Rawls, Religion, and Judicial Politics

In spite of the fiftieth anniversary of a Theory of Justice, David Corey offers us a more succinct and readable overview of John Rawls’s work because it evolved and matured. Had Rawls been as lucid in presenting his own ideas, he might have enjoyed a cultural celebrity to coincide with the esteem once paid him over the academy.
Since it was , a half-century after the first splash of Rawls’s famous book, Rawlsian embers are fading within the humanities except at several dusty corners of philosophy sections. The only discernable flames come from law schools in which the focus would be about Rawls’s later work, such as Political Liberalism, instead of the more systematic Theory. There are reasons for this, and Corey’s focus on Rawls’s so-called political turn moves us a fantastic deal of their way in a clear-headed understanding of Rawls’s legacy.
Since Corey accurately points out, scholars have disagreed about why Rawls made a decision to recast his concept. But Rawls was clear enough in explaining his motive. He arrived to find that Theory went too far in expecting taxpayers to adopt a neo-Kantian understanding of the good. In what follows I’d like to make three hints concerning Rawls’s political turn as a follow-up to Corey’s essay. First, Rawls’s political turn proved to be a true if misguided effort to make his concept attractive to religious Americans, especially Christians. Secondly, Rawls’s political turn required a politically active Supreme Court. Finally, and that I marginally depart from Corey, also after his political twist, Rawlsian peace assumed not only the accomplishment of social egalitarianism but also common acquiescence to egalitarian principles.
Rawls and Religion
As a young man preparing to graduate from Princeton,” Rawls wrote that a senior thesis entitled”A Brief Inquiry into the Meaning of Sin and Faith,” in which he defended the notion of a just society drawn, if imperfectly, from the teachings of Christianity. At this point in his own life, Rawls was a rather devout Episcopalian seriously thinking about the priesthood. Rather, he enlisted in the Army and fought in the Pacific during World War II, an experience that caused him to lose his faith.
Regardless of his agnosticism, Rawls kept a profound commitment to social justice. Any possibility of political achievement required winning over this substantial part of the American people.
Rawls could have been too subtle on this reason for recasting his concept in the original book of Political Liberalism, but perhaps not in the paperback edition with its new, more evident Introduction. He explains there that the book’s fundamental question should be known as follows:”How can it be possible for people confirming a religious doctrine that’s based on religious authority, as an example, the Church or the Bible, too to maintain a sensible political conception that affirms a just democratic regime?”
The response to this question, Rawls says, does not admit of philosophic specification. The reasons for accepting the principles of justice are not associated with any notion of the fantastic life. If citizens want to join the fundamentals to a conception of the good, they are welcome to do this as a matter of private opinion–whether on their own or as an element of a larger subgroup of American society–but they cannot insist upon that connection openly. He hopes that the fundamentals will be accepted broadly as a”overlapping consensus” of many conceptions of the good, including religious conceptions.
A good example of people reason Rawls finds persistent with his recast concept is Mario Cuomo’s 1984 lecture at Notre Dame University about abortion, which Rawls positively whined. In that speech, Cuomo argues that as a Catholic he believes abortion is wrong, but because not all Americans share his faith, he wouldn’t use his political power to impose a ban on abortion. Rawls hopes that this becomes the normal attitude of all Americans, religious or otherwise.
Cuomo’s position on abortion describes the problem. First, Cuomo assumes religion offers little in the manner of public goods, and that churches are merely private associations that serve the apolitical wants and needs of people, such as religious comfort. In this view, a church that enjoins members to observe certain moral instructions does this as a golf rule instead of a universal precept. Secondly, and relatedly, Cuomo gives the impression that policy positions that correspond to faith can’t be openly defended, suggesting an incompatibility between faith and reason. After Cuomo’s logic, the Rawls would severely truncate legitimate public motives for laws to terms recognized and approved by the amorphous idea of an overlapping consensus, but which is meant to exclude not only claims of faith but also some fundamentals of reason that are not widely embraced or that appear religious in character. It is not apparent why Christians would join Rawls in applauding the Cuomo strategy. Nor is it obvious who will establish the overlapping consensus and the boundaries of public motive.
Input the Supreme Court
The endeavor to bring religious Americans under the tent of political liberalism took Rawls to defend a broader notion of judicial review than anticipated by the American government. For Rawls, taxpayers and lawmakers can’t be trusted to determine which arguments count as people motives and hence acceptable justifications for laws, for they always will be tempted to pick the matter in their favor. What’s needed is an institutional check that ensures public arguments are actually”reasonable,” which is to state consistent with the public opinion of justice. And that institution is the Court.
Even if judges stay generous and permit for a broad variety of people justifications, the simple fact that they would be assessing what people say in defense of public policy is itself a breach of the Founders understanding of constitutional republicanism.Rawls does speak about judicial review in Theory, but not to the extent that he does in Political Liberalism. Corey is right when he says that legitimacy is vital to Rawls’s later thought; and also what constitutes a law legitimate for Rawls is not its own adherence to the U.S. Constitution, but its justifiability using openly available factors. Since the Founders give the Supreme Court that the function of determining what is constitutional as a matter of law, so also does Rawls want the Court to play this part in his system; although, he’d extend their authority to find out whether public arguments are consistent not only with the text of the Constitution, but also with all the principles of political liberalism that he hopes will forge an overlapping consensus.
Among the most revealing passages in this regard comes from Rawls’s posthumously published Lectures on the History of Political Philosophy. From the Introduction he writes:
Since liberalism supports the idea of democratic government, it wouldn’t attempt to overrule the consequence of everyday democratic politics. Provided that democracy is present, the only means that liberal philosophy could correctly do that is for it to influence some legitimate constitutionally established political representative, and then persuade this agent to override the will of democratic majorities. One way that can happen is for its liberal writers in philosophy to affect the judges on the Supreme Court in a constitutional plan like ours.
Rawls makes apparent that normally legislative decisions must stand unless there are definite questions of constitutional legitimacy, in which situation he favors the use of judicial review. But whereas someone like Alexander Hamilton or John Marshall would defend judicial review as a means of sustaining popular will as expressed in the Constitution, Rawls winners a form of living constitutionalism that upholds the fundamentals liberal theorists, like himself, believe should be expressed in hot will.
Peace, Justice, and Friendship
Corey makes an interesting move in using Rawls’s concept to help us think about the challenges facing classical liberalism. Though heavily influenced by Kant and Hegel, Rawls also heard from Locke, Mill, and others eager to defend individual freedom and toleration. But liberty and toleration have limits for Rawls, and few classical liberals would be happy with the perimeter Rawls sets; yet, Corey is right that Rawls’s concept is an event for considering the health of our polity.
Usefully, Corey turns into the question of warfare as a way of gauging our political wellbeing. It’s certainly true that Rawls hopes to supply a framework for pluralistic collaboration, and that he attempts a speech for fostering mutual awareness of taxpayers as moral agents who need to make logical laws for a diverse group of people. But Rawls’s own benchmark for political health has much more to do with equality compared to the with the avoidance of warfare. Therefore, one must squint a little to follow Corey down this path.
But the squint is well worth it, if only because preventing war is a obvious intention of political life than reaching near flawless substantive equality. History affords ample examples of regimes that have succeeded in establishing lasting peace without political or economic equality. I know of no regime, but that has managed to reach the type of equality Rawls needs as a condition of justice. Those that have tried haven’t only failed, but in addition have destroyed liberty in the procedure –and peace without freedom is similar to a kitchen without any food or a library without books. No one would give a child up for the sake of obtaining a nursery.
With both eyes open back, I really don’t find enough evidence to state with Corey that Rawls gives us a meaningful theory of political alliance that averts war. Instead, it looks to me that Rawls is far more worried about political success in the public policy arena than he is with establishing a framework for peaceful alliance. Yes, he needs peace, but only after the accomplishment of a egalitarian regime in which his two principles of justice notify all laws. He will allow religious people to take part in governance as long as the government functions without consideration of religious belief. And while religious leaders are barred from attempting to influence the outcome of even ordinary law, liberal theorists are given a green light to affect the judges that determine the results of constitutional politics.
And when those judges are in reality attempting to be true to Rawls’s soul, we should expect the array of openly acceptable arguments to be substituted, perhaps severely. Even if judges stay generous and permit for a broad variety of people justifications, the simple fact that they would be assessing what people say in defense of public policy is itself a breach of the Founders understanding of constitutional republicanism.
The ideal path toward the type of classically-liberal polity Corey urges is that a rediscovery of these institutional structures we have inherited during the U.S. Constitution. Our framework of government envisions three co-equal branches of authorities empowered to act upon specific and limited national ends, thereby leaving much for families, churches, and localities to manage in accord with their very best understandings of goodness and truth. Nothing in our own Constitution needs Cuomo-Christianity or elitist judges.
Besides constitutional republicanism, political peace takes friendships of all kinds; and from all accounts Rawls possessed the virtues of friendship. He was a faithful husband and father, a scholar who responded generously to numerous critics, and a dedicated teacher who cared about his students. These relationships did to promote peace than anything he wrote. They’re his true legacy. We’ve got to learn from Rawls that the guy than Rawls that the theorist.