Legalizing public reason: The American dream, same-sex marriage, and the management of radical disputes

DOIhttps://doi.org/10.1108/S1059-4337(2009)0000049008
Published date02 November 2009
Date02 November 2009
Pages125-156
AuthorKeith J. Bybee,Cyril Ghosh
LEGALIZING PUBLIC REASON:
THE AMERICAN DREAM,
SAME-SEX MARRIAGE,
AND THE MANAGEMENT
OF RADICAL DISPUTES
$
Keith J. Bybee and Cyril Ghosh
ABSTRACT
Beginning with Rawls’s claim that the Supreme Court is the exemplar of
public reason, we develop a theory of how reasoned arguments are used in
political disputes. We argue that justices often make piecemeal arguments
and that this fragmented style of argumentation extends beyond the
bench. The result is that many political disputes are ‘‘legalized’’ – not
because public arguments are necessarily about laws, but because public
arguments often unfold in the same ambiguous way that they do on the
Court. We illustrate our argument by examining the use of American
Dream talk in the dispute over same-sex marriage (SSM).
$
Both authors contributed to the chapter equally. The ordering of author names here is
alphabetical and is not an indication of primary/secondary authorship.
Studies in Law, Politics, and Society, Volume 49, 125–156
Copyright r2009 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000049008
125
What role does reasoned argument play in politics? In The Federalist Papers,
Alexander Hamilton argued that public reason is often undermined by the
basic elements of political life. ‘‘Ambition, avarice, personal animosity,
party opposition’’ are motives that drive parties on both sides of any given
debate, warping arguments to suit the passions and interests of the
advocates. Even if we somehow manage to filter out impure motives,
Hamilton noted, reasoned argument will still be beset by ‘‘the honest errors
of minds led astray by preconceived jealousies and fears.’’ ‘‘So numerous
indeed and so powerful the causes which serve to give a false bias to the
judgment,’’ Hamilton argued, ‘‘that we, upon many occasions, see wise and
good men on the wrong as well as on the right side of questions of the first
magnitude to society’’ (Hamilton, Madison, & Jay, 1961, p. 34).
The dim possibilities for reasoned politics envisioned by Hamilton grow
even darker when we consider political conflicts between parties separated by
starkly different frames of reference. Conflicts between people who inhabit
different social worlds – people who have very different moral, psychological,
and philosophical standards for evaluating facts and claims – are radical
disputes in which contending parties have ‘‘almost no common premises and
very little common language’’ (Luker, 1984, p. 2). Reasoned argument,
already weakened by the passions and interests of ordinary politics, would
seem to be entirely overmatched in the context of clashing worldviews.
And yet, there are many who claim that reasoned argument plays a
central role in political life. Hamilton cast doubt on the efficacy of public
reason, but he did so in the course of making an extended series of reasoned
arguments in favor of the newly proposed constitution. More recently,
radical disputes like those over abortion have attracted the attention of
scholars who have insisted that even the most profound political divides can
be bridged by reasoned argument (cf. Gutmann & Thompson, 1998). When
it comes to public reason, it would seem that there is cause for both hope
and despair.
In this chapter, we take up the question of public reason’s role and
develop a theory of how public reason is deployed to manage political
disputes. We argue that in practice public arguments are often ambiguous
and incompletely theorized. Such arguments organize the ground on which
the public may either flourish or flounder. That is, ambiguous arguments at
once present the opportunity for resolving disputes (though this opportunity
is somewhat different than the dispute-resolving opportunities presented by
formally organized, logically impeccable ‘‘public reason’’) as well as create
the possibility for perpetuating disputes (producing the mere re-packaging
of disagreement rather than a basis on which genuine consensus may occur).
KEITH J. BYBEE AND CYRIL GHOSH126
To illustrate our thesis, we select the same-sex marriage (SSM) debate and
demonstrate how an ambiguous and incompletely theorized set of
arguments about national ideals, particularly the ideals of the American
Dream, (i) characterize much of the debate over SSM and (ii) offer an as-of-
yet-unrealized possibility of bridging the divide between the various
contending parties in this dispute.
The chapter proceeds in three parts. In Part I, we begin with John Rawls
and his famous claim that the U. S. Supreme Court is the exemplar of public
reason. We agree that the high bench provides a model of reasoned
argument, but we disagree with Rawls about the kind of reasoned argument
in which members of the Court engage. Drawing on the work of Charles
Lindblom, Edward Levi, and Cass Sunstein, we argue that judicial
reasoning is actually often piecemeal and ambiguous, without developed
premises or well-specified conclusions. This fragmented, ambiguous reason-
ing employed by the Court may point beyond itself, promoting deliberation
as actors attempt to work out the issues left unsettled in judicial opinions.
Such deliberation is a possibility, not an inevitability. We recognize that
unfinished, ambiguous reasoning of Court decisions may not lead to fruitful
discussion and substantive agreement. In that case, then, the Court will have
produced piecemeal decisions that do not point beyond themselves. Without
stimulating further deliberation, ambiguous and incomplete judicial
decisions are problematic: they can be seen as unpredictable (in the sense
that judicial rulings do not logically vindicate pre-existing principles) and
partial (in the sense that decisions remain limited to the shifting distribution
of interests on the bench). In the absence of supplementary discussion and
debate to refine and develop the terms of judicial decisions, the Court’s
muddled public reasoning will remain a muddle.
With a clear sense of how incompletely theorized judicial reasoning may
shape the terms on which debate is organized and conducted, we then ask if
this model extends beyond the judiciary and into the public domain. What
would be necessary for ordinary citizens to pursue the promise and risk the
pitfalls of judicial-style argumentation? And what sort of ‘‘public’’ would
the reliance on such arguments produce? We hypothesize that the broad use
of ambiguous forms of reasoning will require, at minimum, some baseline
commonalities among disputants that provide the raw material for making
piecemeal and partial claims. Moreover, we hypothesize that the reliance on
ambiguous arguments will organize the public on terms that not only offer
the opportunity to unite an enormous range of political meanings but also
present the possibility that serious rifts between groups will be preserved and
entrenched.
Legalizing Public Reason 127

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