Fairness, Consensus, and the Justification of the Ideal Liberal Constitution

Abstract

In Constitutional Goods Brudner argues that the justification of the ideal liberal constitutional must be based on an alternative conception of public reason from that that presented by Rawls in Political Liberalism. This paper sets out the disagreement between the two notions of justification, and argues that Brudner's proposed account is problematic on two accounts. Firstly, it seems internally inconsistent. Brudner's alternative to Rawls's overlapping consensus, a convergent consensus on an inclusive conception of liberalism, will be impossible given the plural and often contradictory nature of differing liberal doctrines. Secondly, even if such a consensus is possible it will be characterized by modus vivendi rather than a reasonable agreement based on the value of fairness. Consequently, Brudner's notion of public justification will lack both fairness and consensus, and should therefore be rejected as the basis for the ideal liberal constitution.