Rawlsian originalism

Originally published in Jurisprudence

How should judges reason in a well-ordered constitutional democracy? According to John Rawls’s famous remarks in Political Liberalism, they ought to do so in accordance with the idea of public reason, to the point that they act as an (if not the) institutional exemplar of public reason. There are many attractive features of this view, but it is still too vague. For the idea of public reason is permissive – it rules certain modes of reasoning and discourse out, but the modes of reasoning and discourse it deems permissible are pluralistic. The current paper tries to remedy this indeterminacy by further fleshing out how judges ought to reason in something like a Rawlsian well-ordered constitutional democratic society. Our conclusion may come as a surprise: judges in such a society should be Originalists.

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