Few Americans outside of the academy have heard of John Rawls, yet his influence on the American mind is astounding. His two major books, A Theory of Justice and Political Liberalism, have altered how many Americans discuss and understand justice, equality, individual liberty, and constitutionalism. Though by all accounts he was a mild-mannered person, the utopian spirit of his theory has encouraged greater identity consciousness, political and ideological polarization, antagonism toward religion, and judicial activism. It would be a mistake, of course, to lay all of our woes on Rawls’s doorstep, but it is no less problematic to ignore the formidable influence he has had on our political life. While Rawls was not the first thinker to articulate every liberal prejudice, his theory does help to lend legitimacy to them.
Rawls’s influence on contemporary America can be gauged by the extent to which many today think about and look at contemporary political matters, often unwittingly, through a Rawlsian prism. For instance:
- Many Americans think of themselves primarily in terms of the groups with which they identify.
- Some turn to a theoretical “consensus” rather than the Constitution to determine the government’s power.
- Others refrain from referencing religion in the public square.
- Most turn to the Supreme Court of the United States as our political guide.
These salient, problematic features of contemporary politics either spring from Rawls’s ideas or are legitimized by them, thereby exacerbating their effect. Much of his work was devoted to giving such tendencies a central position in America’s political life.
The reason many people have not heard of Rawls is that his books were not written for a popular audience. His early work was aimed at specialists of academic philosophy. In his more mature writing, he hoped to influence other disciplines such as political science, sociology, theology, and—most important—constitutional law. Rawls understood the extent to which law school professors, lawyers, and judges shape the U.S. political landscape and calculated that his ideas would best trickle down to the American people through the medium of the courts.
This is not to suggest that Rawls would be fully satisfied if the Supreme Court began to interpret the Constitution the way he suggested it should be interpreted or if his ideas were enshrined in law. Ultimately, Rawls believed that his theory would work in America only if the people themselves embraced it. His ambition was such that he wanted everyone to agree that his vision of a liberal society was more than simply useful or legally justifiable: He wanted people to accept his vision as morally superior to other theories. Thus, the task he asks of lawyers and judges is not only to shape the law as he would have it, but also to shape the public mind by setting constitutional limits on what it is politically legitimate to say and therefore think.
Mainstream America’s growing sensitivity to political correctness finds its best theoretical defense in Rawls’s work. He encourages us, especially judges, to adopt what he calls public reason, which sets a boundary for acceptable public statements and personal opinions.
Most Americans probably have not heard of public reason, but they would certainly recognize its effect on political life. They understand the risks one runs by appearing to hold a belief outside of the popular consensus as to what is right or by endorsing a religious perspective in the wrong setting. Moreover, Americans are witnessing a Supreme Court that goes beyond settling legal disputes and increasingly plays the role of moral umpire, exactly as Rawls encouraged.
In short, many Americans may be unfamiliar with John Rawls, but they are experiencing the influence of his ideas in their daily lives.
Rawls’s Theory of Justice
Space does not permit a full rendering of Rawls’s political teaching, but four of his ideas are vital to understanding his influence:
- The original position
- The overlapping consensus
- Public reason
- His general theory of constitutional interpretation
Taken together, these four ideas provide a general picture of Rawlsian liberalism.
The Original Position. The original position is probably the best-known part of Rawls’s theory. Its purpose, as he put it in the Preface to A Theory of Justice, is “to generalize and carry to a higher order of abstraction the traditional theory of the social contract.” It is a higher order of abstraction because those who take part in it are establishing not a government as in the traditional Lockean social contract that influenced the Founders, but rather the principles of justice that legitimize government. It is also more abstract than other social contract theories because it endeavors to be purified of all inequalities. “Somehow,” he explains, “we must nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage.”
Rawls wants to eliminate any motive that people may have, presumably on the basis of such qualities as social class, race, or gender, for preferring one conception of justice over another. His theory is general enough that other categories, such as sexual orientation or gender identity, could be added to this list in order to establish a society whose principles are not determined by any particular group’s self-interest.
The goals of Rawls’s original position reflected the cultural struggles of the early 1970s. At that time, Americans were witnessing the civil rights movement and the sexual revolution, and left-leaning professors in particular wanted to speak to the morality of such issues without employing the traditional language of ethics associated with Aristotelian philosophy and Judeo–Christian culture. Past moral systems were blamed for stifling individual freedom and imposing outdated categories on new situations. By contrast, the original position provided such professors with the novel rubric they wanted for explaining anew the injustice of treating people differently on the basis of their race, class, or gender.
The problem, according to Rawls, is that Western democracies like the United States currently rest on a social-contract teaching that promises to protect natural rights such as life, liberty, and property. Such a system, he argues, has a tendency to disfavor marginalized groups, such as racial or ethnic minorities, the poor, and women. Accordingly, he proposes a new social-contract teaching that imagines a meeting of delegates who know that they are representing a group—it could be men or women, the rich or poor, whites or a racial minority—but not which one. Nor do they know their own race, class, gender, or any other personal information.
Under such conditions, Rawls tells us, none of the delegates will adopt principles of justice that privilege, even accidently, any identifiable group within society. Individual rights are still protected, but only to the extent that all are treated fairly and basic equality is maintained. Rawls implies that if Americans can subject their current politics to this imagined social contract, they can have a more egalitarian regime that is no longer prone to prejudices associated with wealth, race, gender, or anything else.
Rawls tells us that those who take part in the original position will agree on two principles:
- Everyone is entitled to the same basic liberties, and
- Inequalities in social or economic outcomes are only justifiable if:
- All citizens have a fair shot at attaining the offices and positions from which these inequalities result, and
- They benefit the most disadvantaged members of society.
Rawls refers to these principles jointly as “justice as fairness,” and he believes that if Americans embrace them, they can have a fairer nation in which no particular group enjoys any special status in society. Everyone will be treated equally regardless of who they are or what they believe. What Rawls promises us is a better world:
No longer need [the world] seem hopelessly hostile, a world in which the will to dominate and oppressive cruelties, abetted by prejudice and folly, must inevitably prevail. None of this may ease our loss, situated as we may be in a corrupt society. But we may reflect that the world is not in itself inhospitable to political justice and its good. Our social world might have been different and there is hope for those at another time and place.
The Overlapping Consensus. The second idea, the overlapping consensus, comes from Rawls’s later works. In response to A Theory of Justice, Rawls’s critics and some of his friends pointed out the difficulties of expecting every citizen of a liberal pluralist democracy—which Rawls claimed to support—to embrace the same principles of justice. In this light, the conception of justice based on the original position appeared to be rather illiberal.
The doctrinaire nature of A Theory of Justice was perhaps clearest in the critiques of religious Americans who objected to the original position on the grounds that it understands justice as a human construction rather than as an intelligible virtue discernible through nature, revelation, or tradition. In other words, Rawls’s original position excluded any conception of a transcendent view of justice.
Over the course of 20 years, Rawls worked out a response to this critique, which was developed most fully in Political Liberalism. “How is it possible,” Rawls rhetorically asks, “for those affirming a religious doctrine…also to hold a reasonable political conception that supports a just democratic regime?” He answers the question not by changing the principles of his earlier work, but by explaining that those principles can serve as a consensus for a pluralistic democracy such as America. His theory can still prevent economic, social, and racial inequalities, but religious and non-religious groups need not agree on why his theory should be endorsed. All remain free to justify the theory however they would like to do so.
Rawls thus changes his presentation of justice as fairness by emphasizing the importance of a social consensus in which people accept the same view as right but for different reasons. This means that Rawls can no longer present his theory as true. Instead, he simply says it is “reasonable.” Anyone who agrees to join the consensus and accepts the ideals of justice as fairness is likewise referred to as reasonable. He hopes to find a higher proportion of people who are open to accepting his theory on this lower plane. If successful, he is confident that a new regime can be brought about that will remain stable over the course of many generations.
Public Reason. The overlapping consensus carries with it an added idea of great significance: public reason. The purpose of this idea is to allow a diverse nation like America to maintain its commitment to pluralism while finding a common set of terms for different groups to use in discussing political issues, especially those involving claims of justice or morality. Only public arguments grounded in the principles of the overlapping consensus are considered legitimate, because they alone can be accepted by all in a pluralistic society. Arguments that are consistent with the consensus are those that Rawls calls public reason. One shows respect for others, Rawls explains, when one uses public reason whenever dealing with matters of constitutional essentials and basic justice. What fits this criterion is vague, so these are potentially large categories.
Politically speaking, Rawls wants to limit debate to terms that all “reasonable” people can accept. To be considered reasonable, one must agree not to root one’s arguments for law in any philosophic or religious view that is not commonly shared by everyone. People are perfectly free to hold such views privately, but they cannot bring them into the public square. In short, being reasonable means limiting one’s political speech to the terms of the overlapping consensus.
Rawls is quite aware that his theory places a substantial burden on religious citizens. As noted, he wants to convince religious Americans to join the consensus around liberal principles of justice even if their private views of how to live depend on commitment to traditional moral principles or submission to a transcendent authority such as natural law or divine revelation.
Rawls’s solution is to permit them to believe what they want privately but to stipulate that they can draw political arguments from those beliefs in the public square only if they correspond to the mainstream national consensus. In this way, justice as fairness “hopes to put aside long-standing religious and philosophical controversies and to avoid relying on any particular comprehensive view.” The task, then, consists in changing the prevailing language such that everyone begins to use the same terms and principles, at least when discussing the most important political matters.
The Courts and Constitutional Interpretation. The fourth idea anticipates the institutional mechanism for enforcing public reason, including its prohibition on appeals to religion. In principle, the other three ideas can be applied universally, but this one applies particularly to the United States insofar as it has to do with the proper interpretation of the Constitution. Put differently, while the previous three ideas hold up an ideal for public deliberation, Rawls sees the Supreme Court ensuring the political outcomes that he thinks are proper.
In his Lectures on the History of Political Philosophy, Rawls emphasizes the importance of influencing those who are looked to as authorities on constitutional meaning, most importantly Supreme Court justices. He says that it is not the job of political philosophers to “overrule the outcome of everyday democratic politics,” but they can attempt to “influence some legitimate constitutionally established political agent, and then persuade this agent to override the will of democratic majorities.” The best way to make this happen, Rawls says, “is for liberal writers in philosophy to influence the judges on a Supreme Court in a constitutional regime like ours.”
It is no wonder, then, that Rawls asks the Court to be the “exemplar of public reason.” The Court’s task is to ensure that people use the correct language in their political debates: language consistent with the overlapping consensus, which in turn reflects the principles of justice that would be chosen in the original position.
These four core Rawlsian ideas have manifested themselves in America in ways that Rawls may not have imagined, none of which is healthy from a political standpoint. Together, they have led to identity politics, ideological polarization, the banning of religion in the public square, and judicial activism.
Humans naturally identify with communities and groups centered on common beliefs, traditions, or origins. We should therefore not be surprised to find in a vast and populous country such as the United States many such communities, particularly religious and ethnic ones. Nor should we expect Americans to identify only as Americans and forsake their religious or ethnic identities. The health of the regime, however, requires a common American identity and a shared national consciousness. Without these, society splinters and politics becomes nothing more than a struggle for power between identity groups.
Rawls’s theory ignores the problems of societal splintering while justifying and thereby encouraging the growth of identity politics in America. The original position in particular envisions citizens and representatives who act primarily on the basis of group identity. While no one behind the veil of ignorance knows which group they represent, the assumption is that their calculations take for granted that politically conscious identity groups want the laws to reflect their values, interests, and experiences. The parties understand themselves to be part of such groups rather than geographical regions.
Identity politics is thus built into the very framework of Rawls’s theory. He conceives of groups in a very general sense, ultimately defining them by race, class, and gender, but he uses the term loosely enough that it would easily accommodate such things as sexual orientation, gender identity, and potentially much else. The indefinite nature of groups means that they can multiply and inevitably struggle together or against one another for power in the political arena in order to satisfy new and ever-increasing demands.
When not under the influence of a theoretical device like the veil of ignorance, people are drawn toward natural associations that are concrete. They live in particular communities that may have large ethnic populations. They belong to a particular church or work in the same particular trade. Identity politics, however, leads individuals to attach themselves to an abstract subsection of society that is devoted to some politically motivated cause. People find themselves in league with others they have never met but with whom they share the same economic conditions, race, gender, sexual orientation, or any other characteristic one wishes to privilege. Again, some of this is inevitable and at times necessary in politics, but it can become dangerous when entrenched struggles between identity groups replace general concerns about the common interest of the whole.
To be clear, Rawls is not the sole founder of identity politics. Karl Marx, whom Rawls never formally endorsed, theorized that understanding competition between economic groups is the correct lens through which to view modern democracies. Others following Marx have mimicked this kind of analysis by focusing on different groups, especially those associated with race, ethnicity, gender, and more recently sexual orientation. Politics becomes a contest between so-called disadvantaged groups vying for their slice of the pie.
Rawls’s theory has become popular among academics for sustaining the political status of each group simultaneously. Theoretically, his original position can be employed by members of any of these groups who want to argue that a particular law or policy is unfair. They simply have to ask whether that law would be chosen by people who know nothing particular about themselves. If the answer is no, then they can immediately conclude that the law is unjust.
Rawls’s theory thus legitimizes group claims by inventing the ground rules that allow for their perpetual existence. His theory is built on the assumption that politics aims only at accommodating group interests without any larger concerns about the common interest. Even if those who speak on behalf of these groups have never read Rawls, they have learned to employ the basic logic of his theory whenever they are unhappy about a policy or law.
By way of comparison, the American Founders understood that people naturally associate in groups. They did not, however, write a constitution that accommodates the more dangerous tendencies of identity politics. On the contrary, they sought institutional means of ensuring that elected representatives would have to think across group preferences in search of a common interest. In this regard, they provided the means of protecting genuine diversity. For example, large congressional districts ensure that representatives have to appeal to multiple groups simultaneously if they want to be reelected. This moderates rather than encourages the rhetoric of identity politics.
Justice as fairness, by contrast, is a powerful theory for groups that see themselves as disadvantaged, either in general or on some particular issue. Groups that feel they are being treated unfairly will find an ally in Rawls, and because Rawls specifies no criterion other than a feeling of being disadvantaged, the groups can multiply infinitely. Often, this feeling is distant or vague, having nothing to do with the feeler’s personal situation. For instance, an Asian American from California may feel offended by a New York policy that unintentionally affects racial minorities disproportionately, even if it does not take race into consideration. With nationwide pressure, the argument becomes simple: Would you choose this law if you were in my shoes? Would you be against income redistribution if you were poor? Wouldn’t you favor affirmative action if you were a woman or racial minority? And wouldn’t you want marriage laws for homosexuals if you were gay?
However powerful justice as fairness may be rhetorically, approaching politics through the prisms of abstract identity is bad for both individuals and political communities. Through these categories, citizens are seen not as individuals, but as parts of monolithic groups that all think and act similarly, thus denigrating the liberty that allows people to make unique choices in life on account of independent thinking regardless of their economic resources, ethnicity, gender, or other factors. The dignity of the person diminishes in proportion to expectations that people adhere to their groups’ interests.
Moreover, this doctrine enforces conformity because it teaches that breaking rank from your group puts you on the same page of history as Benedict Arnold: Black citizens or women who oppose affirmative action laws, for instance, are frequently ostracized. Thoughtless commitment and forced loyalty are required despite one’s own thoughts, interests, or experiences.
Identity politics is likewise bad for concrete communities—families, civic associations, churches, and cities—insofar as it encourages people to devote their energies to abstract groups rather than particular people. Laws that are targeted explicitly against groups are wrong and need to be changed, but devotion to the cause of a race, a class, a gender, or sexual orientation becomes problematic when it undermines the civic ties that bind us as a nation.
One may ask why the delegates to Rawls’s imaginary original position would not choose the principles of the Declaration of Independence and the U.S. Constitution. These, after all, could easily be recognized as reasonable approaches to achieving a common good. The problem is that Rawls sets up his original position assuming that the delegates represent abstracted groups, defined broadly enough to encompass those we commonly associate with identity politics. The delegates know they are supposed to act on behalf of some group; they just do not know which one. They could be representing the poor, Native Americans, women, or any other group. None of the delegates is expected to think in terms of the common good.
The Framers of the U.S. Constitution explicitly rejected this mentality of identity politics that Rawls’s original position takes for granted. One of the Anti-Federalists’ frequent criticisms of the House of Representatives was that it forced different groups to share a single representative. Much better, they argued, if farmers were represented by farmers, merchants by merchants, fishermen by fishermen, etc. James Madison counters this in Federalist No. 10 by saying that in principle, that type of identity politics prevents the sort of compromise that is necessary in political life. There will always be factions in a free republic among groups devoted to some special interest that is harmful to the rights of others or the common good, Madison reasoned, and the best way to deal with them it is not by encouraging them to flourish, but by breaking them up and controlling them. One way to do this is to require Members of Congress to represent diverse constituencies rather than particular group interests. This is an institutional means of moderating political discourse, fostering legislative compromise, and protecting the common good. It is a far more prudent solution than Rawls’s theory.
From the standpoint of the Founders, then, minority groups in danger of being harmed by unjust and discriminatory laws are to be protected by the principles of the Declaration of Independence and the institutional design of the Constitution. The principles make clear that all people, regardless of the group or groups with which they identify, possess rights that not only are to be respected, but also are to be protected by the government on an equal basis. These principles were appealed to by Abraham Lincoln to fight the spread of slavery and by Martin Luther King to oppose unjust discriminatory laws.
Added to these ideals and safeguards is the Bill of Rights, which was meant to ensure all individuals’ fundamental liberties and guarantee their access to a fair trial. The Fourteenth Amendment makes plain the requirement of states also to protect the lives, liberties, and properties of all citizens. All citizens are assured as individuals the equal protection of law. This is the premise of American constitutional government (albeit one that America has not always embodied in practice).
Moving from a situation in which the government protects individual rights to one in which it grants groups political leverage undercuts the character of America’s Constitution. Moreover, this threatens to strengthen people’s affections for an abstract group rather than for their particular communities. Identity politics, exacerbated by Rawls’s idea of the original position, is thus a threat both to individual liberty and to the common good of the regime as a whole.
Just as Rawls’s original position ends up sharpening group-identity cleavages, so too does his idea of an overlapping consensus exacerbate the American proclivity toward ideological polarization. Rawls develops a theory of consensus politics to deal with the political breakdown and societal splintering that identity politics inevitably produces. The goal of consensus politics is to find a way to reunite antagonistic groups so that they can have a shared conception of citizenship. Rawls wants to do so, however, without turning to the patriotism of a national consciousness or pride in the particulars of one’s regime. Instead, he requires everyone who wants to participate in the political process to agree on his two principles of justice as fairness. He calls this required agreement an overlapping consensus.
In the political world, forming a consensus can be a practical necessity in order to pass a law or take an action when time or circumstances do not permit full and open discussion, but this is not what Rawls has in mind. For him, an overlapping consensus is not simply to be accepted as useful or prudential; it is to be embraced as morally obligatory. Most political consensuses deal with what must be done in terms of policy, but Rawls’s overlapping consensus enshrines as right the principles of justice as fairness. He leaves no room for disagreeing with these principles for those who wish to have any legitimate political influence. You are either with Rawls on what is just and become a player in the formation of public policy and law, or you keep quiet and stay home. Rawls is concerned not with practical means of getting things done in a diverse nation like America, but with maintaining unity among people devoted to identity politics.
Rawls would like Americans to take their political bearings from an overlapping consensus as to what is just rather than from the text of the Constitution. In essence, he wants nothing less than for the Constitution itself to be reinterpreted in light of a consensus that is centered on his own principles of justice. Rawls recognizes that for his theory to work in the United States, he has to replace the Constitution—and the principles of the Declaration of Independence that inform it—with justice as fairness as the common meeting ground of the American people. No longer are the people to turn to the Constitution as the source of authority and legitimacy for public actions; instead, they are to understand legitimacy as springing from the overlapping consensus that Rawls hopes we will come to embrace.
To bring this about, Rawls intends to persuade us that the principles of his theory are more democratic than the Constitution and thus more in line with popular will. His principle, he argues, does more to protect popular forms of liberty than the Constitution does; therefore, the former must be used to interpret the latter. Likewise, he believes that his second principle grants the legislative branch more power to enact egalitarian policies when they are popular than does the Constitution, once again making it necessary to use the former to interpret the latter. In general, he is willing to keep the formal procedures of the Constitution so long as they do not get in the way of greater equal rights for all identity groups and greater egalitarian social policies demanded by the people.
To be sure, public sentiment and majority opinion should play an important role in the formation of policy, but the Constitution was designed specifically to temper popular sentiments in order to encourage deliberation and compromise. From the perspective of many of our Founders, the lawmaking process should be judged not by its ability to reflect popular hopes accurately, but by its tendency to fashion sound policies for the American people with a view to the common good. As Madison argues in Federalist No. 51, the separation of powers is intended to help the government control itself. This includes the ability to deliberate over popular opinion rather than simply enacting it, whereas the logic of Rawls’s theory encourages the opposite. The Constitution better protects liberty by affording everyone, even those outside of an overlapping consensus, a chance to offer public arguments on whatever grounds they think right.
In addition to the constitutional concerns, Rawlsian consensus politics is dangerous because of the moral stigma it places on those outside of the overlapping consensus. In Rawls’s hoped-for regime, showing that one speaks as a member of the overlapping consensus becomes a crucial way to win a debate, and little room is available to talk to, let alone work with, someone who disagrees with the mainstream opinion of justice. To be in the minority in a country that has given itself over to Rawlsian principles entails not only the good chance of losing in a policy dispute, but also—and more crucially—being publicly shamed for holding unpopular views. Rawls’s liberalism has a hard time escaping the accusation that it is illiberal.
In this regard, Rawls’s idea of an overlapping consensus encourages two of America’s unhealthy political tendencies.
It is important to recognize, however, that the strong moral pressure employed through consensus politics is a necessary corollary of identity politics. The only way to overcome the inevitable polarization of identity politics is to impose lines of consensus that cannot be crossed without serious repercussions. First and foremost, Rawls would have us all agree not to question identity politics. We are not allowed to scoff at those who treat abstract identity groups as the primary units of political life; indeed, we are pushed to do so ourselves. Likewise, we can expect severe reprimands for not using politically correct terminology. In this environment, the constitutional principle of the rule of law becomes the rule of the consensus, changing the way we approach and think about politics.
The Naked Public Square
Rawls’s theory of the overlapping consensus necessarily gives rise to the idea of public reason, which sets restrictions on the types of arguments that can be made for or against laws. Most significantly, if their laws are to be legitimate, legislators are restricted from rooting arguments in their own religious traditions or some other standard that transcends the consensus. Americans, Rawls tells us, have accepted the notion that church and state are separate and that an impregnable wall exists between them. His theory thus encourages the type of naked public square that is intolerant of public displays of religious belief.
Initially, Rawls was dubious about all appeals to religion in politics, but later, he hesitantly agreed that they are acceptable when they are consistent with—which is to say subordinated to—public reason. For example, one might argue that the Catholic Church’s preferential regard for the poor does not seem to contradict Rawls’s argument that disparities in wealth have to work to the advantage of the poor. The Church’s position, however, stems from its teaching on charity, not justice. Rawls would say that so long as Catholic public officials do not expect their fellow citizens to believe in the Gospel, arguments from Christian social teaching are acceptable if they can be explained or at least supported by the standard of public reason. In other words, religion is tolerated as long as it plays by the rules of public reason.
It is actually quite remarkable just how well Rawlsian public reason filters arguments so that only policies that liberals favor make it through. In one of his most controversial examples, Rawls states that there could be no legitimate argument against abortion using public reason. Thus, the Church’s position on the poor is seen as reasonable because it seems to cohere with liberal principles of justice, but its stance on abortion is unreasonable even though it stems from the same commitment to charity. In practice, public reason seems to ensure liberal outcomes by disqualifying any counterarguments.
But even if Rawls’s comments on abortion have been misunderstood (as he would later claim) and pro-life and other conservative positions could in fact be legitimate, anyone willing to push these ideas would have to make sure that the end result does not run afoul of liberal principles. Rawls’s challenge is this: If you want to outlaw abortion, you have to make an argument that even those affected most by the policy (women with unwanted pregnancies) could accept as reasonable; if you want to do away with a welfare program, you have to make the case in a way that beneficiaries would accept as just; if you want to maintain the traditional understanding of marriage, you have to convince homosexuals wanting to marry; or if you want to outlaw euthanasia, you have to persuade the terminally ill who are in severe pain.
Each of these is close to an impossible task, yet this is precisely the direction in which more and more American politicians seem to be going, regardless of their party affiliation. Although politicians may never use the words “public reason,” they often use the language of consensus.
An excellent example of this is Mario Cuomo’s 1984 lecture at the University of Notre Dame. In this well-known address, the then-governor of New York made the following argument:
Our public morality, then—the moral standards we maintain for everyone, not just the ones we insist on in our private lives—depends on a consensus view of right and wrong. The values derived from religious belief will not—and should not—be accepted as part of the public morality unless they are shared by the pluralistic community at large, by consensus.
Though very few are capable of articulating it as clearly, Cuomo’s argument has become commonplace among politicians today. Like Cuomo, they tell us that they personally believe something is wrong, maybe even egregiously wrong, but in their public capacity, they cannot treat it as a wrong because they do not want to force their values on others. This argument is a condensed version of Rawls’s theory.
If Rawls expects lawmakers to limit their political debates to the terms of a public consensus, what does he ask of everyday citizens? They are even less likely to have encountered Rawls’s works than are the representatives they elect. Rawls never argues that discussions among citizens and lawmakers have to meet the same level of public reason, but he hopes that lawmakers at least will serve as a positive example to be followed. He recognizes that most people most of the time cannot be expected to separate their view of the good from their policy preferences, but he hopes that his consensus approach will put pressure on citizens either to conform to liberal principles or to remain silent.
Alexis de Tocqueville describes the power of social pressure in democracies in the following way:
Under the absolute government of one alone, despotism struck the body crudely…and the soul, escaping from those blows, rose gloriously above it; but in democratic republics, tyranny does not proceed in this way; it leaves the body and goes straight for the soul. The master no longer says to it: You shall think as I do or you shall die; he says: You are free not to think as I do; your life, your goods, everything remains to you; but from this day on, you are a stranger among us…. You shall remain among men, but you shall lose your rights of humanity.
Tocqueville comes close to predicting Rawls and the rhetoric of consensus politics. Rawls says that people can disagree with the principle of an overlapping consensus, but he also says that they are unreasonable if they do so. Advancing a policy using unreasonable arguments is to proceed illegitimately. Such a person could make his case, but Rawls hopes that no one will listen. Such a person would be effectively ostracized. Thus, there is tremendous pressure to float in the mainstream of public opinion—to remain politically correct.
It turns out that the greatest pressure to remain politically correct corresponds to identity politics for both lawmakers and the general public. The past decade or so has seen many politicians and celebrities losing battles over their reputations for saying something outside of the consensus view about some disadvantaged group. This type of speech can get people in hot water even when they voice their opinions privately or in the form of humor. There is no need for the government to punish us when we say something against disadvantaged groups: Social pressure can reach us in the most intimate of situations.
The fact that Tocqueville discovered the power that public opinion has over thought in America long before Rawls wrote his first book might indicate that Rawls’s theory is not to blame for our tendency to stigmatize those who do not subscribe to certain accepted views. This is true, but Rawls’s theory can be blamed for lending legitimacy to the practice. Rawls teaches that any argument that does fall outside of the majority view is by definition unreasonable, illegitimate, and therefore unconstitutional.
The original position, the overlapping consensus, and public reason led Rawls to include in his theory an ideal of constitutional interpretation that has provided the United States judiciary with a means of defending its proclivity toward activism. Specifically, Rawls argues that the Constitution is legitimate when it prohibits unfair advantages to particular groups, gives voice to the consensus of the community, and ensures that all laws are grounded in public reason. In short, Rawls expects the Supreme Court to interpret the Constitution using his theory as a guide, making the judges what he calls “the exemplars of public reason.” In practice, this would mean that the Court could rule a law unconstitutional not for being against the text of the document but for running afoul of Rawlsian principles of justice.
But how are judges supposed to figure out how to evaluate laws in light of philosophical theories? Rawls explains that professors have a political role to play in a constitutional regime by educating the courts and, when it is legitimate, trying to persuade judges to override the will of a democratic majority. Scholars engage in what he calls “constitutional politics” when they write academic works that are intended to influence the way judges interpret the Constitution.
Many acclaimed scholars have followed Rawls’s instructions. Bruce Ackerman, for instance, is perhaps best known for his three-part reinterpretation of United States constitutional history, We the People, which argues that the Constitution’s meaning has changed naturally and continuously to reflect popular consensuses. Similarly, Ronald Dworkin has authored several books in defense of a philosophic reading of the Constitution that is much in keeping with Rawls’s theory. Another prominent law professor, Frank Michelman, has defended Justice William Brennan, perhaps the most outspokenly liberal judge in the Court’s history, in terms reminiscent of justice as fairness.
Rawls hoped to influence, and indeed succeeded in influencing, professors like these who have wide influence in law schools throughout America. Yet many problems have emerged from his teaching.
First, “constitutional politics” can be and has been pursued far more aggressively than Rawls or his immediate students would have ever expected. One rather zealous scholar, for example, has called on judges to use their power of judicial review to enforce Rawlsian liberalism. Invoking “the spirit of John Rawls,” he says that “judges must not allow voters and legislators to appeal to the ‘truth’ of their conceptions of the good life or their visions of a good society when they enact laws that undermine freedom and equality.” Judges are asked in effect to determine constitutionality by measuring lawmakers’ intentions in light of Rawlsian principles rather than ensuring that the law falls within the text of the Constitution, thereby biasing constitutional law in favor of policies that reflect the original position and the overlapping consensus as expressed using public reason.
A second problem with “constitutional politics” is that, contrary to Rawls’s promise, it ends up worsening political polarization in America. By encouraging the courts rather than the legislative assemblies to decide on controversial issues, Rawls’s approach stifles debate and deliberation. Every time the Supreme Court declares something to be off the political table because it violates a principle such as those Rawls proposes, another debate is removed from the lower ground of policy and handed over to the winner-take-all realm of “constitutional politics.” No room is left for compromise, and political polarization is inflated.
In addition to these problems, what Rawls is asking of the Court is fraught with practical difficulties. Does Rawls want the Supreme Court to reflect an already established public consensus, or are judges to help foster that consensus? To call judges exemplars of public reason suggests the latter, but Rawls recognizes the importance of tying judicial opinions to some standard outside the Court, such as the principles of his theory. Judges inclined to Rawls’s perspective thus find themselves in the awkward position of explaining the Constitution’s meaning with reference to an amorphous consensus that is nearly impossible to know or prove.
A good example of the Supreme Court’s elevation of consensus politics is its death penalty jurisprudence over the past several decades. The question is whether capital punishment is cruel and unusual and therefore prohibited by the Eighth Amendment. In 1958, Chief Justice Earl Warren argued that the meaning of this clause is determined by the “evolving standards of decency that mark the progress of a maturing society.” This sentiment later found its theoretical justification in Rawls’s work, and the Court has since tried to keep tabs on these evolving standards by trying to identify consensuses. To find them, judges have looked at such things as recently passed state laws, public opinion polls, and even the laws of other nations. Under this method of consensus-watching, the Court has determined that the death penalty is unconstitutional when the defendant is mentally retarded (Atkins v. Virginia, 2002); when the defendant is a juvenile (Roper v. Simmons, 2005); and in cases of rape involving minors (Kennedy v. Louisiana, 2008).
In each of these cases, the Court takes the Rawlsian posture of identifying a public consensus and then using it to interpret the Constitution. But as dissenting opinions in these cases correctly point out, the Court is using the consensus jargon to hide its efforts to make the Eighth Amendment consistent with liberal principles of justice. If the American public is indeed becoming uncomfortable with the use of the death penalty in these cases, it should work this out through normal democratic procedures and not by judicial fiat. Ultimately, Rawls’s method of interpretation forces judges to rely on public opinion as a standard in judging the Constitution.
The Court’s consensus-seeking posture is used most often to defend an alleged fundamental right denied by a state, but Rawls’s theory also provides the Court with the means of deflecting a federal law that runs contrary to a liberal principle of justice. Take, for instance, the 2013 case of United States v. Windsor, which ruled the Defense of Marriage Act unconstitutional. The constitutional reason for doing so, as Justice Antonin Scalia points out in his dissent, is rather vague. What is stated quite clearly, however, is that “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.” The law, in other words, is unconstitutional because the group affected could not be expected to view it as reasonable in a Rawlsian original position. The law is therefore illegitimate not because it violates something in the Constitution, but rather because it violates liberal principles of justice and public reason.
Obviously, there are times when the Court has to consider Congress’s (or a state’s) intent when considering the meaning of a law, just as it may consider the Framers’ intentions when interpreting the Constitution. Moreover, if Congress clearly intended to do something contrary to the Constitution, the Court arguably could use its power of judicial review to overturn such an action. Most judges would acknowledge, however, that laws should not be invalidated merely because they are misguided, ineffective, or silly.
But what if laws are unjust even though otherwise perfectly constitutional? This is a trickier problem, especially in a society that lacks a coherent public understanding of justice. In such cases, Rawls argues that courts should use judicial review to provide coherence and solidify a common framework of justice—and, of course, he hopes that judges will choose his framework.
He also understands that court decisions, particularly Supreme Court decisions, affect the way legislators understand the boundaries of their authority. Alexis de Tocqueville understood as far back as the 1830s that most political questions in America are subject to adjudication. Rawls agrees and argues that the Supreme Court is the exemplar of public reason. He hopes the Court will show legislators not only the extent of their power, but the types of arguments and motives that are legitimate based on the degree to which they are consistent with liberal principles.
Rawls and the Public Mind
Through the agency of many academics, lawyers, politicians, and judges, Rawls’s ideas have gained currency in the public mind, but his influence, as extensive as it is, is far from complete. Generally speaking, those on the political left have more fully embraced Rawls and have worked to implement his ideals in law, policy, and culture. Whether they will succeed is largely dependent on whether the American respect for the Constitution can be replaced by an overwhelming concern that everything political must live up to the standards of Rawlsian justice as fairness.
Respecting—even revering—the Constitution was very important to the Founders and Abraham Lincoln. Both James Madison’s Federalist No. 49 and Lincoln’s Lyceum Address warn of the violence that can erupt when the people’s faith in the Constitution is unduly questioned. Even the best of governments, Madison tells us, cannot function without the trust of the people. Lincoln is even more explicit about the dangers a nation faces when it seeks justice outside of the law; if people stop respecting their Constitution, they will open themselves to the whims of an ambitious demagogue.
Rawls does not advocate irreverence toward the American framework of government, but his theory can be translated into political life only if the people have more respect for an abstract view of justice than they have for the concrete text of the Constitution. Traditionally, this document represents something akin to a social contract among “we the people” of the United States, and its words provide a convenient reference point for common agreement about how our government should operate. Rawls asks Americans to rethink their starting point. The real social contract is not the Constitution, but a hypothetical original position around which he hopes we can form a new consensus. It is this consensus, and not the Constitution, to which he asks us to give our reverence.
Much, then, depends on the allegiance of the American people. Will they continue to commit themselves to the natural rights principles of the Declaration of Independence, or will they instead be animated by the principles of justice as fairness? Will they continue to regard the Constitution with deep respect, or will the allure of popular consensuses attract their deeper devotion?
If Americans continue to absorb the teachings of John Rawls, however unconsciously, we can expect to see more identity politics, consensus politics, and judicial supremacy. Ultimately, identity and consensus politics both prevent the prudential decision-making that the Constitution is meant to protect and encourage political polarization. They manifest themselves in public reason, political correctness, and the naked public square, all of which act like trump cards pulled out to stop the real deliberation that is necessary if we are to continue living in a constitutional republic.
The tendencies that Rawls’s theory justifies and encourages are thus dangerous to the political health of our regime. Checking and discouraging these tendencies is not easy, and completely eliminating them is probably impossible. Controlling their harmful effects will require understanding why they are so prevalent in modern America, and John Rawls’s theory is an essential part of any such understanding.—Jerome C. Foss, PhD, is an Assistant Professor of Politics in the Alex G. McKenna School of Business, Economics, and Government and a Fellow in Political Institutions and Policy in the Center for Political and Economic Thought at Saint Vincent College and author of Constitutional Democracy and Judicial Supremacy: John Rawls and the Transformation of American Politics (Cambria Press, 2016).