Judicial Review and Public Reason

This is an early draft of a chapter to be published in a volume on Comparative Judicial Review, edited by Rosalind Dixon and Erin F. Delaney. In my chapter, I begin by introducing the general idea of Public Reason as a legitimacy-conferring device, and move on to discuss its application to judicial review through a motive-oriented scrutiny. I then consider (and rebut) the argument that such scrutiny runs into a difficulty of discerning the motives, and subsequently I reflect on the ways in which “harmonizing” the motive-and effects-oriented scrutiny may be useful to a public reason conception of judicial review. Further, I offer my reflections regarding the argument that Public Reason-based scrutiny troublingly amplifies the clash of the judiciary with the legislature. I then provide a case study of Public Reason-based judicial review of the laws on the relationship between state and religion. Finally, in the concluding part, I bring these different themes together, and suggest an agenda for further research.