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Public Reason As Higher Law, Gordon D. Ballingrud
Public Reason As Higher Law, Gordon D. Ballingrud
Gordon D Ballingrud
This paper presents a model of higher-law formation by employing a modified version of John Rawls’ idea of public reason. The model specifies a theory of public reason that combines the procedural and substantive aspects of public reason, and extends the concept over a third dimension, time. This concept, by virtue of its multi-generational democratic pedigree, forms a repository of political and legal concepts of justice that conform to the duty of civility, and the broad consensus on political and legal norms required of the content of public reason, which forms the overlapping consensus. Thus, public reason as higher law …
Is The First Amendment Entrenched? Rawls’ Curious Claim, Gordon D. Ballingrud
Is The First Amendment Entrenched? Rawls’ Curious Claim, Gordon D. Ballingrud
Gordon D Ballingrud
. This paper addresses a claim made by John Rawls in Lecture VI of Political Liberalism: any American constitutional amendment, ratified through Article V, which overturned the First Amendment would be illegitimate and justly ruled unconstitutional by the Supreme Court. Addressing the apparent contradiction that a duly enacted constitutional amendment can be unconstitutional, this paper reconstructs and critiques Rawls claim along two lines. First, I address Rawls’ philosophical claim as to the de facto entrenchment of the First Amendment, and the mechanisms that Rawls implicitly and explicitly purports to entrench it. I also address the claim that a First …