Edited by Erin F. Delaney and Rosalind Dixon
Chapter 17: Judicial review and Public Reason
After a brief introduction to Public Reason, this chapter discusses the interconnection between Public Reason and judicial review. Canvassing examples from Canada, the United States, Germany, and Australia, the author argues that Public Reason can be, and in fact has been in certain cases, used to examine the constitutionality of motives behind legislation under review. After highlighting the evidentiary difficulties of identifying and proving motives within such a framework and outlining the clashes this can create between the judiciary and the legislature, this chapter concludes by arguing that Public Reason can help identify or “objectify” which motives are acceptable and which are not to allow review to work backwards from effects to impermissible motives. Such an approach would avoid the evidentiary issues presented above and put the legislature on notice of what would be required of future legislation.
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