Constitutional public reason book symposium: public reason and the smoking out of illicit motives

Abstract

This article reviews Wojciech Sadurski’s book on public reason. Sadurski’s main argument is that courts can determine whether a law expresses fundamental respect for persons by performing a motive review. The review will focus predominantly on the second part of Sadurski’s book where he reconstructs the domestic case law of different constitutional and supreme courts to highlight that these courts often make use of a motive review without explicitly saying so. The article offers four comments: first, I believe that Sadurski’s reconstruction of the case law of different constitutional courts is largely correct. Courts do indeed often perform a motive review under the proportionality test without explicitly acknowledging this. Second, I do not share Sadurski’s normative inclination that courts should be more open in labelling their motive review as such as this could lead to political backlash. Third, I fear that the concept of public reason as motive review is underinclusive. I argue that motive review does not cover (and should not cover) the majority of what courts do when reviewing government action. The final comment addresses the third part of the book on international governance, where I argue that Sadurski’s conception is slightly too court-centric.