note taking
An exchange with Ronald C. Den Otter at Balkinization

Attempts to separate judgment from politics always strike me as bizarre. If you want to get rid of judicial review you need to get rid of the Constitution, or at least change it from law into a Statement of Principles. There are reasonable arguments for that (in my opinion).

"A legitimate decision is one that passes the test of public justification and the best decision is the one that is most publicly justified, that is, based on the strongest public reasons. These reasons are those that an ideal reasonable person would accept as good enough because they are as uncontroversial as possible."

"A reasonable person" in 2010 is not the same as a reasonable person in 1925. Reasonableness may be a constant but what it refers to is not. That's why there's no such thing as (static) "public reason". What there is or needs to be is a (static) norm of civility in argument under rules of "public form": divided government, adversarialism, the rule of law etc. with the accepted purpose not as ideal justice but public acceptance of the outcome.

The best argument against SSM being decided in the courts would be to say that because there is no way logically to move beyond private moral preference in separating the right to same sex marriage from the possible right to multiple marriage, which "reasonable people" now oppose but may not in the future, we should leave it to the political process.

You try to replace the reliance on " 'truth' of... conceptions of the good life" with 'truth' as to public reason. You substitute a dream of ideal justice with a dream of ideal justices. Hard cases still make bad law.
# posted by D. Ghirlandaio : 7:31 PM


D.Ghir., you raise some serious points and I wish that I could respond to them in more depth than a blog like this allows. But in the book at least, I tried to do so.

(1) I never separated law and politics as sharply as you think but you're right that I believe and hope that to some extent, in important constitutional cases, it's possible. If constitutional law is really, in the end, politics by another name, then I don't see the point of having judicial review (by judges). Just leave such questions to the people or to their elected representatives.

(2) I don't think (and explain why in the book) why reasonableness is not tied to particular times and places.

(3) Related to (2), I could be wrong about this, but you sound like you're much more of a constitutional relativist than I am. That is, you don't really believe that there are right or at least better answers to hard constitutional questions. I do try to take the sting out of such skepticism. Whether I really do so is another matter.

I appreciate the comments...
# posted by theottersden : 2:43 PM


I don't see how you can avoid judicial review if you have a written constitution, and as to relativism, if that means I'm more interested in process than product, then you're right.

The most serious opponents of relativism are also critics -often opponents- of democracy. The strongest defense of democracy is to argue that truth is fundamentally private and that what's public are formal rules and more importantly, informal obligations among actors/players. I'm a relativist about truth but not method.
# posted by D. Ghirlandaio : 2:45 PM