. A political conception of justice covers the fundamental questions addressed by higher law and sets out the political values in terms of which they can be decided.” Political Liberalism, p. 234.
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Political Liberalism, p. 217.
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Political Liberalism, p. 254.
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Rasmussen, D.M. (2010). Public Reason and Constitutional Interpretation. In: Gabbay, D., Canivez, P., Rahman, S., Thiercelin, A. (eds) Approaches to Legal Rationality. Logic, Epistemology, and the Unity of Science, vol 20. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9588-6_5
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