The Impact of Rawls' Public Reason on Substantive Due Process

This entry contains a link to my final paper for a class I took last quarter on John Rawls' philosophy.  I wrote the paper with legal philosophy's lens; I asked whether the concept of Public Reason extrapolated in his books Political Liberalism and certain essays in Collected Papers could substantiate or offer guidance in the Court's substantive due process doctrine.

My tentative answer is that certain elements of the doctrine could survive if substantiated by public reason.  I started from the assumption that SDP floats untethered to the Constitution's text, and in such a vulnerable state, requires justification if it's to remain in the Court's tool chest.  In sum, I draw on various sources to argue that public reason supports two of the Court's three SDP tests: the Palko test (those rights "essential to the concept of ordered liberty", i.e. mainly the Bill of Rights), and those rights and liberties deeply rooted in our legal and historical traditions (what I call the Scalia/Rehnquist test).

I discount as innovative and personally preferential the third test, which includes such cases as Roe v. Wade and Casey v. Planned Parenthood.  I do this not because I have any personal animus against abortion (though I do find it morally questionable), but because I find such cases jurisprudentially flimsy, and not tethered to any public-reason-based consensus as Rawls would conceive.

I argue further that the Court cannot avoid using public reason in its jurisprudence; this doctrine helps to gloss over some amendments' questionable ratification (13th and 14th) on the basis of their wide, enduring, unquestioned public acceptance.  Those qualities of depth and breadth legitimate concepts which the Court wishes to incorporate into the Constitution beyond its text because they carry a deep and broad democratic pedigree, comparable to the Constitution itself.

Anyway, here is a link to the paper itself, should anyone care to examine it. Please feel free to offer comments!

https://docs.google.com/file/d/0Bz3rDLoaZcY2OENweFF4MXdORXM/edit