Response

Rawls, or Rawlsian?

Constitutional-democratic societies – thus do I posit at the start of CE – can be seen looking to their constitutions for two distinct types of services or functions that the book picks out and names as ‘regulatory’ and ‘justificatory’ (Michelman 2022, 3–6). ¹ These two demands that we make on our bodies of higher law and their administration – so further do I offer at the start of the book – while mutually entangled are non-congruent, sometimes divergent in their respective apparent implications for the conduct of political and legal affairs. A tracing of ways in which this entanglement of incongruent demands on constitutional law finds expression in constitutional-legal and allied discourses is one declared main undertaking of CE (Michelman 2022, 8–12).

But of course, that is not the book’s only thematic axis, nor the one that has mainly occupied the commentators here. As archetype for a philosophical exposition of the justificatory function of a legal constitution, the book takes a proposition from John Rawls for the constitution’s pivotal location in a so-named ‘liberal principle of legitimacy’ (‘LPL’) (Michelman 2022: 21–22). CE then pursues, from chapter to chapter, my extractions from Rawls’s works of a particular line of thought I find to be embedded there, about how ‘justification-by-constitution’ (as I labeled the idea – see Michelman 2022: 21–22) might possibly work in terms of presupposed or requisite attitudes and conduct of citizens, officials, and courts of law. The book in that respect hovers between the genres of the strictly exegetical (‘Rawls’) and the more broadly interpretive or constructive (‘Rawlsian’) sort of argument advanced by Jim Fleming and Linda McClain (Fleming and McClain 2024). I have read Rawls to be offering, in effect – perhaps not as a primary objective but still as a load-bearing arm in the philosophical construction of a ‘political’ liberalism – an instructive guide to constitutional practice in constitutional-democratic societies. That guidance, on my reading, issues from a particular perception – the Rawlsian condensation for which is the LPL – of point and purpose in a society’s convergence on a submission of its politics to constitutional control. CE’s exposition of that guidance moves back and forth between Rawls’s texts and my extractions therefrom.

I read the Rawlsian LPL as a proposition for justification-by-constitution. The commentaries here mainly endorse that reading, or anyway take it as given for the sake of their discussions of the idea’s merits, plausibility, extensions, limitations, or what have you. It is to responses of that ilk that my attentions here will mainly be addressed. I begin, however, with the one contribution, from Silje Langvatn, that does take as its core concern the question of a Rawlsian provenance for a proposition for justification-by-constitution, of the sort presented in CE. ²

A twofold exegetical question

Any given reader’s answer to that question will turn on a comparison of what CE reads in Rawls with what that reader reads there. Or rather, to speak now more precisely – because here will lie the gist of my conversation with Silje – it will turn on a comparison of what that reader reads in CE with what they read in Rawls. Issues arise here because Silje takes CE’s idea of justification-by-constitution to be a proposition for a shift of political-justificatory focus away from substantive principles and values, so as to place that focus ‘instead’ (‘rather’) on compliance with a constitution-in-force (Langvatn, 2024). And no doubt she is right that an attribution to Rawls of any such intention as that would be insupportable. The question here, though, is about whether CE commits that mistake or comes close to doing to.

As Silje shows, an attribution to Rawls of a proposition to keep political justification clear of appeal to substantive principles and values would run headlong against the stipulation in the LPL for a constitution ‘the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational’ (Rawls 1993, 217 as quoted by (Langvatn, 2024). It would have Rawls resting justification on a bare procedural consensus – as opposed, that is, to a substantive convergence on ‘“a family of political liberal conceptions of justice” that all citizens can accept as at least reasonable’ (Ibid).

Such an attribution to Rawls would be a clear mistake. Did CE nevertheless by some terrible accident make it? I do not see how. CE quite affirmatively construes the Rawlsian proposition there as one for the dependency of political justification on fulfillment of certain liberally non-compromisable substantive principles and values (see Michelman 2022, 90–99). The book does, to be sure, contain a disagreement with Langvatn’s present remarks – not, however, over the key importance to Rawls of that dependency on substance, but rather over what follows from it. According to Langvatn, what follows for Rawls is that compatibility with the constitution is ‘necessary but not sufficient’ for justification ((Langvatn, 2024)). CE, to the contrary, says that what follows for Rawls is that constitutional compatibility can be sufficient when given a constitution measuring up to a certain substantive standard of justification-worthiness. The LPL thus is offered by Rawls as a proposition for how to achieve, in challenging social conditions, a substantively legitimating consensus: to wit, by the device of a ‘dualist’ legal-normative order in which the essential substantive terms of consensus are contained in the upper-layer norm. ³

Such is the message of CE. I leave further confirmation to my pending responses to other commentaries. Along with such confirmation should come abatement of any worry about a deviation in CE from Langvatn’s just and welcome remarks on the Rawlsian notions of public reason, the supreme court as exemplar thereof, and the application of the ideals of public reason and political legitimacy to the political and juridical conduct, respectively, of citizens, officials, and judges in constitutional democracies.

Chords of resonance with themes in CE

Critical or complacent?

What should be our sense of the political-liberal philosophy’s once-and-future relevance to the unfolding in our times of our societies’ constitutional fates? That concern, here given voice especially by Sanford Levinson and Jim Fleming/Linda McClain, must of course be a looming one for everyone here. A very low-key response to it will come later on in these reflections. What I want to say right here, though, and most emphatically, is that CE’s rendition of a Rawlsian guide to constitutional purpose and practice is not offered as an acquittal of actual past or present political or judicial practice in the United States or anywhere in the world, or as invitation to complacency regarding such practice. ⁷ My hopes for the book would run to quite different effect.

Let’s take as an example Steven Winter’s aversive response to CE’s treatment of the US Supreme Court’s judgment in Rucho (Rucho v. Common Cause, 588 U.S. ___ (2019), discussed in (Winter, 2024)), barring access to United States courts for actions in quest of constitution-based relief against even the most blatantly partisan manipulation of the boundaries of congressional election districts. My phrase ‘constitution-based’ there is not a throwaway. The complaining victims in the cases at hand had rested their legal claims not on any current or recent upsurge of an American popular will – not on any state or local legislation or Act of Congress, not on any recent democratic groundswell or referendum – but rather and only on certain abstract guarantees in the US Constitution of 1787 and 1868, respecting the equal protection of the laws, the freedom of speech, and choice ‘by the people’ of their representatives in Congress. The Supreme Court in Rucho refused for the courts of the U.S. the role of dictating to the country the shape and extent of the assurance those constitutional clauses should be read to impose against partisan manipulations, by sitting state legislative majorities, of a state’s congressional districting map.

The Court did so professedly for the reason that it could not find in those clauses a firm ground for such dictation (necessarily to be implemented by non-vague judicial remedial orders), without raising plausible suspicion of feathering the various judges’ own (narrow-sense) partisan nests. And there it is the word ‘professedly’ that’s not a throwaway. As I wrote in my discussion of the Rucho case, that reason does qua reason (regardless of whether we find it sincerely voiced on this or that particular occasion) correspond with a more general dilemma posed for Rawlsian justification-by-constitution where a country relies on a supreme court as its sole trusted final near-term decider of constitutional applications (see Michelman 2022, 160–61). The Rawlsian guidance, on my reading, counts that resulting dilemma as a consideration weighing against such top-heavy, all-in reliance on a supreme court; but some countries do so rely. Where they do, can we count at nil the general counsel of caution purportedly heeded by the Rucho Court? No dilemma there?

Steve Winter at one point describes his preferred conception of a constitution for a democracy (allowing that we are to speak at all in such terms) as ‘non-dualist’ and then again as ‘only nominally dualist’ (Winter, 2024). Even so, Steve is able to castigate the Rucho Court for its posture of abstention, and one may ask how far that does after all align him with the idea of a dualist legal order. One might from that stance infer a receptivity to such an order, provided that (i) its higher law contained only a single abstract demand – that for a government conforming to processes of deliberative majority rule under conditions of fair equality of access among equally valued constituents – and (ii) whatever might be the order’s disciplinary institutions or processes in respect of that demand, we could trust them to invoke it only when – but whenever – their attentions were called to the sort of flagrant, shameless insult to it as the Rucho Court confronted. (Look now, if you will, to the epigraph to this essay).

If nevertheless Winter stands adamantly closed against even that whiff of dualism, it would have to be because of doubt that condition (ii) could ever be satisfied in practice. Let us then take that as a decisive (and warranted) doubt on his part. Might we even so still say welcome, Steve, to the club of constitutional democrats? Democracy, we could say, is constitutionally conceived just insofar as conceived by way of distinction from some raw idea of government by crowd – just insofar as we have in view there some higher normative conception of an organized process of deliberation and exchange among constituents regarded and treated as free and equal. Such a conception is still constitutional, we could go on, when it trusts to a popular process currently in place for disciplinary guidance and correction of itself over time – in preference, that is, to trusting in a cadre of always suspectedly partisan or power-drunk judicial elites.

To say that we thus trust in ‘democracy’ to decide on these matters of need for discipline and correction is to say that we trust in an observable concrete practice-in-place. It is to say we take that practice not only to correspond adequately (if always imperfectly and improvably) to some higher political conception that is ours, but further to do so in a way that promises (better than any alternative we can see) to sustain such a correspondence over a pending future stretch of historical time, under changing circumstances and social learning. An instrumental-pragmatic choice of that sort can occur, we could say, only within, only given, commitment to a normative-procedural pursuit of a deliberative-democratic form of rule among constituents mutually regarded and valued as free and equal. And so there is still a dualism there, of a sort that is more than nominal – still a premise of a pro tempore fixation of a higher norm by which estimates of probable outcomes from competing practical arrangements (democratic self-regulation versus judicial overseers) can possibly be compared for compatibility.

That does not yet, though, make for a necessary implication of normative dualism either in deep-democratic thought or in Steven Winter’s subscription thereto. Apparently alive and at work in Steve’s professed anti-dualist stance is not only a workaday pragmatism of a concern (as they say) for ‘what works’, but furthermore a philosophical stance (also called ‘pragmatist’) of entrenched wariness of deductions from dogmatically presupposed high principles as certifiable guides to right responses to local social controversies. That does pose a genuine issue for the Rawlsian proceduralistic proposition for justification by constitution, which I cannot here try to pursue any further than I have taken it so far.

Except to insist again that the philosophical-pragmatist worry does not touch on anything I wrote in CE about the Rucho case. Unacceptable to our anti-dogmaticist philosophical pragmatist might be active judicial intervention against ordinary-level legislative programs for control of partisan gerrymanders, with that intervention purportedly justified by some asserted abstract higher-law principle (say, of political liberty). No such judicial butting into ground-level politics occurred in Rucho. The Court’s stand there (so far as it could be called a stand at all) was to the opposite effect of leaving to everyday lawmaking the question of a constitutionally responsible answer to the blight of partisan gerrymander. Note I do not say that an abstract-liberty-based interference from our Court would have been a particularly startling occurrence in the American constitutional milieu. When, however, it does occur, the Rawlsian constitutional construction of my book should respond neither with horror nor with glee, but with occasion-specific appraisal of the Court’s management of the dilemma confronting it. That Rawlsian construction does lean, after all, against an overweening pretension by any institutionally cabined participant in constitutional democracy to an exclusive final say over the grainy truth of basic rights (see Michelman 2022, 165–66, 191); but still some cases – so says Ros Dixon’s ‘tiering’ proposition (with support from Steve Winter?) – can demand a different order of judicial response.

If the Rawlsian court is one that would ration thus its outputs of dogmatic rights-dictations, we could ask how great would be the distance from there to Sandy Levinson’s suggestion that there could be times and contexts in which the very commitment to rights as such could be taken too seriously or too far (Levinson 2024). John Rawls himself saw need to allow for the case of primitive economic or other emergency conditions that ‘do not allow the effective establishment of these rights’ because, say, survival and security must take precedence (Rawls, 1971, 542). But that is not exactly the case posed by Sandy, whom I understand to have in view a situation, call it Hobbesian, of cultural breakdown endangering conditions of amicable civil order, to the liberal-minded even prior in importance to a regard for rights that only such an order can implement. Paraphrasing Rawls, the question then would be about application of a prior principle of survival/security ‘to [the liberal] philosophy itself’. ⁸

I do not say we are standing now at the edge of that Hobbesian situation (see Michelman 2022, 193–97). But neither would I wish my book to be read as complacent, or as presenting John Rawls as complacent, about the particular American (or any comparable) exemplification of a regime of rights-based constitutional essentials.

Limiting assumptions: Realistic Utopia

In the Rawlsian political-liberal conception, a body of higher laws fulfills a justificatory function just insofar as it sufficiently ‘supplies a basis on which free and equal citizens, some of them finding deeply wrong and repugnant some of the laws right now issuing from the duly constituted authorities, can nevertheless freely and willingly accept those laws and be prepared normally to abide by them’ (Michelman 2022, 4). Rawls thus would have us salvage, from the turmoil of political sensibilities demanding respect in our societies today, a canon of shared political reason sufficiently ‘complete’ (in the Rawlsian turn of phrase) to cabin and pacify our terms of debate at least over matters ‘involving the constitutional essentials and basic questions of justice’ (Rawls 1993, 225; 1997, 777-78). Anyone may more or less intensely doubt the realizability, in principle or in practice, of such a demand; and of course that must figure into their calculus of relevance-for-us of any proposition for justification-by-constitution. Now, that point holds no less for Rawls or for me than it does (say) for Dennis Davis or Andrew Koppelman. No more than with Dennis or Andy could Rawls (or I reading him) be proceeding here with an Olympian disdain for the crooked timber of humanity. I have read Rawls to be expressly hinging the question of the interest to us of justification-by-constitution on a contingency of social-factual suppositions, whose fulfillment would define (in Rawlsian) a ‘utopia’ that might or might not strike an audience as appropriately realistic (Michelman 2022, 90–91).

‘“Appropriately” realistic?’ you ask, ‘meaning precisely what?’ Here is what. Presupposed in the Rawlsian utopia are, first, a widespread mutual regard among citizens for themselves and one another as ‘free and equal’ in certain crucial respects pertaining to ethical and moral agency; and then, second, an immanent convergence among them on a corresponding set of limits (‘public reason’) on what can and cannot count as premises in their discourses of justification for events of political coercion (Michelman 2022, 17–19). But note, now, that these limiting conditions on the proceduralistic proposition for justification-by-constitution need not be taken (or taken simply) to sound as statements of what empirical sociology could confirm as within realistic hope for the entire population of any country now or ever. We can rather take the utopian conditions in the alternative sense of stipulations of a boundary around that fraction of our fellow citizens to whom the ‘we’ in constitutional democracies should think we owe justification for our politically potent acts and stances – or those (to use my words for this in CE) for whose receptivity to justification-by-constitution we find ourselves having ‘good moral reason to care’ (Michelman 2022, 24).

To take it in that second way is to expose the Rawlsian project to rejection as too narrowly sectarian – say, too parochially or passé (sniff) liberal – to make an acceptably humane or generous fit to the world as we currently find it. Interestingly to me, I do not find any of the commentaries here staking out that view as their own. ⁹ The quest, after all (to put this now in Steve Winter’s terms – again the epigraph to this essay) is to see how an institutional conception, commitment, or practice possibly, in conditions of reasonable pluralism, can constitute the freedom and equality of citizens that ‘we all—liberals and strong democrats—take as essential’. Steve’s ‘we all’ appears to me to take in all the commentaries here. None disparage the quest as one in which we have no urgent stake or take no urgent interest. Sandy Levinson’s report of the owl taking flight might come closest (see Levinson 2024), but still I read Sandy, along with fellow owl-watchers Fleming and McClain (see Fleming and McClain 2024), and the rest of the company here as hangers-on to that certain historical tradition in politics, very broadly speaking liberal in tendency, invoked by Rawls under the name of constitutional democracy (Michelman 2022, 123).

It is as offshoot from the main trunk of that tradition that the philosophy of political liberalism comes forth. This branching project may be animated by a hope of instilling in some who now lack it an awareness of a sympathy they share for a liberal outlook in politics when broadly enough depicted. It has at the same time, and reciprocally, an aim of guidance of the liberal outlook toward its most apt manifestation in the modern problematic situation of an extant plurality of philosophical and metaphysical views abroad in society – not all of them readily explainable as liberal in their deepest wellsprings or in all their implications for politics – which not only is it the liberal outlook’s destiny to engender but which it is furthermore that outlook’s core commitment to allow for and respect.

Confrontation with that condition does indeed pose a kind of bafflement to liberal political theorizing. It is what leads Rawls to forswear defense of the theory of justice ‘as fairness’, elaborately developed by him in A Theory of Justice, as deducible from some trans-politically higher ‘comprehensive’ doctrine, in favor of its defense as a politically speaking most reasonable guide ‘for us’ to the conduct of our politics (Rawls 1993, xlviii, 28; 2001: xvii). ‘Reasonable’, that is to say, by the lights of an experientially identifiable tradition or culture of recognition of ourselves and one another as free and equal co-participants in schemes of social cooperation; reasonable as your or my choice of guide from among others to be culled from that tradition (composing, as Rawls says, a ‘family’ of such guides), the one that Rawls continues to defend as the most reasonable for us (Ibid).

The quest, in sum, is one for clarification, in testing conditions, of an enduringly constitutional-democratic conception of some basic terms of rightness in politics. It is for a bringing of that conception into reflective equilibrium with a reciprocating clarification of the civic temperaments on whose possibility, in pluralist conditions, such a conception depends – yielding ‘something like’, as Andy Koppelman felicitously says, ‘the civic friendship Rawls hoped for’, but always a relationship ‘tentative and demanding’ (Koppelman 2024). The political-liberal philosophy – even though not (as Fleming/McClain and Levinson so trenchantly remind us) specifically conceived for the world as we confront it today – may still be preparatory toward it in ways that keep it worthy of attention from us still.

Exclusivity and subordination: ‘Invisible Circle’

Rawlsian justification-by-constitution depends, as I have suggested, upon a limitation of fellow citizens to whom justification is owed to those whose demands upon the constitution are correspondingly curbed to meet a certain conception of political reasonability. By the reading of CE, that curb of reasonability entails a recognition of the facts of reasonable pluralism and of burdens of judgment and, in consequence of that recognition, a readiness to accept as legitimate law the currently pending institutional applications of the constitutional essentials (as settled by lawmakers and by reviewing courts, in their turns) that we judge to reflect an at-least reasonable reading of our constitutional law, in tune with some member in a family of liberal conceptions of justice (comprising basic terms of cooperation for societies of persons mutually recognized as free and equal moral agents), even allowing that the member may be one that falls some gap away from what you or I might (reasonably) judge to be the most reasonable such conception.

Alessandro Ferrara points out that our variously held most-reasonable conceptions may divide along lines such that these gaps – between the conception we are all presently asked to accept as law and those that we variously find the most reasonable – may come not as occasionally and randomly distributed around the population, but as systemic and entrenched in the courts, perhaps even ‘in alignment with . . . the majority of voters’ (Ferrara 2024). Sandro mentions, as an example, the gap between deontological and consequentialist conceptions of justice. (He might also have cited gaps among, say, libertarian, civic-republican, and social-democratic streams of thought about political justice.) Sandro’s concern, in such a case, is with a resulting ‘invisible circle’ of graded memberships, dividing true believers in the prevailing conception or stream from those who disagree but can’t deny the prevailing one’s at-least (liberal) reasonability as a reading of the scripted constitutional essentials.

No doubt this is a serious concern. (It is one with which some Americans and some Europeans today might find themselves in a quite active sympathy). A short response from the Rawlsian side might run in two steps, as follows. First: What in Sandro’s view is giving rise to the problem is the arrival in the Rawlsian philosophy of an equation of reasonability in politics with tolerance for a family of differing reasonable liberal political conceptions. What would be alternative to that? Would it be (to stick here with the specific case of the philosopher John Rawls) (i) to insist on justice as fairness as the sole proper liberal conception of justice, in the light of which to construe and apply the constitutional essentials? That cannot triangulate with both at once of (ii) acknowledgment of discrepancies among a plurality of reasonable liberal constitutional conceptions, and (iii) the proceduralistic idea of justification-by-constitution. Adherence to (i) and (ii) together must mean giving up on (iii), while adherence to (i) and (iii) together must mean giving up on (ii). Likewise, adherence to (ii) and (iii) together must mean relinquishment of (i), while adherence to (i) and (iii) together must mean relinquishment of (ii). Sandro does not say which horn of that trilemma he would have Rawls choose.

Second: There is a way for Rawls to keep hold of all three horns simultaneously. That is by taking the essentials of any liberal constitution to include among their principal terms (are you listening, Steve?) the establishment of a properly working democracy, such that contentions over conceptions of justice will not, as Sandro fears, become ‘a totally ineffectual exercise for the background culture alone’ (Ferrara 2024). The essentials thus will encompass conditions for institutional responsiveness to a mutuality among citizens of access, influence, and resistance, conducive to a democratic process of modulation across generational time of a democratic society’s grasp of the (Dworkinian) ‘point’ of the essentials. Chapters Five and Eight of CE provide a thin sketch for that – hazy and thin to be sure but also, I would suggest, in the spirit of the vision elsewhere put forward by Ferrara for a ‘sequential’ conception of popular sovereignty, in which a ‘horizontal’ is combined with ‘vertical’ dimension of reciprocity of regard for the views of fellow citizens (see Ferrara (2023).

The hem around the circle of justification

That is, as I said, the short response. It depends, again, on the utopian possibility of a sustainable prevalence in society of the political temperaments prerequisite to those conditions of mutual access and so on. It thus cannot be meant to quiet all doubt or unease, and so we should see what more might be said about the Rawlsian hem around political reasonability, on which the conception of justification-by-constitution so crucially depends.

That brings us again to the later-arriving Rawlsian notion of a family of differing but reasonable liberal political conceptions. In A Theory of Justice (1971), Rawls had presented an elaborate and exacting – to many of us an inspiring – conception of liberal justice ‘as fairness’. That presentation arrived in the dress of one of those ‘comprehensive’ views of political rightness that Rawls would later come to say – paradoxical though this may seem – cannot be accepted liberally as providing in itself a sufficient ground of political justification, given recognition of a social fact of reasonable pluralism (see Rawls 1993, xiii, xliii-xliv): the liberal principle of toleration, again, containing no exemption for the liberal ‘philosophy itself’).

In the resulting political-liberal offshoot from the liberal main stem, Rawls can and does continue to advocate for justice as fairness as the most reasonable guide to liberal justice in a society’s basic structure. That conception can and does serve for him as a central case or template for some non-compromiseable elements in a liberal outlook. It cannot, however, anoint itself as the only liberally reasonable such conception. Limits of course remain. No liberally reasonable conception could allow any tolerance (say) for ‘police violence directed against Black and brown citizens’ (Fleming and McClain, 2024). A conception, though, can strictly enough specify such non-compromiseable liberal essentials and still be only one of a plurality of political conceptions that do likewise specify, but not all of whose ramifications to the constitutional layer in a legally dualist regime will in all cases chime with those from justice as fairness – so that (to take again Ferrara’s example) both consequentialist and deontological conceptions can fit within the family. This is one way Rawls has of sharing in the parting lament from Fleming and McClain about a loss of public readiness to distinguish ‘between [your] side winning and the result being legitimate’ (Fleming and McClain 2024).

Another, more explicit way is through proposition of the LPL. Rawls claims to establish the possibility of a dualist regime in which the fixture of a higher law can be such as to assure all who share in a certain broadly liberal (‘constitutional-democratic’) conception of political reasonability – having at its core, again, the idea of political society as a project of cooperation among persons free and equal – that the controlling constitutional applications remain within that bound of reasonability, even as their own preferred applications sometimes lose out. But that coin then has, as I have noted, its opposite side of excluding from the circle of citizens among whom justification is owed those whose comprehensive views are closed against even that kernel of liberal political sympathy. Rawls is explicit on this point: The political-liberal response to such doctrines is not to accommodate them but to ‘contain’ them so that ‘they do not undermine the unity and justice of society’ (Rawls 1993, viii–ix). Yes, to be sure, the Rawlsian quest is for a constitutional-essential content that could also find acceptance among moral or metaphysical outlooks that we could not class as comprehensively liberal (say, they might stem from Marxist or Thomist roots), but these must be limited to outlooks that could and would accede to a core of political reasonability in which liberals, too, could join, in order to allow the project of justification-by-constitution conceivably to work across liberal/non-liberal boundaries.

Citizens who find themselves admitting the reasonability (or say the moral tolerability in the circumstances) of a public convergence on that core as regulatory for their society’s basic structure will still differ in their levels of heartfelt spontaneous affinity for it (Ferrara’s invisible circle). A liberally well-ordered society would be geared toward minimizing any kind of social put-down of the less enthusiastic. ‘The regime’, as Andy Koppelman has elsewhere said, ‘will be a good deal less brutal if it understands that remainders are inevitable’ (Koppelman 2009, 479). Still some significant residue of such a moral cost there might yet have to be from the Rawlsian liberalistic hemming in of political reasonability.

But also from that hemming comes what should count as a moral gain, the more so as our pluralistic sympathies might continue to expand. That Rawlsian hem around political reasonability is what assures to dissenters from currently prevailing policies an open channel, a listening ear in public discourse, for their expressions of protest and agitations for correction. The hem, I am saying, is double-faced. On its outward-facing aspect, it conditions admission to the circle on a readiness to confine political judgment (on matters of constitutional essentials and basic justice) to considerations that aptly register as public within the constitutional-democratic society at hand. On its inward-facing aspect, it demands openness of mind and responsiveness of judgment to any and all such considerations as may be put forward, regardless of disturbance or offense to any particular comprehensive view. Grant, with Koppelman and Winter, that the precise contours of publicity of reasons must vary across societies in accord with differing histories and conditions (Koppelman 2024; Winter 2024). Those contours still will have a lot in common across societies that would qualify for Rawls as constitutional-democratic. And among those common threads is this: that salience within some one or other comprehensive view (which view is not as such inadmissible in a liberal society) does not ipso facto suffice to make a consideration a publicly reasonable one, regardless of clash with other such views abroad in society. That is one way in which Rawlsian public reason already includes the principle of reciprocity. And that is a feature of it that should appeal to those of the liberal-minded who also share a generously pluralist sensibility.

I will take here as illustration Andy Koppelman’s contribution to our colloquy. Koppelman complains against the comprehensive conception of justice as fairness – promoted by Rawls as the most reasonable for us – of a tendentious closure against pleas of goods of the body when weighing the constitutionality of government policies. In past exchange between us two, the case Andy put was that of a putative state policy to limit the free choice of parents over subjection of young children to surgical limitation of their future powers of sexual enjoyment (‘genital cutting’ or ‘FGM’). How does such a policy stand with respect to constitutional rights?

In justice as fairness, Koppelman reminds us, judicial determinations of the scopes of application of abstractly named constitutionalized basic liberties are to be ‘deriv[able] abstractly from the moral powers’ (Koppelman 2024, {1}). Koppelman’s concern is that the demand for a moral-powers connection for constitutional-rights applications strips out of the constitution any impetus (let alone mandate) toward state regulatory protection of young children against lifetime deprivation of capacity for sexual engagement and enjoyment that properly count in our societies as a basic, formative human interest and right. It leaves seekers after such protection bereft of any constitution-level consideration with which to confront claims of parents to constitutionally protected liberties of conscience, religion, or child-rearing.

In prior work with which Koppelman here takes issue, I contended against that conclusion. I argued that the moral-powers connection for any constitutionally protected liberty, as posited in justice as fairness, could and should cover rights of bodily security and integrity (see Michelman 2015). Now, that argument of mine is not free of steps that are subject to fair debate. I think it reasonably should carry the day; but others may not, and the objection then still would remain against justice as fairness that it leaves a public obligation of protection of the child’s bodily integrity, including sexual capacity, hanging by the thread of that particular argumentative exertion of mine.

But then what I want to say is that the political-liberal hem around reasonability comes crucially to the aid of that objection. True, on its inward-facing aspect that hem may, in a society such as ours, demand a high-grade consideration for parental liberty. On that same aspect, though, it says you cannot make parental liberty an automatic trump over concern for the bodily and sexual goods of the child; not, anyway, on the sole authority of some comprehensive conception of liberal justice when that is only one of a family of reasonable such conceptions. That putting-in-place of comprehensive conceptions covers justice as fairness when taken as such. As long as Koppelman has an entry in the family which includes a high-grade commitment to a humanly basic ‘good of sexual pleasure’ (Koppelman 2024) (it would be along with, not in place of, the good of moral agency), a democratically enacted state regulatory policy that strikes an at-least reasonable accommodation among these and other basic goods or liberties can pass muster under the LPL (see Michelman 2022, 52–54, 165–68).

Now in fact Koppelman allows that such is the case for state regulation of FGM in the event such regulation occurs (see Koppelman 2009, 469, cited and quoted in Koppelman 2024). His complaint against justice as fairness is that it carries no special impulse of justice toward the enactment of such regulation. If, in justice as fairness, sexuality is ‘not a matter of the constitutional essentials’ (Koppelman 2009, 466), then the legislature is on that conception free to act in this field on whatever grounds it finds appealing. Not, so, however, on the political-liberal conception that Rawls came to embrace. On that conception, the legislature acting on matters affecting the scheme of liberties for all must limit its considerations to those that can count across that society as public and as basic. A regard for everyone’s bodily integrity and for the lifetime capacities of children (including the sexual) should surely thus count for us, as should the goods and liberties of parenthood. On Koppelman’s view (mine, too, if it matters), the case then is strong for regulation of parental imposition of FGM on children who cannot, in the circumstances, provide what should count as free consent.

Does it remain so when we add to the goods that should count the human and social good of the dignity of womankind in our society? Taken in the abstract, a consideration for that good surely should count as a perfectly admissible public reason in a constitutional-democratic society, one not peculiar to some or other comprehensive view. But what could not possibly thus count in our society would be an equation of that good of feminine dignity and social membership with a distribution among our feminine population of ‘FGM’ certificates of entry. And then again, a general leaning toward consideration, in the drafting of regulatory laws, for the various religious sensibilities and vocations of citizens may count as a constitutional-democratic public reason. But what could not so count for us would be a concession to religious vocation as a super-right regardless of the basic liberties of others. A Rawlsian legislature may not place any such concession, or any resultant equation of FGM with feminine social membership, into its scale of judgments regarding regulatory policy respecting FGM. ¹⁰

Might a legislator conscientiously seeking optimization across concerns for protection against infliction of major harm, liberties of parenting, and claims to fair regulatory consideration for religious vocation – all of those deemed of constitutional import – possibly still conclude against prohibition? Koppelman would not; I might support him. But if others fairly could, on publicly reasoned grounds, with deliberative majority support, what could be the principled egalitarian-liberal objection against that as the political upshot?