Rawls, Religion, and Judicial Politics

In spite of the fiftieth anniversary of A Theory of Justice, David Corey offers us a succinct and readable overview of John Rawls’s job as it was developed and developed. Had Rawls been as lucid in presenting his own ideas, he may have loved a cultural popularity to coordinate with the respect once paid him within the academy.

Since it can be , a half-century after the first splash of Rawls’s renowned book, Rawlsian embers are evaporating inside the humanities except at a couple of dusty corners of philosophy departments. The only discernable fires come from law schools in which the focus is really on Rawls’s later work, such as Political Liberalism, as opposed to the more systematic Theory. There are reasons for it, and Corey’s concentrate on Rawls’s so-called political turn moves a good deal of their way to get a clear-headed understanding of Rawls’s legacy.

Since Corey properly points out, scholars have disagreed about why Rawls decided to recast his concept. He came to see that Theory went in expecting citizens to embrace a neo-Kantian understanding of the good. In what follows I’d love to make three hints on Rawls’s political turn for a followup to Corey’s essay. First, Rawls’s political turn was a sincere if misguided effort to make his concept attractive to religious Americans, particularly Christians. Secondly, Rawls’s political turn required a more politically active Supreme Court. Finally, and here I marginally depart from Corey, even after his political turn, Rawlsian peace supposed not only the achievement of social egalitarianism but also popular acquiescence to egalitarian principles.

Rawls and Religion

As a young man preparing to graduate from Princeton, Rawls wrote a senior thesis entitled”A Brief Inquiry into the Meaning of Sin and Faith,” in which he defended the idea of a just culture attracted, if imperfectly, by the teachings of Christianity. At this point in his own life, Rawls was a fairly devout Episcopalian critically considering the priesthood.

Despite his agnosticism, Rawls kept a profound devotion to social justice. No more animated by the Gospel, Rawls turned into Kantian political concept. After getting his Doctorate in Philosophy, also from Princeton, he labored tirelessly composing Theory, expecting to offer a philosophic groundwork for a more just America. But to his dismay, several sharp heads realized the inconsistency between his principle of liberty and his insistence upon Kantian ethics. Political liberals of various stripes may have been willing to forget the contradiction, but many religious Americans were recalcitrant in opposing Theory. Any possibility of political achievement demanded winning within this substantial portion of the American people.

Rawls might have been overly subtle on this cause of recasting his concept in the first publication of Political Liberalism, but perhaps not in the paperback edition with its fresh, more overt Introduction. He explains that the novel’s basic question should be understood as follows:”How can it be possible for people affirming a religious doctrine that is based on religious authority, for example, the Church or the Bible, too to maintain a reasonable political conception that supports a just democratic regime”

The reply to this query, Rawls says, doesn’t acknowledge philosophic specification. The reasons for accepting the principles of justice are no longer associated with any conception of the great life. If citizens want to join the fundamentals into a concept of the good, they’re welcome to do this as a matter of personal opinion–if on their own or as an element of a bigger subgroup of American culture –but it’s impossible for them to insist upon this relationship openly. He hopes that the fundamentals will be accepted broadly as an”overlapping consensus” of several conceptions of the good, including religious conceptions.

In that address, Cuomo asserts the Catholic he thinks abortion is wrong, but because not all Americans share his faith, he wouldn’t use his political power to enforce a ban on abortion. Rawls hopes that this becomes the normal attitude of Americans, religious or otherwise.

Cuomo’s stance on abortion describes the issue. First, Cuomo assumes religion offers little in the manner of public goods, and that churches are only private associations that serve the apolitical requirements and desires of people, such as religious comfort. Within this opinion, a church that enjoins members to observe certain moral instructions does this as a team rule instead of a universal precept. Secondly, and relatedly,” Cuomo gives the impression that coverage positions that correspond to faith can’t be openly defended, indicating an incompatibility between faith and reason. Following Cuomo’s logic, Rawls would severely truncate legitimate public reasons for laws to terms recognized and approved by the amorphous notion of an overlapping consensus, which is meant to exclude not just claims of faith but also some fundamentals of reason that are not widely adopted or that appear religious in nature. It isn’t clear why Christians could join Rawls in applauding the Cuomo strategy. Nor is it obvious that will specify the overlapping consensus and the bounds of public reason.

Enter the Supreme Court

The attempt to bring religious Americans beneath the tent of political liberalism required Rawls to defend a broader conception of judicial review than expected by the American Founders. For Rawls, citizens and lawmakers can’t be trusted to choose which arguments depend as public motives and hence acceptable justifications for laws, for they will always be tempted to pick the matter within their own favor. What is needed is an institutional check that guarantees public disagreements are in fact”fair,” that 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 array of public justifications, the simple fact that they are analysing exactly what people say in defense of public coverage 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 correct when he says that validity is critical to Rawls’s later thought; and also what makes a law legitimate for Rawls isn’t its own adherence to the U.S. Constitution, but its justifiability using openly available reasons. Since the Founders supply the Supreme Court that the role of determining what is constitutional as a matter of law, so also does Rawls want the Court to play this role in his strategy; although, he would extend their jurisdiction to determine whether public arguments are consistent not just with the text of the Constitution, but also with all the principles of political liberalism that he hopes will devise an overlapping consensus.

From the Introduction that he writes:

Since liberalism supports the idea of democratic government, it wouldn’t try to overrule the results of everyday democratic politics. So long as democracy is present, the only means that liberal philosophy could correctly do that would be for this to influence some legitimate constitutionally established political representative, then persuade this agent to override the will of democratic majorities. 1 way this can happen is for the liberal writers in philosophy to affect the judges on the Supreme Court in a constitutional plan like ours.

Rawls makes clear that typically legislative decisions must stay unless there are definite questions of constitutional validity, in which case he favors the use of judicial review. But whereas someone just like Alexander Hamilton or John Marshall would defend judicial review for a means of sustaining popular will as expressed in the Constitution, Rawls champions a form of living constitutionalism that upholds the fundamentals liberal theorists, like himself, think should be expressed in popular will.

Corey creates an interesting move in utilizing Rawls’s concept to help us think about the challenges facing early liberalism. But liberty and toleration have limits for Rawls, and also several classical liberals are satisfied with the perimeter Rawls places; yet, Corey is appropriate that Rawls’s concept is an occasion for thinking about the health of our polity.

Usefully, Corey turns into the question of warfare as a method of gauging our political health. It’s surely true that Rawls hopes to present a framework for pluralistic cooperation, and that he attempts a language for fostering mutual awareness of citizens as moral agents that need to make logical laws for a varied group of people. But Rawls’s own standard for political health has a lot more to do with prestige than it does using the avoidance of warfare. Thus, an individual must squint a bit to trace Corey down this route.

But the squint is well worthwhile, if just because preventing war is a more obvious goal of political life than attaining near perfect meaningful equality. History affords ample examples of regimes that have succeeded in creating lasting peace with no political or financial equality. I know of no strategy, however, that has managed to attain the type of equality Rawls needs as a condition of justice. Those that have tried haven’t only neglected, but also have ruined liberty in the procedure –and peace without freedom is similar to a kitchen without food or a library with no books. No one would give up a child for the sake of acquiring a nursery.

With both eyes open back, I really don’t see enough evidence to state with Corey that Rawls gives us a meaningful theory of political cooperation that averts war. Instead, it seems to me that Rawls is far more worried about political victory in the public policy arena than he’s with establishing a framework for peaceful collaboration. Yes, he wants peace, but just after the achievement of an egalitarian regime in that his two principles of justice inform all laws. He will allow religious people to take part in government as long as the government behaves with no consideration of religious belief. And while religious leaders have been barred from attempting to affect the outcome of even ordinary legislation, liberal theorists receive a green light to directly affect the judges that determine the results of constitutional politics.

And when those judges are in reality seeking to be authentic to Rawls’s soul, we should anticipate the array of openly satisfactory arguments to be narrowed, perhaps severely. Even if judges stay generous and permit for a broad array of public justifications, the simple fact that they would be analysing exactly what people say in defense of public coverage is itself a breach of the Founders understanding of constitutional republicanism.

The ideal route toward the type of classically-liberal polity Corey recommends is a rediscovery of these institutional structures we’ve inherited through the U.S. Constitution. Our framework of government envisions three co-equal branches of authorities empowered to act upon specific and limited national endings, thereby leaving much for churches, families, and even localities to manage accord with their very best understandings of truth and goodness.

Along with constitutional republicanism, political peace demands friendships of all kinds; and from all accounts Rawls possessed the pleasures of friendship. He had been a faithful husband and father, a scholar who responded generously to many critics, and a dedicated teacher who cared about his students. These customs did more to promote peace than anything else that he wrote. They are his true legacy. We’ve got more to learn from Rawls that the man than Rawls that the theorist.