The general idea that only such exercises of public power which are based on proper “public” reasons are legitimate can be translated into a constitutional doctrine under which improper legislative motives contaminate a law with unconstitutionality. But is such a “translation” legitimate? In this paper, I undertake three tasks. First, I reinterpret a Rawlsian idea of “public reason” in a way which lends itself, in my view, to constitutional application. Second, I defend the idea (in its constitutional version) against the main objections raised by its critics: that it is either too thick, or too thin, or that it creates perverse incentives for insincerity in public life. Third, I sketch the connection between constitutional public reason and the idea of motivation-based scrutiny of constitutionality.
Wojciech Sadurski is the Challis Professor of Jurisprudence at the University of Sydney and a Professor of the University of Warsaw. He has previously held a professorship at the European University Institute in Florence, and he has taught most recently at Yale Law School, New York University School of Law, Cardozo Law School in New York, the University of Toronto, and the University of Trento. He is a member of a number of supervisory or program boards, including the Institute of Public Affairs (Poland), the Freedom of Press Observatory (Poland), and the Centre for International Affairs (Poland). Chair of the Academic Advisory Board of the Community of Democracies, he has written extensively on the philosophy of law, political philosophy, and comparative constitutional law. His most recent books include Constitutionalism and the Enlargement of Europe (OUP 2012) and Equality and Legitimacy (OUP 2008).