On Actualizing Public Reason

In this Essay, I examine some apparent difficulties with what I call the "actualization criterion" connected to Rawls's notion of public reason, that is, the criterion for determining when Rawlsian public reason is concretely actualized by citizens in their deliberating and deciding about constitutional essentials and matters of basic justice. While these apparent difficulties have led some commentators to reject Rawlsian public reason altogether, I offer an interpretation that might allow Rawlsian public reason to escape the difficulties. My reading involves the claim that Rawlsian public reason is to be understood essentially as an imperative or an ideal, and as not necessarily grounded in any stock of existing beliefs or opinions. I make this claim on the basis of the seemingly counterintuitive observation that it is possible for citizen-interlocutors to know that public reason has been violated without necessarily knowing who the violator is (and thus without being able to foreclose the possibility that the violator may even be oneself). This observation is based in turn on my analysis of the necessary reciprocity and self-referentiality built in to the very concept of public reason as such

A Threat from the Inside: The Appointment of Judges of the Peruvian Constitutional Court

The article analyses the restriction of independent courts and their compositions using the example of appointment of judges of the Peruvian Constitutional Court. The recent appointment is a threat to the Peruvian de­mocracy and, more importantly, that its source is the Peruvian legal system itself. In the end, the author states that deficiencies in the Peruvian legal system that hinders the public justification of the appointment process of the Constitutional Court’s judges, because it makes the accessibility of the reasons for appointing them inadmissibly dependent on the will of the parliamentarians. The fact that constitutional interpretation, a partial delegation of the exer­cise of public reason, is unjustifiably held by judges renders its normative character illegit­imate and hurts a democracy

Party Polarization and Judicial Review: Lessons from the Affordable Care Act

Congress paid nearly no attention to the Constitution when enacting the Affordable Care Act (ACA) in 2010. Legislative hearings and committee reports ignored the Constitution altogether; legislative debates largely did the same. This Essay both highlights Congress’s indifference to the Constitution when enacting the ACA and examines the reasons behind this legislative failure. In particular, this Essay advances three explanations. First, Congress is generally uninterested in “public goods” like constitutional interpretation. Second, the polarization of Democrats and Republicans in Congress further depresses Congress’s interest in thinking about the Constitution; instead, the majority party seeks to limit opportunities for the minority party to raise constitutional objections to legislation. Third, there is no federalism constituency in Congress that pushes lawmakers to take federalism into account when enacting legislation. For this very reason, Republican lawmakers almost always attacked the ACA on policy, rather than on constitutional, grounds. While embracing these three explanations, this Essay rejects a fourth explanation, namely, that lawmakers had no reason to know that the ACA would be subject to vigorous constitutional attack. Finally, this Essay argues that congressional disinterest in constitutional federalism supports the Supreme Court’s establishment of boundaries that limit Congress’s Commerce Clause power. At the same time, this Essay does not endorse the action– inaction distinction advanced by five Justices in the ACA decision

Pluralism and Public Legal Reason

What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism--liberty of conscience, toleration, limited government, and the rule of law? This essay explores these questions from the perspectives of contemporary political philosophy and constitutional theory. The thesis of the essay is that pluralism--the diversity of religious and secular conceptions of the good--can and should work as a force for constitutional consensus and that such a consensus is best realized through commitment to an ideal of public legal reason instantiated by the practice of legal formalism. The case for these claims is made in six parts. After the introduction, Part II, The Fact of Pluralism in the Context of Contemporary Religious Division, explores the idea of religious division in light of an important notion in political philosophy--the idea that John Rawls calls the fact of reasonable pluralism. Part III, Public Legal Reason, argues that the fact of pluralism has important normative consequences for the foundations of normative legal theory and argues for an ideal of public legal reason. Part IV, Legal Formalism, contends that this idea is best realized in constitutional practice through a formalist approach to constitutional interpretation--one that deliberately eschews direct reliance on religious and secular comprehensive conceptions of the good. Part V, Feasibility and Positive Theory, discusses the question whether this ideal of public legal reason and corresponding conception of constitutional formalism are realistic, given the constraints imposed by democratic politics under contemporary conditions. Finally, Part VI, Religious Division Revisited: From Pluralism to Formalism, brings the discussion to a close

Prudentialism in McDonald v. City of Chicago

At least two kinds of prudential argument have been identified in the literature on constitutional interpretation: court-centered prudentialism and system-centered prudentialism. Commentators often characterize court-centered prudentialism as animated by concern over the Supreme Court’s preservation of its public legitimacy, which can be undermined when the Justices decide controversial questions in ways that cause backlash. By contrast, system-centered prudentialism asks not only what judicial decision is best for the Court’s effectiveness, but also what response is best for the constitutional system as a whole when the Court’s legitimacy is not at stake. The Court’s recent decision in McDonald v. City of Chicago illustrates the practice of system-centered prudentialism. Judging from the concerns raised by several Justices at oral argument, especially Justice Scalia, members of the McDonald plurality appeared to reason prudentially in deciding to use Section One of the Fourteenth Amendment’s Due Process Clause—and not its Privileges or Immunities Clause—to apply the Second Amendment to state and local governments. But the Court reasoned prudentially in substantial part because it was troubled about the consequences for the American constitutional system of opening up a Pandora’s Box of new assertions of unenumerated rights, not because its own legitimacy was threatened. McDonald illustrates the importance of understanding why judges may decline to fully acknowledge their own practice of prudentialism. McDonald also illustrates the need for constitutional theory to accommodate the practice

Why Originalism Won’t Die - Common Mistakes in Competing Theories of Judicial Interpretation

In the debate over proper judicial interpretation of the law, the doctrine of Originalism has been subjected to numerous seemingly fatal criticisms. Despite the exposure of flaws that would normally bury a theory, however, Originalism continues to attract tremendous support, seeming to many to be the most sensible theory on offer. This Article examines its resilient appeal (with a particular focus on Scalia’s Textualism). By surveying and identifying the fundamental weaknesses of three of the leading alternatives to Originalism (Popular Will theory, Dworkin’s value theory, and Judicial Minimalism), the Article demonstrates that the heart of Originalism’s appeal rests in its promise of objectivity. The Article also establishes, however, that Originalism suffers from a misguided conception of what objectivity is. All camps in this debate, in fact, suffer from serious misunderstandings of the nature of objectivity

Outsourcing the Law: History and the Disciplinary Limits of Constitutional Reasoning

Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they have gotten the history right in attempting to do so