Public Reason as Highest Law
Tóm tắt
This essay addresses Rawls’ claim in Political Liberalism that the U.S. Supreme Court would have power to overturn an amendment repealing the First Amendment. I argue that the argument succeeds if one conceives of public reason as a theory of constitutional lawmaking. This theory is founded on Rawls’ unique contributions to the concept of public reason: the criterion of reciprocity, and the content, given by a family of reasonable conceptions of political justice. This conception of public reason imports substantive moral commitments into democratic theory, and thereby limits what may count as law. This essay reconstructs Rawls’ reasoning by developing a theory of public reason as law higher even than constitutional law, and then to use this theory to analyze and critique other theories, such as Ackerman’s constitutional moment.
Tài liệu tham khảo
Bruce Ackerman, We the People: Foundations (Cambridge, MA: Belknap Press of Harvard University Press, 1993).
Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978).
Samuel Freeman, ‘Political Liberalism and the Possibility of a Just Democratic Constitution’, Chicago-Kent Law Review 69(3) (1993): pp. 619–668.
Alexander Kaufman, ‘Stability, Fit, and Consensus’, The Journal of Politics 71(2): pp. 533–543.
Thomas Pogge, Realizing Rawls, 1st ed. (Ithaca, NY: Cornell University Press, 1989).
John Rawls, Political Liberalism, 3rd ed. (New York, NY: Columbia University Press, 2005).
John Rawls, ‘The Idea of Public Reason Revisited’, The University of Chicago Law Review 64(3): pp. 765–807.
John Rawls, A Theory of Justice, Rev. ed. (Cambridge, MA: Belknap Press of Harvard University Press, 1999).
T.M. Scanlon, ‘Rawls on Justification’, in Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge, UK: Cambridge University Press, 2003): pp. 139–167.