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THE SUPREME COURT AS THE FOUNTAIN OF PUBLIC REASON

Published online by Cambridge University Press:  27 December 2018

Brian Kogelmann
Brian Kogelmann*
Affiliation:
University of Maryland
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Abstract

The idea of public reason requires that citizens in their public deliberation employ considerations stemming from a shared conception of justice. One worry is that public reason's content will be incomplete, in that it does not contain sufficient material for adequate public debate. Rawls has a way of expanding the content of public reason to address such concerns—by including in public reason all those things you and I say in our justification of the conception of justice. After arguing that this strategy fails, a new way of expanding public reason's content is proposed. Instead of understanding the Supreme Court—which Rawls famously calls the “exemplar” of public reason—as an institution that appeals to exogenously determined public reasons, we should understand the judicial authority in a liberal democratic society as an endogenous fountain of public reason.

Type
Research Article
Information
Legal Theory , Volume 24 , Issue 4 , December 2018 , pp. 345 - 369
Copyright
Copyright © Cambridge University Press 2018 

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Footnotes

*

The author would like to thank Gerald Gaus, Steven Wall, Micah Schwartzman, as well as two anonymous reviewers at Legal Theory for comments on (many) earlier drafts of this paper.

References

1. John Rawls, Political Liberalism (2005), at 235.

2. Id. at 212.

3. Id. at 216.

4. Id. at 217.

5. Id. at 49.

6. John Rawls, A Theory of Justice (1971), at 336.

7. These sorts of assurance problems are common in everyday life. For an analysis see Brian Kogelmann & Robert H. Wallace, Moral Diversity and Moral Responsibility, J. Am. Phil. Ass'n (forthcoming).

8. See Paul Weitham, Why Political Liberalism? On John Rawls's Political Turn (2010), at 327; Hadfield, Gillian K. & Macedo, Stephen, Rational Reasonableness, 6 Law & Ethics Hum. Rts. 7 (2012)Google Scholar. For criticism of public reason's ability to solve this problem, see Thrasher, John & Vallier, Kevin, The Fragility of Consensus: Public Reason, Diversity, and Stability, 23 Eur. J. Phil. 933 (2015)CrossRefGoogle Scholar; Kogelmann, Brian & Stich, Stephen G.W., When Public Reason Fails Us: Convergence Discourse as Blood Oath, 110 Am. Pol. Sci. Rev. 717 (2016)CrossRefGoogle Scholar.

9. John Rawls, The Idea of Public Reason Revisited, in Collected Papers 573, 610 (1999).

10. For more on the incompleteness of public reason see Schwartzman, Micah, The Completeness of Public Reason, 3 Pol. Phil. & Econ. 191 (2004)CrossRefGoogle Scholar.

11. The relationship between incompleteness and public reason's practical function is examined at length in Brian Kogelmann, Public Reason's Chaos Theorem, Episteme (forthcoming).

12. Rawls, supra note 1, at 66.

13. Id. at 67.

14. Other motivations for insisting that the well-ordered society satisfy all three levels of publicity can be found in Kogelmann, Brian, Justice, Diversity, and the Well-Ordered Society, 67 Phil. Q. 663 (2017)Google Scholar.

15. Rawls, supra note 1, at 68.

16. Rawls, supra note 6, at 137.

17. Id. at 151.

18. Id. at 196. Interestingly, almost no work has been devoted to Rawls's constitutional convention. Indeed, the only paper I can find specifically dedicated to this topic is Ronald Moore, Rawls on Constitution-Making, 20 NOMOS 238 (1979).

19. Rawls, supra note 6, at 200.

20. Rawls, supra note 1, at 398.

21. Id. at 408–409.

22. Alexander Hamilton, John Jay & James Madison, The Federalist (2001), at 38.

23. The founding, seminal text in constitutional economics is James M. Buchanan & Gordon Tullock, The Calculus of Consent: The Logical Foundations of Constitutional Democracy (2004).

24. Torsten Persson & Guido Tabellini, The Economic Effects of Constitutions (2005), at 7.

25. For an overview of the kinds of the social scientific methods used in constitutional economics see Tarko, Vlad, The Challenge of Empirically Assessing the Effects of Constitutions, 22 J. Econ. Methodology 46 (2015)CrossRefGoogle Scholar.

26. Hadfield, Gillian K. & Weingast, Barry, What Is Law? A Coordination Model of the Characteristics of Legal Order, 4 J. Legal Analysis 1 (2012)CrossRefGoogle Scholar; Gillian K. Hadfield & Barry Weingast, Constitutions as Coordination Devices, in Institutions, Property Rights, and Economics Growth 121 (2014).

27. For an overview of the uses of social science by the Supreme Court, see Paul L. Rosen, The Supreme Court and Social Science (1972); Rosemary J. Erickson & Rita J. Simon, The Use of Social Science Data in Supreme Court Decisions (1997).

28. Ewing, Connor, With Dignity and Justice for All: The Jurisprudence of Equal Dignity and the Partial Convergence of Liberty and Equality in American Constitutional Law, 16 Int'l J. Constitutional L. 753, 768 (2018)Google Scholar.

29. Thomas Hobbes, Leviathan (1994), at 109.

30. Gauthier, David, Public Reason, 12 Soc. Phil. & Pol'y 19, 25 (1995) (emphasis added)Google Scholar.

31. Id. at 26.

32. Id. at 24.

33. Though the current paper rejects the Hobbes-Gauthier understanding of the relationship between individual rationality and collective judgment, there are some in the jurisprudential literature who argue in favor of it, particularly as it relates to judgments made by the Supreme Court. For instance, Larry Alexander and Frederick Schauer argue: “An important aspect of the Constitution, as of all law, is its authority, and intrinsic to the concept of authority is that it provides content-independent reasons for action. Accordingly, an authoritative constitution has normative force even for an agent who believes its directives to be mistaken. What is rarely noticed, however, is that the same argument applies to authoritative interpreters of the Constitution as applies to the Constitution itself. Just as it is often right for officials to obey constitutional provisions they believe wrong, so too is it often right for officials to obey judicial interpretations they believe wrong.” See Alexander, Larry & Schauer, Frederick, On Extrajudicial Constitutional Interpretation, 100 Harv. L. Rev. 1359, 1361 (1997)Google Scholar.

34. Gerald Gaus, Hobbes's Idea of Public Judgment: A Social Coordination Analysis, http://www.gaus.biz/Gaus-HobbesJudgment.pdf, at §5.

35. Distinguishing between the public and private roles of persons is quite common in actual political systems. Consider, for instance, the paradoxical phrase “The king is dead, long live the king!” Such an expression only makes sense when we distinguish between the king as a private person (who could indeed die) and the king as a public person who (legally speaking) was considered immortal. For more on this point see Ernst H. Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political Theology (2016).

36. Cohen, Joshua, A More Democratic Liberalism, 92 Mich. L. Rev. 1503, 1521 (1994)CrossRefGoogle Scholar.

37. Rawls, supra note 1, at 157.

38. Id.

39. Id. at 214.

40. John Rawls, The Domain of the Political and Overlapping Consensus, in Collected Papers 473, 496 (1999).

41. Rawls, supra note 1, at 228.