Reason's Freedom and the Dialectic of Ordered Liberty

Résumé du livre

The project of quot;public reasonquot; claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of quot;public reason,quot; in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to pick out from the multitude of particularized accounts of what constitutes quot;civic order,quot; no quot;public reasonquot; so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order.Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent.Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone.