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Journal of Transatlantic Studies

, Volume 1, Issue 1, pp 8–25 | Cite as

Public Reason as Liberal Myth: Impartialist Liberalism, Judicial Review and the Cult of the Constitution

  • Mark Evans
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Notes

  1. 1.
    See Michael Freeden, Ideologies and Political Theory, Clarendon, Oxford, 1996, chapter 6.Google Scholar
  2. 2.
    The idea that impartialist liberalism is typical of ‘American academic liberalism’ might prompt us to neglect the diversity present among American academic liberals. However it is undeniable that the doctrine is a dominant force in contemporary American liberal thought, which has itself also had very significant impact upon nature of British academic liberal discourse.Google Scholar
  3. 3.
    In common with many other contemporary liberals, Rawls is surprisingly uninterested in the question of how we determine who has the right to rule (it is surprising because this is such a crucial political question and its neglect reinforces the unfortunate impression that liberals complacently support the institutional status quo when the doctrine emerged as a challenge to political powers to justify themselves). Rawls agrees that legitimacy is important: John Rawls, Political Liberalism, Columbia University Press, New York, 1996, pp. 427–9. But he is much more concerned to think about the conduct of politics given the right of specific institutions to rule.Google Scholar
  4. 4.
    Ibid., p. 136.Google Scholar
  5. 5.
    See Mark Evans, ‘Is Public Justification Central to Liberalism?’ in Journal of Political Ideologies 4 (1), (1999), pp. 117–36 for a more detailed presentation of the Lockean position’s conceptual structure in contrast to the Rawlsian.CrossRefGoogle Scholar
  6. 6.
    Rawls, Political Liberalism, pp. 36–58.Google Scholar
  7. 7.
    The meaning of ‘reasonable’ in Rawls’s thought is almost certainly not as uncontroversial as he must assume it to be for his argument to be coherent, and this point is an important added consideration against impartialist liberalism. Rawls wants to use ‘reasonable’ to denote that which may be affirmed by free and equal citizens, willing to live with others in a peaceful, cooperative, just accommodation of their ways of life and recognising what he calls the ‘burdens of judgement’ which make it unreasonable to expect agreement on certain questions of moral and metaphysical belief. See Rawls, Political Liberalism, pp. 47–66.Google Scholar
  8. 8.
    Ibid., p. 1.Google Scholar
  9. 9.
    Ibid., p. xxiii.Google Scholar
  10. 10.
    Ibid., p. lxi–ii. If we do not believe in this possibility, then Rawls says we should perhaps ask ourselves a question first posed by Kant as to whether it would therefore be worthwhile for humans to live on this earth.Google Scholar
  11. 11.
    Louis Hartz, The Liberal Tradition in America, Harcourt, Brace and World, Inc., New York, 1955, p. 9Google Scholar
  12. 12.
    Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, Bobbs-Merrill, Indianapolis, 1962, p. 31.Google Scholar
  13. 13.
    Daniel Boorstin, The Genius of American Politics, University of Chicago Press, Chicago, 1953.Google Scholar
  14. 14.
    See Rawls, Political Liberalism, p. 231 for the distinction between ‘higher’ and ‘ordinary’ law. The former is said to embody the constituent power of ‘We the People’, who are the polity, and this binds and guides the ‘ordinary power’ of the legislative institutions which are a product of, and act within the terms framed by, this constituent power.Google Scholar
  15. 15.
    The fact that these ideas are clearly not available to British citizens, whose political constitution is much more diffuse, emphasises the cultural particularity whose recognition I strongly advised in my opening remarks.Google Scholar
  16. 16.
    Rawls, Political Liberalism, pp. 231–41.Google Scholar
  17. 17.
    Ibid., p. 216.Google Scholar
  18. 18.
    The fact that there are some who do not accept the Constitution (and who are likely thereby to fall into Rawls’s category of the ‘unreasonable’) obviously illustrates one aspect of the limits to impartiality. My argument here, though, is designed to illustrate them even within the category of Constitution-adherents.Google Scholar
  19. 19.
    Robert Bork, The Tempting of America: The Political Seduction of the Law, Macmillan, New York, 1990, esp. pp. 143–6.Google Scholar
  20. 20.
    Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution, Harvard University Press, Cambridge MA, 1996, pp. 2, 7–12.Google Scholar
  21. 21.
    Ibid., p. 4.Google Scholar
  22. 22.
    I am not saying that the idea of public reason supports only the originalist approach to judicial review, because that would be plainly false. But it would be perverse not to sense the affinities between the two, a fact that should disturb liberals whose political opinions are precisely those that originalists tend to attack.Google Scholar
  23. 23.
    See Bork, The Tempting of America, pp. 2–3, 145, 247.Google Scholar
  24. 24.
    See Dworkin, Freedom’s Law, pp. 294-8, 343, 350 n. 11.Google Scholar
  25. 25.
    Ibid., p. 17.Google Scholar
  26. 26.
    James Madison talked of such constraints as ‘pre-commitments’ undertaken by a constitutional convention to frame the conditions for representative democracy and protect them against possible, ill-advised and knee-jerk ‘ordinary’ legislation to the contrary by subsequent electoral majorities; M. Beloff (ed.), The Federalist, Oxford University Press, Oxford, 1987, paper 49. However, they are not just pre-commitments, for they express an on-going commitment to the principles incorporated in democracy; cf. Rawls, Political Liberalism, p. 232: ‘a democratic constitution is a principled expression in higher law of the political ideal of a people to govern itself in a certain way.’Google Scholar
  27. 27.
    Dworkin, Freedom’s Law, p. 11.Google Scholar
  28. 28.
  29. 29.
    Dworkin’s theory is most fully elaborated in his Law’s Empire, Fontana, London, 1986, esp. chapters 6–7, 10.Google Scholar
  30. 30.
    I use the term ‘essentially contested’ loosely because the concept is itself contested; my wording here follows W.B. Gallie, ‘Essentially Contested Concepts’, in Proceedings of the Aristotelian Society 56 (1955/6), pp. 167–98.CrossRefGoogle Scholar
  31. 31.
    The possibility of plural public reasons has been advocated by numerous authors, for example, James Bohman, ‘Public Reason and Cultural Pluralism’ in Political Theory 23 (2), pp. 253–79. It may of course be possible to formulate more than one position using reasons that one could reasonably expect a citizenry to accept. And that citizenry could indeed be prepared to accept any one of two or more such positions offered to it at any particular time (Rawls himself is happy to characterise public reason in terms of these possibilities.) But if any such position as adopted by, say, the Supreme Court actually generates significant public opposition it surely cannot be said to be constituted by genuinely public reasons in any interesting or relevant sense unless that opposition is the product of ignorance or wilful partisanship. The fact that it uses words, such as ‘freedom’ and ‘equality’, which might be used to form public reasons in other contexts would not by itself be enough to vindicate any argument to the effect that, though one may not accept this particular constrnal of them, the position in question is using terms familiar in public reasoning and that it is therefore not unreasonable for it to be offered as constituted by public reason.Google Scholar
  32. 32.
    For a bracingly brief argument to this end, see Charles Taylor, The Ethics of Authenticity, Harvard University Press, Cambridge MA, 1991, pp. 114–5.Google Scholar
  33. 33.
    Representative of the argument for deliberative democracy in this context is Amy Gutmann and Dennis Thompson, Democracy and Disagreement, Belknap Press of Harvard University Press, Cambridge MA, 1996. Also see Daniel Lazare’s democratic critique of the U.S. Constitution in The Frozen Republic, Harcourt and Brace, New York, 1996.Google Scholar
  34. 34.
    Dworkin Freedom’s Law, pp. 344–5.Google Scholar
  35. 35.
    See Paper 10 in M. Beloff (ed.), The Federalist.Google Scholar
  36. 36.
    Dworkin, Freedom’s Law, pp. 32–4.Google Scholar
  37. 37.
    Tocqueville famously regards some degree of actual popular participation in deliberation and decision-taking as absolutely crucial to a democracy’s health, a point to which Dworkin’s analysis seems peculiarly insensitive. See S. Macedo, ‘Capitalism, Citizenship and Community’, in Social Philosophy andPolicy 6 (1) (1989), pp. 132–9.Google Scholar
  38. 38.
    I don’t wish to deny altogether the claim that, in some circumstances, constitutionalism and judicial review can more effectively protect liberties. A legislative majority might be prone in unusual circumstances to attempt unnecessary curtailment of liberty (in times of national crisis, say), and be rightfully impeded from doing so. But the liberal concern over Republican presidents’ conservative appointments to the Court clearly shows how liberals themselves do not necessarily trust the Court as an institution to be the kind of guarantor of liberties they require.Google Scholar
  39. 39.
    Rogers M. Smith, ‘The Inherent Deceptiveness of Constitutional Discourse: A Diagnosis and Prescription’ in I. Shapiro, R. Adams (eds.) Nomos XL: Integrity and Conscience, New York University Press, New York, 1998, pp. 242–9. Smith seems to think that his argument is likely to have more effect on how scholars interpret what judges are doing, rather than on how judges conduct and present constitutional interpretation.Google Scholar
  40. 40.
    The ‘moral’ legitimacy of the very presidency of George W. Bush was challenged by many on the grounds that the 2000 election result was settled in an obviously partisan way in the Supreme Court’s momentous ruling. Potentially politically enervating doubts consequently persisted about President Bush’s real authority until the terrorist attacks of September 11 2001 sent his approval ratings soaring: ironically and very revealingly a straightforward majoritarian dissolution of such doubts.Google Scholar
  41. 41.
    See, for example, Michael Oakeshott, ‘Rationalism in Politics’, in his Rationalism in Politics and Other Essays, Methuen, London, 1962, pp. 1–36.Google Scholar
  42. 42.
    A. de Tocqueville, Democracy in America volume 1 edited by E Bradley, Vintage, New York, 1990, esp. pp. 299–307.Google Scholar
  43. 43.
    Although Rousseau’s own conception of civil religion hardly qualifies him as a liberal, liberalism can coherently accept his characterisation of the general phenomenon as incorporating ‘social sentiments without which a man (sic) cannot be a good citizen’; Jean-Jacques Rousseau, The Social Contract and Discourses, translated by G.D.H. Cole, Dent, London, 1973, p. 307.Google Scholar
  44. 44.
    See Rawls, Political Liberalism, pp. 196–7, 393.Google Scholar
  45. 45.
    Or perhaps even the more minimal form of political agreement on institutional arrangement embodied in modus vivendi forms of political orders will suffice; see ibid., pp. 158–64.Google Scholar
  46. 46.
    Ibid., Lecture IV, esp. pp. 164–8.Google Scholar
  47. 47.
    John Rawls, The Law of Peoples, Harvard University Press, Cambridge MA,1999, pp. 178–9.Google Scholar
  48. 48.
    Ibid., p. 6; cf. Rawls, Political Liberalism, p. lxii.Google Scholar
  49. 49.
    For comments on work, which has evolved into the present piece, my thanks are due to participants at the Transatlantic Studies Inaugural Conference, University of Dundee, 2002, the British Association of American Studies conference 2000 at the University of Wales Swansea and the Political Theory Workshop in the Department of Politics and International Relations, University of Wales Swansea. Anne Evans scrupulously removed numerous errors from the text.Google Scholar

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© Board of the Journal of Transatlantic Studies 2003

Authors and Affiliations

  • Mark Evans
    • 1
  1. 1.Department of Politics and International RelationsUniversity of Wales SwanseaUK

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