Judging Without Rights: Public Reason and the Counter-Majoritarian Difficulty

Abstract

Rights constitute a familiar feature of the liberal discourse of judging. This chapter seeks to recast this discourse away from the language of rights by considering two cases where liberals often invoke it: abortion and same-sex marriage. I argue that the presence of rights in American constitutional discourse exacerbates the counter-majoritarian nature of judicial review. We do better to recast the language of judging from an emphasis on protecting rights to an emphasis on making sure that the demos acts on publicly justifiable reasons. In doing so, I proffer a novel analysis of liberal theory's extant commitment to public reason, one that conceptualizes public reason as representing the scope of state power.

Citation

Bedi, S. (2012), "Judging Without Rights: Public Reason and the Counter-Majoritarian Difficulty", Sarat, A. (Ed.) Special Issue: The Discourse of Judging (Studies in Law, Politics, and Society, Vol. 58), Emerald Group Publishing Limited, Leeds, pp. 1-27. https://doi.org/10.1108/S1059-4337(2012)0000058004