Americans cannot live with judicial review, but they cannot live
without it. There is something characteristically American about
turning the most divisive political questions - like freedom of
religion, same-sex marriage, affirmative action and abortion - into
legal questions with the hope that courts can answer them. In
Judicial Review in an Age of Moral Pluralism Ronald C. Den Otter
addresses how judicial review can be improved to strike the
appropriate balance between legislative and judicial power under
conditions of moral pluralism. His defense of judicial review is
predicated on the imperative of ensuring that the reasons that the
state offers on behalf of its most important laws are consistent
with the freedom and equality of all persons. Den Otter ties this
defense to a theory of constitutional adjudication based on John
Rawls's idea of public reason and argues that a law that is not
sufficiently publicly justified is unconstitutional, thus
addressing when courts should invalidate laws and when they should
uphold them even in the midst of reasonable disagreement about the
correct outcome in particular constitutional controversies.
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