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Den Otter on Public Reason & Judicial Review

By Lawrence Solum

Checkout A Public Reason Defense of Judicial Review by Ronald C. Den Otter on Balkinization. A taste:

Americans have always had, and probably always will have, ambivalent feelings toward judicial review; they cannot live with it but they cannot live without it. Indeed, there used to be something characteristically American about turning the most divisive political questions --abortion, affirmative action, same-sex marriage, freedom of speech, separation between church and state, and capital punishment-- into legal questions with the hope that courts could answer them. The primary question that I address in my recent book, Judicial Review in an Age of Moral Pluralism, is whether judicial review can be justified in a country like our own that is committed to democratic self-rule. In the past, scholars have tried to defend judicial review by arguing that it makes our political system more democratic. By contrast, I defend judicial review because it ensures that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. I tie this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and describe how judges should decide the most difficult constitutional cases.

Full post as published by Legal Theory Blog on September 02, 2010 (boomark / email).