Pluralism and Public Legal Reason

INTRODUCTION: DIVISION, RELIGION, AND THE CONSTITUTION What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism - liberty of conscience, toleration, limited government, and the rule of law? This Article explores these questions from the perspective of contemporary political philosophy and constitutional theory. The thesis of the Article is that pluralism - the diversity of religious and secular conceptions of the good - can and should work as a force for constitutional consensus and that such a consensus is best realized through commitment to an ideal of public legal reason instantiated by the practice of legal formalism. The case for these claims is made in five parts. After this introduction, Part I, "The Fact of Pluralism in the Context of Contemporary Religious Division," explores the idea of religious division in light of an important notion in political philosophy - the idea that John Rawls calls "the fact of reasonable pluralism." Part II, "Public Legal Reason," argues that the fact of pluralism has important normative consequences for the foundations of normative legal theory and argues for an ideal of "public legal reason." Part LU, "Legal Formalism," contends that this idea is best realized in constitutional practice through a formalist approach to constitutional interpretation - one that deliberately eschews direct reliance on religious and secular comprehensive conceptions of the good. Part IV, "Feasibility and Positive Theory," discusses the question of whether this ideal of public legal reason and the corresponding conception of constitutional formalism are realistic, given the constraints imposed by democratic politics under contemporary conditions. Finally, Part V, "Religious Division Revisited: From Pluralism to Formalism," brings the discussion to a close. I. THE FACT OF PLURALISM IN THE CONTEXT OF CONTEMPORARY RELIGIOUS DIVISION The idea that religion may play a divisive role is a familiar one. Looking outward, we see violent conflicts between Sunni and Shia, Moslem and Jew, Protestant and Catholic. Looking inward, the idea of culture wars is associated with the division between liberal and conservative religious traditions and between theist and secular conceptions of the good.1 Looking backward in our own tradition, there is a long history of division along religious lines. There are many different routes by which the phenomenon of religious division can be approached. One route is via the idea that John Rawls, the eminent political philosopher, called "the fact of pluralism" - the fact that there is a "plurality of conflicting, and indeed incommensurable, conceptions of the meaning, value and purpose of human life."2 The fact of pluralism has been an enduring feature of Western culture since the wars of religion of the sixteenth century.3 During the modern period, no society that permits liberty of conscience and freedom of expression has unified on a single comprehensive conception of the good.4 Instead, modernity is characterized by disagreements about ultimate questions of value - and hence by religious division. Thus, the United States in the early twenty-first century includes adherents of a variety of doctrines - Catholics, Protestants, Jews, Moslems, Buddhists, and many others - and there are further divisions between theists and atheists and among a variety of secular concepts of the good and the right. This fact of pluralism is not just a bare fact, not just an accident of history. It is, Rawls argues, the likely (or even perhaps inevitable) result of freedom of conscience and expression in an open society.5 The reason for its inevitability is that even fully reasonable and rational persons are subject to what Rawls calls "the burdens of judgment. …