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Constitutional Choice and the Supreme Court as the Fountain of Public Reason
“I also hold that the most appropriate design of a constitution is not a question to be settled by
considerations of political philosophy alone, but depends on understanding the scope and limits of
political and social institutions and how they can be made to work effectively.”
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John Rawls, “Reply to Habermas,” pp. 408-409.
§1 Introduction
After deliberators select principles of justice in the original position they move on to the
constitutional convention. Rawls says very little about the choice problem deliberators confront in
the constitutional convention – indeed, almost nothing has been written on Rawls’s constitutional
convention in general.1 This paper explores how to model the constitutional convention. In doing so
the paper encounters difficult modeling choices that must be resolved before a determinate choice
problem is defined and a constitution selected (§2). These difficult modeling choices pose problems
for other facets of Rawls’s theory. Namely, these modeling choices make it impossible to satisfy
Rawls’s second level of publicity. As a result, the public reasons available for citizens to appeal to in
public discourse will be incomplete, which has deleterious moral as well as practical consequences
for Rawls’s theory as a whole (§3).
This requires we rethink certain aspects of the theory. In response, this paper proposes a
new way of understanding the function certain institutions play in the well-ordered society.
Following recent scholarship on the coordinating function of constitutions by Gillian Hadfield and
Barry Weingast, I argue that instead of understanding the Supreme Court – who Rawls famously
calls the “exemplar” of public reason – as an institution that appeals to exogenously determined
public reasons set by our hypothetical justificatory procedures, we should understand the Court in
the well-ordered society as an endogenous fountain of public reason, constructing reasons citizens
come to endorse as part of a public, political perspective which then fleshes out the content of our
hypothetical justificatory procedures (§4). This new account of the function of law and courts in the
1
The only paper exclusively dedicated to Rawls’s constitutional convention is Moore (1979).
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well-ordered society generates a complete set of public reasons, solving the problems raised in the
first half of the paper.
§2 Modeling the Constitutional Convention
This section gives an overview of Rawls’s constitutional convention. Section 2.1 rehearses
those details of the choice problem in the constitutional convention, comparing these to the choice
problem in the original position. Section 2.2 highlights difficult questions left unanswered by Rawls
that must be answered before a determinate choice problem is defined and a constitution selected.
2.1 From the Original Position to the Constitutional Convention.
The original position is a decision procedure used to select principles of justice. Deliberators
selecting principles in the original position do so under well-defined information sets, i.e., the beliefs
attributed to the parties. Rawls is also careful to define the preferences of these deliberators, as well
as the decision strategy these deliberators employ. Finally, Rawls states the menu of options
deliberators are confronted with. This presents a well-defined choice problem, which unambiguously
leads to the selection of the two principles of justice.
As far as the information sets go, deliberators in the original position choose under the veil
of ignorance. All deliberators know is that the circumstances of justice obtain, as well as general facts
about economics, politics, and psychology. As for their preferences, deliberators are modeled as
preferring more primary goods to less. In terms of the decision strategy, Rawls models deliberators
as employing maximin reasoning during the selection of the principles, which requires deliberators
think of possible alternatives in terms of their least-preferred outcomes and then select the option
whose least-preferred outcome is most-preferred. Finally, in terms of menu options, deliberators
“simply take as given a short list of traditional conceptions of justice… with a few other possibilities
suggested by the two principles of justice.”2 Once we combine all these features of the original
position – the information sets, the deliberators’ preferences, the use of maximin reasoning, and the
menu options – the solution to the original position is Rawls’s two principles of justice, which just
2
Rawls (1971: 122).
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means that deliberators rank justice as fairness first when compared to all other competing principles
of justice.
After selecting principles of justice deliberators need to select a constitution embodying
these principles. Rawls indicates that we are to model the choice problem in the constitutional
convention by altering features of the original position. In the constitutional convention the
information sets of deliberators are expanded to include general facts about society, such as the size
and economic level of advance of society, society’s institutional structure and natural environment,
etc. As a guiding principle, “the flow of information is determined at each stage by what is required
in order to apply these principles intelligently to the kind of question of justice at hand.”3 In the
constitutional convention this means we allow information of “the kind framers of a constitution
would want to know.”4 We include beliefs in the information sets of deliberators in the
constitutional convention if deliberators, as framers of a constitution, need that information to
adjudicate between competing constitutions in terms of which of the competing constitutions is
more just.
Deliberators in the constitutional convention no longer simply prefer more primary goods to
less. Instead, Rawls tells us that deliberators want “the constitution that satisfies the principles of
justice and is best calculated to lead to just and effective legislation.”5 Deliberators want the
constitution that (i) satisfies the already-selected principles of justice, as well as the constitution that
(ii) most likely leads to legislation satisfying the principles. Here things are a bit more complicated
than they are in the original position, for two reasons. First, deliberators have preferences over two
things (criteria (i) and (ii)) rather than one thing (primary goods). Second, the first thing deliberators
have preferences over (criterion (i)) is not something that can strictly speaking be maximized (like
primary goods can) but is more akin to a threshold: you don’t maximize satisfaction of x; you either
satisfy or fail to satisfy x. This suggests a two-stage choice sequence for the choice problem in the
constitutional convention, naturally interpreted as follows. First, deliberators apply criterion (i) to the
menu of possible constitutions, sorting constitutions into an eligible set of constitutions that satisfy
the first principle of justice (i.e., constitutions that protect the basic liberties), and an ineligible set of
constitutions that fail to do this. Then, within the eligible set, deliberators apply criterion (ii) by
choosing the constitution that most likely leads to legislation satisfying the second principle of
Ibid., 200.
Rawls (1993/2005: 398).
5 Rawls (1971: 197).
3
4
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justice (i.e., the constitution most likely leading to legislation maximizing the welfare of the least
advantage). The constitution in the eligible set maximizing (ii) is chosen by deliberators as the
constitution for regulating the well-ordered society.
As far as the decision strategy employed, Rawls does not say anything. How this question is
answered is not relevant for the forthcoming analysis, so I leave it to the side. Still, this question
must be answered before a determinate choice problem is defined and a constitution ultimately
selected.
Finally, we need to know the menu options deliberators are presented with. Here, Rawls says
that the decision in the constitutional convention is made “by running through the feasible set of
just constitutions (given, say, by enumeration on the basis of social theory), looking for the one that
in the existing circumstances will most probably result in effective and just social arrangements.”6 It
is not clear what “on the basis of social theory” means. Offhand there seems to be two plausible
interpretations. First, deliberators examine fully specified constitutions akin in detail to existing
constitutions. In fact, on this view, deliberators examine actually existing constitutions – the
Constitution of the United States of America, the Constitution of Canada, the Swiss Federal
Constitution, etc. – as well as hypothetical constitutions that rival in detail existing constitutions. The
second way of modeling the menu options is by focusing on very general constitutional structures
rather than fully specified constitutions. On this view deliberators choose between, say, presidential
systems broadly construed versus parliamentary systems broadly construed, where much detail in
terms of powers and prerogatives of office and rights protected is left unspecified. Of course, there
are many possibilities between these two ideal types, where deliberators choose between
constitutions of differing levels of specificity.
Relevant to answering this question is what Rawls says in later works about constitutional
essentials. As we shall see, Rawls holds that agreement on constitutional essentials is “most urgent,”
and that a necessary feature of an overlapping consensus in the well-ordered society is agreement on
these constitutional essentials. A plausible way of proceeding here is to first determine what
constitutional essentials are in Rawls’s view and, from there, to model deliberators as being
confronted with different ways of fleshing out these constitutional essentials as their menu of
options. In describing what constitutional essentials are Rawls includes:
6
Ibid., 198.
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(1) The fundamental principles that specify the general structure of government and the
political process: the powers of the legislature, executive and judiciary; the scope of majority
rule; and
(2) The equal basic rights and liberties of citizenship that legislative majorities must respect,
such as the right to vote and to participate in politics, freedom of thought and of association,
liberty of conscience, as well as the protection of the rule of law.7
Note that these constitutional “essentials” are quite extensive. In the case of the Constitution of the
United States of America, for instance, the “powers of the legislature, executive and judiciary” are
fleshed out in Articles One, Two, and Three respectively. In the case of “equal basic rights and
liberties of citizenship,” these are fleshed out in the Bill of Rights, as well as Article Four which
establishes the Privileges and Immunities Clause, rights of extradition, and freedom of movement.
Article Five also seems to be a constitutional essential, in that it sets the “scope of majority rule” by
outlining a supermajority amendment procedure. Arguably, the only parts of the United States
Constitution not considered to be essential are Articles Six and Seven, though even here a plausible
case could be made that Article Six is a constitutional essential in that it bans religious tests as
requirements of office, thus fleshing out the right to “participate in politics.”
In saying that citizens in the well-ordered society reach agreement on constitutional
essentials Rawls thus seems to suggest that citizens agree on something rather specific – much closer
to the fully specified constitution ideal type than a general constitutional structure. Because of this,
we shall proceed by modeling deliberators in the constitutional convention as choosing between
fully specified constitutions rather than general constitutional structures; this seems to be close
enough to what Rawls has in mind when he describes agreement on constitutional essentials.
This is all the detail Rawls gives on how to flesh out the choice problem deliberators in the
constitutional convention face, much of which already required speculative interpretation by us. Yet
there are still many issues left unspecified, all of which cannot be addressed. For the remainder of
this section I focus on how deliberators evaluate constitutions in terms of criterion (ii).
7
Rawls (1993/2005: 227).
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2.2 Not by Political Philosophy Alone.
Criterion (ii) says that deliberators seek the constitution most likely leading to just and
effective legislation. This means deliberators must assess potential constitutions in terms of the sorts
of legislation they are predicted to produce. We see actual framers of constitutions doing this all the
time – most notably Alexander Hamilton, John Jay, and James Madison’s frequent citation of the
most cutting edge “science of politics” available to them at the time when they penned The
Federalist.8 We should follow their example, and consider what economists and political scientists
have concluded about this difficult predictive question. As an example, in their recent study Torsten
Persson and Guido Tabellini ask:
If the United Kingdom were to switch its electoral rule from majoritarian to proportional,
how would this affect the size of its welfare state or of its budget deficits? If Argentina were
to abandon its presidential regime in favor of a parliamentary form of government, would
this facilitate the adoption of sound policy towards economic development?9
Similarly, deliberators in the constitutional convention must ask: which sorts of voting rules in the
legislature will most likely result in legislation satisfying the difference principle? What about
parliamentary versus presidential forms of government? What election systems best protect fair
equality of opportunity? Clearly, these questions are by no means easy to answer.
One common way of assessing the legislative effects of different constitutions in the social
science literature is through the use of rational choice modeling. On this approach, deliberators
model different constitutional structures via application of the rational actor postulate and, from
there, determine which legislative outcomes are likely produced. These likely outcomes are then
ranked in terms of criterion (ii), which subsequently ranks the corresponding constitutions: the
constitution ranked first is then the constitution of choice. There is a wealth of social scientific
literature applying rational choice theory to model different constitutional structures, which
deliberators can appeal to in order to rank constitutions in terms of criterion (ii).
Unfortunately, this wealth of social scientific literature might actually be something of a
hindrance. There is no standard rational choice approach to modeling constitutions that can be
employed to give a definitive set of predicted legislative outcomes that can then be used to rank
8
9
Hamilton, Jay, and Madison (2001: 38).
Persson and Tabellini (2005: 7).
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different constitutions in terms of (ii). Rather, different rational choice models produce different
predictions for the same constitution, making it unclear as to how deliberators should rank
constitutions in terms of (ii): one rational choice model might say that constitution C1 produces
legislative outcome l1, whereas another rational choice model might say that C1 produces different
legislative outcome l2. Before we get one definitive ranking of constitutions in terms of (ii) we need
to decide whether to take l1 or l2 as the predicted outcome of C1, which means we must decide which
specific rational choice model to employ and which one to forgo.
Dejected by the difficult modeling problems just outlined, deliberators can avoid rational
choice approaches altogether and instead assess constitutions in terms of criterion (ii) by means of
empirical analysis. Rather than constructing theoretical models, deliberators can use the historical
record of existing constitutions to rank the options they are confronted with. On this approach,
deliberators look at the set of existing constitutions in the eligible set, i.e., meeting condition (i).
They see that these constitutions tend to produce different legislative outcomes; if they can rank the
legislative outcomes in terms of how well these outcomes satisfy the principles of justice, then they
can order the constitutions in terms of criterion (ii). Again, the constitution ranked highest is chosen.
But as was the case with our rational choice modeling, there is no one standard way of
empirically assessing constitutions in the social scientific literature. And as before, different empirical
approaches applied to the same constitution can lead to different predicted legislative outcomes for
that same constitution, making it unclear which method deliberators ought to use. In his excellent
paper on the challenges of empirically analyzing constitutions Vlad Tarko covers four broad
methods employed in empirical constitutional analysis, along with the costs and benefits each
method brings.10 These methods are: econometric analyses, cluster analyses, QCA analyses, and
informal historical case studies. As with differing rational choice models, these different empirical
approaches applied to the same constitution can lead to different predicted legislative outcomes,
making it unclear which approach deliberators should use to rank constitutions in terms of (ii) so as
to yield one definitive ranking.
As can be seen, predicting the different legislative effects of constitutions is a highly complex
modeling problem with no clear or simple answer as to which modeling approach is best.11 All
Tarko (2015).
In an important and underappreciated paper in the social contract tradition, Viktor Vanberg and James M. Buchanan
distinguish between the “interest-component” of modeling contractors and the “theory-component.” The interest10
11
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approaches seem reasonable; none are obviously misguided. What is most worrying, though, is that
different social scientific techniques, applied to the same constitution, lead to different predicted legislative outcomes. In
ranking constitutions in terms of (ii) deliberators must thus employ only one of the above social
scientific techniques. If rational choice models and econometric analyses diverge concerning likely
legislative outcomes when applied to the same menu of constitutions, then both methods cannot be
used to rank eligible constitutions in terms of (ii), for we shall then end up with different rankings of
the same eligible set. Since we want to select the constitution ranked highest in our ordering, this will
not do. Instead of arguing for one specific way of answering these difficult modeling questions we
now see why the mere presence of these difficult modeling questions in the constitutional
convention pose problems for other facets of Rawls’s theory.
§3 The Impossibility of Full Publicity
In this section we show that the difficult modeling choices outlined in section 2.2 cause
problems for other facets of Rawls’s theory. Namely, the difficult modeling choices make it
impossible for the second level of publicity to be satisfied. Section 3.1 goes over Rawls’s three levels
of publicity. Section 3.2 shows why the modeling choices outlined in section 2.2 make it impossible
for the second level of publicity to be satisfied. Section 3.3 shows that the most obvious ways of
altering the theory in light of this tension has undesirable consequences. This paves the way for my
own solution to the problem, given in §4.
3.1 Three Levels of Publicity.
When thinking about Rawls’s overlapping consensus there are two questions to ask. First, we
ask what the scope of the overlapping consensus is. What is the agreement on? Second, we ask how
deep the overlapping consensus goes. How far does the agreement extend? As far as the scope of the
overlapping consensus, Rawls says we must reach agreement on matters of basic justice as well as
component is where one models preferences. But the theory-component is where one models how persons understand
different rules to operate, which is especially important at the constitutional level. In their words: “On the constitutional
level, it should be obvious that people’s theories about the working properties of alternative rules and rule-systems, and
not just their interests in expected outcomes, are of crucial relevance to their choice behavior” (Vanberg and Buchanan
1989/2001: 158).
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constitutional essentials.12 By matters of basic justice Rawls means the principles of justice chosen in
the original position. For reasons articulated in section 2.1, by constitutional essentials we interpret
Rawls as seeking agreement on something close to a fully specified constitution.
In determining how deep the overlapping consensus goes we must examine what Rawls says
about the publicity condition.13 The publicity condition has three different “levels.” A society
satisfies the first level of publicity when members of society know and accept the political
conception of justice. Call this publicity condition Publicity of Principles. Publicity of Principles is
the least demanding level of publicity that can be satisfied.
The second level of publicity goes deeper. A society satisfies the second level of publicity
when members of society not only know and accept the political conception of justice but also
adopt the “general beliefs about human nature and the way political and social institutions generally
work, and indeed all such beliefs relevant to political justice.”14 More concretely, the second level of
publicity is satisfied when those facts about social theory we include in the information sets of
deliberators in our justificatory decision procedure are believed by all citizens.15 Call this publicity
condition Publicity of Beliefs. As an example, for Publicity of Beliefs to be satisfied citizens must
believe all those facts about social theory Rawls includes in the information sets of deliberators in
the original position. It is easy to see how citizens could accept the political conception of justice
without believing such facts. In such a case Publicity of Principles is satisfied, but Publicity of Beliefs
is not.
The third level of publicity is satisfied when citizens know and accept the full justification of
the political conception of justice, or such justification must be made available to citizens if they
wish to know it. For this third level of publicity to be satisfied citizens must know and accept the
method of political constructivism, how the original position decision procedure is set up, why the
original position includes the features it does, etc., or, at the very least, it must be that citizens could
come to learn such facts if they wished. Call this publicity condition Publicity of Justification. Clearly
the first two levels of publicity can be satisfied without Publicity of Justification being satisfied.
Rawls (1993/2005: 227-230).
These three levels of publicity are explicated at ibid., 66-71.
14 Ibid., 66.
15 Rawls (1993/2005: 67); Rawls (2001: 121).
12
13
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Rawls tells us that the well-ordered society satisfies all three levels of publicity.16 Because the
scope of the overlapping consensus is on both principles of justice and constitutional essentials it
follows that full publicity (Publicity of Principles, Publicity of Beliefs, and Publicity of Justification)
must be satisfied for the principles of justice selected from the original position as well as the
constitution selected from the constitutional convention. Publicity of Principles is thus satisfied
when citizens know and accept the principles of justice, and know and accept the just constitution.
Publicity of Beliefs is satisfied when citizens believe those facts about social theory we include in the
information sets of deliberators in the original position as well as those we include in the
information sets of deliberators in the constitutional convention. And finally, Publicity of
Justification is satisfied when citizens know and accept the entire justificatory apparatus used in
justifying both the principles as well as the constitution, or when such information is made available
to citizens should they so choose to learn it.
3.2 Full Publicity and Constitutional Essentials.
We now examine if Publicity of Principles, Publicity of Beliefs, and Publicity of Justification
can be satisfied when it comes to constitutional essentials. Specifically, we are interested in whether
the difficult modeling choices outlined in section 2.2 inhibit full publicity from obtaining. For
Publicity of Principles to be satisfied with respect to constitutional essentials it must be the case that
citizens know and accept the constitution that is chosen in the constitutional convention. The fact
that our model of the constitutional convention requires we make difficult modeling choices does
not imply that citizens will be incapable of knowing what the just constitution is, nor does it imply
that citizens will not accept the just constitution as regulative in political life. Indeed, whether
Publicity of Principles will be satisfied boils down to the content of the constitution, not the method
by which the constitution is justified. The difficult modeling choices outlined in the previous section
thus play no role in determining whether Publicity of Principles is satisfied or not. It is plausible to
think Publicity of Principles can be satisfied when it comes to constitutional essentials, just as it is
plausible to think Publicity of Principles can be satisfied for matters of basic justice.17
Rawls (1993/2005: 67).
Indeed, Baier (1989) believes that the United States has already satisfied something like Publicity of Principles for
constitutional essentials. Note that if one introduces the notion of reasonable disagreements about justice than Publicity
of Principles will not be satisfied for either the principles of justice or the constitution. To be as charitable as possible we
16
17
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For Publicity of Beliefs to be satisfied with respect to constitutional essentials it must be the
case that citizens believe the facts about social theory we include in the information sets of
deliberators when we model the constitutional convention. As was shown in section 2.2, there are
many different social scientific methods we can model deliberators as employing when ranking
constitutions in terms of criterion (ii), most of which entail different sets of facts about how
constitutions operate. Since one specific social scientific method must be used in the constitutional
convention to adjudicate between fully specified constitutions and thus define a determinate choice
problem, satisfying Publicity of Beliefs when it comes to constitutional essentials requires all citizens
believe those facts about how social and political institutions operate entailed by the application of
that one specific social scientific method. Let us call this required method, whatever it is, M.
Offhand there seems to be two worries about whether this level of publicity can be satisfied.
The first is that the required beliefs are too demanding. The average citizen – let us call her Althea –
is not likely to have justified beliefs as to whether econometric analyses are a more fecund approach
to analyzing social and political institutions when compared to rational choice modeling or QCA
analyses. Yet when we include such considerations in the information sets of deliberators in the
constitutional convention the second level of publicity then requires citizens like Althea also acquire
the belief about the appropriateness of method M, even though the overwhelming majority of
citizens will have not thought deeply about these matters. As a result, Publicity of Beliefs will not be
satisfied. Call this the demandingness problem.
There is a second problem. Though most citizens will likely be like Althea and not have
justified beliefs endorsing M, some citizens will have reflective beliefs about such matters that entail
rejecting M. Thus, Publicity of Beliefs would again not be met, though for a different reason. As an
example, suppose M is an econometric analysis. M entails set of facts F about how social and
political institutions operate that deliberators use to rank constitutions in terms of criterion (ii).
Publicity of Beliefs requires citizens in the well-ordered society believe F. A competing QCA analysis
might entail set of facts F* about how social and political institutions operate. Suppose F and F* are
at least partially inconsistent, as will likely be the case.
Now suppose that Cassidy has thought long and hard about these sorts of issues – she is not
like Althea in this respect – and genuinely thinks that QCA analyses are the best way of proceeding
leave this worry to the side. For examination of what a well-ordered society might look like given disagreements about
justice, see Kogelmann (forthcoming).
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when it comes to social scientific investigation, and, as a result, believes set of facts F*. Since Cassidy
believes F* instead of F, and since we model the constitutional convention using econometric
analysis M, Publicity of Beliefs will not be satisfied, because some citizens (i.e., Cassidy) will not
believe the facts about social theory included in deliberators’ information sets. This is the case even
though QCA analyses are reasonable ways of assessing constitutions, implying that set of facts F*
are reasonable things for Cassidy to believe. Call this the diversity problem.
One might wonder why the demandingness and diversity problems don’t arise when it
comes to satisfying Publicity of Beliefs for matters of basic justice. In terms of justifying the
principles of justice, very few facts about social theory need to be included in the information sets of
deliberators in the original position to adjudicate between competing principles, and those facts that
are appealed to are relatively uncontroversial such that most people likely already believe such facts,
and such facts are not subject to reasonable disagreement.18 Certainly some facts about social theory
are used. In order for the difference principle to be chosen over a principle of perfect equality
deliberators must believe that people respond to incentives. Satisfying Publicity of Beliefs when it
comes to matters of basic justice thus requires that all citizens in the well-ordered society believe as
much.
But agreement on such a fact is far and away from agreement on all those facts about how
social and political institutions operate entailed by a very specific rational choice approach to
modeling. Yet models of such detail are required in the constitutional convention in order to actually
rank fully specified constitutions in terms of criterion (ii). Deliberators cannot adjudicate between
the likely legislative outcomes of the Constitution of India versus the Swiss Federal Constitution by
appealing to the fact that people respond to incentives. That won’t cut it. Because there are far fewer
facts about social theory required to rank competing principles of justice, and because these facts are
rather innocuous, satisfying Publicity of Beliefs when it comes to the matters of justice should not
be terribly difficult. We should expect to avoid both the demandingness and diversity problems
when it comes to Publicity of Beliefs for matters of basic justice.
Passages in Rawls may cast doubt on my argument that Publicity of Beliefs for constitutional
essentials gives rise to the demandingness and diversity problems. When discussing those forms of
scientific and social scientific inquiry required by Publicity of Beliefs, Rawls assumes “these methods
18
One exception is Rawls (1971: §13)’s use of chain-connectedness.
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to be familiar from common sense and to include the procedures and conclusions of science and
social thought, when these are well established and not controversial.”19 Though it is difficult to see
exactly what Rawls is getting at here, he could mean that – as a matter of fact – those beliefs we
include in the information sets of deliberators in the constitutional convention will happen to be
well established and not controversial. The only way for this to be true and for the constitutional
convention to remain a well-defined choice problem is by altering the menu options deliberators
choose over such that complex social science is not required to rank competing options. Perhaps if
deliberators only choose between broad constitutional structures rather than fully specified
constitutions they will not need to appeal to complicated social theory to make a rational choice. But
going back to section 2.1, we saw that Rawls’s insistence that there be agreement on constitutional
essentials, coupled with the way in which Rawls defines constitutional essentials, makes this an
ineligible interpretation. Rawls requires citizens agree on the nitty-gritty of legislative, executive, and
judicial power, the particular voting rules used, and the rights guaranteed. Modeling deliberators as
choosing between parliamentary versus presidential systems broadly construed to avoid the
demandingness and diversity problems does not capture this important feature of Rawls’s thought.
We do not need to examine whether Publicity of Justification can be satisfied when it comes
to constitutional essentials. The fact that Publicity of Beliefs runs into the demandingness and
diversity problems is enough to cause problems. I will say that I do not think it is plausible for
Publicity of Justification to be satisfied for both matters basic justice and constitutional essentials, for
reasons similar to the diversity problem (the demandingness problem falls by the wayside, because
citizens must only have access to the relevant information should they wish to learn it). Still, we
ignore this for the remainder of the paper and hone in on how to best respond to the
demandingness and diversity problems for Publicity of Beliefs for constitutional essentials
specifically.
3.3 Altering the Theory.
In response, perhaps the easiest thing to do is alter the theory. Instead of requiring full
publicity be satisfied for matters of basic justice and constitutional essentials we instead stipulate that
19
Rawls (1993/2005: 67).
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Publicity of Beliefs need not be satisfied for constitutional essentials. Although this is perhaps the
easiest way of addressing our two worries, such an alteration runs into problems.
When we drop the requirement that Publicity of Beliefs be satisfied for constitutional
essentials public reason becomes incomplete, in the sense that it is indeterminate.20 Public reasons are
shared reasons that citizens may permissibly appeal to in public discourse when discussing certain
topics – for Rawls, when constitutional essentials and matters of basic justice are at stake. Saying that
public reason is incomplete means that the shared reasons citizens may permissibly appeal to in
public discourse are not extensive enough to allow citizens to adequately discuss certain questions
that may arise in the public sphere. In Rawls’s case, if public reason is incomplete then citizens will
be unable to adjudicate some questions about constitutional essentials and matters of basic justice
with public reasons alone, as they are required to.
Why does dropping the requirement that Publicity of Beliefs be satisfied for constitutional
essentials render public reason incomplete? The satisfaction of Publicity of Beliefs for constitutional
essentials relates to public reason in that the sorts of facts about social theory citizens mutually
believe when Publicity of Beliefs is satisfied flesh out the content of public reason (as well as those
considerations agreed on when Publicity of Justification is satisfied). As Rawls puts it, “it is fitting,
then, that the first terms of social cooperation between citizens as free and equal should meet the
requirements of full publicity… When a political conception of justice satisfies this condition…
citizens can give reasons for their beliefs and conduct before one another and not weaken public
understanding.”21 Dropping those considerations entailed by Publicity of Beliefs for constitutional
essentials thus places limits on the content of public reason – those considerations that citizens would
all mutually believe if Publicity of Beliefs were satisfied are no longer eligible public reasons, for these
considerations are by hypothesis no longer shared by all citizens. The worry is that this limitation
will make it such that considerations we think are crucial for adjudicating some questions of
constitutional essentials and matters of basic justice will now be excluded from public discourse.
Specifically, the concern is that the sorts of complex social theory entailed by Publicity of Beliefs for
constitutional essentials – highly technical rational choice models or empirical analyses – are
important considerations to have present when discussing some issues public reasons are meant to
address. Yet, when Publicity of Beliefs is not satisfied for constitutional essentials, such
20
21
For an overview of incompleteness and public reason see Schwartzman (2004).
Rawls (1993/2005: 68).
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considerations will no longer be part of the content of public reason, for citizens will no longer all
mutually share these reasons – some citizens will believe M to be true, while many will not. When
this is the case, M is not part of the content of public reason, because M is not mutually shared.
In light of the above dilemma one might question the importance of public reason’s
completeness in the first place: why does it matter that citizens only appeal to shared reasons when
discussing certain issues? Here we need to explore the different roles public reason plays within
Rawls’s framework. First, public reason has an important normative function. The liberal principle
of legitimacy, Rawls tells us, requires we exercise political power in a manner justifiable to all. This
creates a “moral, not a legal, duty” – the duty of civility – which requires citizens “be able to explain
to one another… how the principles and policies they advocate and vote for can be supported by
the political values of public reason.”22 When public reason is incomplete citizens (in certain cases)
will be exercising political power in a way that is not justifiable to all, and thus will be violating the
duty of civility. As an example, if the Supreme Court appeals to method M in deciding a major cases
of constitutional essentials then the Court has not exercised its political power in a way justifiable to
all: more specifically, the Court has not exercised its political power in a way justifiable to citizens
like Althea who give rise to the demandingness problem, for they do not fully understand and thus
do not wholeheartedly accept M, nor has the Court exercised its political power in a way justifiable
to citizens like Cassidy that give rise to the diversity problem, for such citizens think M is misguided.
Perhaps more important than this moral function, public reason also serves a practical role.
Specifically, public reason plays a crucial role in securing the stability of the well-ordered society.
According to Rawls, even reasonable persons with a sense of justice wish to do as justice requires on
a conditional basis: they “are ready to propose principles and standards as fair terms of cooperation
and to abide by them willingly, given the assurance that others will likewise do so.”23 This conditional nature
of the desire to do what is just creates an instability threat: “even with a sense of justice men’s
compliance with a cooperative venture is predicated on the belief that others will do their part;
citizens may be tempted to avoid making a contribution when they believe, or with reason suspect,
that others are not making theirs.”24
Ibid,. 217.
Ibid., 49 (emphasis mine).
24 Rawls (1971: 336).
22
23
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According to much recent scholarship, Rawls solves this assurance problem with public
reason.25 When citizens use strictly public reasons while engaged in public discourse they signal
commitment to the political conception of justice over their own private interests, assuring their
fellow citizens they will indeed remain faithful to the political conception of justice. When citizens
do not adhere to public reason, though, they signal commitment to their own private interests over
the political conception of justice, breaking down assurance. On Rawls’s model, Althea thinks
Cassidy will remain loyal to the political conception of justice because Cassidy uses public reasons
when engaged in public discourse; when Cassidy does this, Althea is assured and continues to act
justly herself. But if Cassidy does not appeal to strictly public reasons, then Althea might worry that
Cassidy places her own private interests above the political conception; this may tempt Althea to
shirk first. In Rawls’s words “For without citizens’ allegiance to public reason and their honoring the
duty of civility, divisions and hostilities between doctrines are bound in time to assert themselves…
harmony and concord depend on the vitality of the public political culture and on citizens’ being
devoted to and realization of the ideal of public reason.”26
When public reason is incomplete there will thus be cases where citizens will be unable to
signal fidelity to the political conception of justice and thus assure one another. Specifically related
to those considerations entailed by Publicity of Beliefs, if there are no common standards of social
theory then citizens might suspect that the facts appealed to by their fellow citizens in public
discourse are merely done in attempt to advance private interests (“he’s only appealing to that study
on the minimum wage because he’s a libertarian!”). This can lead to a breakdown of assurance. But
when there are common facts of social theory all agree on capable of adjudicating such disputes
citizens do not have to worry about this. Because there is one appropriate mode of inquiry M there
will be no suspicion that the social science the libertarian appeals to is done merely to advance his
own private interests. But we can only get such agreement when Publicity of Beliefs is satisfied for
constitutional essentials. Insisting on as much requires we show how both the demandingness and
diversity problems can be overcome. This is what we now turn our attention to.
Here I follow Weithman (2010: 327); Weithman (2015); Hadfield and Macedo (2012). For criticism of public reason’s
ability to solve this problem, see Gaus (2011); Thrasher and Vallier (2015); Kogelmann and Stich (forthcoming).
26 Rawls (1997/1999: 610).
25
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§4 The Supreme Court as the Fountain of Public Reason
The last section posed a dilemma. On the one hand, it remains difficult to see how Publicity
of Beliefs can be satisfied for constitutional essentials given the difficult modeling choices that must
be made in the constitutional convention. On the other hand, there are reasons to insist that
Publicity of Beliefs is satisfied nonetheless in the well-ordered society – those beliefs that obtain
when this second level of publicity is satisfied give rise to a significant class of shared reasons in the
form of a shared social theory, critical for adjudicating questions concerning matters of basic justice
and constitutional essentials.
This section solves the dilemma. Section 4.1 solves the demandingness problem by arguing
that we have the order of causation backwards concerning the relationship between the
constitutional convention, publicity, and public reason: the content of public reason is not
exogenously fixed by how we model the constitutional convention and the corresponding hope that
citizens adopt the requisite beliefs. Instead, the content of public reason endogenously grows via
social institutions, giving rise to a body of social theory which then fills out the content of the
constitutional convention. In other words, a complete set of public reasons cannot be presumed to
exist, but must be constructed. Contra Rawls, rather than the Supreme Court merely acting as the
exemplar of an already existing set of public reasons, the Supreme Court also acts as a fountain of
public reason by developing a set of reasons citizens may appeal to in order to adjudicate their
disputes in the public sphere in a manner consistent with the ideal of public reason. As citizens
come to adopt this common set of reasons we slowly creep towards complete public reason, thus
addressing those issues raised in section 3.3. Section 4.2 complicates the model in order to solve the
diversity problem.
4.1 Constitutions as Coordination Devices and the Evolution of Public Reason.
The demandingness problem says that it is unlikely citizens like Althea have considered
views about social theory, the kinds of which are required by Publicity of Beliefs. Not that citizens
are opposed to having such commitments; they just have not worked them all out. But how do
citizens acquire such commitments to social theory when they have no strong, foundational
commitments to begin with? Moreover, how to they acquire the same commitments that their other
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under-informed citizens acquire in order to generate a set of reasons shared by all? Here we are
concerned with how citizens like Althea acquire the commitments required by Publicity of Beliefs.
For now we set aside citizens like Cassidy who do have considered commitments to social theory at
odds with what is required by Publicity of Beliefs.
Relevant here is work on the coordinating function of law generally, and the coordinating
function of constitutions specifically. Hadfield and Weingast develop a model showing how
constitutions can coordinate decentralized groups of enforcers to enforce behavioral regularities on
otherwise unconstrained political actors.27 Take a simple example. There is a politician S and a
constraint on behavior B set by the constitution. The politician can either obey B or not obey B.
What incentivizes the politician to obey B? One common answer is that ordinary citizens enforce
the relevant behavioral constraints through sanctioning via the voting booth. But reliance on such
decentralized enforcement mechanisms presents two problems: (a) there must be coordination in
that a sufficient number of citizens must agree that S has actually violated B; and (b) a sufficient
number of citizens must be incentivized to internalize the cost of punishing S.
According to Hadfield and Weingast’s model, (a) is accomplished by there being an
authoritative steward that deals out a common logic determining whether S has violated B, which takes
precedent over each citizen’s idiosyncratic logic as to whether S has violated B. This authoritative
steward is, in the case of the United States, the Supreme Court, and this common logic is decisions
released by the Court determining whether S violated B or not. For example, there was an open
question whether the 111th Congress in conjunction with President Barack Obama violated
behavioral rules B enumerated in the Constitution when they passed the Affordable Care Act. If
they did then the citizenry must sanction. But citizens all possess their own idiosyncratic logics
specifying whether S violated B or not. Given these conflicting standards there must be some
coordination mechanism that offers one evaluative standard all citizens can endorse. Filling this
void, the Supreme Court as authoritative steward delivers a common logic in the form of rulings that
citizens use in determining whether to sanction the relevant S or not.
When the authoritative steward delivers answers as to whether S violates B as part of the
common logic it is usually not just a yes or no answer. Instead, authoritative stewards like the
Supreme Court tend to give reasons for why they reach the verdicts they reach. Implicit in the
27
Hadfield and Weingast (2014); Hadfield and Weingast (2012).
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common logic delivered by the authoritative steward is thus a common method of reasoning that
explains and justifies the common logic, and implicit in this common method of reasoning are
standards of reasoning. Some kinds of arguments are rejected as bad arguments. Other kinds of
arguments are upheld as good arguments. Over time the Court (and authoritative stewards more
generally) build up a body of standards that classify types of arguments as good and bad arguments.
Arguments grounded in rational basis and reasonable person tests are judged to be good arguments
by the Court. Arguments appealing to oracles and omens, or arguments that fail to take seriously
stare decisis, are judged to be bad arguments.
So not only do authoritative stewards give us decisions on S’s violation of B as part of their
common logic, they also give us standards of reasoning as part of this common logic. And in these
standards of reasoning are the recognition of certain social theories as authoritative and the rejection
of other social theories as not authoritative. In Lockhart v. McCree (476 U.S. 162), for instance, the
Court asked whether judges, in excluding potential jury members at voir dire who principally oppose
the death penalty in potential death penalty cases, violate a defendant’s rights under the Sixth
Amendment to an impartial jury selected from a representative cross-section of the community as
well as a defendant’s right to due process under the Fourteenth Amendment. In deciding this case
Justice Rehnquist spent five pages of the majority controlling opinion critiquing the social science
appealed to in the amicus brief submitted by the American Psychological Association. As part of the
Court’s standards of reasoning, such appeals to social theory were not authoritative. The Court also
codifies certain social theories as authoritative when they cite them approvingly. As just one example
of this, in Paris Adult Theatre v. Slaton (413 U.S. 49) the Court had to determine whether a Georgia
injunction against pornographic films violated the First Amendment. In reaching his decision Chief
Justice Burger cites the Hill-Link Minority Report of the Commission on Obscenity and
Pornography which used behavioral studies to draw a link between obscene material and crime. As
part of the Court’s standards of reasoning, such appeals were authoritative.
Since this section focuses on citizens like Althea who lack commitments to social theory in
general, such citizens can simply follow the authoritative steward’s standards of reasoning implicit in
its common logic to flesh out their absent or under-theorized views. This is no different than
citizens following the authoritative steward’s decision as to whether S violates B on Hadfield and
Weingast’s original model. In the original model, citizens have some predisposition to enforce
constitutional constraints, yet are unsure whether all other citizens will think S has violated B
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because each citizen has their own idiosyncratic logic. The authoritative steward coordinates citizens
by delivering a common logic determining whether this is the case. Implicit in the common logic of
the authoritative steward, though, are standards of reasoning that can flesh these absent
commitments to social theory out. Just as Althea follows the Court’s judgment in determining
whether S has violated B, Althea can also follow the Court’s judgment in determining what good
standards of reasoning are, and particularly what good standards of social theory are. In this way the
Supreme Court is not just the exemplar of public reason but also its fountain – when citizens like
Althea do not have strong commitments to social theory, the Court can coordinate citizens by filling
in the gaps through written opinions such that the result is one social theory shared by all. Over a
long period of time, this results in shared standards of social theory across the well-ordered society
or, in other words, a complete set of public reasons.
But why would these standards of reasoning and standards of social theory reflect the social
theory modeled into the constitutional convention by you and I? Indeed, a cursory glance at the
Court’s current use of social theory suggests that it is unsystematic at best: social science is cited
approvingly when it supports what the Court would have decided anyways and rejected when it is at
odds with the Court’s decision.28 Here, some idealization is permissible; we are, after all, theorizing
about the well-ordered society. In calling the Supreme Court the exemplar of public reason Rawls
supposes that the Court, under ideal conditions, will only use public reasons in their decisions – not
that the Court currently does so. This assumes a deep familiarity by those Justices on the Court with
the full justification of the political conception of justice which, in the well-ordered society, is by
assumption “present in the public political culture.”29 In addressing the above problem we simply
continue this assumption of deep familiarity with and fidelity to the full justification of the political
conception of justice implicit in the public political culture by those Justices on the Court. Because
the Court in the well-ordered society knows the precise details of the political conception, the Court
can strictly appeal to the relevant standards of social theory that have been modeled into the
constitutional convention when deciding cases. There will be nothing unsystematic about the
Court’s decisions in the well-ordered society.
More needs to be said about what it means for Althea to follow the Court when she
endorses the standards of reasoning implicit in the Court’s common logic. Does Althea sincerely
For an overview of the uses of science and social science by the Supreme Court, see Rosen (1972); Erickson and
Simon (1997).
29 Rawls (1993/2005: 67).
28
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come to believe the social theory employed by the Court? When the Court continuously appeals to
method M in its decisions, does Althea genuinely come to believe that M is the most fecund way of
analyzing social and political institutions? Relevant here is the literature on the relationship between
individual rationality and the construction of public, political perspectives required for dispute
adjudication in society. Thomas Hobbes was the first to recognize that individuals’ reliance on their
own private judgment often leads to social conflict. The remedy, according to Hobbes, is that each
person submits their own private reason to the reason of a sovereign: all citizens “submit their wills,
every one to his will, and their judgments, to his judgment.”30 On this view, citizens literally give up
their own private judgments and replace them with the judgments of a public arbitrator. As David
Gauthier, a contemporary follower of Hobbes, puts it: “The individual mode of deliberation, in
which each person judges for herself what she has reason to do, is to be supplanted by a collective
mode, in which one person judges what all have reason to do.”31
On the Hobbes-Gauthier understanding of the relationship between individual rationality
and collective judgment, precisely because the Supreme Court as authoritative steward includes
standards of reasoning as part of its common logic Althea genuinely comes to believe such standards
of reasoning as being correct. In the case of citizens giving rise to the demandingness problem, it is
hard to see how anything is being supplanted, for, by hypothesis, citizens like Althea have nothing to
supplant. But the main point still stands that, on the Hobbes-Gauthier model, Althea genuinely
comes to believe the relevant social theory, and the reason she comes to believe this social theory is
simply because it is part of the authoritative steward’s common logic.
There are problems with the Hobbes-Gauthier model: why, for instance, would Althea come
to believe the relevant social theory simply because it is part of the Court’s standards of reasoning?
Gauthier secures this conclusion by offering a controversial theory of rationality: rationality,
Gauthier tells us, contains an interpersonal component.32 Traditionally, rationality is understood on an
individual basis: what it is rational to do depends on one’s own beliefs and preferences, and what it
is rational to believe depends on one’s evidence. Gauthier following Hobbes, though, extends “this
capacity to include accepting the assessment by another person (an arbitrator or judge) of the fit
between that other’s representations of the world and one’s own actions, as if it were one’s own
Hobbes (1651/1994: 109).
Gauthier (1995: 25) (emphasis mine).
32 Ibid., 26.
30
31
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assessment, and so to be motivated thereby.”33 On this view, the rationality of beliefs in particular
crucially depends on the judgments of others, and not from a merely evidential standpoint: the fact
that the Court endorses M is not evidence of M’s verity, but rather provides overriding reason to
believe M independent of evidential considerations. Not only is this theory of interpersonal
rationality normatively and descriptively questionable, it also seems deeply illiberal: freedom of
conscience and thought seem to be sacrificed on this model for the sake of the collective.
A more plausible interpretation of the relationship between individual rationality and
collective judgment is offered by Gerald Gaus. On Gaus’s view, “the tie between private and public
judgment is neither simply ‘abandoning’ the former for the latter, nor simply doing what the
sovereign tells us… [citizens] appreciate, however, that in matters of social cooperation, their joint
plans must be based on common judgments, not only about evaluative matters (good, bad, etc.) but
empirical ones… to plan together they must coordinate their reasoning on common categories,
premises and assumptions.”34 According to Gaus’s model, citizens’ private reasoning is not
supplanted by the collective judgment as is the case with the Hobbes-Gauthier model and its
controversial conception of interpersonal rationality. Rather, citizens merely adopt collective
judgments as pragmatically useful in certain public contexts for ordered social life: they realize that a
shared public, political perspective is necessary in some circumstances to successfully adjudicate
disputes and secure stable social order.
Returning to our own model, when the Court as authoritative steward deals out standards of
reasoning as part of its common logic, Althea does not necessarily come to believe these standards
as correct simply because they are employed by the Court. Rather, Althea comes to endorse these
standards of reasoning for pragmatic considerations: when reasoning publicly about matters of basic
justice and constitutional essentials, Althea uses these reasons in order assure her fellow citizens that
she remains faithful to the political conception of justice – that she places fidelity to the political
conception above her own private interests. On this understanding, even if Althea does not
genuinely believe the social theory implicit in the Court’s standards of reasoning, she can still employ
the social theory to reap the practical benefits of public reason: she can use these shared reasons to
signal fidelity to the governing conception of justice, thus fulfilling public reason’s practical role of
solving the well-ordered society’s assurance problem.
33
34
Ibid., 24.
Gaus (Working Paper: §5).
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But what about the normative role public reason is meant to play? Besides the practical
function public reason serves there is a normative function for public reason in Rawls’s framework:
we are to use only public reasons when discussing matters of basic justice and constitutional
essentials in order to satisfy the liberal principle of legitimacy and duty of civility. One might here
think that if citizens like Althea do not genuinely believe social theory M as they are not required to
on Gaus’s model, then, when other citizens offer them reasons grounded in M, they will not have
been offered justifications they endorse. Those giving Althea M-based reasons thus do not meet the
liberal principle of legitimacy and duty of civility – they do not give Althea reasons that are justifiable
to her.
Here it is important to distinguish between different roles persons take up in society, and
what roles the liberal principle of legitimacy and duty of civility apply to. Althea, qua public citizen,
endorses M on Gaus’s model because she thinks it is fitting to employ in public discourse in order to
secure the practical benefits of public reason. Here, when other citizens give Althea M-based
reasons, they will be treating Althea qua public citizen in a manner that is justifiable to her given that
particular role, and thus, in a sense, will satisfy the normative requirements of public reason. Althea
qua private person, though, might not necessarily endorse M on Gaus’s model. In this case, when
citizens give Althea M-based reasons they will not be treating Althea qua private person in a manner
that is justifiable to her given that particular role, and thus, in a sense, will fail to satisfy the
normative requirements of public reason. Whether the current model can also secure the normative
benefits of public reason thus crucially depends on what we mean when we talk about giving citizens
reasons that are justifiable to them: must we give them reasons that are justifiable to them qua public
citizens, or must we give them reasons that are justifiable to them qua private persons? If it is the
former then the current model also secures the normative function of public reason; if it is the latter,
then we still have a bit more work to do.
In response, note that though Gaus’s model does not require citizens come to genuinely
believe the Court’s standards of reasoning wholeheartedly, it does permit them to. And if we take
seriously the claim that citizens like Althea giving rise to the demandingness problem totally lack
commitments to social theory in the first place, then there is a plausible mechanism by which they
would come to genuinely believe M. If we count what authorities say as evidence in favor of a
proposition, and if citizens like Althea who give rise to the demandingness assign equal probabilities
to competing social theories due to their complete indifference, then repeated endorsement of M by
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authorities like the Court can give rise to a genuine belief that M is the most fecund approach to
analyzing social and political institutions. Note, this path to believing M on Gaus’s model does not
rely on the controversial Hobbes-Gauthier interpersonal conception of rationality: Althea is not
accepting others’ judgments as her own simply as a requirement of rationality. Instead, Althea takes
other authoritative judgments to be evidence that M is indeed correct. Since Althea is by hypothesis
uncommitted concerning her judgments of competing social theories, minimal amounts of evidence
should be able to tip her in favor of endorsing M when compared to competing social theories.
When citizens like Althea do genuinely come to believe M via this mechanism then public
reason will also serve its normative function even when interpreted as requiring giving citizens
reasons justifiable to them in their role qua private persons. Because Althea and her fellow citizens
(at least those that give rise to the demandingness problem) over time eventually come to genuinely
believe that M is the best way of proceeding for social scientific questions, when they appeal to M in
public discourse they treat each other in a manner justifiable to all: they give each other reasons all
genuinely share, and not just in their role as citizens debating matters in the public sphere. But note,
even if the requisite beliefs are not acquired and citizens like Althea only come to endorse M as part
of a public, political perspective, the current model still shows how a complete system of public
reason can evolve that is able to serve public reason’s crucial practical function, as well as public
reason’s normative function when interpreted as applying to public citizens, not private persons.
The model developed in this section thus shows at the very least (a) how complete public reason can
evolve in a manner that serves public reason’s practical role and one interpretation of public reason’s
normative role, and likely shows (b) how complete public reason can evolve in a manner that serves
both public reason’s practical and normative purposes, even given a fuller, more demanding
interpretation of public reason’s normative function.
It should be noted briefly that the mechanism proposed in this section has been suggested
by others in the public reason literature. In addressing the criticism that agreement on political ideals
is “hopelessly naïve,” Joshua Cohen proposes a mechanism by which such a consensus might come
about. According to Cohen: “The underlying idea… is that people living within institutions and a
political culture shaped by certain ideas and principles are likely to come to understand those ideas
and principles and to develop some attachment to them” (Cohen 1994: 1521-531). On Cohen’s
understanding, institutions shape persons’ commitments, which is why we may be hopeful that an
overlapping consensus is possible. What we have thus far said in this section is largely in line with
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this: the Supreme Court as an institution shapes citizens like Althea’s commitments to social theory,
allowing public reason to then serve its normative a well as practical function.
Let us take stock and put things together. Most citizens generally lack considered views on
social theory, though they are not opposed to acquiring them, and likely have a mild preference for
coordinating these views with their fellow citizens in order to solidify one standard of public
reasoning to secure the practical benefits of public reason. Citizens are thus engaged in an n-person
coordination game, simplified to the two person game illustrated in Figure 1 (here, assume Bertha is
like Althea in terms of her pre-existing commitments to social theory). In offering their coordination
theory of law and constitutions, Hadfield and Weingast also assume citizens are engaged in an nperson coordination game, again simplified to the two person game illustrated in Figure 2. Citizens
want to coordinate on a common standard of behavioral rules B in order to keep S in line. Hadfield
and Weingast argue that, part of a constitution and indeed system of law more generally entails an
authoritative steward that effectively picks out an equilibrium in the game illustrated in Figure 2. My
argument is that in doing so the authoritative steward also picks out an equilibrium in the game
illustrated in Figure 1. Over a long body of cases the Supreme Court, in telling us whether S violates
B, also gives us standards of reasoning implicit in its common logic that come with a body of social
theory citizens can endorse as part of a public, political perspective – just as they come to endorse
the common interpretation of B and thus common interpretation of S’s actions.
Figure 1
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Figure 2
But notice that, though both Figures 1 and 2 display coordination games, they are different.
Figure 1 is a pure coordination game – all that matters to citizens Althea and Bertha is that they
adopt the same social theory to secure the practical benefits of public reasoning. But Figure 2 is a
mixed coordination game – citizens Althea and Bertha wish to adopt the same set of behavioral
rules, but they have conflicting preferences over which equilibrium is selected. The reason why these
games are modeled differently is that Hadfield and Weingast’s model, which solves the problem
Althea and Bertha are engaged in Figure 2, assumes that citizens have idiosyncratic logics that
conflict. They want to coordinate, but they have conflicting preferences over what interpretation of
the behavioral rules they coordinate on. In this section we have assumed that Althea and Bertha
have no commitments to social theory because we focused exclusively on the demandingness
problem. They simply want to coordinate, and do not even know enough about what they are
coordinating on to have diverging preferences. But what about when citizens do have considered
commitments to social theory akin to the idiosyncratic logics Hadfield and Weingast assume? How
do citizens then converge on one common social theory to generate a complete system of public
reason?
4.2 Complicating the Model.
Unlike Althea and Bertha, Cassidy does have considered views about social theory. In fact,
Cassidy adopts a social theory at odds with what is modeled in the constitutional convention, and
thus at odds with the Court’s standards of reasoning. Suppose the Court, over a long body of cases,
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solidifies M. Althea and Bertha follow, and, let us suppose, eventually believe M to be the best
method of analyzing social and political institutions. But what about Cassidy, who thinks a different
social theory N is the appropriate way of thinking about social scientific questions? What does she
do?
Importantly, on Gaus’s model Cassidy does not have to actually come to believe M in order
secure the practical benefits of public reason: she can merely employ M when debating matters of
basic justice and constitutional essentials in order to assure her fellow citizens she remains faithful to
the political conception of justice. But even though Cassidy can employ M in public discourse
without genuinely believing M to be true, it does not follow she will actually do so. From Cassidy’s
perspective, M could be so objectionable a social theory given her actual, considered views that it is
not worth employing in public discourse even to secure the practical benefits of public reason.
When such is the case Cassidy will appeal to her preferred social theory N and, in doing so,
potentially lead to a breakdown of assurance.
Since it is desirable Cassidy employ M over N we need to examine under what circumstances
she will in fact do so. Here we can distinguish between two possible cases. The first case is
illustrated in Figure 3. In this case Cassidy plays a game with those citizens giving rise to the
demandingness problem. Though Althea and Bertha are indifferent as to which social theory is
ultimately selected by the Court, Cassidy is not: she prefers N to M to O. But though Cassidy thinks
some social theories are better than others, she does, all things considered, prefer coordinating with
her fellow citizens over not coordinating. Figure 3 thus models the case where Cassidy cares more
about securing stable social order than she does her own commitments to social theory. When the
sorts of preferences modeled in Figure 3 obtain citizens giving rise to the diversity problem cause no
trouble at all. The Court, in offering standards of reasoning as part of its common logic, solidifies M.
Althea and Bertha follow. Given that Althea and Bertha already employ M in their discourse,
Cassidy’s best response is to play M as well. This generates a set of reasons all citizens share that can
then be employed in public discourse.
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Figure 3
It must be noted, however, that there is little chance of securing the normative benefits of
public reason in the case of citizens giving rise to the diversity problem when we interpret the liberal
principle of legitimacy and the duty of civility as requiring giving citizens reasons justifiable to them
qua private persons. When it comes to citizens giving rise to the diversity problem, the best we can
hope for is that they endorse M as part of a public, political perspective. It is doubtful citizens like
Cassidy will genuinely come to believe M as Althea and Bertha might, for by hypothesis they are
strongly committed to social theories at odds with M. When others give them M-based reasons they
will thus not be giving these citizens reasons they can endorse qua private persons, though they will
be giving them reasons they can endorse qua public citizens. Importantly, though, when the
preferences in Figure 3 obtain the practical benefits of public reason can be secured even in the face
of the diversity problem: the assurance problem is solved, and the well-ordered society remains
stable.
Now consider a second case, illustrated in Figure 4. In this case Cassidy thinks M (and O) are
so misguided that she would rather employ N regardless what Althea and Bertha do. Here, when the
Court picks out social theory M as part of its common logic and Althea and Bertha follow, Cassidy’s
best response is to continue playing N rather than switch to M. This models the case where Cassidy
finds M to be so wrongheaded that she would rather continue appealing to her own preferred social
theory and, in doing so, threaten stable social order. When the preferences in Figure 3 obtain the
practical benefits of public reason are secured despite the diversity problem; when the preferences in
Figure 4 obtain the practical benefits of public reason are not secured precisely because of the
diversity problem. This leads to an important question: which preferences are more likely to obtain
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in the well-ordered society? Those in Figure 3, or those in Figure 4? If the Figure 3 preferences
obtain then the diversity problem causes no great trouble for generating a complete set of public
reasons capable of serving public reason’s practical function; if the Figure 4 preferences obtain then
the diversity problem threatens stable social order.
Figure 4
Here, we turn to Rawls’s text. Relevant is what Rawls says concerning potential conflict
between citizens’ comprehensive doctrines and the political conception of justice – this potential
conflict tracks closely enough for our purposes the conflict between Cassidy’s preferred social
theory N and social theory M. In speculating what citizens will do in times of conflict, Rawls gives
us two reasons to be optimistic that the political conception of justice will carry the day. He begins
by noting that the “virtues of political cooperation that make a constitutional regime possible are,
then, very great virtues.” These virtues of political cooperation – tolerance, meeting others halfway,
reasonableness and a sense of fairness – are very great virtues because they “sustain [society’s]
political conception of justice, they constitute a very great public good, part of society’s political
capital.”35
What Rawls is getting at here is that when we ask whether citizens will adhere to their
comprehensive doctrines (preferred social theory) or the political conception of justice (public
reason) in times of conflict, we need to pay special attention to what citizens sacrifice when they
choose to follow their private interests over the political conception. For our purposes: in asking
whether the Figure 3 or Figure 4 preferences more accurately model Cassidy’s actual preferences, we
35
Rawls (1993/2005: 157).
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need to think about what Cassidy gives up when she chooses to employ N over M. If we take
Rawls’s remarks seriously concerning the integral role public reason plays in securing the stability of
the well-ordered society – “harmony and concord depend on the vitality of the public political
culture and on citizens’ being devoted to and realization of the ideal of public reason”36 – then
Cassidy sacrifices stable social order just so she may employ her preferred social theory in public
discourse. Since it is unlikely a reasonable person would do this, the Figure 3 preferences more
accurately model citizens giving rise to the diversity problem than the Figure 4 preferences do:
because of what is being sacrificed when citizens do not adhere to public reason, reasonable persons
will, all things considered, prefer coordinating with their fellow citizens on a shared set of reasons
when compared to not coordinating. When this is the case public reason serves its practical function
despite the diversity problem.
Rawls gives us a second reason to be optimistic that the political conception of justice will
carry the day when in conflict with citizens’ private interests: “the other reason political values
normally win out is that severe conflicts with other values are much reduced.”37 Note this is
especially true when it comes to conflicts concerning whether one ought to adhere to one’s
preferred social theory or the social theory solidified as part of public reason. Recall that, for Rawls,
public reason only governs discourse concerning matters of basic justice and constitutional
essentials. This implies that much of public discourse will not be governed by public reason: “Many if
not most political questions do not concern those fundamental matters, for example, much tax
legislation and many laws regulating property; statutes protecting the environment and controlling
pollution; establishing national parks and preserving wilderness areas and animal and plant species;
and laying aside funds for museums and the arts.”38 When these sorts of issues are at stake, Cassidy
may appeal to her preferred social theory without violating the requirements of public reason.
The idea here is that citizens will more likely tolerate deviations from their preferred
standards of discourse because these deviations happen so infrequently. If Cassidy were required to
employ M over N in all public discourse then perhaps so great a sacrifice would not be worth it. In
such a case, the Figure 4 preferences would more accurately model Cassidy’s actual preferences. But,
since the context in which Cassidy must employ M over N is rather limited, it is likely she is willing
to meet her fellow citizens halfway by adhering to public reason, for meeting her fellow citizens
Rawls (1997/1999: 610).
Rawls (1993/2005: 157).
38 Ibid., 214.
36
37
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halfway happens so infrequently. When this is true, the Figure 3 preferences more accurately model
Cassidy’s actual preferences. This, coupled with what it is that citizens give up when they fail to
adhere to public reason, gives us strong reason to believe that the Figure 3 preferences more
accurately model the preferences of those citizens in the well-ordered society giving rise to the
diversity problem. We should thus be optimistic that public reason can serve its practical function
even in the face of the diversity problem.
This is important, for I think stability considerations are the ultimate motivation for why
public reason is included in Rawls’s later framework. A major theme running through Rawls’s
mature work is concern over the possibility of constitutional drift: “For in the long run, the leading
interpretations of constitutional essentials are settled politically. A persistent majority, or an enduring
alliance of strong enough interests, can make of the Constitution what it wants.”39 Such a fact can
lead to a corrosive politics: “Frequent controversy over the structure of government, when it is not
required by political justice and when the changes proposed tend to favor some parties over others,
raises the stakes of politics and may lead to distrust and turmoil that undermines constitutional
government.”40 Preventing such breakdown not only requires citizens agree on a set of constitutional
essentials, but also requires citizens assure one another they remain faithful to these essentials,
especially in times of constitutional crisis. A complete set of public reasons is integral for doing just
that. This paper has shown how the reason of a democratic people can be constructed even though
its requirements may be demanding, and even though liberal orders are characterized by deep and
irreconcilable disagreement over questions, among others things, of social theory.
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