Revising my Rawls Paper: Abstract and Outline

Hello, readers--

I have decided to expand and improve my paper on substantive due process and John Rawls' "public reason".  This will mainly be a summer project, as my time these days is limited by graduate school classes.  However, I have written an abstract and outline, which I hope will govern my revision efforts.  I would certainly appreciate any and all comments!

(the abstract is way too long, I know)

Abstract:

            This paper seeks to expand and to test the philosophical foundations for substantive due process (SDP).  It offers a tripartite structure for thinking about the doctrine: the incorporation doctrine, the Scalia-Rehnquist historical framework, and the personal autonomy or privacy framework.  To test these structures, I draw on John Rawls’ “public reason” theory as described in his Political Liberalism and revisited in a later essay, “The Idea of Public Reason Revisited”.  I add my own categories, depth (historical) and breadth (universality) for assessing the strength of the public reason invoked.   After offering a critique of Rawls’ Supreme Court as the exemplar of public reason, I reach the conclusion that the doctrine can support SDP in its first two iterations.  The third, the personal autonomy cases represented by such as Roe, Casey, Lawrence, and Griswold, public reason cannot support, as such an approach represents judicial opinion rather than constitutional interpretation, and does not represent a deep and broad public consensus.

            I offer then a critique of efforts to substantiate the latter category of cases, especially approaches offered by Professors Michael Dorf and Laurence Tribe.  I argue that Tribe and Dorf are forced to appeal to doctrines inferred from the Constitution as though they were co-equal with the text itself.  Therefore, they contend that the Court’s privacy or autonomy doctrines stand on an equal footing with necessary, tightly cabined expansions and applications of such as the 1^st, 4^th, and 5^th Amendments from which they draw their justification.  Arguing that the Court’s opinions seldom attain constitutional status (by again invoking public reason and the role of the Court), I argue that privacy is not a constitutional right, but merely shorthand for a collection of opinions and doctrines surrounding certain substantive guarantees of the Bill of Rights.

Tentative Outline:

1^st Section: Problems

--Identify the problems with substantive due process (why its legitimacy is questionable)

--Identify the scope of SDP (why we can’t probably just do away with all of it) This is the reason to find some external basis: can’t live with it, can’t live without it

--“X, BUT YET, Y”: use Amber’s method

2^nd Section: Public Reason—definition, necessity, structure

--The Definition of Public Reason and the SC’s role (exemplar)

--Why Rawls?  Why Public Reason (not personal or unique to Rawls)

--Why, indeed: the Necessity of Public Reason (Ackerman)

--Tripartite Structure

3^rd Section: Put it to the Test

--Palko/Incorporation Test

--Scalia-Rehnquist Test

--Privacy Test

4^th Section: Objection!

--summarize: Tribe and Dorf: 9^th Amendment, Due Process; Poe Doctrine

--illegitimacy of building doctrine on doctrine (KEY POINT--EXPLAIN)

--Untethered to the Constitution? reiterating the need for public reason

--Tribe: Geodesic Method (Invisible Const.)—certain expansions are unavoidable

--privacy/autonomy not a right in its own right

--RETURN TO RAWLS: THIS REPRESENTS JUDICIAL INNOVATION, NOT PUBLIC REASON: a judge’s opinion cannot overrule or be a substitute for the law (doctrine as opinion)

--shorthand for a set of similarly-themed expansions on a few Amendments in the bill of rights