Abstract

Taking religious freedom as illustrative, this essay proposes a theory of the basic freedoms that pacifies the conflict among libertarian, egalitarian, and communitarian sects of liberalism. This theory follows John Rawls’s suggestion that constitutional courts are exemplars of public reason but rejects his partisan construal of public reason in terms that only an egalitarian liberal would recognize. If, as Rawls argues, liberal pluralism is reasonable and if constitutional courts are guardians of public reason, then an ideal constitutional court will guide itself by the theory of the basic freedoms that reconciles liberal pluralism with the rule of public reason. Such a theory will integrate the plurality of liberal sects into an inclusive liberalism that preserves a distinctive role for each in defining and limiting constitutional rights, while refining them of the errors resulting from their hegemonic ambitions. Liberal pluralism is thus preserved, but liberal fragmentation is overcome. Public reason is sought not through an escape from pluralism but in a logical concord among the denominations of liberalism. The way for courts to execute this concord in constitutional cases is to follow the method of reasoning they have already largely adopted. That method is proportionality review.