Judicial Review in an Age of Moral Pluralism

Judicial Review in an Age of Moral Pluralism

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Ronald C. Den Otter
Cambridge University Press, 8/31/2009
EAN 9780521762045, ISBN10: 0521762049

Hardcover, 356 pages, 23.4 x 16 x 2.6 cm
Language: English

Americans cannot live with judicial review, but they cannot live without it. There is something characteristically American about turning the most divisive political questions - like freedom of religion, same-sex marriage, affirmative action and abortion - into legal questions with the hope that courts can answer them. In Judicial Review in an Age of Moral Pluralism Ronald C. Den Otter addresses how judicial review can be improved to strike the appropriate balance between legislative and judicial power under conditions of moral pluralism. His defense of judicial review is predicated on the imperative of ensuring that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. Den Otter ties this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and argues that a law that is not sufficiently publicly justified is unconstitutional, thus addressing when courts should invalidate laws and when they should uphold them even in the midst of reasonable disagreement about the correct outcome in particular constitutional controversies.

1. Public justification and constitutional theory
2. Freedom and equality in constitutional history
3. The challenge of public justification
4. Competing conceptions of public reason
5. Constitutional public reason
6. The limits of public justification
7. Standard objections to public reason
8. Easier cases
9. Harder cases
10. The case for judicial review

"Judicial Review in an Age of Moral Pluralism is an important work of constitutional theory that deserves a wide readership in philosophy, political science, and law. It fills an important void in conceptual space by melding work in political philosophy on public reason with theories of constitutional interpretation and judicial review. Ron Den Otter makes that case that the practice of judicial review must be informed by an ideal of public reason--his arguments have important implications for fundamental debates about judicial review, fundamental rights, and the relationship between legal reason, politics, and religion. This is one of the most creative and interesting books on constitutional theory to appear in the past several years." --Lawrence B. Solum, John E. Cribbet Professor of Law and Professor of Philosophy University of Illinois College of Law, Editor of Legal Theory Blog